Newton v Murray Goulburn Co-op Co Ltd
[2019] VCC 2108
•17 December 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Unrestricted Suitable for Publication |
Case No. CI-19-02897
Craig Newton
| Plaintiff | |
| V | |
| Murray Goulburn Co-Op Co Ltd | Defendant |
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JUDGE: | SACCARDO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 December 2019 | |
DATE OF JUDGMENT: | 17 December 2019 | |
CASE MAY BE CITED AS: | NEWTON v MURRAY GOULBURN CO-OP CO LTD | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 2108 | |
REASONS FOR JUDGMENT
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Subject:
Catchwords:
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act (2013)
Cases Cited:Dwyer v Calco Timbers Pty Ltd No 2 [2008] VSCA 260,
Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181
Judgment:
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Ruddle | Arnold, Thomas & Becker |
| For the Defendant | Mr R Middleton QC and Ms R Boyce | Russell Kennedy |
HIS HONOUR:
1 In this proceeding the plaintiff seeks leave to commence a proceeding claiming compensation with respect to the pain and suffering consequences of a physical injury to his right elbow sustained in the course of his employment with the defendant.
2 As is not uncommon in applications of this type there is disconnect between medical opinions relied upon by the defendant in this application and those relied upon by the plaintiff.
3 In those circumstances whilst it is appropriate to apply close scrutiny to the basis upon which the various medical opinions have been expressed, the credibility and reliability of the plaintiff as a witness assumes fundamental importance in the process of determining the issue in this case.
The plaintiff’s viva voce evidence
4 Whilst:
(i) the affidavit evidence: and
(ii) the viva voce evidence:
is a matter of record, it is appropriate that I provide a brief summary of the plaintiff’s evidence given the position taken by the defendant that the plaintiff’s evidence in cross examination was inconsistent with that set out in his affidavit evidence. It is appropriate that I comment at this stage that I am not satisfied that there is any merit in the above position taken by the defendant.
5 In the course of evidence in chief, cross-examination and re-examination the plaintiff gave the following evidence:
(i) he had recently been offered full-time employment with Australia Post as a delivery driver in which work his pay would be:
a. more per hour; and
b. “better;” than his current wage. Transcript (“T”12).
He said that he had declined that offer because of his inability to cope with the heavier items he was required to handle (T9).
(ii) working was important to him given his financial obligations to his family (T36).
(iii) whilst he had had trouble sleeping in the past which was caused by reason of emotional breakdown which occurred in around 2015, his symptoms of pain and discomfort in his right elbow were the current cause of his difficulty sleeping (T33).
(iv) although he had continued working for the defendant after sustaining his injury he had not been involved in handling heavy 25 kg bags after he suffered the subject injury as he received assistance from other people in the workplace to perform his duties (T20 – 21)
(v) he last attended the Leongatha Medical Centre for treatment in November 2016. Thereafter, Rose McCann, his osteopath who was employed by the defendant, had managed his condition until he left work in January 2018 (T25). That treatment involved dry needling, manipulation and “whatever was needed” (T28).
(vi)
upon leaving the defendants employment he had taken 12 months off both work and treatment to try and let his “head and body heal”
(T25).
(vii) he is currently seeing John Barlow a physiotherapist in Leongatha who has treated him since he started his current job. To date
a. he had seen Mr Barlow up to 6 times;
b. he was meeting the cost of the treatment himself (T26);
c. the treatment he was receiving was very similar to that undertaken by Ms McCann (T30).
