Najdovski v Cryovac Australia Pty Ltd
[2015] VCC 1868
•17 December 2015
IN THE COUNTY COURT OF VICTORIA
AT MELBOURNE
COMMON LAW DIVISION
Revised
Not Restricted
Suitable for PublicationSERIOUS INJURY LIST
Case No. CI-14-02984
CANE NAJDOVSKI Plaintiff v CRYOVAC AUSTRALIA PTY LTD Defendant ---
JUDGE:
HER HONOUR JUDGE HINCHEY
WHERE HELD:
Melbourne
DATE OF HEARING:
27 and 28 August 2015
DATE OF JUDGMENT:
17 December 2015
CASE MAY BE CITED AS:
Najdovski v Cryovac Australia Pty Ltd
MEDIUM NEUTRAL CITATION:
[2015] VCC 1868
REASONS FOR JUDGMENT
---Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – paragraphs (a) and (c) of the definition of “serious injury” – pain and suffering and loss of earnings – injury to right shoulder and cervical spine – plaintiff’s credit - whether substantial organic basis for consequences alleged by plaintiff - whether injury resulted in serious injury consequences – relevant principles
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd (2006) 14 VR 602; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242; Advanced Wire & Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170; Hunter v Transport Accident Commission & Avalanche [2005] VSCA 1; Meadows v Lichmore Pty Ltd [2013] VSCA 201; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd (t/a Arnold Webbing Australia) v Filipowicz (2012) 34 VR 309; Peak Engineering & Anor v McKenzie [2014] VSCA 67; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181; Acir v Frosster Pty Ltd [2009] VSC 454
Judgment: Application granted.
---
APPEARANCES:
Counsel Solicitors For the Plaintiff Ms A Ryan L N Christie & Co For the Defendant Ms R Kaye Hall & Wilcox Table of Contents
Introduction........................................................................................................................................ 1
Relevant legal principles................................................................................................................. 2
The plaintiff’s background............................................................................................................. 4
The incident........................................................................................................................................ 6
The plaintiff’s evidence................................................................................................................... 6
Experience of pain, medication and treatment....................................................................... 6
Plaintiff’s qualifications and capacity for work........................................................................ 9
Attempts to return to work.......................................................................................................... 11
Activities of daily living.............................................................................................................. 12Medical evidence ........................................................................................................................... 16
Treating doctors.......................................................................................................................... 16
The plaintiff’s medico-legal evidence..................................................................................... 18
The defendant’s medico-legal evidence................................................................................ 20The plaintiff’s earnings ................................................................................................................. 20
The issues ....................................................................................................................................... 21
The plaintiff’s credit.................................................................................................................... 21
Stoicism........................................................................................................................................ 23
Compensable injury.................................................................................................................. 23
Substantial organic basis.......................................................................................................... 23The right shoulder............................................................................................................ 24
The cervical spine............................................................................................................ 27What is the source of the plaintiff’s cervical spine pain?................................................... 27
Is the plaintiff suffering from a severe mental disturbance or behavioural disorder?... 27
Is the compensable injury permanent for the purposes of the Act?................................ 29
The task of disentanglement – parallel medical conditions suffered by the plaintiff.... 29
Conclusions as to pain and suffering consequences.......................................................... 30
Pain............................................................................................................................................... 30
Medication and its effects......................................................................................................... 32
Interrupted sleep......................................................................................................................... 32
Work restrictions......................................................................................................................... 33
Effect on social life and activities of daily living.................................................................... 34Do the consequences satisfy the narrative test?................................................................... 36
Loss of earning capacity.............................................................................................................. 39
Conclusion....................................................................................................................................... 43
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 in the course of his employment with Cryovac Australia Pty Ltd (“Cryovac”) between March 2001 and July 2008 and, in particular, an incident which occurred on 9 July 2008.[1]
[1]Transcript (“T”)1 (23-26)
2 The plaintiff seeks leave to bring proceedings for damages in relation both to pain and suffering and loss of earning capacity. These discrete heads of damage require the application of different statutory tests, as mandated by s134AB(37) and (38) of the Act.
3 The application is brought pursuant to clauses (a) and (c) of the definition of “serious injury” as that term is defined in s134AB(37) of the Act.
4 The impairments of body function relied upon are function of the right arm including the right shoulder and impairment to the cervical spine.[2]
[2]T1(28-30); T2(1)
5 The plaintiff swore two affidavits, gave viva voce evidence and was cross-examined.
6 In addition, both parties relied upon medical reports and other materials which were contained within Court Books tendered in evidence.[3] The defendant also tendered a DVD of a short amount of surveillance carried out on the plaintiff.[4] I have considered all of the tendered material. In this judgment, I will refer only to relevant parts of the tendered material.
[3]The plaintiff’s court book was marked Ex P1; the defendant’s court book was marked Ex D2
[4]The DVD was marked Ex D1
Relevant legal principles
7 In considering an application under s134AB of the Act, I am required to and have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[5] and Grech v Orica Australia Pty Ltd & Anor[6] in reaching my conclusions. I have also taken into account the matters referred to below, which apply to this application.
[5](2005) 14 VR 622
[6](2006) 14 VR 602
8 The Court must not give leave unless it is satisfied, on the balance of probabilities, that the “injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s134AB(37) of the Act.[7]
[7]Section 134AB(19)(a) of the Act
9 The plaintiff relies on paragraphs (a) and (c) of the definition of “serious injury” contained in s134AB(37) of the Act which read:
“‘Serious injury’ means –
(a)permanent serious impairment or loss of a body function; or
(b)…
(c)permanent severe mental or permanent severe behavioural disturbance or disorder….”
10 As referred to above, the parts of the body said to be impaired for the purposes of paragraph (a), are the right arm including the right shoulder, and the cervical spine.
11 To establish serious injury, the plaintiff must prove, on the balance of probabilities, that:
(a) “the injury” suffered by him arose out of or due to the nature of his employment with the employer on or after 20 October 1999;[8]
[8]Section 134AB(1) of the Act; see also Barwon Spinners Pty Ltd & OrsvPodolak (2005) 14 VR 622
(b) “the injury” and resulting impairment must be “permanent” – that is, permanent in the sense that it is “likely to last for the foreseeable future”;[9]
(c) the “consequences” to the plaintiff of the relevant impairment in relation to each of “pain and suffering” and “loss of earning capacity” are “serious” – that is, those consequences “when judged by comparison with other cases in the range of possible impairments … may be fairly described as being more than significant or marked, and as being at least very considerable”.[10]
[9]Barwon Spinners Pty Ltd & OrsvPodolak (2005) 14 VR 622 at [33]
[10]Section 134AB(38)(b) and (c) of the Act
12 The requirement to satisfy these elements is sometimes referred to as the “narrative test”.
13 The question of whether an injury satisfies the narrative test is largely a question of impression or value judgment.[11]
[11]See Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592 at 628; see also Sabo v George Weston Foods [2009] VSCA 242 at [67]
14 In determining the “consequences” of the injury, the Court is required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury.
15 Where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of 40 per cent or more, both at the date of the hearing and permanently thereafter.[12]
[12]Section 134AB(38)(e) of the Act
16 Subsections 134AB(38)(e) and (f) recite the formula by which loss of earning capacity is to be measured.
17 Subsection 134AB(38)(g) requires questions of rehabilitation and retraining to be considered in determining whether the 40 per cent loss has been established.
18 If the plaintiff satisfies the test laid down by the Act in relation to loss of earning capacity, then he is at large to make a claim for damages; that is, for both pain and suffering and loss of earning capacity.[13]
[13]Advanced Wire & Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170 at [63], per Redlich JA and Beach AJA: “A plain reading of s 134AB permits a plaintiff who satisfies the loss of earning capacity requirements of that section to claim damages for both loss of earning capacity and pain and suffering. The history of s 134AB confirms this proposition.”
19 In determining the application, the Court:
(a) must not take into account psychological or psychiatric consequences of “the injury” for the purposes of paragraph (a) of the definition of “serious injury” – these can only be taken into account for the purposes of paragraph (c) of the definition of “serious injury”;[14]
[14]Section 134AB(38)(h) of the Act
(b) must assess whether “the injury” is a “serious injury” as at the time the application is heard;[15]
(c) must give reasons that disclose the pathway of reasoning in dealing with the evidence and issues raised by the application.[16]
[15]Section 134AB(38)(j) of the Act
[16]See generally HuntervTransport Accident Commission & Avalanche [2005] VSCA 1 at [23]-[26]
The plaintiff’s background
20 The plaintiff was born in Macedonia on 19 May 1957 and is 58 years of age. In Macedonia he attended school up to the age of 18.[17] He came to Australia in 1976, aged 19 years.
