Nochevski v Altair Investments Pty Ltd
[2017] VCC 1336
•6 October 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-16-05559
| LJUPCO NOCHEVSKI | Plaintiff |
| v | |
| ALTAIR INVESTMENTS PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 and 4 September 2017 | |
DATE OF JUDGMENT: | 6 October 2017 | |
CASE MAY BE CITED AS: | Nochevski v Altair Investments Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1336 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious Injury – plaintiff suffered a left thumb injury and later a right shoulder injury – whether the plaintiff had suffered a serious injury relevant to pain and suffering and loss of earning capacity
Legislation Cited: Accident Compensation Act 1985, s134AB
Judgment: The plaintiff has leave to bring a proceeding at common law to recover damages for pain and suffering and loss of earning capacity with respect to both injuries.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C Harrison QC with Mr R Forsyth | Patrick Robinson & Co |
| For the Defendant | Mr C Miles | Wisewould Mahony |
HIS HONOUR:
Introduction
1 The plaintiff is a fifty-six-year-old married man and father of two sons, who was born in Macedonia, and who migrated to Australia in 2007. He suffered an injury to his left thumb and later his right shoulder. He claims that the impairment to both body functions has resulted in pain and suffering and loss of earning capacity consequences which are serious.
2 Mr C Harrison QC and Mr R Forsyth of counsel appeared for the plaintiff. Mr C Miles of counsel appeared for the defendant.
The left thumb injury
3 The plaintiff delivered an aviary cage to a customer of the defendant. He asked the customer to assist him in lifting a sheet of Colorbond which was 2.7 metres long and 1.5-metres wide. In the course of doing so, the end of the cage he was lifting slipped from his grasp, with the result that he suffered a serious laceration to his left thumb.
Treatment – the left thumb injury
4 The plaintiff was taken to The Alfred hospital by ambulance, where the laceration was surgically repaired.
5 There was no issue about the nature of the injury to the plaintiff’s thumb. Mr Stapleton, plastic surgeon, examined the plaintiff on 19 November 2014. He provided the best description of the injury:
“… It appears that the flexor tendon was divided and repaired and the sensory nerve on the inner aspect of the thumb, i.e. the ulnar side, was clearly either damaged or lacerated and surgery was, no doubt, directed there… .”[1]
[1]Defendant’s Court Book (“DCB”) 3
6 The plaintiff’s left hand was placed in a splint. He was referred to have hand therapy, which he had on a weekly basis for about six months. He was later referred to a hand therapy which he has attended for some time.
Medical evidence – the left thumb
7 The plaintiff continued work with the defendant on light duties until 6 July 2015. He then went on holiday to Macedonia to visit his sick mother. On 20 July 2015, whilst he was overseas, his employment was terminated. He has not worked since.
8 After the plaintiff was treated at The Alfred hospital, he came under the care of Dr Dzartov, who has continued to treat him. He provided three medical reports dated 11 September 2015,[2] 1 December 2016[3] and 26 July 2017.[4] He considered that the plaintiff is unfit for work. In giving that opinion, he did not distinguish between the left thumb and right shoulder injuries. He qualified that opinion, saying that if the plaintiff undergoes surgery to his right shoulder and undergoes appropriate rehabilitation, he may return to a capacity for suitable employment.[5]
[2]Plaintiff’s Court Book (“PCB”) 33-35
[3]PCB 36-38
[4]PCB 39-40
[5]PCB 40
9 Mr Myers, surgeon, examined the plaintiff on 11 July 2017. He provided a report dated 14 July 2017.[6] His diagnosis of the left thumb injury was:
“Laceration of the left thumb with division of the radial digital nerve with probable failure of repair as well as successful repair of the tendon to the thumb. This has resulted in numbness of the thumb and 50% restriction of all movements.”[7]
[6]PCB 74-80
[7]PCB 77
10 In relation to the impact of the left thumb injury on his capacity to engage in work and non-work activities, Mr Myers said:
“There will be marked suffering with some pain and considerable restriction of everyday activities, enjoyment of life and capacity to perform any type of work, either part-time or full-time in any capacity, quite apart from any functional overlay or psychologically based syndrome.”[8]
[8]PCB 77
11 Dr Barmare, orthopaedic surgeon, examined the plaintiff on 24 July 2017 and provided a report dated 7 August 2017[9]. His diagnosis of the left thumb injury was:
