Noll v Victorian WorkCover Authority
[2020] VCC 1252
•14 August 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-19-06174
| BRENDAN NOLL | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE LAURITSEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 and 20 July 2020 | |
DATE OF JUDGMENT: | 14 August 2020 | |
CASE MAY BE CITED AS: | Noll v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1252 | |
REASON FOR JUDGMENT
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Subject:
Catchwords:
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited:De Bono v VWA [2019] VSCA 85
Judgment:
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S A Smith QC with Ms J E Clark | Slater & Gordon |
| For the Defendant | Mr C A Miles | Thomson Geer |
HIS HONOUR:
Introduction
1Brendan Noll is 50. He seeks leave to commence a proceeding for the recovery of damages for pain and suffering and pecuniary loss damages. He alleges injuries to his shoulders and neck as a consequence of his work over time and, in particular, an incident on 14 September 2016. He claims these injuries individually amount to a “serious injury”, relying on paragraph (a) of the definition of that term in s325(1) of the Workplace Injury Rehabilitation and Compensation Act 2013 (the Act).
Circumstances
2Mr Noll was educated to Year 10 level at Wantirna High School. After leaving school, he completed only one year of an apprenticeship as a butcher. He left his apprenticeship and did not work for about a year. He was then employed at the Knox City Council as a road worker for five years.
3In 1989, he fell from the third floor of a building, injuring his right ankle and foot. There were many operations. He was off work for about five years. In 1999, he suffered an abscess in the foot. He was off work for another twelve months. The ankle joint is still stiff, losing 80% of movement. The foot is occasionally painful. The impairment affects his walking, squatting and kneeling. However, it has not prevented him from performing heavy manual work.
4In June 2002,[1] Mr Noll started working for Barra Steel as a labourer, spray painter and storeman. Barra Steel makes structural steel. It has a factory with 30 to 40 staff.
[1]In his second affidavit at [5], Mr Noll says he started in about 1997
5He described his duties:[2]
“My duties involved pretty much all the work that was not exclusively for the qualified boilermakers: I mainly made connection plates using a Cropper machine, performed spray painting, and was involved in general store duties for goods going in and out of the factory. I was required to perform heavy and repetitive manual handling of steel pieces; hang heavy chains on cranes; and load trucks with steel products.”
[2]Affidavit sworn 19 July 2019 at [7]
6In 2006, he experienced pain in his shoulders. The pain settled within weeks. As one would expect with his job, he suffered intermittent neck pain while working and after a long day of work, he would be generally sore or have “niggling” pain. This would pass.
7Mr Noll described the incident on 14 September 2016:[3]
“...I was manoeuvring a 30-metre air hose in order to perform some spray painting, when the hose suddenly became stuck on the leg of a nearby trestle table...I was pulling the hose with my right hand to start with, when the hose became stuck, and I then used my left arm to try and pull it after I had tried to flick it free. When I went to pull the hose again with my left hand, my left arm was wrenched and jolted, and I suffered immediate pain in my left shoulder and neck in the incident.”
[3]Affidavit sworn 19 July 2019 at [11]
8He continued working that day. At the request of the general manager he attended a company doctor who recommended physiotherapy. Mr Noll was dissatisfied with that advice and saw his general practitioner, Maryam Nejad. He underwent an ultrasound of his left shoulder on 20 September.
9He returned to work on 22 September, ostensibly on light duties, but involving heavy work including hanging chains on cranes and manually handling heavy pieces of steel. His description recorded by the orthopaedic surgeon, Mr O’Brien is more detailed:[4]
“...a few days after his injury he was involved with unloading steel using an overhead crane, which the patient stated involved using lifting chains above his shoulder level and this rapidly produced increasingly severe pain in the right and left shoulder, resulting in the patient ceasing employment.”
[4]Report dated 31 March 2020 at p 2
10When he next saw Dr Nejad on 28 September, both shoulders were painful. He was prescribed Celebrex and the next day there was an ultrasound of his right shoulder.
11In 2020, he told Dr Yong:[5]
“Mr Noll said that he had the onset of left shoulder pain, whilst on a return to work program for his right shoulder condition. He said he was given duties working with overhead cranes. He said he was picking up chains with his left arm on a repeated basis. He said that he was working with the chains at about shoulder height predominantly using his left arm, when he noticed the onset of shoulder pain (“the chain incident”).”
[5]Report dated 8 April 2020 at p 4
12As a result of these complaints, Mr Noll ceased work on 28 September and did not resume until January 2017. Then he worked as a dogman and rigger for five hours a day, three days a week. He needed to lift heavy chains and to reach forward. Due to protecting his left shoulder, he developed pain in his right shoulder and neck.
13In September 2016, he lodged a worker’s injury claim form. In October, his claim was accepted and, at least, weekly payments of compensation started.
14In October 2016, he sought treatment from a physiotherapist, Evelyn Chan, for his neck, shoulders and headache.
15On 2 December 2016, he received a steroid injection to his right shoulder and a similar injection into his other shoulder the following month. Neither injection provided relief.