[17]Ex P1, pge 20, paragraph 5
21 He is married and has two children, a married daughter aged 29 years and a son who still lives at home, who is aged 22. His wife stays at home performing home duties.[18]
[18]Ex P1, pge 19, paragraphs 2 and 4; T49(28)
22 His first job in Australia was working in a meat factory for a few months. He then worked as a trade assistant for a fitter and turner for two to three years.[19]
[19]Ex P1, pge 20, paragraph 7
23 Since that time he has worked as a machine operator. He worked at Nippondenso as a machine operator for three to four years. He then worked as a machine operator at Minasco for about three years. Following that he worked for Glenross as a machine operator for about two years. He then worked for South Pacific Tyres as a machine operator for about ten years.[20]
[20]Ex P1, pge 20, paragraph 8
24 In about 1998 while at South Pacific Tyres, the plaintiff suffered a back injury and was treated on two occasions by an orthopaedic surgeon. He was able to remain on lighter duties and eventually the back pain resolved. He stopped work at South Pacific Tyres when the factory in Somerton closed down.[21]
[21]Ex P1, pge 20, paragraphs 8 and 9
25 He commenced work with Cryovac (“the employer”) as a machine operator in March 2001. The employer is involved in the manufacture of plastic wraps for the food industry. He was employed five days on and five days off, earning approximately $1770 gross per week inclusive of overtime.[22]
[22]Ex P1, pge 20, paragraphs 9 and 10
26 The plaintiff’s work with the employer was heavy, physical and repetitive. He worked on the slitting machine, where he was required to load large, heavy plastic rolls onto that machine, which would cut the rolls up into smaller sizes. Once they were cut, the plaintiff would manually lift the smaller rolls off the end of the slitting machine and onto a bench. The smaller rolls would weigh between 30 and 60kgs. He would be required to lift between 50 and 200 of these rolls per day.[23]
[23]Ex P1, pge 21, paragraph 12
27 The plaintiff also worked on a machine called the “Poly 3”. He worked on this machine for about a year before suffering an injury on 9 July 2008. On this machine, the plaintiff was required to lift bags of material weighing between 25-30kg and to tip the contents into bins. He was also required to handle and manoeuvre heavy wooden pallets weighing between 50 and 60kg.[24]
[24]Ex P1, pge 21, paragraphs 13 and 14
The incident
28 In his affidavit sworn 3 February 2014, the plaintiff described the accident at work (“the incident”) and its immediate aftermath in the following terms:
“15. On the day of the injury, 9 July 2008, I was removing a timber pallet from the top of a stack of about 6 or 7 pallets. I did this on my own. Although there were forklifts in the factory these were often not available, that is, the forklift operators were busy working in other areas of the factory. In addition, there was no one around to help me.”
16.…
17.The top pallet was 3 to 4 feet off the ground. I went to slide the top pallet off the stack. I pulled it about ¾ away from the stack. At this point I felt a nail penetrate the glove of my left hand side as a result of which I took the entire weight of the pallet on my right hand and arm. I did not want to drop the pallet for fear of it falling on my feet. I felt sharp pain in the region of my neck, right shoulder and right elbow in addition to my groin...[25]
[25] Ex P1, pge 21, paragraphs, 15 and 17
The plaintiff’s evidence
29 The plaintiff swore two affidavits, the first on 3 February 2014 and the second on 12 August 2015. He was cross-examined and was also re-examined. In summary, the evidence given by the plaintiff as to the pain and suffering consequences and loss of earning capacity which he experiences as a result of the incident, was as follows:
Experience of pain, medication and treatment
(a) following the incident, the plaintiff went to see Dr Wardlaw, his general practitioner, with pain in his neck, right shoulder and right elbow.[26] Dr Wardlaw injected the plaintiff’s right shoulder with cortisone, which only provided temporary relief;[27]
[26]Ex P1, pge 22, paragraph 21
[27]Ex P1, pge 22, paragraph 21
(b) in the aftermath of the incident, he was taking painkillers Tramadol, Temazepam, Maloxican and Panadeine Forte, and having physiotherapy;[28]
[28]Ex P1, pge 22, paragraph 22
(c) on 29 September 2011 he saw rheumatologist, Dr Roland Ebringer, who injected his right shoulder. This did not help.[29] When he was reviewed by Dr Ebringer on 2 February 2012, he was commenced on Lyrica, 75mgs. The pain at that time included bilateral neck pain, headache, dizziness, right shoulder pain, right elbow pain and referred symptoms down his right arm including pins and needles in his right hand;[30]
[29]Ex P1, pges 22, paragraph 25
[30]Ex P1, pge 22-23, paragraph 26
(d) he was referred for various investigations including an x-ray of the neck and right shoulder and an ultrasound of his right shoulder, all on 7 February 2012.[31] He also underwent an MRI of his neck on 19 July 2012 and this revealed low grade facet joint arthropathy on the left at C3/4, on the left at C4/5 and bilaterally at C5/6 and C6/7;[32]
[31]Ex P1, pge 23, paragraph 27
[32]Ex P1, pge 23, paragraph 27
(e) he commenced a pain management course at Dorset Rehabilitation centre in June 2013. The course ran for about five months. He did not find the pain management course helpful;[33]
[33]Ex P1, pge 23, paragraph 31
(f) he continues to suffer from constant and ongoing pain in the region of his right shoulder which he describes as a sharp, cramp style of pain. The pain radiates down into his right arm, right elbow and into the fingers of his right hand. He suffers from a sensation of pins and needles in his right arm going down into his right hand. He suffers from pain in his neck. He has restricted movement in both his shoulder and neck. He has frequent headaches accompanied by blackouts and dizziness. He suffers from ringing in his ears;[34]
[34]Ex P1, pge 28, paragraph 3
(g) he has difficulty lifting his right arm above head height. He has difficulty lifting heavy weights with his right arm. He finds it difficult to twist his neck from side to side;[35]
[35]Ex P1, pge 28, paragraph 4
(h) his ability to get a good night’s sleep has been affected by his pain.[36] He wakes frequently during the night with pain and needs to get up and “stretch it off”;[37]
[36]Ex P1, pge 24, paragraph 37
[37]Ex P1, pge 28, paragraph 5
(i) due to his relative inactivity since ceasing work, initially he put on about 7-8kgs in weight.[38] In more recent times he has experienced a dramatic weight loss, which he attributes to the effect of his medication on his appetite;[39]
[38]Ex P1, pge 24, paragraph 38
[39]Ex P1, pge 29, paragraph 12
(j) his medication presently consists of Tramadol, about 200mg daily. He usually takes Tramadol 100mg in the morning and two to four Tramadol 50mg as needed through the day. He also takes the muscle relaxant Valpam 5mg, in the evening. On top of this he relies on Panadeine Forte[40] or Panamax.[41] On a very bad day he takes up to 8 to 10 Panadeine Forte. He also relies on a sleeping tablet, Temazepam, which he takes most nights to help him get to sleep;[42]
[40]Ex P1, pge 29, paragraphs 7 to 10
[41]T33 (29-30)
[42]Ex P1, pge 29, paragraphs 7 to 10
(k) he finds that when he takes his medication in the morning, he needs to rest for three or four hours for the pain to settle down, before he can do anything;[43]
[43]T34 (16-21)
(l) he experiences a sensation of sharp pain and dizziness whenever he moves his head quickly. On one occasion in about 2014, he fell off the back steps of his house. The sudden movement of his neck when he looked downwards made him blackout, as a result of which he struck a glass table and cut his right ring finger.[44] Under cross-examination he said that the dizziness only started since the incident in July 2008.[45] He said that he had never had a problem with blackouts prior to that time.[46] He could not recall ever having seen Dr Cheong, a cardiologist, although he could recall having certain heart tests.[47] He did not recall ever speaking to Dr Cheong about blackouts or dizziness;[48]
[44]Ex P1, pge 25, paragraph 45 and 46
[45]T57 (16-18)
[46]T57 (23-24)
[47]T57-58
[48]T58 (15-27)
(m) the pain affects his ability to focus, concentrate and remember things;[49]
[49]Ex P1, pge 31, paragraph 26
(n) he could not recall what sort of injury he had in a car accident in 1990;[50]
[50]T59 (21-24)
Plaintiff’s qualifications and capacity for work
(o) he has performed machine operating duties now for more than 20 years. This is essentially all he knows;[51]
[51]Ex P1, pge 25, paragraph 42
(p) he has a forklift licence, although he does not believe that he would be able to operate a forklift on an unrestricted basis, as he has headaches and difficulty concentrating;[52]
[52]Ex P1, pge 25, paragraph 42
(q) he continues to see Dr Wardlaw who has in the past provided him with certificates stating that he is fit for restricted duties involving no lifting in excess of 10kg. Dr Wardlaw has also previously indicated that the plaintiff could trial light forklift duties, although the fact that he is on medication which has side effects, makes this problematic;
(r) the plaintiff doubts that with his neck and right arm pain, he could manage such duties.[53] He believes that he would have difficulty moving his neck freely in order to drive a forklift, or to get on and off the forklift on a constant basis. He would also have difficulty handling the jolting produced by the forklift’s movements;[54]
[53]Ex P1, pge 24, paragraph 39
[54]Ex P1, pge 25, paragraph 42
(s) his reading, writing and spelling are not good. He is not computer literate, although under cross-examination he acknowledged that he had done some “data entry” with South Pacific Tyres.[55] He said that “the program was set up” and that “I only just put the numbers in;”[56]
[55]T60 (8-26) – T61 (4-16)
[56]T61 (4-7)
(t) he has been unable to get back into the workforce since finishing with the employer.[57] He has attempted to comply with the requests of rehabilitation providers in terms of retraining;
[57]Ex P1, pge 29, paragraph 14