“My diagnosis is the left thumb has a post-traumatic motor and sensory loss of the left thumb with gross loss of function secondary to the work related injury which he sustained on 07.08.2014.”[10]
[9]PCB 89-96
[10]PCB 93
12 In relation to the impact of the left thumb injury on his capacity to engage in work and non-work activities, Dr Barmare said:
“Just considering the way it has been present for the last two years my prognosis is quite bleak for his left thumb and he is functionally affected to a large extent in the form of fine motor as well as gross motor function.”[11]
[11]PCB 94
13 Specifically, in relation to the plaintiff’s capacity to return to work, Dr Barmare said:
“At this present moment it seems to be a permanent effect on his left upper limb function secondary to the left thumb injury because of which he is unable to perform his previous preinjury work duty which he was doing with Classic Pet Enclosures.”[12]
[12]PCB 94
14 Mr Stapleton, plastic surgeon, examined the plaintiff on 19 November 2014 and 28 May 2015. He provided two medical reports dated 19 November 2014[13] and 28 May 2015.[14] He was asked a number of questions at the time he examined the plaintiff on 28 May 2015, which he answered as follows:
[13]DCB 3-5
[14]DCB 7-10
“5.… . His left thumb problem has not settled and it is, indeed, a long way from having him back to unrestricted duties …
…
7.He has not returned to pre-injury duties and whether he ever will do so, only time will tell. Frankly, I doubt it.
8.His light duties, as he is performing at the moment, should remain and I see no sign of improvement such that I consider there will be no reason to suggest that he can increase his hours or activities at the workplace as it stands at present.”[15]
[15]DCB 9
15 The structure of Mr Stapleton’s report makes it plain that he was asked to comment on the left thumb injury. It was only at the end of his interview with the plaintiff that he told him that he had also suffered “pain in his right shoulder”.[16] His opinion was solely directed to the plaintiff’s left thumb.
[16]DCB
16 Dr Brown, occupational physician, examined the plaintiff on 2 August 2016. He provided two reports dated 2 August 2016[17] and 5 October 2016.[18] Although, Dr Brown was aware that the plaintiff had suffered the right shoulder injury, it would appear from the structure of his first medical report that he was asked to comment on the left thumb injury only. He would have preferred to have been given more information regarding the nature of the left thumb injury; however, working on what the plaintiff had said, Dr Brown concluded:
“With regard to work, Mr Nochevski does not have capacity for pre-injury duties. He has poor English and no computer skills, so office work is not an option. He has little functional capacity with the left hand, due to impaired thumb function. He can carry items in the fingers of his left hand, as demonstrated on the video surveillance, so could possibly do some light courier work, or work as a carpark attendant, but there do not appear to be other obvious work options for him at present.”[19]
[17]DCB 21-24
[18]DCB 25
[19]DCB 23-24
17 Dr Brown was provided with a vocational assessment report dated 19 August 2016. It apparently listed a number of job options on which he was asked to comment regarding the plaintiff’s capacity to undertake any of them. I have not been provided with that vocational assessment report. Dr Brown considered that the plaintiff had a physical capacity to work as a delivery driver of light items, a bus driver, a console operator or a car park attendant. He did not analyse those job options against the plaintiff’s retained capacity to use his left hand or by taking account of the plaintiff’s non-existent English. It is a curious opinion, when compared with his earlier opinion, that the plaintiff’s capacity for suitable employment was very limited. Of real relevance is his opinion that the plaintiff did not have the capacity to undertake work which involved dexterous tasks with his left hand or physically demanding work.[20]
[20]DCB 25
18 Dr Baynes, occupational physician, examined the plaintiff on 20 October 2016 and 20 July 2017. He provided three reports dated 20 October 2016,[21] 2 May 2017[22] and 20 July 2017.[23] Dr Baynes was provided with two reports of Recovre dated 21 December 2016[24] and 18 July 2017.[25] He considered that the plaintiff had the capacity to work as a packer and as a process worker.[26] I have read the description of each of those job options. I do not propose to summarise them beyond Dr Baynes’ summary, because the descriptions are very lengthy. He analysed the job options as having physical components which were within the range of the plaintiff’s residual capacity, having regard to both the impairment of function of the plaintiff’s left thumb and the right shoulder.