16Having returned to work in January 2017, not long afterwards, Mr Noll ceased work and has not returned to any form of work since.
17In March, April and May 2017, there were MRI scans of his shoulders and cervical spine, ultrasounds of both shoulders and a bone scan. MRI scans of the cervical spine in May showed osteophyte complexes between discs with severe right sided and moderate left sided foraminal stenosis at C5-6 respectively and severe bilateral foraminal stenosis at C6-7 and C7-T1.
18In April 2017, for treatment purposes, Mr Noll was examined by an orthopaedic surgeon, Ishfaq Hussaini and, shortly afterwards, by a neurosurgeon, Ales Aliashkevich. The latter referred him to a neurologist, David Prentice, who conducted nerve conduction studies.
19In July and October 2017, arthroscopies were performed on his shoulders. The procedures were largely similar with manipulation under anaesthetic, acromioplasty, ostectomy of the clavicle and a subdeltoid bursectomy. The right shoulder also had a subacromial decompensation.
20In late June 2018, Barra Steel terminated Mr Noll’s employment.
21In August 2018, Mr Noll claimed impairment benefits. His claim was accepted.
22In about November 2018, his hydrotherapy and physiotherapy ceased.
23In April 2019, Mr Noll’s weekly payments of compensation were terminated. The correctness of the decision to terminate his weekly payments is the subject of litigation in the Magistrates’ Court. At present, he receives the Jobseeker allowance.
24In January 2020, Mr Noll left his parents’ home in Mount Martha and went to Echuca. After three months in Echuca, he went to Cohuna to live. The reason for the move is his anxiety when in crowds. This stems from his inability to defend himself. The cross-examination was illuminating:[6]
“Defend yourself, what, from physical attack?---Mate, you just never know. You can walk down the streets here at the moment, these Sudanese kids are running around. I’ve had one of them grab me on the head on the train. I had the police on the train the next minute. I couldn’t defend myself.
They’re a gentle lot in Cohuna, are they?---Yes, they are. There’s about 2400 people that live in the town and the demographic is over 50.”
[6]Transcript at p 48
25In Cohuna, he lives in caravan at the rear of a property rented by a friend, whom he has known for more than 30 years. The friend runs a car wash business at the front of the property. Mr Noll is looking for somewhere permanent to live in Cohuna.
Current situation
26When resting his upper limbs, there is a background discomfort, which Mr Noll places at 2/10 on a numerical rating scale and despite its presence, finds it quite comfortable. However, repetitive use of his upper limbs or using them above shoulder height exacerbates his pain, which peaks at 7 to 8/10. Examples of repetitive use are lawnmowing and vacuuming. After 15 minutes, his shoulders ache and become swollen. Even lifting his arms above shoulder height causes heaviness and soreness in his shoulders. Any activity above head height rapidly aggravates his pain in both shoulders. Any activity using either arm for 15 minutes or more aggravates his level of pain. After sitting for about 30 minutes, his shoulders and neck become stiff and sore. After an hour of driving, he must stop and stretch. These exacerbations cause the onset of posterior cervical pain and aggravates his headaches.[7]
[7]Sullivan at p 2
27Because both shoulders are painful, Mr Noll finds it hard to sleep on either side. He takes Imovane to sleep but still has about four hours of broken sleep nightly. This leaves him irritable and frustrated.
28He experiences pain in his neck which restricts its movements. He attributes the neck pain as the cause of his headaches. These occur once or twice a week and last from a “couple” of hours to almost 24 hours. However, they are decreasing in frequency and severity.
29He has not played golf since the incident. He believes the pain and restrictions in his shoulder would prevent it. Before, he played fortnightly. Other sporting activities, including water skiing and kicking a football, have stopped. Neither was a significant activity for him.
30His hobby was using remote-controlled model cars. He owned about 30 and used them three or four times a week. The cars weigh about seven kilograms. Shoulder pain has prevented him using them since late 2018.
31Prior to the accident in September 2016, Mr Noll had worked for Barra Steel since at least 2002. He loved his job and the work he did there was his “life”. Most of his friends were acquired through work. Since ceasing work, he has lost contact with these friends.
32He sees his general practitioner monthly or thereabouts. He is prescribed Tramadol for pain and Imovane for sleep. He does not take Tramadol every day. On average, he uses a packet of 20 tablets in a month. 50 mg is a low dose of Tramadol.
33Until recently, he lived with his mother in Mount Martha. His partner, Chantelle, did not live with him there. He has known her since 2014. He has since moved to Cohuna and lives in a caravan. Chantelle lives with him there. The caravan sits at the rear of a block of land. At the front of the block is a car washing business. It is run by a friend of Mr Noll. Mr Noll does not work in the business but will visit the factory and talk with his friend:[8]
“How long do you spend in the carwash when you go there on an average day?---I’m not 100 per cent sure. Some days it could be five minutes, some days it could be an hour, some days I could be in and out all day depending on what he’s doing.”