(u) over approximately the past twelve months he attended a combined computer and English course at a local community centre in Lalor. [58] The course ran for three hours per day, two days per week over a period of six to eight months. He found it difficult to concentrate when attending the course. He found that being in front of the computer for prolonged periods of time aggravated his pain. In the end he did not really learn a lot about computers, certainly not enough to get him a job in that area. Similarly, he found that his English did not improve much after completing the course. His English remains average at best.[59] He passed the assessment at the end of the course;[60]
[58]T 55 (27-30)
[59]Ex P1, pges 29-30, paragraph 17
[60]T 56 (26)
(v) in relation to the jobs which the defendant suggested constituted suitable employment, under cross examination the plaintiff said: “I can try anything but I am not able to do it…because of my condition and my medication.”[61] He said that in his role with the employer: “I was on Tramadol 100, and Panadeine Forte. I wasn’t taking that much [medication] on the day time, I was taking less medication and as I mentioned an extra person to cover my extra job. Sort of two people, three people are working…;”[62]
[61]T 61-62
[62]T62-63
(w) he said that he is concerned about two things with getting back to work, firstly, that it takes time in the morning for the painkillers to start working in order for him to be able to do the suggested jobs, and secondly, the medication affects his concentration, which in turn would affect his ability to be able to perform the suggested roles;[63]
[63]T64 (3-8)
Attempts to return to work
(x) following the incident, he initially tried to battle on with his job, but found he could not do it.[64] Between 9 August 2008 and some time in February 2009, he began training another employee to operate his machine.[65] From that time he effectively acted as a supervisor.[66] These restricted duties lasted for about one year, then he was placed in the packing area.[67] There was lifting involved in this job and he asked the employer to put him on a lighter job such as quality control, but the employer refused;[68]
[64]T38-39
[65]T37 (9-31), T38 (1-3)
[66]T37-38
[67]T40 (3-4)
[68]Ex P1, pge 22, paragraph 23
(y) he persisted in this job for the next three to four years, working five days on and five days off, continuing to be certified fit for restricted duties by Dr Wardlaw and continuing with medication and physiotherapy.[69] Throughout his time in this role, he was able to get assistance from fellow workers when he needed it: “I always had a helper, especially when there was big rolls.”[70] He said that with the help he had, he was able to keep going, but if he had not had help, his injury would have become worse and he would have stopped on his own;[71]
[69]Ex P1, pge 22, paragraph 24
[70]T36 (10-13); T41 (4-14 and 24-30); T43 (20-22); T69 (6-14)
[71]T44 (3-7)
(z) on or about 2 August 2012, he was sent home by the employer, which informed him that until he was 100 per cent better and could be assessed for work, he need not come back.[72] His employment was formally terminated by a letter received on 23 July 2013. The termination was on the basis that the employer did not think the plaintiff was fit for his old job;[73]
[72]Ex P1, pge 23, paragraph 28
[73]Ex P1, pge 23, paragraph 32
(aa) he has not been able to get back to work since being told to go home on 2 August 2012.[74]
[74]Ex P1, pge 23, paragraph 28; Ex P1, pge 29, paragraph 14
Activities of daily living
(bb) he is restricted in many of his former recreational and social activities.[75] In the past he enjoyed fishing. He would go to various locations to fish with family and friends including Kinglake, Heathcote and Eildon. He would go at least once per month. Up until this year, he had not been fishing since about 2013, as he has difficulty driving to the locations and difficulty casting his line. He has difficulty moving his neck and is also concerned about blacking out.[76] He has tried to go fishing twice but found it difficult, with increasing pain in his right shoulder, arm and neck.[77] The last time he went fishing was three or four months ago;[78]
[75]Ex P1, pge 25, paragraph 44
[76]Ex P1, pge 25, paragraph 47
[77]Ex P1, pge 30, paragraph 19
[78]T46-47
(cc) in the past he regularly enjoyed attending soccer games. He would often go on a weekly basis. Now he goes every two to three months. It is no longer as pleasurable as it used to be. He finds that if he moves his head in order to watch the game, the pain increases. He has difficulty concentrating on the game.[79] He recently attended an A league finals game and did not enjoy it at all,[80] although he was able to stay for the entire match.[81] He found that he was in pain the whole time and could not get comfortable to sit and relax and take the game in. He also attended a football game and had the same experience;[82]
[79]Ex P1, pge 25-26, paragraph 48
[80]Ex P1, pge 30, paragraph 19
[81]T 49 (21-24)
[82]Ex P1, pge 30, paragraph 19
(dd) he is restricted in terms of driving for prolonged periods. In the past, he and his family would drive long distances, to places like Bright, Halls Gap and Sydney, where he has relatives. Recently a cousin of his passed away in Sydney and he could not drive there, so his wife and he had to fly there and back.[83] Under cross-examination he said that he had recently been to Kyneton with his wife and he was able to drive the whole way on that trip;[84]
[83]Ex P1, pge 26, paragraph 49
[84]T 54 (4-9)
(ee) he enjoyed cultural dancing at weddings and parties. These days he tends to just sit and watch;[85]
[85]Ex P1, pge 26, paragraph 50
(ff) he enjoyed spending time in the garden. He had a vegetable patch and would trim the trees in the garden. He would mow the lawns and use the whipper snipper. He has difficulty digging in the garden. He has difficulty with most tasks that require movement of his neck or use of his right arm.[86] These days his son tends to mow the lawn and attend to the garden.[87] Under cross-examination the plaintiff said that the last time he tried to dig in the garden was three or four months ago, when he tried to do some weeding. He agreed that it is something he does “from time to time”;[88]
[86]Ex P1, pge 26, paragraph 51
[87]Ex P1, pge 30, paragraph 20
[88]T 53 (17-22)
(gg) because of the weakness in his right hand, he has difficulty holding onto and gripping things. He frequently drops things such as plates, glasses and keys. He has difficulty using tools such as screwdrivers and hammers. In the past, he was quite mechanically minded and was able to service his car and strip a motor. He must now rely on a mechanic[89] or his son will change the oil or a tyre on the car;[90]
[89]Ex P1, pge 26, paragraphs 52 and 53
[90]Ex P1, pge 30, paragraph 20
(hh) under cross-examination he admitted to having done a small amount of work on a rental property at the Mornington Peninsula;[91]
[91]T 67 (16-23)
(ii) in the past he would help his wife with domestic tasks such as washing dishes, vacuuming, mopping and hanging out the clothes. He can no longer do these activities. Even activities such as watching the TV can be difficult if he moves his head suddenly. He finds personal tasks such as showering and shaving difficult.[92] He finds dressing and undressing difficult.[93] He finds he has to sit down to put on shoes and socks and tends to wear slip on shoes as they are easier to put on; [94]
[92]Ex P1, pge 26, paragraphs 54 to 56
[93]Ex P1, pge 28, paragraph 6
[94]Ex P1, pge 26, paragraphs 54 to 56
(jj) he used to enjoy kicking a soccer ball around with his young son, but now has difficulty doing this. [95] He acknowledged that his son is now grown up and is no longer kicking the soccer ball around at the age of 22.[96] He enjoyed swimming at places such as the beach and the pool. He said that he did this for fitness.[97] He is now restricted in terms of swimming,[98] although he admitted under cross-examination that he has attended the beach in the past twelve months;[99]
[95]Ex P1, pge 27, paragraphs 57 and 58
[96]T49-50
[97]T51 (6-24)
[98]Ex P1, pge 27, paragraphs 57 and 58
[99]T52 (1-6)
(kk) he also enjoyed running and bicycling which he no longer does.[100] He admitted under cross-examination that he did not regularly go jogging around the block in the first half of 2008.[101] He said that he used to ride his bike to work, depending upon the weather.[102] He said that he has not tried to ride his bike because he is concerned about having a blackout while riding;[103]
[100]Ex P1, pge 30, paragraph 22
[101]T50 (8-10)
[102]T50 (13-25)
[103]T50 (24-31)
(ll) when he was doing his computer and English course, he would often walk to and from that course. It was about four or five kilometres each way.[104] He is able to walk his dog on a daily basis;[105]
[104]T56 (5-11)
[105]T65 (15-20)
(mm) his family life has been turned upside down by his injury. In the past the plaintiff and his family would regularly get away on weekends when he was not working, to places such as the shops and the markets. In summer they would go to the beach, and in winter, to the snow. All of these activities have “dropped right off” because of the plaintiff’s injury.[106] He has not been to the snow since 2008 or 2009.[107] Last year the plaintiff had booked a holiday in Queensland for a couple of weeks. The tickets had been paid for, but a couple of weeks before the family were to leave, the plaintiff pulled out of the trip as he was concerned about his pain and how he would manage to carry luggage and get about generally;[108]
(nn) he has not been able to visit his family in Macedonia. If it had not been for his injury and his reduced income, he would have gone back to visit them at least once in the last couple of years.[109]
[106]Ex P1, pge 30, paragraph 23
[107]T55 (3-18)
[108]Ex P1, pges 30-31, paragraph 24
[109]Ex P1, pge 31, paragraph 25
Medical evidence
Treating doctors
30 Since the incident, the plaintiff has been treated by Dr Roland Ebringer, a Consultant Physician and Rheumatologist, Dr Zamil Karim, a Consultant Anaesthetist and Pain Specialist, Dr Richard Wardlaw, a General Practitioner and Mr Peter Wilde, an Orthopaedic Surgeon.