(viii) he manages his condition with the application of deep heat which he applies, currently, every night . He described his need for that regime of treatment involving a condition of symptoms of pain in around the elbow which became worse in association with activity. He said that in addition he managed his symptoms with the use of Ibuprofen which, at the present time he uses in quantities of eight tablets or more at the moment each week (T29);
(ix) he lived in a house with a significant garden. He had difficulty doing the gardening by reason of symptoms of pain in his elbow. He said he was limited in his ability to mow the lawns; use a whippersnipper and use a chainsaw but did use those devices for limited periods. He described the pattern of that use as being such that he could never really finish the job or catch up with the totality of the jobs required to maintain the garden. He described the pattern of his gardening being such that he had to regularly rest before completing a job so that he now never got on top of it. He commented that he has considered teaching his nine-year-old son to mow the lawns for him (T30 – 31);
(x)
he made a complete recovery from his initial injury to his left arm
(T27);
(xi) his right elbow was giving him more trouble now that he was back at work(T36);
(xii) the condition in his elbow was aggravated by activities such as using scissors at work. He described that process as causing a flare ups of symptoms such that his employer had introduced a blade cutter for his use. He described being restricted in his ability to play kick to kick with his children because the stretching involved in marking a ball aggravated the symptoms in his elbow. He said that he had owned a boat and had enjoyed big game fishing which he would do at least once a year, but that his elbow was such that he could no longer handle the weights involved in the game fishing with the result that he had now sold the boat and had discontinued that activity. He could still go fishing for small fish (T36 – 38)
(xiii) he described never being symptom free. Whilst at rest he described symptoms which were bearable and were which were in the form of an ache. He disagreed with the statement by Mr O’Brien that he had no symptoms at rest commenting “there is always something in there. Like there is now, but the more I use it, the more it ramps up.” (T40, L29-31).
When further challenged as to the presence of symptoms when he was resting he described those symptoms as follows:
“well it’s not what you’d call pain but there is something still there it’s like an ache like a – like, you can feel it in here, in here” (T41, L6-7)
He conceded that when he saw Mr O’Brien his symptoms may not have been present explaining “now because I’m back at work and it’s just every day” (T41, L9-10) and agreeing that lifting any weight with his right arm aggravates his symptoms (T41);
(xiv) he suffered from symptoms of pain in and around his elbow and forearm. He described those symptoms as involving a tightening up sort of thing commenting “the more I do, the worse that gets” (T22, L28-29);
(xv) in re-examination the plaintiff was taken to a medical certificate from Dr Foote dated 5 October 2016 which confirmed his ongoing certification for light duties. He described the pain in his work was killing him and causing him to be depressed and to employ Nurofen to manage his symptoms commenting that at the present time he had a box with him all the time while he was at work so that when he started to feel pain “you go and have one” (T50, L23).
6 While it was put in closing submissions on behalf of the defendant that the plaintiff prevaricated about and exaggerated his symptoms, in my opinion the plaintiff’s evidence as to his symptoms was consistent with that described consistently by his treating doctors in the 3 years following his injury up until 2017. Further my impression of the plaintiff was that he was largely an honest and reliable witness who was not comfortable in the witness box given as a manual worker his limited education and his primary life experience as a manual worker.
The medical evidence relied upon by the plaintiff
7 On 23 April 2015 Ms Rose Wray-McCann, an osteopath reported having treated the plaintiff on numerous occasions with respect to his right arm pain which was located around the distal portion of the biceps muscle and tendon; the medial epicondyle and the associated wrist flexor tendons. She commented that this condition was aggravated by repeatedly lifting heavy objects at work (PCB 31).
8 Ms McCann commented upon the 12 month history of the plaintiff’s pain, his poor response to osteopathic treatment in the presence of the physical nature of his job. She opined that the plaintiff’s poor long-term response to osteopathic treatment in the physical nature of his work was such that further investigation, and possibly more advanced management of his condition was required.
9 In a referral letter dated 19 August 2015 Dr Hugh Chisholm, a general practitioner, commented that the plaintiff presented with a chronic soft tissue injury in his distal right upper arm caused by repetitive handling of 25 kg bags. He described an ultrasound as suggesting the presence of a tear at the common extensor origin. At the same time Dr Chisholm commented that, in his opinion, the site of the tear was not the cause of the plaintiff’s pain and he opined that there was some other cause for the plaintiff’s presentation. He at no time queried the level of the plaintiff’s reported symptoms (PCB 32).