[21]DCB 26-31
[22]DCB 32-33
[23]DCB 34-38
[24]DCB 49-69
[25]DCB 69a-69n
[26]A lengthy description of each of those job options is set out in the reports of Recovre at DCB 64-67 (the packer) DCB 52-56 (the process worker)
19 During re-examination, the plaintiff was taken specifically to the jobs on which Dr Baynes commented.[27] Essentially, the plaintiff said he could not do either of those jobs because if there was a requirement to lift his right arm then he would not be able to do that. He conceded he could lift his left arm, but added the proviso that he could do so as long as he did not have to carry anything in his left hand.[28]
[27]Transcript (“T”) 74-77
[28]T75 and 77
20 The last medical practitioner to examine the plaintiff was Mr Ireland. He examined the plaintiff on 26 October 2016 and 2 July 2017. He provided two medical reports dated 28 October 2016[29] and 8 August 2017.[30] Mr Ireland considered that the plaintiff’s right shoulder injury was more disabling than his left thumb injury. He appears to have concentrated more on the impact of the plaintiff’s right shoulder injury on his capacity for work, rather than distinguishing one injury from the other, and dealing with them separately, because when it came to his ultimate opinion relevant to the plaintiff’s capacity for work, he said that the plaintiff had limited employment opportunities due to a combination of factors, not least of which was a moderately severe right shoulder rotator cuff tendinitis and biceps tendinitis. I assume that when he referred to a “combination of factors”, he was also incorporating the consequences of the left thumb injury. He concluded by saying that it was a combination of the left thumb symptoms, right shoulder symptoms and the plaintiff’s inability to understand English which limited his employment opportunities. Perhaps the only real distinction he made between the two injuries is that he recorded the plaintiff told him that if it were not for his right shoulder injury he would be able to return to many forms of work.[31]
[29]DCB 29-43
[30]DCB 44-48
[31]DCB 47-48
Pain and suffering – the left thumb
21 In his affidavits, the plaintiff described the following pain and suffering consequences resulting from the impairment of function of his left thumb as it affects the function of his left hand:
· He has pain and stiffness in his left thumb all the time.[32]
[32]PCB 21 and 24
· He needs to protect his left thumb, presumably from exposing it to stress and strain which produces pain.[33]
[33]PCB 25
· The pain in his left thumb increases when it is put to effort, for example, holding a cup of coffee.[34]
[34]PCB 22
· He has suffered a loss of sensation on the inside of his left thumb and is unable, for example, to have a sensation of touch, or detect heat or cold.[35]
[35]PCB 22 and 24
· His grip strength is reduced in his capacity to undertake gross or fine movements with his hand impaired. [36]
[36]For example, see the history recorded by Mr Barmare at PCB 92
· I noted that in the course of the time the plaintiff spent in the witness box, he grasped the glass of water he was given by clutching it with his forefingers against the palm of his hand with his left thumb cocked and out of the way. I am satisfied that he did so unconsciously and not as a false demonstration of a difficulty he has in the use of his left thumb and hand.