31 In his report dated 19 June 2013, Dr Ebringer noted that since the incident, the plaintiff suffered from persistent pain in the right shoulder, neck and shoulder girdle. He said that corticosteriod injections had produced “no improvement”.[110] He said that the plaintiff had continued with analgesics and physical therapy, but continued to have persistent pain with little change. On examination he noted that there is restriction of movement of the right shoulder. Dr Ebringer considered that there was little likelihood of improvement. In his opinion, the acute injury to the right shoulder from the incident had resolved and the plaintiff was now left with a “persisting pain syndrome relating to the shoulder.”[111] He did not attribute any of the consequences from which the plaintiff now suffers to the plaintiff’s cervical spine injury.
[110]Ex p1, pge 33
[111]Ex P1, pge 34
32 Dr Karim’s opinion was that the plaintiff suffered severe pain over his right shoulder, “which extends into his neck, elbow and hand.”[112] He said that the plaintiff has significant restriction in his hand activities and that he is limited by the restrictions in his right hand as he is right hand dominant.[113] In his report dated 30 May 2013, Dr Karim stated that the plaintiff’s right shoulder pain was starting to impact on his sleep “as he was not able to lie on his right side at night”.[114] He also noted that the pain intensity was “described as being variable and increasing in intensity with any physical activity. In addition to the pain he was also getting headaches. He also described pins and needles in his fingers and hand and stiffness in the hands, right side. Pain was also described as impacting on his personal activities of living like showering, grooming and driving. When the pain was quite severe, Mr Najdovski would on occasions experience loss of consciousness.”[115]
[112]Ex P1, pge 47
[113]Ex P1, pge 47
[114]Ex P1, pge 41
[115]Ex P1, pge 41
33 In Dr Karim’s opinion,[116] the plaintiff is unable to be prescribed any anti-neuropathic medication for his right shoulder pain, “given that he had significant side effects with the Pregalbin trial.”[117] In his report dated 11 September 2013,[118] Dr Karim noted that the “Pregalbin has been stopped as has the Amitripyline[119] due to the onset of significant side effects.”[120] Dr Karim did not note any consequences of the aggravation to the plaintiff’s existing cervical spine degeneration. He said that he was not a trained rehabilitation physician and, as such, was unable to comment on the plaintiff’s prospects of returning to work in a particular position.[121]
[116]see the report dated 28 January 2014, Ex P1, pges 45-46
[117]Ex P1, pge 46
[118]Ex P1, pge 43
[119]which was being used to treat the plaintiff’s pain as well as for its an anti-depressive effects
[120]Ex P1, pge 43
[121]Ex P1, pge 47
34 The plaintiff’s GP, Dr Wardlaw, deferred to the specialist opinions in relation to the origin and management of the plaintiff’s pain.[122] In Dr Wardlaw’s opinion, by reason of his Chronic Pain Syndrome (which by reference to the specialist opinions, is related to the plaintiff’s right shoulder injury), the plaintiff has no present work capacity.[123] In his report dated 14 April 2015, he stated in relation to the consequences of the plaintiff’s right shoulder injury: “his future management will be pain management. He will always experience pain, which he must learn to live with.” Dr Warlaw did not attribute any of the symptoms from which the plaintiff presently suffers to the injury to his cervical spine.
[122]Ex P1, pges 53 and 54, 56
[123]Ex P1, pge 57
35 Mr Wilde provided two reports, dated 2 October 2012 and 9 May 2013. In both reports, Mr Wilde noted that the plaintiff’s pain had “escalated”, with symptoms down his right arm.[124] He considered that there was “very little” that a surgeon could do for the plaintiff.[125]
[124]Ex P1, pge 61
[125]Ex P1, pge 62
The plaintiff’s medico-legal evidence
36 The plaintiff relied upon reports from two medico-legal experts, Dr Gerald Moran, an Orthopaedic Surgeon, and Dr Helen Sutcliffe, an Occupational Physician.
37 In his report dated 23 April 2014, Dr Moran stated:
“Mr Najdovski has constant neck pain which fluctuates in severity and his neck movements are restricted. [He also] has constant right shoulder pain... his right shoulder movements are restricted…[and he has] pain down his right arm to all the fingers of his right hand and this pain is present most of the time. Mr Najdovski has pins and needles in his neck, right shoulder and all the fingers of his right hand.”[126]
[126]Ex P1, pge 70
38 In relation to medication, Dr Moran noted that as at April 2014:
“Mr Najdovski takes 1 Tramadol 100mg bd or 1 Tramadol 200 mg bd if his pain is severe. Mr Najdovski takes 6 to 7 Panadeine Forte per day and 1 Immovane 7.5mg nocte…”[127]
[127]Ex P1, pge 70
39 In her report, Dr Sutcliffe noted the following matters:[128]
[128]See generally report at Ex P1, pges 73-78
“Mr Najdovski informed me that he experienced constant pain in the right shoulder girdle and the neck. He had right arm pain on the lateral aspect of the arm to the fingers. He had symptoms of pins and needles in the lateral aspect of the right arm and also in the right hand. He had posterior headaches.
The pain in the neck and shoulder was present at an intensity of 7 on a visual analogue scale of 0 to 10, and arm pain at an intensity of 4-6 on the same scale.
He described shooting pain in the right arm, sharp pain in the neck and aching pain also present.
Mr Najdovski informed me that he woke at night 4-5 times each night and he needs to get out of [bed] as a result of the intensity of pain.
He experiences waking pain and increased pain with activity.
As a result walking was limited to 20-30 minutes and standing was limited as was sitting. Driving was possible for 10-15 minutes and he drove rarely.
He had assistance with self-care from his wife and he performed little domestic activity. He informed me that he had little social activity. He has now ceased his leisure activities of fishing, soccer [and] travelling.
Current medication consisted of Lyrica, Tramal and Panadeine Forte up to 8 a day. He had previously been treated with Norspan patches but these were now ceased.”[129]
[129]Ex p1, pge 75
The defendant’s medico-legal evidence
40 Dr Yong, a Specialist Occupational Physician, provided a medico-legal opinion for the defendant. Dr Yong assessed the plaintiff and gave an opinion primarily in respect of the plaintiff’s current capacity for suitable employment. He set out the following matters relevant to the pain and suffering consequences from which the plaintiff suffers in his report dated 9 April 2014:[130]
[130]Ex D2, pges 31-33
“Mr Najdovski stated that he tried to do some exercises and walk on a daily basis.
Mr Najdovski stated at his own pace and for short periods he is able to do the following tasks:
· Cooking
· Washing the dishes
· Shopping with his wife for light loads
[He] stated that he had the following levels of function
· Sit not unreasonable
· Stand not unreasonable if not moving his hands or his head
· Walk for 20 minutes daily
· Drive for 30 minutes.
Mr Najdovski reported that he is independent of (sic) his activities of daily living although he does find it difficult when he is in pain…”
The plaintiff’s earnings
41 Counsel for the plaintiff provided a summary of gross earnings for financial years dating from 2005 to 2015.[131] The accuracy of this table was not disputed by counsel for the defendant.