[8]Transcript at p 57
34In June, he was disqualified from driving for three months for exceeding the prescribed concentration of alcohol while driving.
Vocational and other assessments
35Stephanie Ebery, a rehabilitation counsellor, interviewed Mr Noll on 4 July 2018. She prepared a 130-week vocational assessment report.[9]
[9]Report dated 13 July 2018
36Relying on her interview with Mr Noll and the report of Dr Poppenbeek, dated 31 January 2018, she identified five potentially suitable jobs for him: despatch and receiving clerk, stock clerk, warehouse administrator, customer service officer and sales assistant. These jobs were not discussed with Mr Noll at the time of the interview.
37For some reason, Ms Ebery’s description of Mr Noll’s duties with Barra Steel over his years of employment emphasises the non-heavy labouring side, while Mr Noll’s description emphasises the other side.
38She noted Mr Noll could use the internet. He has no knowledge of Microsoft Office or other specific programs. As to computer training, he told her:[10]
“I will give anything a go. I am not sure about it but I will give it a crack…”
[10]Op cit at p 9
39For several of the proposed jobs, Ms Ebery recommended Mr Noll undertake what she called a “Basic Computer Skills Course”.
40Nicholas Janides is a vocational and occupational rehabilitation consultant. He was given three documents: Mr Noll’s affidavit sworn in July 2019, Ms Ebery’s report and Dr Yong’s report of April 2020. He examined each of the proposed jobs identified by Ms Ebery. He located a computer course conducted by Djerriwarrh Community and Education Services in Melton. The course was conducted over eight weeks, one day each week between 9.30 am and 3 pm.
41Mr Janides set out the general duties and physical demands of each job. Then helpfully, for each job, he attached one or more advertisements from potential employers in metropolitan Melbourne. From the generic descriptions, some of the jobs appear to be too physically demanding for Mr Noll. From the advertisements, it is hard to see him fitting the advertised jobs. The potential employers appear to seek well-qualified applicants, whether through past experience, skills or physical capacity. In the light of the evidence overall, Mr Noll lacks the capacity to work in those roles, generally or specifically.
Medical evidence
Nejad
42Maryam Nejad is a general practitioner. Practising out of the Scott Street Medical Centre, Dr Nejad has had long-term involvement with Mr Noll.
43Dr Nejad described the injury to the left shoulder as bursitis and tendinosis, to the right as thickened bursa with tendon issues and to the neck, mild to moderate C3-4 facet arthrosis.
44Dr Nejad considered Mr Noll could not perform his pre-injury duties but was uncertain whether that would continue indefinitely.[11] When asked whether Mr Noll could perform the jobs of despatch/receiving clerk, stock clerk, warehouse administrator, customer service officer and sales assistant, Dr Nejad expressed no view but quoted Mr Noll’s assessment that he could not. It may be she impliedly adopted the assessment, I cannot say. In June 2018, Dr Nejad thought Mr Noll could perform desk type work.[12]
[11]Report dated 13 August 2019
[12]Report dated 22 June 2018
Hussaini
45Mr Hussaini operated on Mr Noll’s shoulders. In a questionnaire dated 13 December 2017, he said the prognosis for the shoulders was good but Mr Noll was unlikely to return to his pre-injury duties. He was best suited to desk type work without pulling, pushing, lifting greater than 5 kilograms and no overhead activity. On a graduated return to work, by the fourth week, he would work 6 hours per day, 5 days per week. He considered part of Mr Noll’s barrier to his return to work lay with the state of his neck and part due to the prolonged recovery from the shoulder surgery.
46Three months after the surgery to his left shoulder, Mr Hussaini examined Mr Noll.[13] Both shoulders had a full range of movement. The muscle strength of the shoulder girdles was good. There were no impingement signs for either shoulder. He had done very well with physiotherapy and should continue his own exercise program. He thought Mr Noll could start part-time “desk-type” work in the next 4 to 6 weeks.
[13]Report dated 24 January 2018 addressed to Dr Munir
Aliashkevich
47Dr Aliashkevich examined Mr Noll on five occasions between 13 April 2017 and 20 December 2018. As a neurosurgeon, he focussed on the cervical spine and the headaches. He did not consider the shoulders.
48Asked about a diagnosis, Dr Aliashkevich’s answer is difficult to understand. It appears he restates the important findings of the MRI scans, SPECT/CT scans and the nerve conduction studies.
49At the last examination, Mr Noll reported significant improvement in his headaches and neck pain following the shoulder surgery in March 2018. The tingling sensations in his hands had significantly subsided and were not bothering him so much. His pain was very mild. He was taking Imovane every second night to help him sleep and Tramadol occasionally. Dr Aliashkevich considered he had achieved a good recovery with his neck. Since he did not need further neurological treatment, he returned Mr Noll to his general practitioner.
50Again, at the last examination, Mr Noll was limited in his ability to lift weights over 10 to 15 kilograms and using his neck repetitively or for a prolonged time. He could not perform his pre-injury duties.