10 In a referral letter dated 14 April 2016 Dr Veronica Foote, a general practitioner, commented that since injuring his arm 18 months ago the plaintiff had persistent pain and weakness in his right arm at the distal attachment of the biceps muscle in the lateral forearm. She reported on an ultrasound undertaken 18 months ago which revealed the presence of a small partial-thickness tear commenting that she had ordered another of ultrasound for comparison. (PCB 42)
11 On 23 June 2016 Dr Foote opined that the plaintiff remained fit only for light duties due to ongoing pain and weakness in his right elbow which, position would continue until he was reviewed in July 2016 (PCB 43).
12 On 21 September 2016 Dr Peter Baquie, sports physician examined the plaintiff at the referral of Dr Foote, described the plaintiff’s presentation with continuing symptoms over the last two years, commenting that on examination whilst the plaintiff presented with a full range of elbow motion, he pointed to the distal upper arm and proximal end of the cubital fossa is the site of continuing soreness (PCB 48-49).
At that time Dr Baquie referred the plaintiff for an MRI scan and commented that there may be scarring in the area of the injury which he observed was “a tricky area to diagnose as the tendon insertion is both deep and away from our probing fingers and because of its insertion it can be tricky to get it better.” (PCB 48)
13 On 7 November 2016 Dr Peter Baquie commented that the plaintiff:
· was performing his usual duties with assistance from his work colleagues when performing lifting activities;
· presented with ongoing muscle belly-type lateral forearm discomfort with lesser degrees of anterior elbow pain. (PCB 49-50)
14 In addition Dr Baquie commented upon the imaging (I interpret this as a reference to the MRI scan) demonstrating the presence of tendonopathy of the common extensor origin and biceps insertion in the form of long-standing scarring’ and recommended further treatment in the form of a formal strengthening program together with referral to an exercise physiologist.
15 On 25 November 2016 Dr Foote authored a medical report in which she opined:
· that the plaintiff had suffered injury by reason of repeated heavy lifting in the course of his employment;
· the plaintiff’s current capacity was to perform normal duties with the exception of heavy lifting with a lifting limit imposed at 5 kg. At that time she opined that the timeframe for the plaintiff to return to normal duties was uncertain. (PCB 44-45)
16 There is no issue that the second ultrasound which Dr Foote referred to above was undertaken on 4 August 2016. Whilst it was put on behalf of the defendant that the finding of that ultrasound was a significant indicator of the plaintiff’s recovery from his initial injury, there is no issue that Dr Foot had access to that ultrasound when expressing her opinion as to the ongoing relationship of the plaintiff’s symptoms and his incapacity for unrestricted work.
17
I note that in expressing the latter opinion Dr Foote relied upon an MRI scan which reported the presence of tendonopathy of the common extensor origin and biceps insertion. Further a number of medical practitioners who have treated or examined the plaintiff had made similar comments including
Dr Baquie and Mr Buzzard. (PCB 48-50, DCB 89-97)
18 On 26 April 2017 Dr John Bell a general practitioner provided a summary of the the clinical notes relevant to the plaintiff’’s presentation at the Leongatha Healthcare Clinic. He diagnosed the plaintiff as presenting with tendonopathy of the common extensor origin and biceps insertion of the right arm with long-standing scarring. He opined that the plaintiff’s injuries appear to be related to his workplace activities.(PCB 38-39)
19 Dr Bell commented that, although he had not examined the plaintiff, he would imagine that the plaintiff’s primary disability would be associated with a lifting, pulling or pushing heavy objects in that position would continue until appropriate treatment and/or resolution of his symptoms.
I interpret Dr Bell to be expressing an opinion as at April 2017 as to his expectation of the plaintiff’s likely disability at that time having regard to:
· the plaintiff’s previous presentations at the Leongatha Healthcare Centre as recorded in the centre notes;
· the reports received by the healthcare centre from Dr Baquie;
· the physical condition with which the plaintiff presented in his right elbow whilst attending the healthcare centre.