[131]Plaintiff’s statement of issues and statement of calculation of loss of earning capacity
Year Ending 30th June
Gross
2005
$70,739
2006
$76,909
2007
$80,612
2008
$81,200
2009
$85,979
2010
$71,323
2011
$75,057
2012
$77,341
2013
$nil (WorkCover payments)
2014
$nil (WorkCover payments)
2015
$nil (WorkCover payments)
The issues
The Plaintiff’s credit
42 The plaintiff was cross-examined by the defendant who endeavoured to demonstrate that, contrary to the plaintiff’s account of matters:
(a) the consequences of the injuries suffered in the incident were not as extensive as that to which the plaintiff deposed; and
(b) that the plaintiff retained an ability to engage in suitable employment.
43 For this purpose, as set out in paragraph 29 above, the plaintiff was cross-examined about his ability to engage in various social activities, the degree to which he was able successfully to return to his pre-injury employment, the conditions under which he worked until he was laid off, his ability to engage in various domestic tasks and the accuracy of other matters to do with the pain and suffering consequences which were deposed to in his affidavit. He was shown a short film of him walking his dog. In the film he acknowledged that he was depicted turning his neck on several occasions.
44 In relation to each of these issues, I find that the plaintiff's account of events has remained consistent throughout the period during which he has seen his treating medical practitioners, consulted with the medico-legal assessors and provided evidence to this Court.
45 Furthermore, his evidence was not undermined to any degree by the surveillance film which was played to the Court. In that film, the plaintiff walked slowly along behind his dog, which was off the leash. While he acknowledged that he was seen turning his neck rather than his whole body on a number of occasions, the plaintiff’s evidence about this matter was that he tries to avoid turning his neck because it causes him pain.[132] At no stage has the plaintiff ever said that he could not turn his neck.
[132]T66 (4-23)
46 There is only one matter in relation to which the cross-examination changed the tenor of what had been deposed to in the plaintiff’s affidavits. That matter concerned the plaintiff kicking a soccer ball with his son. As referred to above, the plaintiff agreed when asked, that his son no longer kicks a ball around in the back yard, as he is a grown man, rather than a child. This is a small point which does not, in my assessment, affect the plaintiff’s credit.
47 After a consideration of all the evidence and, in particular, the evidence of the plaintiff, I consider that he was a reliable and credible witness, in the sense of being a truthful person. At no time did I gain the impression that he was attempting to mislead the Court or exaggerate his symptoms in any way. In addition, under cross-examination he made concessions against his own interests when appropriate, such as conceding that he had recently been able to drive from Melbourne to Kyneton on an outing with his wife.
Stoicism
48 I also formed the view that the plaintiff is somewhat stoic in relation to his condition, persisting with his work for a number of years following the incident and, more recently, attempting to retrain and rehabilitate as recommended by the vocational and rehabilitation providers with whom the plaintiff has been dealing.
49 His stoicism is also demonstrated by the fact that in the face of the pain from which he suffers, he continues to try to engage in activities with his family and friends, such as going to the beach, attending the soccer and fishing.
Compensable injury
50 The details and occurrence of the incident are not in dispute.
51 There is an issue as to whether the consequences of the injuries alleged by the plaintiff have a substantial organic basis, in the sense that they arise as a result of the injuries sustained in the incident. In addressing this matter, it is well established that it is for the plaintiff to “disentangle” the physical consequences of the relevant injuries, from the psychological consequences (if any) of those injuries.[133]
[133]Meadows v Lichmore [2013] VSCA 201
52 Once the disentangling exercise has been undertaken, a further issue is whether any consequences of the right shoulder injury, the cervical spine injury or the psychological injury suffered in the incident, satisfy the narrative test. [134]
[134]AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd (t/a Arnold Webbing Australia) v Filipowicz (2012) 34 VR 309
53 Lastly, the plaintiff’s present capacity for work remains in issue. The plaintiff’s position is that he has no capacity for suitable employment. The defendant alleges that there are three forms of employment which would constitute “suitable employment”, and that by reason of the earnings associated with each, the plaintiff is unable to satisfy the statutory threshold for loss of earning capacity under the Act.[135]
[135]T29 (18-24); T30 (16-22); ss134AB(38)(e)-(f) The Act
Substantial organic basis
The right shoulder
54 All four of the plaintiff’s treating doctors gave opinions that the plaintiff’s right shoulder symptoms were organic in origin, viz:
(a) in his report dated 19 June 2013,[136] Dr Roland Ebringer, consultant physician and rheumatologist, noted that investigations in 2008/09 showed a partial thickness subscapularis tendon tear and some subacromial bursitis. Dr Ebringer’s opinion in relation to the right shoulder was that the plaintiff had suffered an acute injury to his right shoulder in 2008. His impression was that the acute injury had resolved but that the plaintiff had been left with a persisting “pain syndrome.” It is important to note that the evidence indicates that the “pain syndrome” to which each of the plaintiff’s treaters refer is physical, rather than psychological, in origin.[137] This observation applies to any reference in this judgment to the existence of a “pain syndrome” by any doctor;[138]
[136]Ex P1, pges 33-35
[137]See in particular the evidence of Dr Karim (at paragraph 54(b)) and Mr Wilde (at paragraph 54(d))
[138]I acknowledge that Dr Yong’s opinion was that the pain syndrome consisted of a “psychological co-morbidity”. On this basis, it may be accepted that Dr Yong recognised the existence of a primary organic basis for the pain syndrome, which he considered had been somewhat complicated by the later development of this comorbidity.
(b) in his most recent report dated 25 February 2014, Dr Karim stated “He has severe pain over the [right] shoulder joint and the pain extends to involve the right neck, arm, elbow and hand.”[139] His opinion was that the plaintiff “demonstrates features highly suggestive of frozen shoulder. This is on a background of nociceptive and neuropathic pain following his traumatic event…”;[140]
[139]See report dated 24 April 2013, Ex P1, pge 36
[140]Ex P1, pge 47; the traumatic event which is referred to is the occurrence of the incident
(c) in his report dated 14 April 2015, Dr Wardlaw stated: “Mr Najdovski sustained an injury to his right shoulder and neck in the accident. He had a right shoulder partial thickness subscapular tear and subacromial bursitis and soft tissue injury of his neck. He subsequently developed Chronic Pain Syndrome. His condition was caused by the accident…”;[141]
[141]Ex P1, pge 57
(d) in his most recent report dated 9 May 2013,[142] Mr Wilde stated in relation to the right shoulder that he “concurred entirely” with Dr Ebringer and observed “this unfortunate chap epitomizes what happens to manual workers when they sustain a musculoskeletal injury which does not settle promptly…When I saw Mr Najdovski he…had developed central pain somatisation, which means that afferent pathways to the free fontal cortex and thalamus were producing abnormal central activity, and [that as a result] sensory input which was previously painful, continued to be interpreted as painful stimulus. This used to be referred to as a pain syndrome but now with functional MRI scanning, central CNS changes are documented highlighting an abnormal response in patients who sustain musculoskeletal injury which does not settle in the usual timeframe;”[143]
[142]Ex P1, pges 63-67
[143]Ex P1, pge 65
(e) in his report dated 9 May 2013,[144] which doubled as a medico-legal opinion as to the origin of the plaintiff’s pain and his prognosis, Mr Wilde referred to “non-organic features” of the plaintiff’s presentation. A close reading of this report demonstrates that this was a reference to Mr Wilde’s opinion that the plaintiff “would benefit from psychiatric care to treat his anxiety and depression.”[145] As such, this comment did not detract from Mr Wilde’s opinion in relation to the organic basis of the pain syndrome from which he otherwise considered the plaintiff to be suffering.
[144]See generally report dated 9 May 2013, Ex P1, pges 63-67
[145]Ex P1, pge 65A, paragraph 7
55 The plaintiff’s medico-legal experts gave similar opinions, viz:
(a) Dr Moran’s opinion in relation to the right shoulder was that the plaintiff suffers from “sub-acromial bursitis of his right shoulder with tenosynovitis of the biceps tendon and tendinopathy of the subscapularis”;[146]
[146]Report dated 23 April 2014, Ex P1, pge 70
(b) Dr Sutcliffe’s opinion in relation to the right shoulder was that the plaintiff sustained a “traumatic injury to the right shoulder in the course of his occupation with onset of tendonitis and subacromial bursitis and with subsequent onset of neuropathic pain with persisting nociceptive pain”.[147]
[147]Report dated 28 May 2014, Ex P1, pge 77
56 As referred to above, the defendant relied on one medico-legal expert, Dr Dominic Yong.
57 In his report dated 9 April 2014, Dr Yong was also of the opinion that the plaintiff was suffering a “continuing chronic pain syndrome involving his neck and right shoulder, with deconditioning.” Dr Yong’s opinion was that the plaintiff’s chronic pain syndrome has been “complicated by features suggesting the presence of a psychological comorbidity.”[148] Dr Yong proffered no concluded opinion in relation to this matter, suggesting only that his aspect be commented upon by an expert in the field, namely a psychiatrist.[149]
[148]Ex D2, pge 35
[149]Ex D2, pge 35
58 On the basis of the opinions set out above, I find that the consequences of the plaintiff’s injury to his right shoulder have a substantial organic basis.