· He is unable to confidently perform activities which would ordinarily require the full use of both hands.[37]
[37]PCB 25
· He continues to use medication for pain relief for both his left thumb and right shoulder, namely, Celebrex and Advil.[38]
· He is unable to play the piano accordion as well as he did previously. He was playing in a band demonstrated by the reference to the bands Facebook page.[39] Before he suffered the injury to his left thumb he played in about fifty concerts per year, and post injury he played in about eight. The reduction in playing in concerts occurred after he suffered the injury to his right shoulder.[40] His left hand is used to play the bass keys on the piano accordion which is now restricted and affects the quality of his playing.[41]
[38]PCB 25 and T69-70
[39]DCB 75-115; T54-57 and T71-74
[40]T72
[41]T72-73
22 The preponderance of the medical evidence has left me with a strong impression that the plaintiff has a significant problem with his left thumb and hand which has troubled him significantly in the past, at present, and will for the foreseeable future. The constant level of pain, an inability to use the left thumb in cooperation with the rest of the hand to perform ordinary manual function, the loss of grip and manual dexterity, the need for medication, the interference that it contributes to playing the piano accordion, and the consequent reliance upon the other hand, have pain and suffering consequences, which satisfy me that the impairment of function of the left thumb and hand are “serious” when the relevant comparison is made with like impairments.
Loss of earning capacity – the left thumb
23 There are two very serious impediments to the plaintiff being able to take up either of the two job options referred to in the report of Recovre and Dr Baynes; firstly, his lack of English and, secondly, both jobs are manual.
24 There is no evidence to suggest that a lack of English is a complete impediment to the plaintiff being unable to work in either of the two job options, but in reality, all jobs involve a necessity to be able to communicate in order to understand the basic requirements of any job, and in particular, training and instruction.
25 The job options appear to involve light manual work using both hands to perform repetitive work. Each job would require bilateral manual function, which the plaintiff no longer has. He would have to perform the tasks involved in each job with his right hand, with perhaps being able to use his left hand in a limited way to support right-handed operations; however, I am rather doubtful of that because the plaintiff has constant pain in his left thumb and hand, loss of grip strength, and manual dexterity. That may mean that he will effectively be left to perform the tasks required in those jobs largely with his right hand.
26 On the basis of the evidence I have reviewed and analysed, I am not satisfied that either of the two jobs identified by Recovre and Dr Baynes are suitable. Therefore, I am satisfied that the loss of earning capacity consequences are serious when the relevant comparison is made with like impairments.
The right shoulder injury
27 The plaintiff returned to work with the defendant in March 2015. He says he was working two hours per day, two days per week, performing arduous work and essentially only using his right arm. It was as a result of performing that work and favouring his right upper limb that he suffered the right shoulder injury.
28 The plaintiff saw Dr Dzartov, general practitioner, for treatment. He referred the plaintiff for an ultrasound, which was undertaken on 22 May 2015. The radiologist reported the following:
“Some fluid appeared to be present in relation to the tendon sheath of the long head of the biceps in keeping with a sheath effusion measuring approximately 0.3 cm. In addition, a full thickness tear measuring approximately 1.0 x 0.5 x 1.2 cm was also felt to be present and approximately 0.5 cm from the tendon of the long head of the biceps. There appeared to be retraction by approximately 1.3 cm. This was in relation to the Supraspinatus tendon.
A partial tear also appeared to involve the sub- scapularis tendon measuring approximately 0.7 x 0.4 x 0.5 cm. Fluid/thickening of the bursa measuring approximately 0.3 cm was felt to be in keeping with subacromial/subdeltoid bursitis.
Dynamic assessment revealed an adequate range of movements with no obvious impingement.”[42]
[42]PCB 97
29 It is my impression that the medical practitioners who were provided with the ultrasound agreed with what they saw on the ultrasound, or they accepted the radiologist’s interpretation of what was demonstrated on the ultrasound.
30 The defendant submitted that it is unlikely that the plaintiff could have suffered such a dramatic injury to his right shoulder when he was only working one-and-a-half hours per day, two days per week, on light duties or, alternatively, if he did, then it is a discrete injury which does not have pain and suffering or loss of earning capacity consequences which are serious.