20 Given the medical evidence to which I have referred above from the plaintiff’s treating doctors there can be little doubt that up until at least April 2017 each of the doctors managing the plaintiff’s condition accepted the plaintiff as a reliable historian who is suffering from an organic condition:
· which required treatment and
· from which it may be difficult to achieve a full recovery; and
· which operated so as to restrict him to like forms of work.
21 Further it is clear that the plaintiff was in November 2016 providing a contemporaneous history to his medical practitioners that he was unable to perform the heavy duties required of him and was being assisted in the performance of his works by fellow workers.
22 Given that evidence there is no substance in the defendant’s position that the plaintiff’s certification for his return to work in 2015 demonstrated his fitness for unrestricted work or that he was capable of performing the totality of the duties required of him in the course of his employment with the defendant thereafter.
23
It is appropriate to note that these comments by the various doctors managing the plaintiff’s presentation are totally inconsistent with that expressed by
Dr Buntine in late August 2015 to the effect that the plaintiff at that time presented no symptoms whatsoever. (DCB 69) The weight of the contemporaneous evidence which I referred to above causes me to reject, for that reason alone, the opinion by Dr Buntine. I will however give further the reasons for that finding when I deal specifically with that opinion.
24 Dr Joseph Slesenger a specialist occupational physician examined the plaintiff on 15 August 2019. (PCB 51-63) In the course of his report he referred to the MRI of the plaintiff’s right elbow which concluded that the plaintiff had suffered from a previous low-grade strain with delamination of the common extensor origin. He referred in detail to the various medical reports particularised at PCB 58 and 59 and commented as to the plaintiff’s presentation
“taking the evidence as a whole I am satisfied that he suffered a right, common extensor origin strain and a right bicipital insertion strain” (PCB 60)
25 Dr Slesenger commented that he was satisfied that the plaintiff’s right elbow impairment related to the workplace place injury suffered by him. That injury was such that the plaintiff was unfit to return to pre-injury duties and that he would have an ongoing impairment into the foreseeable future which reduced his capacity for work to that which involved lighter forms of activity with his right arm.
26 Mr John O’Brien an orthopaedic surgeon examined the plaintiff on 27 August 2019. He noted the plaintiff to be presenting with tenderness of the common extensor or origin and the muscle of the brachio radialis.(PCB 64-69)
27 Mr O’Brien commented upon the MRI scan of the right elbow as demonstrating a previous low-grade strain with the delamination of the common flexor origin in the presence of subtle swelling in the ulnar nerve with peri- neural oedema.
28 He opined that whilst the plaintiff reported clinical signs which were extremely minimal, the plaintiff was nevertheless precluded from work involving physical stress to his right arm and accordingly from unrestricted manual work. He further accepted that the plaintiff’s general domestic, social and recreational activities would adversely be affected by his condition.
29 Whilst issue is taken by the defendant as to the probity of the path of reasoning of both Dr Slesenger and Mr O’Brien in expressing their respective opinions, in my opinion:
(xvi) the totality of the medical evidence and radiological evidence available to each of these medical practitioners at the time of their examination of the plaintiff makes them well-placed to express those opinions;
(xvii) the defendant’s criticism of these two opinions seems to be founded primarily upon the assertion that the plaintiff had recovered from the organic injury suffered by him to his right elbow by late 2015, the opinion expressed by Mr Buntine (which I do not accept for the reasons described both above and below).
For each of these reasons I find the above position taken on behalf of counsel for the defendant to lack persuasion.