The cervical spine
59 Two of the plaintiff’s four treating doctors considered that the plaintiff’s neck symptoms were organic in origin, viz:
(a) in his report dated 14 April 2015, Dr Wardlaw commented that in the incident, the plaintiff had suffered a “soft tissue injury of his neck”;[150]
[150]Ex P1, pge 57
(b) in his report dated 2 October 2012, Mr Wilde considered that the plaintiff suffered from cervical spondylosis (which is mild on MRI scanning) “and this has been aggravated by the work injury”.[151]
[151]Ex P1, pge 61
60 In relation to the plaintiff’s cervical spine, Dr Ebringer considered that the plaintiff had minor degenerative changes.[152]
[152]Ex P1, pge 33
61 As set out above, Dr Karim considered the plaintiff’s neck symptoms to be emanating from the frozen shoulder.
62 Dr Yong’s opinion, which is set out above, related to both the right shoulder and cervical spine.[153]
[153]Ex D2, pge 35
63 On the basis of these opinions, I find on balance, that the plaintiff’s cervical spine pain has a substantial organic basis.
What is the source of the plaintiff’s cervical spine pain?
64 There is no medical opinion upon which I could conclude that the plaintiff’s current cervical spine pain is emanating to any substantial degree from the cervical spine injury suffered in the incident. The evidence before me indicates that the cervical spine injury appears to have consisted of a “soft tissue injury” and aggravation of pre-existing cervical spondylosis which was said to be “mild” on imaging.
65 Further, Dr Karim’s evidence (which was not disputed) was that the pain in the right shoulder extends to involve the “right neck, arm, elbow and hand.”[154]
[154]see report dated 24 April 2013, Ex P1, pge 36
66 The weight of the medical evidence is that the plaintiff’s pain syndrome had its origins in the original shoulder injury. For instance, in Dr Sutcliffe’s view, the plaintiff suffered:
“…[a] traumatic injury to the right shoulder in the course of his occupation with onset of tendonitis and subacromial bursitis and with subsequent onset of neuropathic pain with persisting nociceptive pain.”[155]
[155]See report dated 28 May 2014, Ex P1, pge 77
67 Drs Erbinger and Karim express almost identical opinions to that of Dr Sutcliffe. Dr Yong for the defendant also accepted that the plaintiff’s pain syndrome, which I have found has a substantial organic basis, involved both the plaintiff’s right shoulder and neck. The other medical practitioners do not express a view on this matter.
68 On the basis of the foregoing, I find on balance, that the majority of the plaintiff’s pain in the cervical spine, together with the associated dizziness and headaches which the plaintiff currently experiences, are a consequence of the injury which the plaintiff sustained to his right shoulder in the incident.
Is the plaintiff suffering from a severe mental disturbance or behavioural disorder?
69 The suggestion that the plaintiff is suffering from a mental disturbance or behavioural disorder derives principally from the characterisation of his presentation as being indicative of the development of a Chronic Pain Syndrome. In addition, Dr Yong thought that the plaintiff’s chronic pain syndrome was “complicated by features suggesting the presence of a psychological comorbidity” and Mr Wilde made reference to the benefit which he thought the plaintiff would experience from treatment of his anxiety and depression.[156]
[156]Ex D2, pge 35; Ex P1, pge 70
70 Neither Mr Wilde nor Dr Yong proffered a concluded opinion in relation to this matter, suggesting only that this aspect ought be commented upon by a psychiatrist.
71 Each of the other doctors who have provided opinions in relation to this matter accept that the plaintiff has developed a pain syndrome which has a substantial organic basis – in other words, it is physical rather than psychological or psychiatric, in origin.
72 On the basis of the medical material tendered in this matter, I find that the plaintiff does not suffer from a severe mental disturbance or behavioural disorder. As such, his application under clause (c) cannot succeed.
Is the compensable injury permanent for the purposes of the Act?
73 Having considered the relevant evidence in relation to the physical injuries suffered by the plaintiff in the incident,[157] I find that the plaintiff is likely to continue to suffer from symptoms as a result of the injury to his right shoulder, for the foreseeable future. Thus, I find that the injury sustained by the plaintiff to his right shoulder in the incident, is permanent for the purpose of the Act.
[157]See the reports of Dr Ebringer dated 19 June 2013: Ex P1, pge 35, Dr Karim dated 28 January 2014: Ex P1, pge 45, and Dr Wardlaw, dated 14 April 2015, Ex P1, pges 56 and 57; Dr Moran, Ex P1, pge 72; Dr Sutcliffe, Ex P1, pge 78
The task of disentanglement – parallel medical conditions suffered by the plaintiff
74 As referred to above, there is no dispute on the evidence that the plaintiff suffered two separate injuries in the incident, namely, an injury to his right shoulder and an injury to his cervical spine. For that reason, it was submitted by the defendant that there was a need to “disentangle” the consequences of the injury to the cervical spine, from the consequences of the injury to the right shoulder and in turn, to disentangle from each of the physical injuries, the consequences of the psychological reaction (if any) that the plaintiff has had as a result of the incident.[158]
[158]Peak Engineering & Anor v McKenzie [2014] VSCA 67 at [24], per Maxwell, P, Redlich JA and Dixon AJA
75 The plaintiff bears the burden of proof in any disentangling exercise which needs to be undertaken.
76 I have found that there is a substantial organic basis for the physical consequences of the injuries to the plaintiff’s right shoulder and cervical spine. Further, on the basis of the medical evidence referred to above, I have found that the neck pain and associated dizziness and headaches which the plaintiff experiences, are a consequence of the injury which the plaintiff sustained to his right shoulder in the incident. In other words, while I accept that the plaintiff suffered an organic injury to his neck in the incident, I do not accept that as at the date of the hearing in this matter, there was any evidence of continuing consequences of that injury.
77 As set out above, there is no evidence upon which I could conclude that any of the consequences from which the plaintiff suffers are psychological or psychiatric in origin.
78 Given this, I find that each of the physical symptoms from which the plaintiff presently suffers as a result of the incident, is a consequence of the injury to his right shoulder in the incident.
79 On this basis, no disentangling exercise needs to be undertaken.
Conclusions as to pain and suffering consequences
Pain
80 I find that as a result of the injury to his right shoulder, the plaintiff continues to suffer from the pain and suffering consequences described below.
81 I accept that the plaintiff experiences constant and ongoing pain in the region of his right shoulder which he describes as a sharp, cramp style of pain. I accept that the pain radiates up to his neck and down into his right arm, elbow and into the fingers of his right hand.
82 I accept that the plaintiff suffers from a sensation of pins and needles in his right arm going down into his right hand. I accept that he has restricted movement in his shoulder.
83 I accept that the plaintiff has difficulty lifting his right arm above head height and has difficulty lifting heavy weights with his right arm.
84 I accept that the plaintiff has frequent headaches accompanied by blackouts and dizziness. I accept he suffers from ringing in his ears. I accept that the pain affects his ability to focus, concentrate and remember things. I accept the plaintiff’s evidence that the dizziness only started since the incident in July 2008 and that he had never had a problem with blackouts prior to that time.
85 I accept that he experiences a sensation of sharp pain and dizziness whenever he moves his head quickly. I accept that the plaintiff cannot recall speaking to Dr Cheong about blackouts or dizziness in 2007. Dr Cheong’s letter dated 20 April 2007 indicates that he warned the plaintiff that “if he is prone to vaso-depressor issues it is more likely to create some dizzy symptoms or perhaps blackouts” (emphasis added).[159]I find that this is not inconsistent with the plaintiff’s evidence that the dizziness and blackouts did not in fact occur prior to the incident in July 2008.
[159]Ex D2 pge 6
86 I find that the plaintiff’s medication regimen is not optimal, as he is unable to tolerate anti-neuropathic medication, having experienced significant side effects from a trial of Pregalbin. As a result, I accept Dr Wardlaw’s opinion that the plaintiff will always live with pain, which he must learn to manage.
Medication and its effects
87 I accept that in the absence of being able to tolerate anti-neuropathic medication, the plaintiff’s medication presently consists of Tramadol, about 200mg daily. He takes Tramadol 100mg in the morning and two to four Tramadol 50mg as needed through the day. I accept that he also takes the muscle relaxant Valpam 5mg, in the evening and on top of this, he relies on Panadeine Forte or Panamax. In line with his evidence, I find that on a very bad day the plaintiff takes up to 8 to 10 Panadeine Forte and that he also relies on a sleeping tablet, Temazepam, which he takes most nights to help him get to sleep.