51Commenting on a 130-week vocational assessment (dated 8 February 2019), and looking at the five suggested jobs from the perspective of the cervical spine only, Mr Noll could perform suitable employment, probably about 4 hours a day and 3 to 4 days per week. Since Dr Aliashkevich was not an occupational physician, he could not comment on the proposed jobs.
Poppenbeek
52Ralph Poppenbeek is an occupational physician. On 31 January 2018 and on 11 December 2018, he examined Mr Noll at the request of an authorised agent.
53On examination, Dr Poppenbeek found a full range of movement of the cervical spine with stiffness in extension and lateral flexion on both sides. There was a full range of movement of the shoulders with some stiffness at full external and internal rotation.
54Dr Poppenbeek diagnosed for each shoulder aggravation of pre-existing acromioclavicular joint arthropathy and tendon degeneration with bursitis and impingement. With the cervical spine, aggravation of pre-existing degenerative disc and facet joint disease.
55As to the causal connection between Mr Noll’s condition and the incident on 14 September 2016, Dr Poppenbeek thought there was a minor residual impairment of the shoulders and a small degree of material contribution for the cervical spine.
56He thought treatment should cease in January or February 2019. He felt the medication was satisfactory.
57Mr Noll was fit for his pre-injury hours in employment but not his pre-injury duties, which were strenuous. He agreed Mr Noll could perform the jobs of despatch and receiving clerk, stock clerk, warehouse administrator, customer service operator and sales assistant. They came within the physical restrictions of avoiding strenuous upper body work, work involving awkward positions, twisting the neck frequently, overhead work and lifting beyond 5 to 7.5 kilograms. He should start at 20 to 30 hours per week, rising to full-time work in the long term.
Sullivan
58Richard Sullivan is an anaesthetist and pain specialist. He examined Mr Noll on 20 February 2020.
59Mr Noll told Dr Sullivan his background level of pain was about 2 out of 10 and he was quite comfortable with that. At that level, his pain is a discomfort. Repetitive or strenuous use of his arms or using them above shoulder height increased the pain with the level peaking at 7 to 8 out of 10. This increase in shoulder pain starts pain at the back of his neck and aggravates his headaches. On repetitive use, there was weakness and lethargy in his shoulders and that aggravated his neck pain and headaches. Any activity using his arms above head height causes a rapid aggravation of pain. Any activity using either arm for 15 minutes or more aggravates his level of pain.
60His examination revealed some mild limitations for flexion and extension of the cervical spine together with exacerbation of pain. Regarding the shoulders, he did not record restrictions in the usual sense, saying instead:[14]
“He was able to get his hand behind his head on both the left and the right side, but this led to aggravation of anterior shoulder pain. Similarly putting his hand behind his back to the small of his back led to aggravation of anterior shoulder pain both left and right.”
[14]Report dated 20 February 2020 at p 4
61To Dr Sullivan, Mr Noll suffered pain in his shoulder girdles and cervical spine. The pathology revealed by investigations was repaired by surgery but “there appears to be ongoing pain consequent to the injurious process that has failed to abate”.[15] There was aggravation of cervical spondylosis with neuro-foraminal impingement at more than one level.
[15]Op cit at p 4
62His chronic pain limits his functional capacity and prevents him from returning to his pre-injury duties and that is permanent.
63Although Mr Noll could benefit from physiotherapy, clinical psychology and, possibly, interventional pain procedures, Dr Sullivan doubted these treatments would substantially impact on his longitudinal work capacity.
64Dr Sullivan was given a copy of the vocational assessment (11 June 2018) which identified five jobs: despatch receiving clerk, store clerk, warehouse administrator, sales assistant and customer service officer. Mr Noll’s solicitor asked Dr Sullivan to focus on the impairment to his shoulders and comment on his capacity to perform suitable employment. The question asked him to take into account other factors, age, education, place of residence, etc. Until the last sentence, Dr Sullivan confined his answer to the physical:[16]
“Certainly in relation to the described suitable employment options I believe that all of these would require Mr Brendan Noll to utilise one or both upper limbs in a repetitive or strained fashion on a fairly frequent basis and as such I believe he is precluded from undertaking these sorts of activities. Mr Noll would at best have a theoretical capacity to engage in completely sedentary work of a clerical nature that would need to avoid repetitive use of either upper limb or utilisation of his limbs for periods of time extending 10 to 15 minutes to avoid aggravation of his pain. I believe in the context of his whole presentation the chances of him finding such employment on a regular and reliable basis is extremely remote.”
[16]Op cit at p 6
65His pain condition would continue into the foreseeable future.
66Finally, Dr Sullivan expected the development of capsulitis in one or other or both shoulders due to his reduced range of movement and reduced functionality in his shoulder girdles. He also expected an accelerated deterioration of his cervical spine due to the underlying injury.
O’Brien
67John O’Brien is an orthopaedic surgeon. He examined Mr Noll on 31 March 2020 at the request of his solicitors.