The medical evidence relied upon by the defendant
30 Mr John Buntine examined the plaintiff on 17 August 2015 and described his presentation as being consistent with muscle pain affecting all of the flexor muscles of his right elbow including the long wrist extensors which symptoms arose by reason of the work he had been undertaking. (DCB 62-68) He was unable at that time to express an opinion as to the duration of the plaintiff’s incapacity commenting that although he may experience further muscle pain and that “if the initial diagnosis of right lateral epicondylitis was accurate, this condition could recur.” (DCB 65)
31 Whilst the defendant relies upon a letter authored by Mr Buntine on 26 August 2015 in which he opined that the plaintiff’s condition had completely resolved (DCB 69) I find that comment to be inconsistent with:
· the expression of that opinion in the absence of any further examination of the plaintiff, when considered in the context of
· the previous statement by Mr Buntine that he was unable to express an opinion as to the duration of the incapacity with which the plaintiff presented at the time of his examination on 17 August 2015;
· the opinions expressed both by Mr Buzzard and the Medical Panel in 2018 to which I will refer immediately below;
· further the evidence of the plaintiff’s treating general practitioners to which I have referred above is totally inconsistent with the opinion expressed by Mr Buntine as to the plaintiff’s recovery.
For these reasons I give no weight to Mr Buntine’s 26 August 2015 statements.
32 In his report dated 28 March 2018 Mr Anthony Buzzard an orthopaedic surgeon who examined the plaintiff on behalf of the defendant accepted the fact that the plaintiff presented with ongoing symptoms in his right elbow caused by soft tissue injury. In expressing that opinion Mr Buzzard made reference to the significance of the MRI finding to which I have previously referred. It is clear that Mr Buzzard accepted the plaintiff as a truthful and largely reliable witness. Whilst Mr Buzzard opined that the plaintiff was fit for his previous duties I find that position to be inconsistent with the nature of the plaintiff’s duties and the acceptance by Mr Buzzard that the plaintiff presented with ongoing symptoms in his right elbow. (DCB 89-97)
33 The plaintiff’s injury was the subject of an assessment by the Medical Panel on 29 November 2018 which found the plaintiff presented with a 1% whole person impairment. In making that finding the Medical Panel described the injury suffered by the plaintiff as including the common extensor tendon of the right elbow. (DCB 105)
34 In my opinion it is appropriate to identify the relevant injury as involving a soft tissue injury this of the right elbow including tendonopathy of the common extensor origin and biceps insertion. I make that finding adopting the description by Dr Baquie in his report of 7 November 2016. (PCB 49-50) In reality that description accords with the general statements made by other doctors as to the nature of the injury including that of the Medical Panel.
35 It is clear that the relevant body function the subject of the application involves function for the right dominant arm.
36 Dr David Barton, an occupational physician, assessed the plaintiff on behalf of the defendant on 17 May 2019. At that time he obtained a history from the plaintiff that he developed ache around his elbow and forearm in association with activity. (DCB 114-117)
37 Dr Barton;
· obtained a history from the plaintiff that his arm was “okay” if he didn’t do anything but it that he developed ache around the elbow and forearm with repetitive movements;
· described the plaintiff as presenting in a straightforward manner and as demonstrating no particular objective evidence of particular problems with respect to his right elbow;
· commented upon the appropriateness of the plaintiff’s regime of treatment involving the use of casual anti-inflammatory medication and exercise;
· commented as to the absence of any particular objective evidence of an ongoing physical problem and opined that the plaintiff had a capacity to perform full-time hours in suitable employment.
38 I note that in making this statement Dr Barton did not express an opinion that the plaintiff was fit for employment without any restriction. Given his area of particular expertise it seems likely that if Dr Barton held the view that the plaintiff was fit for unrestricted forms of employment he would have said so. Further, in my opinion had Dr Barton expressed such an opinion, that opinion would in turn have been consistent with the fact that he took no issue with the plaintiff’s history or his treatment regime.
39 Mr Ian Dickinson an orthopaedic surgeon examined the plaintiff on 24 October 2019 at which time the plaintiff presented with a history of continuing pain in the extensor muscles of his right forearm and also aching in the right distal biceps. (DCB 118-129) On examination Mr Dickinson noted the presence of tenderness generally in the right lateral and dorsal muscle mass of the forearm and the volar aspect distal to the radial head as well as lateral.