88 I accept that due to his relative inactivity since ceasing work, initially he put on about 7-8kgs in weight. I accept that the plaintiff has recently experienced a dramatic weight loss, which he attributes to the effect of his medication on his appetite.
89 I accept that when he takes his medication in the morning, the plaintiff needs to rest for three or four hours for the pain to settle down, before he can do anything.
Interrupted sleep
90 I accept that the plaintiff’s ability to get a good night’s sleep has been affected by the pain, and that he awakens frequently during the night with pain and needs to get up and “stretch it off”. I accept Dr Karim’s evidence that the plaintiff’s right shoulder pain impacts upon his sleep “as he was not able to lie on his right side at night”.
Work restrictions
91 I accept that the plaintiff has performed machine operating duties for in excess of 20 years. I also accept that he does not read, write or spell with proficiency, nor is he skilled in using a computer in a workplace setting, his computer based activities being confined to sending emails and searching the internet. To the extent that under cross-examination the plaintiff admitted that he had done some “data entry,” this does not alter my conclusion in relation to the level of the plaintiff’s relevant computer skills.
92 I accept that while the plaintiff attempted to retrain and improve his skills in this area, he had difficulty concentrating when attending a combined English and computer course. I accept that neither his English nor his computer skills improved much after completion of the course. I find that the plaintiff’s English remains average at best, despite having passed the assessment at the end of the course.
93 I accept that the plaintiff has headaches and has difficulty focussing and concentrating. I find that he has difficulty moving his neck freely. I accept that by reason of these difficulties, despite the fact that the plaintiff has a forklift ticket, he would be unable to perform a task such as driving a forklift, or to get on and off a forklift on a regular basis. I also accept that he would have difficulty handling the jolting produced by the forklift’s movements.
94 I accept that because of the consequences of the injury to his right shoulder, the plaintiff has not been able to get back into the workforce since finishing with the employer. I accept that despite this, he has attempted to comply with the requests of rehabilitation providers in terms of rehabilitation and retraining.
95 I accept that the plaintiff initially tried to battle on with his job after the incident, but found he could not do it. I accept that after training another employee to operate his machine between 9 August 2008 and February 2009, he effectively acted as a supervisor. I accept that these restricted duties lasted for about one year, until the plaintiff was placed in the packing area. I find that the plaintiff was able to remain in the packing area for the next three to four years, working five days on and five days off, only because he was able to get assistance from fellow workers when he needed it. The assistance consisted primarily of helping the plaintiff to lift the heavy rolls, which was a task which was central to his work with the employer. I find that by reason of the lifting involved in this job, in the absence of this assistance, the consequences of the injury to his right shoulder would have caused the plaintiff to cease work much earlier than he did.
96 I accept that the plaintiff’s employment was formally terminated by letter on 23 July 2013, on the basis that the employer did not think he was fit for his old job. I accept that he has not been able to get back to work since being sent home in August 2012.
97 On the basis of the medical opinions tendered to the Court, I find that the plaintiff is and will remain unfit for his pre-injury duties or any job involving heavy, manual work.
Effect on social life and activities of daily living
98 I accept that the plaintiff regularly attended soccer games in the past, but now only goes every two to three months. I find that he no longer enjoys the experience as much, because if he moves his head to watch the game, the pain increases and he has difficulty concentrating on the game. I accept that at a recent A league finals game, he stayed for the entire match but was in pain the whole time and could not get comfortable to sit and take the game in.
99 I accept that the plaintiff is now restricted in many of his former recreational and social activities.
100 I accept that he enjoyed fishing in the past but now has difficulty both with driving to the locations and casting his line. I accept that he has difficulty moving his neck and is concerned about blacking out. I accept that he has tried to go fishing twice in the past couple of years but found it difficult, with increasing pain in his right shoulder, arm and neck.
101 I accept that he is restricted in terms of driving for prolonged periods. I find that while the plaintiff acknowledged that he had recently been able to drive to Kyneton, he is unable to drive long distances, such as from Melbourne to Sydney, as he had been able to in the past.
102 I accept that he used to enjoy cultural dancing at weddings and parties but these days tends to just sit and watch.
103 I accept that the plaintiff used to enjoy gardening but now has difficulty with most tasks that require the movement of his neck or use of his right arm. I find that while the plaintiff tries to do some digging and weeding from time to time, he has difficulty digging and his son now tends to mow the lawn and attend to the garden.
104 I accept that because of the weakness in his right hand, he has difficulty holding onto and gripping things. I accept that he has difficulty using tools such as screwdrivers and hammers and often drops things. I accept that whereas in the past he was able to service his car, he must now rely on a mechanic, or his son will change the oil or a tyre on the car. I find that while the plaintiff admitted to having done a small amount of work on a rental property at the Mornington Peninsula, he has difficulty with these tasks, due to the weakness in his right hand.
105 I accept that the plaintiff can no longer help his wife with domestic activities such as washing dishes, vacuuming, mopping and hanging out the washing. I accept that personal tasks such as showering, shaving, dressing and undressing are now difficult. I accept that watching television is difficult if he moves his head suddenly. I accept that he has to sit down to put on shoes and socks and wears slip on shoes as they are easier to put on.
106 I find that while the plaintiff no longer kicks a soccer ball around with his son, this is better attributed to the fact his son has grown up, rather than to his injuries. I find that while the plaintiff has admitted he has attended the beach in the past twelve months, he is now restricted in terms of swimming, which he used to do for fitness.
107 I find that while the plaintiff did not regularly go jogging around the block in the first half of 2008, he did enjoy running and bicycling and he no longer does these activities. I accept that he has not tried to ride his bike to work as he used sometimes to do, because he is concerned about having a blackout while riding. I accept that he is able to walk his dog daily and could walk to his computer and English course which was about four or five kilometres away.
108 I accept that the plaintiff’s family life has been turned upside down by his injury. I find that his family’s previous weekend trips to the shops, markets, beach and snow have been curtailed because of the impairments resulting from the incident. I accept that the plaintiff had booked a Queensland holiday last year but had to pull out a couple of weeks prior to leaving, as he was concerned about his pain and how he would manage on the holiday.
109 I accept that the plaintiff has not been able to visit his family in Macedonia, and that if not for his injury and reduced income, he would have been at least once in the last couple of years.
Do the consequences satisfy the narrative test?
110 In Haden Engineering Pty Ltd v McKinnon,[160] the Court of Appeal made observations about the task of evaluating the pain and suffering consequences of an injury. In particular, Maxwell P observed that the consequences of pain and suffering encompass both the plaintiff’s experience of pain, as well as the disabling effect of the pain on the plaintiff’s physical capabilities (including capacity for work) and enjoyment of life.[161] Part of the process is for the Court to assess the intensity of pain which the plaintiff experiences, together with the frequency and duration of pain episodes. Ultimately, the question of whether an injury satisfies the narrative test is one of impression or value judgment.
[160](2010) 31 VR 1
[161]Haden Engineering Pty Ltd v McKinnon, ibid, at [9]
111 The weight to be attached to the plaintiff’s account of the pain experienced will depend upon an assessment of the plaintiff’s credibility.[162] In Haden Engineering, Maxwell P also observed that the cases recognise that some plaintiffs may be more “stoical” than others. His Honour said that the stoical plaintiff is not to be viewed as any less serious, merely because he or she manages to remain more active than might be expected, given the level of pain.[163]
[162]Haden Engineering Pty Ltd v McKinnon, ibid at [12]
[163]Haden Engineering Pty Ltd v McKinnon, ibid at [13]
112 I have already made observations about the plaintiff's demeanour and presentation in Court. I have found that the plaintiff was a truthful witness. I have also concluded that the plaintiff is somewhat stoic in his approach to managing the consequences of his injuries.
113 An analysis of the evidence clearly demonstrates that many aspects of the plaintiff’s life have been adversely affected by the consequences of the injuries that he suffered during the incident. The pain, caused by the injury to his right shoulder has caused an insurmountable restriction in his ability to work, and ultimately, caused his departure from his employment with the employer, after more than 10 years as a machine operator. The consensus of medical opinion is that the plaintiff does not have a capacity for pre-injury work or indeed any heavy manual labour. I find that his loss of employment capacity, due to the injury to his right shoulder and its consequences for his neck and right arm, is a very serious consequence for this plaintiff.