68Mr Noll told Mr O’Brien of constant neck pain at the rear on both sides. At rest, the level of the pain is 2 to 3 out of 10. Most activities aggravate the pain, particularly moving his neck and arms. It can be worse in the morning with stiffness. With his shoulders, the right is more painful than the left. At rest, the level of pain is about 2 out of 10. Any movement increases the pain, reaching a peak of 7 to 8 out of 10. Particular activities are worse then others, reaching forward, elevating the arm or attempting to lift. By the end of the day, the pain was worse.
69With the cervical spine, there were some restrictions in movement with the complaint of pain. There was no nerve root compromise or radiculopathy. The various radiological investigations showed extensive cervical spondylosis. The chronic pain is due to the aggravation of cervical spondylosis.
70With the shoulders, there was some restriction in movement. There was residual impingement related to rotator cuff tendinosis. There was tenderness associated with both acromioclavicular joints. Overall, Mr Noll has chronic post-operative shoulder pain related to persistent complex shoulder pathology.
71The condition of the neck and shoulders is stable. The treatment is confined to analgesics. The prognosis is very poor due to the well-established chronic neck and bilateral shoulder pain.
72Mr Noll could not perform his pre-injury duties because it involved heavy manual duties. Moreover:[17]
“There is no possibility that this patient would be capable of undertaking any form of manual employment, indeed I would consider the loss of function of both upper limbs due to chronic pain would preclude this patient from undertaking any form of suitable employment.”
[17]Op cit at p 5
73Mr O’Brien considered Mr Noll could not perform the jobs set out in a vocational assessment of July 2018. He considered him totally and permanently incapacitated with no likelihood of him returning to any form of gainful employment. However, he did not distinguish between the body parts. His assessment was based on the effect of all three.
Horsley
74Robyn Horsley is an occupational physician. She examined Mr Noll on 27 November 2019 at the request of his solicitors. She provided two reports. For her second report, she was given eight 2020 reports, including those of Dr Sullivan, Mr O’Brien, Mr Aliashkevich, Dr Yong and Mr Dooley.
75Mr Noll told Dr Horsley overall he had two good days out of three. On the good days, the pain is manageable and minimal. He suffers ongoing discomfort in his shoulders, the right tending to be worse than the left due to being right hand dominant. At rest, the shoulders are generally pain free. Various activities aggravate his pain including over-reaching, pushing, pulling, above shoulder acts, lifting and static postures. His discomfort or pain varies between 3 out of 10 to 7 out of 10 with its duration from minutes to hours. There was a very mild reduction in the range of movement of the shoulders.
76With his neck, there is stiffness which can last for several hours. When he wakes in the morning, there is tingling in the tips of all of his fingers. The tingling goes after he showers.
77Dr Horsley’s examination showed some restriction in some of the movements of the cervical spine on both sides and for the shoulders.
78She noted significant degenerative change in the cervical spine and both shoulder girdles. She saw the heavy repetitive nature of his work for almost 20 years and the incident on 14 September 2016 as relevantly linking the employment to the injury.
79He cannot return to his pre-injury duties or any heavy, manual work. He is severely limited in the use of his cervical spine or each shoulder girdle. For each of the cervical spine, left and right shoulder girdle, Dr Horsley recommended significant restrictions. He may be suited to sedentary desk-type jobs. His education is limited to Year 10. He had a forklift licence. He has no other formal qualification. He has no computer skills. In her second report, Dr Horsley maintained her view:[18]
“Theoretically, on physical grounds alone, he has capacity for work within the restrictions outlined in my report, dated the 27th November 2019, initially at 15 to 20 hours per week. Depending upon his response to return to work and his ability to improve his functional tolerances, his capacity to increase his hours will be dependent upon the type of work he is able to obtain.”
[18]Report dated 2 July 2020 at p 6
80Regarding the June 2020 vocational assessment, Dr Horsley considered Mr Noll lacked the vocational computer skills to perform the work of a despatch and receiving clerk, stock clerk, warehouse administrator and customer service operator. Sales assistant may be suitable physically “depending upon the critical physical demands of the job, particularly the requirements for stock management and put away”.
Slesenger
81Joseph Slesenger is an occupational physician. On 2 July 2020, he assessed Mr Noll at the request of his solicitors. Because of the COVID-19 restrictions, he did not examine him physically. He saw Mr Noll through an audio-visual link, Skype Telehealth. He was unable to assess the movements of the cervical spine and shoulders.
82Mr Noll told Dr Slesenger he suffered constant, moderate to severe pain in his right shoulder, which was aggravated by activity. The level of pain in his left shoulder can be greater than the right. It too is aggravated by activity. The pain worsens in both shoulders in cold weather and can deteriorate spontaneously. His neck pain is moderate to severe and constant. The pain radiates into his arms while, at the same time, he feels tingling. The neck pain radiates into the occiput. His neck movements are restricted and his level of pain is also made worse by activity, cold weather and spontaneous deterioration.