40 Mr Dickinson described the plaintiff:
· as presenting with the absence of non-objective clinical findings;
· accepted that the plaintiff’s initial injury involved a medial injury to the distal right arm near the biceps which had resolved;
· opined that the plaintiff presented with a complaint of pain in his extensor muscles of the right forearm which was not supported by objective clinical findings. (DCB 128)
41 In my view the inconsistency between the statements by Mr Dickinson:
(i) that the plaintiff presented with pain in the extensor muscles of the right forearm in the absence of any non-objective clinical findings;
(ii) there was no evidence of the plaintiff presenting with any residual effect from his initial injury;
raises issues as to which of these two statements should be relied upon and calls into question the reliability of the opinion expressed by Mr Dickinson of the plaintiff’s complete recovery from the physical effect of his initial injury.
Assessment of the evidence of the plaintiff
42 When the totality of the plaintiff’s evidence is considered I am satisfied that the plaintiff presented as a person who had difficulty dealing with the question and answer format of cross examination within a civil trial and for that reason, he possessed a tendency to provide answers which were explanatory in nature to the point raised by the question.
43 My strong impression of the plaintiff as he gave his evidence was, however, that the above described tendency did not involve a deliberate attempt to prevaricate but rather arose by reason of the plaintiff’s lack of both, education and relative sophistication. An example of that process being the transcript between pages 16 – 20 in which the plaintiff was dealing with a relatively simple issue namely whether he undertook heavy work upon returning to his employment after having sustained the subject injury to his right shoulder. Effectively five pages of questioning were required to illicit the true position as to that issue namely that although the plaintiff returned to normal duties he was assisted by his fellow workmates in the performance of those duties and he did not handle a 25 kg bag after the happening of the subject injury.
44 In reality I am satisfied that an examination of the totality of the plaintiff’s answers to questions in cross examination does not reveal the presence of any substantial inconsistency between that evidence and the plaintiff’s affidavit evidence.
45 It is put on behalf of the defendant that the plaintiff is an unreliable witness. Essentially that position is based upon the assertion that:
(i) the plaintiff’s evidence that he continues to suffer from symptoms in his right elbow should not be accepted
(ii) the surveillance evidence relied upon by the defendant demonstrates the plaintiff as having a capacity for unrestricted work.
46 I find each of these two positions to lack any persuasive merit.
47 Contrary to the position taken by the defendant a close examination of the evidence establishes that the plaintiff had been assessed on a number of occasions by treating medical practitioners at least up until August 2016 as presenting with a condition which operated to restrict his capacity to light restricted forms of work.
48 In the context of that evidence I am of the opinion the fact that the plaintiff continued his duties with the defendant speaks not to his capacity for those duties for work but rather his industrious nature to seek assistance from his fellow workers and his determination to maintain his work. Each of these attributes in turn speak very significantly in my opinion to his credit
49 As to the relevance of the surveillance evidence I expressed my assessment of that evidence to Counsel in the course of closing submissions. Essentially it was the defendant’s position that the relevance of the surveillance evidence was that it could be used to bolster any medical evidence which I considered to be probative of the fact that the plaintiff had totally recovered from any compensable condition in his right elbow. For the reasons set out in my analysis of the medical evidence I do not find the surveillance evidence to be in any way probative. In reality the only relevance of the surveillance evidence was to is to confirm the plaintiff’s evidence that he had worked as a delivery driver for Australia Post.
50 Essentially the primary basis the of defendants attack upon the plaintiff’s credit involves the defendants position the plaintiff now presents with total absence of symptoms which has been the case for quite some time, namely from the date upon which Mr Buntine expressed his opinion that the plaintiff had completely recovered from his work-related injury, and for that time onwards the plaintiff had a capacity for unrestricted work of the type he had previously undertaken for the defendant prior to his injury.
51 For the reasons set out above I find I am satisfied that the position taken by Mr Buntine was expressed in the absence of any sound basis and accordingly that the primary basis of the defendant’s attack upon the plaintiff’s credit is unjustified.