Causation – the right shoulder
31 In his first affidavit sworn 3 August 2016, the plaintiff said:
“26. I returned to work on modified duties 2 hours a day 2 days a week in or about March 2015 even though I didn’t feel ready to do so. The modified duties involved cleaning, stacking boxes, moving pieces of steel and washing trucks. Because my left hand was still troubling me I did all this work with my right arm. As a result of favouring my right arm I began to feel pain and had restriction of movement in my right shoulder which I had never suffered before.”[43]
[43]PCB 19
32 And during examination, the plaintiff said:
Q:“Mr Nochevski, you gave some evidence on Friday and you said at transcript 25 that when you went back - this is at lines 1-2 - on light duties, the work you were performing wasn’t always very light, lifting boxes up to 15 kilos, that wasn’t very light, asked to remove iron pieces or steel pieces, that wasn’t very light, and then you may have been cut off. What sort of work we’re doing when you went back on the return to work light duties?---
A:Once or twice I washed the truck, so I lifted and transported heavy boxes. They were filled with very old paint, paint that was quite old and hard. I was transporting them from one room to another and outside because it was quite polluted from the previous staff member. So I would lift very sheets of materials, different sizes and I would take them - metal in particular -and I would take them outside the rubbish, I would dispose of them.
Q:Were the tasks you’ve described, perhaps going through them, washing the truck, was that heavy or light? How did you go with that?---
A:It wasn’t quite easy because it was a very detailed job and it required using a vacuum cleaner. It wasn’t easy, but I would do it slowly.
Q:The boxes of old paints, what did they weigh?---
A:I think they were more than 15 kilograms.
Q:How did you find coping with them?---
A:I would push them slowly from one spot to another.
Q:Is it possible to say in percentage terms how much of the work was light work and how much was heavier work?---
A:20 percent light work, 80 percent heavy work.”[44]
[44]T78-79
33 During cross-examination, it was put to the plaintiff that his account of the hours he worked and the work he performed was wrong. He was referred to the affidavit of Ms Maurer sworn 27 July 2017. She was the bookkeeper employed by the defendant at the time when the plaintiff was employed by the defendant and at the time when he returned to work. She deposed to having some knowledge of the plaintiff’s return to work and the circumstances of his return to work. She said:
“4.Following his thumb injury he returned to work on light duties on or about 24 February 2015, three hours per week, consisting of 1.5 hours on a Tuesday and Thursday.
5.The Plaintiff’s return to work duties involved:
(a)Sorting through stock such as nuts and bolts (weighing less than 500 grams);
(b)Sorting through the storage room and moving small boxes which weighed no more than 2 kilograms into designated areas.
(c)Light tidying of the factory, such as sweeping.”[45]
[45]DCB 1-2
34 I prefer the evidence of the plaintiff, because whilst Ms Maurer has deposed to her understanding of the plaintiff’s hours of work and the work he performed on his return to work, she does not say that she was the person responsible for the implementation of a return to work plan, nor the supervision of the plaintiff while he was performing the so-called light duties. She does not say that she actually saw the plaintiff working the limited hours she referred to and performed the tasks she referred to. Furthermore, the plaintiff was adamant that he worked two hours, two days per week, in the face of a repeated challenge to that evidence. Similarly, he was adamant that the work he performed was as he deposed to in his affidavit and what he said during re-examination. It was my overall impression that the plaintiff was giving a true account of the circumstances of his return to work.
35 During cross-examination, the plaintiff gave evidence relevant to the initial onset of his right shoulder injury which at first appears to be at odds with what he deposed to in his evidence, which I have summarised above:
Q:“Did your right shoulder pain come on gradually or did it come on suddenly?---
A:So I - when I was trying to pull a trolley, when I was asked to transfer some pieces made out of steel or iron I was asked to transfer, so I moved this trolley out of the way to create a passage so I could walk and in doing so, in pulling this trolley with my right out on, that’s when I experienced - I experienced pain in my right arm and like a burning sensation.