83Mr Noll said he could walk, stand or sit for about 30 minutes. His symptoms are variable and unpredictable. He copes with medicines and rest. Generally, he avoids activities three to four days a week in order to cope with his symptoms.
84Dr Slesenger was given many reports, including radiological and other investigations. His diagnoses for the shoulders were the same: dysfunction with chronic pain following a soft tissue injury which included rotator cuff tear. For both, there was the possibility of adhesive capsulitis. For the neck, there was a mechanical injury and aggravation of the degenerative disease resulting in chronic pain with what he called “radiating features” but no radiculopathy.
85The condition had not stabilised, and Dr Slesenger thought Mr Noll might benefit from seeing a pain specialist and, perhaps, a psychiatrist. Nevertheless, he was cautious as to the likely outcome with further intervention.
86Dr Slesenger considered Mr Noll would be unable to return to work in his pre-injury duties, whether due to the injury to his cervical spine or his shoulders individually. It was unlikely there would be a significant alteration in Mr Noll’s presentation into the foreseeable future.
87As to the jobs of despatch/receiving clerk, stock clerk, warehouse administrator, sales assistant and customer service officer, Dr Slesenger gave the same answer for the shoulders, treated individually, on the one hand and the neck on the other:[19]
“With regard to suitable alternative duties, taking into consideration Mr Noll’s age (50), his rural residential location (Cohuna), his driving limitations, his current symptoms and functional limitations, his daytime fatigue, the variable and unpredictable nature of his symptoms, his past employment history, his qualifications and his limited computer skills, I am of the opinion that he is unlikely to be able to return to work performing suitable duties on a consistent and reliable basis.”
[19]Report dated 2 July 2020 at p 15
88His prognosis was guarded due the length of Mr Noll’s disability, the many sites of injury, his poor response to treatment, his psychological comorbidity, detachment from work and driving limitations.
Dooley
89Michael Dooley is an orthopaedic surgeon. He examined Mr Noll on 1 April 2020 at the request of the defendant’s solicitors.
90Mr Noll told Mr Dooley of ongoing pain in both shoulders with the right more painful than the left. He had difficulty carrying shopping bags and driving. He can do “things” for about 15 minutes before his neck and shoulders become painful. He does exercises given by his physiotherapist. He takes Tramadol for pain relief, which he has taken since he was about 19.
91Mr Dooley’s examination of the shoulders and cervical spine revealed what appeared to be a limited restriction in movements.
92Mr Dooley considered Mr Noll suffered from naturally occurring and age related degenerative rotator cuff disease of the shoulders. The September 2016 incident caused a soft tissue injury to the left shoulder and aggravation of the degenerative rotator cuff disease. Because of the heavy duties carried out after returning to work, he suffered a soft tissue injury to the right shoulder involving an aggravation of rotator cuff disease. Mr Noll has had restored a good range of movement and good power around the muscles of the shoulders. Although one would expect some intermittent pain, difficulty with heavy lifting and a lot of activity at or above shoulder level, the constancy, intensity and disability are greater than expected due to “an understandable psychological reaction to his situation and this reaction does influence his ongoing symptoms”. There was no specific injury to the cervical spine, which is degenerative. There is no need for formal treatment. He must do the exercises given to him by his physiotherapist.
93Over time, the rotator cuff degeneration could possibly have interfered with his ability to do heavy physical work, lifting and a lot of activity at and above shoulder level. Mr Noll is permanently unfit to perform that type of work. He could do light physical work and clerical type work including a clerk, warehouse administrator, customer service officer and sales assistant of light goods. Returning to work needs to be gradual with expectation of working full-time from a physical perspective.
Yong
94Dominic Yong is an occupational physician. He examined Mr Noll on 8 April 2020 at the request of the defendant’s solicitors. He was given a wealth of information for the purposes of his examination.
95Mr Noll told Dr Yong he was troubled by pain equally in both shoulders. The right shoulder was weak and there was reduced movement. It fatigues easily if used for too long. There was weakness and reduced movement in his left shoulder. The pain was 6 to 7 out of 10, a small improvement on the level before the operations. There is pain on both sides of his neck and it radiates to the base of the neck. He has reduced movement of the neck and stiffness. The hand tingling symptoms have generally improved.
96Examining the range of movement of the shoulders and neck, Dr Yong took a series of measures. It appears there was some reduction of movement in the shoulders and cervical spine.
97Dr Yong diagnosed soft tissue injuries to the shoulders, both with persisting dysfunction and a degenerative neck with mild cervical spine dysfunction.
98Dr Yong recommended many restrictions: avoiding repeated above shoulder height tasks or reaching duties, repeated firm pushing and pulling tasks, lifting more than 5 kilograms on a repeated basis, repetitive neck movements, repeated awkward neck postures and reducing working hours.
99He concluded Mr Noll was unfit for his pre-injury duties and unlikely to return to them in the future. He then considered in detail five suggested jobs set out in a 130‑week vocational assessment (July 2018):
(a) for despatch and receiving clerk, stock clerk, warehouse administrator: Mr Noll is physically capable of performing the duties of these jobs but would need retraining to improve his computer based and office skills;
(b) customer service officer: the duties are within his physical capacity and the job is suitable;
(c) sales assistant: since this job sometimes requires merchandising duties and handling bulk goods, whether a particular job is suitable depends on its particular requirements.