52 In my opinion the plaintiff’s credibility is further bolstered by:
· his long history of employment with the defendant;
· his return to work when he continued to suffer from symptoms associated with his injury which symptoms effectively precluded him from undertaking his work;
· the fact that the plaintiff has commenced a number of jobs which he left by reason of the fact that the work involved in those occupations aggravated his symptoms;
· the plaintiff is currently working on a full-time basis in largely suitable employment which behaviour in turn strongly suggests the presence of an attitude in the plaintiff to diminish the consequences of his physical injury to his lifestyle and income and speaks favourably as to his credit.
· the candour with which the plaintiff presented to each of the medical practitioners who have examined him in which he generally described his condition as involving little symptomology unless it was aggravated by activity.
53 Insofar as the issue arises as to whether the plaintiff continues to suffer from any symptoms at all arising from his compensable injury:
(i) that the plaintiff continues to receive treatment with respect to that injury in the form of physiotherapy; and
(ii) the plaintiff has declined employment on a full-time basis with Australia Post as a delivery driver by reason of his concern as to his capacity to handle the heavier objects which he must offload from his delivery and then deliver;
in my opinion speak definitively in favour of that issue.
54
In making these findings I take into account the fact that notwithstanding numerous attendances by the plaintiff upon his general practitioner between the period between of October 16 2016 and 13 July 2018 there is no documented complaint by the plaintiff of any symptoms associated with injury to his
right elbow.
55 Whilst I do not ignore that evidence I do not attribute significant weight to it given:
(i) that this issue was never directly put to the plaintiff and for that reason the plaintiff was denied the opportunity to explain the reason for that non-attendance.
(ii)
the vast body of medical evidence which post-dates October 2016
which records the fact that the plaintiff was presenting with symptoms
in his elbow which precluded him from engaging in unrestricted forms
of employment.
(iii) that the plaintiff was not given an opportunity cross examination to explain the reason for his lack of complaint, which explanation may have been as simple as the fact that the plaintiff had appreciated that the medical profession had little to offer him and that his real avenue for the control of his symptoms involved physical therapy of the type provided, initially by his osteopath, and now by his physiotherapist, and not attendances upon his general practitioner. As to this issue, in my view, the fact that the plaintiff is having regular treatment by way of self-funded physiotherapy, provides evidence not only as to the presence of continuing symptoms but also the existence of the recognition to which I have referred.
Findings as to the consequences to the plaintiff of the compensable injury to his right shoulder.
56 Given the medical evidence to which I have referred, and the period of time during which the plaintiff’s condition has persisted, I am satisfied that his condition has stabilised at its current level.
57 I am further satisfied that the plaintiff’s irregular attendance upon his general practitioner does not attest to the insignificance of his symptoms but rather to the fact that the only medical management available to him is that of pain control.
58 In deciding the issue which arises in this case namely, whether the plaintiff’s pain and suffering consequences, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than significant or marked and as being at least very considerable, I am required to assess the consequences in terms of pain and suffering which the plaintiff’s injury has occasioned to him and determine where the facts of this case sit in the broad spectrum of cases. The task which I am required to undertake has been described as involving “a value judgment, in which matters of fact and degree, and of impression, are operative,”[1] and one in which I am required to take into account –
“… not only what symptoms there are and what the worker is precluded from doing, but also what limits there are to symptoms and to inhibitions upon activities. It is true that impairment is concerned with what has been lost. But the significance of what has been lost, which bears upon the seriousness of consequences, may be informed, to some extent, by what is retained.”[2]
[1] Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181, [41].
[2]Dwyer v Calco Timbers Pty Ltd No 2 [2008] VSCA 260, [27].
59 In my opinion the plaintiff presented as an honest, reliable and well-motivated person and to some extent a stoic person. The presence of those attitudes are evident given the findings and reasons to which I have previously referred.
60 There is no issue that:
(i) the plaintiff is able to work on a full-time basis in suitable restricted employment and that he has the capacity to work some overtime;
(ii) the plaintiff, in the course of his evidence, did not identify any activity which was completely denied to him by reason of the presence of his symptoms;
(iii) the plaintiff is, with time, generally able to perform his household tasks; and
(iv) the plaintiff is able to manage his symptoms without a need for constant recourse to medication.