Q:Was it the strain of pulling the trolley that caught your right shoulder pain to come on suddenly? Was it the strain of pulling the trolley that caught your right shoulder pain to come on suddenly?---
A:Yes, that’s when it happened.
Q:All right. So before you pulled on the trolley, your shoulder was okay. After you pulled on the trolley, your shoulder pain became bad?---
A:Yes, yes.”[46]
[46]T25
36 Although this evidence gives the impression that the plaintiff suffered the right shoulder injury as a result of pulling the trolley and not as a result of the nature of his work, it needs to be considered in the context of what he deposed to in his first affidavit, and the later evidence he gave during re-examination. In his first affidavit, the plaintiff described the onset of the right shoulder injury as being due to the work he was required to perform on light duties. He did not refer to the use of a trolley, but he did mention the use of a trolley to a number of medical practitioners who examined him and who provided reports relevant to this application. During re-examination, he explained that he injured his right shoulder as a result of the work he performed on light duties, and that he suffered further pain in his right shoulder from pulling the trolley. He said:
Q:When you were doing the heavier work, before the day of the trolley incident, did it have any effect on your right shoulder?---
A:I felt pain but it wasn’t as bad as the pain I experienced in the main episode when I was pulling the trolley. I felt pain in my shoulder.
Q:For how long had you been feeling pain in your shoulder before the day of the trolley?---
A:It would hurt and then it would go away, it would hurt again, the pain would come and go.”[47]
[47]T79
37 During cross-examination, it was put to the plaintiff that he had given different accounts of the onset of his right shoulder injury to a number of examining medical practitioners, which was said to go to his creditworthiness and reliability. Examples referred to by the defendant were:
· Dr Dzartov recorded that the right shoulder injury was “due to overuse” and did not refer to the trolley incident.[48] In a report dated 1 December 2016, he recorded that the plaintiff injured his right shoulder “while pulling a trolley”.[49]
[48]PCB 34
[49]PCB 36
· Dr Berberovic, clinical psychologist and clinical neuropsychologist, recorded that the right shoulder injury was “caused by the heavy lifting of aviary material”.[50]
[50]PCB 48
· In the plaintiff’s Worker’s Injury Claim Form, signed by him on 2 July 2015, he made no mention of the trolley incident. He described the right shoulder injury as being produced by reliance on his right arm.[51]
[51]PCB 118
· Dr Brown, occupational physician, recorded that the plaintiff injured his right shoulder “moving a trolley”.[52]
· Dr Baynes, occupational physician, recorded that the plaintiff injured his right shoulder “moving a heavy trolley”.[53]
[52]DCB 22
[53]DCB 27
38 I am not persuaded that these different accounts of how the plaintiff came to suffer the right shoulder injury is of such moment that it undermines his creditworthiness or reliability. The account recorded by Dr Berberovic is completely wrong. It is strange that she recorded a description of an event which caused the left thumb injury, and not the right shoulder injury. However, the descriptions recorded by the other medical practitioners are not necessarily inaccurate. Dr Zdartov was not provided with a history of the trolley incident, and the other medical practitioners did not obtain a history of the pain the plaintiff experienced prior to the trolley-pulling incident.
39 Ms Maurer recorded a conversation she allegedly had with the plaintiff in which he referred to the occurrence of the right shoulder injury as to “getting old”, that is, that the right shoulder injury is idiopathic. The plaintiff denied saying that to her. I accept the plaintiff’s evidence.
40 Mr Myers and Mr Barmare considered that the tasks the plaintiff performed when he returned to work contributed to the plaintiff’s right shoulder injury.[54] I accept their evidence, and I accept the plaintiff’s evidence that he suffered the right shoulder injury in the manner he has described.