100A graduated return to work is necessary, starting 4 hours per day for 4 days per week and increasing to pre-injury hours over 6 to 9 months.
Legal considerations
101Mr Noll was employed by Barra Steel and was a “worker” under the Act. He has suffered injuries arising out of or in the course of that employment. They are injuries to his shoulders and cervical spine. However, he cannot recover damages for an injury unless it is a “serious injury”.
102For the purposes of this application, “serious injury” means “permanent serious impairment or loss of a body function”.[20] The word “serious” is explained in two further paragraphs of s325(2). First, relevantly, it is satisfied by reference to the consequences to Mr Noll of any impairment or loss of a body function with respect to pain and suffering or loss of earning capacity when judged by comparison with other cases in the range of possible impairment or loss of body function. Second, an impairment or loss of a body function is not serious unless the pain and suffering consequence or the loss of earning capacity consequence is, when judged by comparison with other cases, in the range of possible impairments or losses of a body function fairly described as being more than significant or marked, and being at least very considerable.
[20]Paragraph (a) of “serious injury” in s325(1) of the Act
103For the loss of earning capacity consequence, Mr Noll must establish:
(a) his loss of earning capacity consequence, when judged by comparison with other cases in the range of possible impairments or losses of a body function, is fairly described as being more than significant or marked and at least very considerable (the narrative test); and
(b) he suffered a loss of earning capacity of 40 per centum or more, measured as set out in s325(2)(f); and
(c) he would continue permanently to have a loss of earning capacity which would be productive of a financial loss of 40 per centum or more.[21]
[21]De Bono v VWA [2019] VSCA 85 at [47]
104It is worthwhile setting out s325(2)(f):
“(f)for the purposes of paragraph (e)(i), a worker’s loss of earning capacity is to be measured by comparing—
(i)the worker’s gross income from personal exertion (expressed at an annual rate) which the worker is—
(A)earning, whether in suitable employment or not; or
(B)capable of earning in suitable employment—
as at that date, whichever is the greater, and—
(ii)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 during that part of the period within 3 years before and 3 years after the injury as most fairly reflects the worker’s earning capacity had the injury not occurred;”
105The “date” is the date of the hearing for leave.
106Further, for the purposes of loss of earning capacity, I must consider the issue of rehabilitation or retraining as set out in s325(2)(g) of the Act.
107Finally, during the hearing, Mr Noll’s counsel submitted it was legitimate to aggregate the impairment suffered to the shoulders as an impairment of “bilateral manual function”. However, by a memorandum sent on 31 July 2020, he withdrew that submission while reiterating that the impairment to the right shoulder constituted a “serious injury” and the same submission for the left and both were to be considered separately and independently of each other.[22]
[22]The defendant expressly made no further submission
Discussion
Credit
108The defendant submitted Mr Noll was a poor historian or would say anything to advance his case. Mr Noll’s counsel submitted he answered every question squarely, in a frank and forthright manner and made occasional concessions against his interest.
109I would not describe Mr Noll as a poor historian. He certainly had his weaknesses. For example, he told Dr Yong it was his right shoulder that was first injured when it was the left. Dr Yong himself excuses that error through the passage of time.
110There was cross-examination about his use of Tramadol. What the various practitioners record him as telling them paints a reasonably consistent picture: Poppenbeek, when required for headache; Horsley, a packet of 20 used over a month; Yong, averaging 20 tablets a month; Sullivan, 0 to 4 tablets per day; O’Brien, most days to relieve pain; Slesenger, 50 mg daily; and Dooley does not record.
111I thought Mr Noll was a truthful, and generally reliable, witness. I found particularly striking his reason for moving to Cohuna. There was an assault involving an African youth on a train. He found he could not defend himself and became anxious in crowds. He sought a place, Cohuna, where he would not be anxious. This sounded so true.
Injury
112There is ambiguity in the diagnoses of Mr Noll’s injuries. This case is unusual in that I have five medico-legal opinions all arising out of examinations in 2020 and other opinions two or more years ago. Since the practitioners in 2020 were well briefed on what had gone before, I will deal with their opinions.
113With the shoulder girdles, Dr Sullivan considered the pathology revealed by the various investigations had been repaired by surgery but “there appears to be ongoing pain consequent to the injurious process that has failed to abate”. For the cervical spine, there was aggravation of the degenerative process. Mr O’Brien also diagnosed aggravation of the degenerative cervical spine and the same generalised diagnosis for the shoulders: chronic post-operative pain related to persistent complex shoulder pathology. The diagnoses of Dr Slesenger were somewhat similar. There was dysfunction with the shoulders causing chronic pain following soft tissue injuries including rotator cuff tears. For the cervical spine, there was a mechanical injury and aggravation of the degenerative disease with radiating features. With Mr Dooley, there were soft tissue injuries to the shoulders and aggravation of the degenerative rotator cuff disease. He did not diagnose an “injury” to the cervical spine apart from noting it was degenerative. Finally, Dr Yong diagnosed soft tissue injuries to the shoulders with persisting dysfunction and, like Mr Dooley, a degenerative cervical spine with mild dysfunction.