61 For the reasons set out above I am satisfied that the plaintiff presents with an ongoing condition in his right arm which at rest involves modest discomfort but the permanent effect of which is to preclude the plaintiff from work involving repetitive activity with his right arm, or work requiring the lifting or handling of anything more than light weights. In my opinion that limitation must operate to reduce the prospect of the plaintiff finding suitable employment should he lose his present job.
62 Having regard to the plaintiff’s evidence as to the inability to complete common, not overly strenuous activities associated with the day-to-day management of a suburban garden, I am satisfied that that evidence is informative of the level of activity which the plaintiff is able to tolerate before he suffers an exacerbation of his symptoms, and that it suggests that levels of activity which the plaintiff is able to engage in without exacerbating his symptoms are relatively modest. That finding in turn speaks as to the significance of the restriction which the plaintiff’s impairment has upon the range of work he may be able to perform.
63 I am satisfied that the plaintiff’s history of work both before and after he occasioned the subject injury demonstrates the plaintiff to be a man for whom work is important not only by reason of his financial obligations to his family but also by reason of his general attitude as to the importance of work.
64 I accept that:
· the plaintiff has lost his ability to engage in unrestricted forms of employment;
· that he has been required by reason of his symptoms to decline work which would be more remunerative to him: and
· that this is a matter of real significance for him having regard to his financial obligations to his family.
That loss, in my opinion, involves a very significant consequence which will continue to impact upon the plaintiff for the duration of his working life.
65 Having regard to the plaintiff’s impressive work history I am satisfied, independently of any other factor, that the loss of the plaintiff’s ability to engage in unrestricted forms of physical work is a loss involving a very considerable consequence to him taking into account his relatively young age and the duration for which it will persist.
66 In addition, I accept the plaintiff’s evidence that he suffers from symptoms of pain which varies in intensity and which is such that:
· on a daily basis he is currently experiencing symptoms sufficient to warrant recourse to massage with deep heat in the manner described in his evidence;
· the plaintiff regularly employs over-the-counter anti-inflammatory medication in the form of Ibuprofen; and
· the plaintiff continues to have treatment in the form of physiotherapy. As to the need for that treatment, the fact that it is self-funded speaks for itself on that issue.
67 Taking into account all these factors it is, in my opinion, appropriate to assess the plaintiff’s level of pain as, whilst not being severe, being nevertheless significantly more than a level of pain which might be described as being a mere nuisance level.
68 I accept that the plaintiff’s symptoms impact adversely upon his ability to sleep although this impact is at a relatively modest level when considered in the context of the range of evidence given on this issue.
69 I accept that the plaintiff’s symptoms also adversely impact upon his ability to:
· engage in his hobby of game fishing (which he has had to abandon);
· engage in unrestricted physical activity with his children; and
· maintain his house and garden (the latter activity being a significant loss to him).
70 In undertaking the weighing exercise which I am required to employ, and focussing upon the effect of his injuries upon the plaintiff with respect to work, pain and lifestyle, and assessing those effects by comparison with other cases in the range of possible impairments or losses of body function, I am left with the overriding impression of a person for whom the effect of the impairment of function in his dominant right arm has an ever present and deleterious impact upon the pattern of his life.
71 Although I consider this case to fall towards the borderline of that which may be judged as satisfying the criteria imposed by the Workplace Injury Rehabilitation and Compensation Act (2013) (“the Act”), I am satisfied that the impact of the plaintiff’s symptoms upon his life is such that it is appropriate to describe his impairment as being more than significant or marked and as being at least very considerable.
72 In these circumstances, I am satisfied that the plaintiff’s impairment meets the high threshold test which is imposed by the Act and accordingly, that the plaintiff has made out his case as to his entitlement to the order sought in this proceeding.
73 I will hear the parties as to the order which I should make in the proceeding and also upon the issue of costs.
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