[54]Mr Myers at PCB 78, and Mr Barmare at PCB 94
Stability – the right shoulder
41 Dr Dzartov referred the plaintiff to the orthopaedic clinic at The Northern Hospital. The plaintiff has been placed on an elective surgery waiting list to undergo a “right shoulder arthroscopic cuff repair”. He added that he considered that the plaintiff was unfit for his pre-injury employment, which would need to be re-assessed following surgery to his right shoulder and post-surgical rehabilitation.[55]
[55]PCB 40
42 The defendant submitted that there are three matters of significance which I need to consider:
(a)Dr Dzartov expressed the opinion, with some confidence, that the surgery would ameliorate the condition of the plaintiff’s right shoulder sufficient for him to have a capacity to return to suitable employment;
(b)Secondly, the surgery is “elective” meaning that it is surgery which the plaintiff has decided to undergo; and
(c)Thirdly, there is no evidence the plaintiff will not undergo surgery, merely evidence of some concerns he has about undergoing it.
43 During cross-examination, the plaintiff provided the following evidence about whether he will undergo surgery or not:
Q:“You’re still in the queue, still waiting to get to the front of the queue?---
A:Yes, at the moment I’m waiting and I think I might have to get someone to help me to talk through it all again and make a decision.
Q:But at this stage your intention is to have the operation?---
A:I can’t tell you.
…
Q:Depending on how you feel on the day or depending on when they ask you? Depending on what?---
A:With - in consultation with people from when I have been talking to people who have gone through similar operations, my understanding is that things might not improve and it’s uncertain and the recovery time can take up to one year.
Q:So you may have the operation, you may not, you just don’t know?---
A:My status is uncertain at the moment. My situation is uncertain.”[56]
[56]T33
44 The plaintiff’s concern about surgery, and the prospect of a good outcome, has been commented on by Mr Myers, who considered that the plaintiff’s “negative attitude” to undergoing surgery is understandable given that some patients improve and others do not. He added that surgery is the only prospect available to the plaintiff to gain any relief from the pain and loss of function in his right shoulder.[57]
[57]PCB 78
45 Dr Barmare recommended that the plaintiff undergo an MRI scan of his right shoulder “if necessary” and that he have surgical intervention, to be determined by the plaintiff’s orthopaedic surgeon. He considered that if surgical intervention is undertaken, that the plaintiff’s prognosis will be good. He did not make any comment about the plaintiff’s reluctance to consider surgery.[58]
[58]PCB 94-95
46 None of the other medical practitioners who have examined the plaintiff made any comment about the relevance of surgery in the treatment of the plaintiff’s right shoulder injury.
47 I am not persuaded that I can assume that the plaintiff will have surgery and obtain a good outcome. The evidence demonstrates the opposite. The plaintiff is reluctant to have the surgery for reasons which I have referred to, and there is sound medical evidence from Mr Myers that his reluctance has an objective basis, and is understandable. Therefore, I must assess the impairment to the plaintiff’s right shoulder in the ordinary way, as he presents now.
Treatment – the right shoulder
48 After the plaintiff underwent the ultrasound on 22 May 2015, Dr Dzartov referred him to have physiotherapy and later an ultrasound-guided steroid injection into his right shoulder, which was performed on 31 August 2015.[59] It would appear that it gave the plaintiff little benefit.
[59]PCB 98
49 Apart from the medication which the plaintiff has taken for both the left thumb injury and the right shoulder injury, he has not had any other treatment for his right shoulder injury.
Medical evidence – the right shoulder
50 Dr Dzartov considered that both the injury to the left thumb and right shoulder, rendered the plaintiff unfit for his pre-injury employment, or any other work.