114 The plaintiff endures permanent, severe pain in his right shoulder, which radiates into his right arm and neck, on a daily basis, requiring frequent, strong medication. As Dodds-Streeton JA noted in Kelso v Tatiara Meat Company Pty Ltd,[164] where chronic pain was a prominent feature of the appellant’s case, the endurance of permanent, daily pain requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a “very considerable” consequence.[165]
[164](2007) 17 VR 592 at para [199]
[165]ibid
115 Furthermore, the plaintiff’s pain is not as well controlled by his medication as it could be, by reason of his intolerance to anti-neuropathic medication. Thus, the plaintiff endures more pain on a daily basis than another person in his situation might. In an attempt to manage this situation, he has diligently attended a pain management course, but unfortunately, this did not alleviate his ongoing, nociceptive pain.
116 The ongoing and severe nature of the plaintiff’s pain has adversely affected his enjoyment of social activities and has impacted on his ability to perform the usual activities of daily living.
117 The plaintiff has ongoing problems with sleep, waking frequently during the night due to his pain. As Maxwell, P said in Haden Engineering:[166]
[166]supra, at [45]
“It is, in my view, a matter of great significance for a person to be denied, seemingly for the rest of his life, the ability to enjoy uninterrupted sleep…[The plaintiff] often experiences multiple painful awakenings in the course of a single night. As counsel…submitted, that is properly to be regarded as constituting a very considerable diminution in…[the plaintiff’s] enjoyment of life, to say nothing of the effect which sleep deprivation must have on his ability to enjoy the activities of daily life.”
118 The fact that for a number of years the plaintiff was able to continue his employment on restricted duties, with assistance from his workmates, does not preclude an affirmative finding of serious injury. It is simply one of the matters to be taken into account, when assessing all of the evidence.[167]
[167]Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181 at [47]
119 Taking into account all of the evidence, I am satisfied that the consequences of the plaintiff’s right shoulder injury are “serious”, and satisfy the narrative test.
Loss of earning capacity
120 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 40 per cent or more;[168] and
[168]s134AB(38)(e)(i)
(b) after the date of the hearing, the relevant loss of earning capacity will continue permanently.[169]
[169]s134AB(38)(e)(ii)
121 The measurement of loss of earning capacity is set out in s134AB(f) of the Act, which requires a comparison between:
(a) “without injury” earnings; and
(b) “after injury” earnings.
122 The former must be calculated by reference to the six-year period specified in s134AB(38)(f) of the Act.
123 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.
124 Loss of earning capacity is to be calculated by reference to that part of the period within the three years before and three years after the injury as most fairly reflects the worker’s earning capacity.
125 The plaintiff bears the onus of proof in relation to this matter, particularly in establishing satisfaction of the criteria in ss134AB(38)(e), (f) and (g) of the Act. I am therefore required to determine a “without injury” earnings figure.[170]
[170]Barwon Spinners, supra, at [70]
126 Counsel for the defendant submitted that the relevant figure was $81,200, being the amount earned by the plaintiff in the financial year ended 30 June 2008 (the full financial year just prior to the incident). No issue was taken with this approach by counsel for the plaintiff and I adopt this figure as the appropriate “without injury” earnings figure.
127 Sixty per cent of that figure is $48,720, or $936 per week.
128 On the medical opinions relied upon by the plaintiff, there are a range of views as to the plaintiff’s work capacity, ranging from no capacity for suitable employment, to a capacity for light work with specific restrictions.
129 In 2013, Dr Ebringer considered that the plaintiff had a capacity for restricted duties, without commenting on the plaintiff’s capacity to perform a particular number of hours of work.
130 Dr Karim did not consider himself qualified to express a view as to the plaintiff’s capacity to engage in work as a forklift driver.
131 In April 2015, Dr Wardlaw did not consider that the plaintiff had any work capacity.
132 Dr Sutcliffe thought that the plaintiff did not have any capacity for pre-injury duties. She did not comment on the plaintiff’s capacity for alternative duties.
133 In April 2014, Dr Moran considered that the plaintiff was fit for light duties, not using his right arm in a repetitive fashion and not using his right arm above shoulder height. He thought that the plaintiff was not fit for any job in which he has to work with his neck in a fixed position.
134 The plaintiff himself gave cogent and unchallenged evidence that by reason of the severity of his pain (described by Dr Karim as “relentless”[171]) and the medication he was taking, he needed to rest for two or three hours after waking up in order for the pain to settle.[172] On this basis, counsel for the plaintiff submitted and I accept, that at most, the plaintiff would have capacity for part time, light duties.
[171]Ex P1, pge 39
[172]T34 (16-19)
135 While none of the doctors who considered that the plaintiff had a residual work capacity provided an estimation as to the number of hours that he might be able to perform in suitable employment, the plaintiff’s capacity to engage in work-like activities was tested and has been demonstrated by his attendance at a combined computer and English course at a local community centre in Lalor in 2014-15.[173]
[173]Ex P1, pge 29, paragraph 17
136 That course ran for three hours per day, two days per week over a period of six to eight months. The plaintiff was, on occasion able to walk to and from the course, which was a distance of four or five kilometres each way.[174] The plaintiff’s evidence, which was unchallenged, was that he found it difficult to concentrate when attending the course.
[174]T56 (5-11)
137 Extrapolating from the plaintiff’s experience of participating in this activity, I find that at most, the plaintiff would be able to engage in no more than 10-15 hours of suitable employment per week, and that the reliability of his ability to attend even those hours is uncertain, due to the fluctuating and disabling nature of his pain and the medication regimen to which he is subject.
138 Dr Yong, for the defendant, considered that:
“…Mr Najdovski has a current capacity to perform tasks within the following restrictions:
· Avoid repetitive neck movements and avoid awkward neck postures.
· Avoid firm pushing or pulling duties.
· Avoid right arm above shoulder height tasks or reaching duties.
· Avoid lifting more than 4kgs on a repeated basis.”
139 Of the various occupations raised by the defendant as constituting “suitable employment,” Dr Yong considered that only the following occupations would comply with the restrictions to which the plaintiff is subject:
(a) Weighbridge Operator;[175]
[175]Ex D2, pge 37
(b) Packer (light duties only);[176]
[176]Ex D2, pge 41
(c) Product examiner.[177]
[177]Ex D2, pge 41-42
140 In addition, the defendant submitted that Machine Operator (automated machines only), would constitute suitable employment.
141 In closing, counsel for the defendant submitted that Dr Yong as an Occupational Physician, was best placed to opine about the suitability of these roles in the context of work capacity.[178] While this may be right, unfortunately, Dr Yong was not asked to comment on the plaintiff’s capacity for full time duties in the roles set out above.
[178]T115 (26-31); T116 (1); T117 (5-11); see also Giankos v SPC Ardmona (2011) 34 VR 120 at [96]
142 The average gross weekly full time income figure for Packer (light duties only), was said to be $895, which represents more than a 40 per cent loss of earning capacity. As such, this role was not relied upon by the defendant. An average gross weekly income was provided for the roles of machine operator ($1061),[179] weighbridge operator ($1100),[180] and product examiner ($1148)[181] roles. The figures quoted are for full time work, rather than work at an hourly rate. I have found that given his physical and medication based restrictions, at best, 10-15 hours of suitable employment is all the plaintiff would reasonably be capable of performing.
[179]Ex D2, pge 109
[180]Ex D2, pge 112
[181]Ex D2, pge 153
143 Given the quantum of the full time figures set out above, I am not persuaded that the plaintiff has a capacity for “suitable employment” such that he would earn in excess of $936 performing 10-15 hours per week, in any of the roles which are said to be suitable for him. Accordingly, I am satisfied that he has suffered the requisite loss of earning capacity of 40 per cent.
144 I am satisfied that the loss is permanent, as there is no indication that the plaintiff’s right shoulder, right arm and neck conditions are likely to improve in the foreseeable future. Further, his attempts to return to light work were only successful because of the assistance which he received from his co-workers.
145 I am also required to consider issues of retraining and rehabilitation pursuant to s134AB(38)(g) of the Act. In light of my findings as to the plaintiff’s impairment, his present incapacity for employment and his past attempts to retrain and rehabilitate himself, I am satisfied that there is no rehabilitation or retraining that would be appropriate to be undertaken by the plaintiff which would improve the plaintiff’s loss of earning capacity to any degree. In those circumstances, the plaintiff has satisfied the requirements of s134AB(38)(g) of the Act.
146 Having satisfied the test laid down by the Act in relation to loss of earning capacity, the plaintiff is entitled to make a claim for damages for both pain and suffering and loss of earning capacity.[182]
[182]Acir v Frosster Pty Ltd [2009] VSC 454 at [147]; Advanced Wire, supra
Conclusion
147 Accordingly, pursuant to s134AB(16)(b) of the Act, I grant leave to the plaintiff to bring proceedings for damages for both loss of earning capacity and pain and suffering.
148 I will hear the parties on the issue of costs.
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