51 In relation to the impact of the right shoulder injury on the plaintiff’s capacity to engage in work and non-work activities, Mr Myers firstly said that the plaintiff’s prognosis “is probably quite bad with persistence of problems”[60] and then said:
“There will be marked suffering with some pain and considerable restriction of everyday activities, enjoyment of life and capacity to perform any type of work, either part-time of (sic) full-time in any capacity… .”[61]
[60]PCB 78
[61]PCB 78
52 Dr Barmare gave a rather general opinion regarding the impact of the plaintiff’s right shoulder injury on his capacity to function in work and non-work activities. He said that if the plaintiff does not have any treatment to his right shoulder he could foresee that “he might not be able to perform to the level which he could do prior” to suffering that injury.[62]
[62]PCB 95
53 Dr Brown considered that the plaintiff’s right shoulder injury caused him “significant incapacity”. He considered that the plaintiff did not have a capacity for work due to both injuries.[63]
[63]DCB 23
54 Dr Baynes considered that the plaintiff could perform work as a packer and a process worker, which I referred to when dealing with the left thumb injury,; however, he considered that the right shoulder injury would make it difficult for the plaintiff to perform lifting and reaching to or above shoulder height, pushing heavy trolleys and lifting heavy boxes.[64]
[64]DCB 37-38
55 Mr Ireland considered that the right shoulder injury was “moderately severe right shoulder rotator cuff tendinitis and biceps tendinitis”[65]. He considered that the plaintiff is not able to engage in any work that requires his right shoulder to be at above shoulder level, and he would impose a lifting limit of 5 kilograms.[66] It represents the strongest opinion that the plaintiff has suffered a significant impairment of function of his right shoulder.
[65]DCB 42
[66]DCB 42-43
Pain and suffering – the right shoulder
56 In the plaintiff’s affidavits he described the following pain and suffering consequences resulting from the impairment of function of his right shoulder:
· He has constant pain in his right shoulder.[67]
[67]PCB 21
· The pain in his right shoulder increases when he turns over in bed at night or he lies on his right shoulder. [68]
[68]PCB 21
· He has difficulty extending his right arm and moving his shoulder through a range of movement which is evident when washing his hair, attempting to put his right arm behind his back or reaching backwards, reaching above shoulder level, and doing household maintenance tasks.[69]
[69]PCB 21 and 25
· His capacity to move his right shoulder is limited to lifting it out to the side a bit less than shoulder level before he has met with pain.
· He continues to use medication for pain relief for both his left thumb and right shoulder, namely, Celebrex and Advil.[70]
· He is unable to play the piano accordion as well as he did previously, to the extent which I have summarised, relevant to the pain and suffering consequences arising from the impairment of the function of the left thumb and hand.
[70]PCB 25 and T69-70
57 The preponderance of the medical evidence has left me with a strong impression that the plaintiff has a significant problem with his right shoulder, and in particular, the evidence of Mr Ireland. The injury has troubled him significantly in the past, at present and will for the foreseeable future. The constant level of pain, an inability to move his right shoulder beyond the very restricted range, the interference with his sleep, the need for medication and the interference that it contributes to his ability to play the piano accordion, are pain and suffering consequences which satisfy me that the impairment of function of the right shoulder are serious when the relevant comparison is made with like impairments.
Loss of earning – the right shoulder
58 I do not propose to repeat the observations I have already made, relevant to what I termed as the two very serious impediments to the plaintiff being able to take up either of the two job options referred to in the reports of Recovre and Dr Baynes. They equally apply to an assessment of the loss of earning capacity consequences relevant to the impairment of the function of the plaintiff’s right shoulder. Nor do I propose to repeat my description of what those two job options involve, or my summary of the basis on which Dr Baynes considered that the job options both constituted suitable employment. Nor do I propose to repeat my summary of the plaintiff’s evidence, relevant to whether he could perform the tasks involved in either of those two job options. I think all of that equally applies to the right shoulder injury.
59 I am doubtful that with constant pain and significant restriction of movement, particularly reaching and stretching to shoulder height and above, the plaintiff could perform the tasks required in those job options.
60 On the basis of the evidence I have reviewed and analysed, I am not satisfied that either of the two job options identified by Recovre and Dr Baynes are suitable. I am satisfied that the loss of earning capacity consequences are serious when the relevant comparison is made with like impairments.
Conclusion
61 I will grant the plaintiff leave to bring a proceeding at common law to recover damages for pain and suffering and loss of earning capacity with respect to both injuries.
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