114There has been an injury to the shoulders. Saying it is soft tissue adds something. There is a lack of precision, which is understandable. These injuries have left Mr Noll with chronic pain. The initial link between his work and condition is undeniable. Because of the continuity of symptoms, the link remains and is expected to do so permanently. For the same reason of continuity, the injury to the cervical spine is aggravation of the underlying degenerative condition. It persists and is permanent. I do not accept that his present condition is no longer due to the injuries and is due to the underlying degenerative conditions. He has suffered very significant symptoms, continuously since, or very shortly after, the incident in September 2016. It is unlikely the one should have ceased by now and the progress of the other taken over.
Pain and suffering consequence
115The unfortunate course of Mr Noll’s problem with his shoulders and cervical spine is that it has not gone according to the expectations of those who have treated him. Both Mr Hussaini and Dr Aliashkevich held expectations which have not come to pass. His problems have worsened and are now permanent.
116The central feature of Mr Noll’s presentation is the chronic pain he suffers in his shoulders and neck. As to his shoulders, when he is resting his upper limbs, the level of pain is low, such that he calls it discomfort rather than pain. After 15 minutes of using those limbs, he sees an increase so that it is no longer discomfort but pain he experiences. The level of pain is greater if the activity is repetitive or strenuous. With these activities, his pain can reach high or severe and disabling levels. Not unnaturally, he avoids activity three or four days a week.
117His shoulder pain prevents normal sleep because of an inability to sleep on either side even though he takes a medicine, Imovane. He rises unrefreshed, leaving him frustrated and irritable.
118The state of his shoulders prevents him playing golf. This was something he did fortnightly. In association with his neck, they prevent other sporting activities. However, these were performed occasionally. The most important recreational loss is his hobby of operating remote-controlled model cars. This was his major pastime. He owned about 30 cars and played with them 3 or 4 times a week. Owing to the state of his shoulders, he cannot lift the model cars, weighing about 7 kilograms. For someone who cannot work, the loss of such an important hobby for him is a significant loss.
119There has been an unusual consequence of these impairments. Mr Noll’s work always had a considerable physical content. His perceived physical inability to defend himself has led him to leave his parents’ home and make his way to a quite rural town for his own safety. I see this reaction, not in psychological terms, but as an expression of his understanding of his physical impairment. It is a self-assessment.
120The loss of a capacity for work may impact a person’s loss of enjoyment of life. It has for Mr Noll. He had worked for Barra Steel for many years. He is an amiable person and, naturally enough, made friends at work. To an extent, they were his social circle. Since leaving the job, he has lost contact with those friends. This is a significant disappointment for him.
121Mr Noll does not receive much treatment now. He sees his general practitioner about every month. He takes about 20 Tramadol tablets a month. He does not take them daily. Sometimes, he takes more than a tablet a day. The dosage is low at 50 mg. The need for Tramadol is complicated by the unrelated injury to his foot. He was taking Tramadol before September 2016. His range of movement in either shoulder and the cervical spine has not been reduced significantly. I cannot gauge the importance of Dr Sullivan’s findings.
122The neck is painful constantly. Its level varies between moderate and severe. The pain radiates into his arms and the base of his head. He feels tingling in his hands. Activity aggravates the level of pain.
123I must consider the consequences brought about by the impairments separately. That is, the consequences of the impairment to the right shoulder must be examined without regard to the left shoulder and cervical spine. The same process must encompass the left shoulder and then the cervical spine.
124In my opinion, from the perspective of pain and suffering consequence, Mr Noll has suffered a serious injury to the body condition related to his right shoulder. I make the same finding in relation to his left shoulder. In those findings, I have separated out the consequences for the shoulders. The main finding is the constancy and level of discomfort and pain experienced in each shoulder. The secondary findings concern the loss of enjoyment of life. Some aspects can be ascribed to one shoulder alone for without the use of it the activity could not occur. Where the consequence is an amalgam of the three body conditions and one cannot separate, then it is ignored.
125The cervical spine is more complex. To an extent, the level and frequency of the pain and headaches are a reaction to the aggravation of one or other or both of the shoulders. Otherwise, the pain is at a reasonably low level. I do not consider the impairment to the body function related to the cervical spine is a serious injury.
Loss of earning capacity consequence
126Mr Noll is a man of average intelligence. He is now 50. He has spent his working life as largely an unskilled, manual labourer. He is now severely disabled, looking at the shoulders individually and ignoring the cervical spine.
127Mr Noll can read and write. He uses his phone to write emails and uses spellcheck to correct his spelling. He uses it to search through Google, for social media, for internet banking and sending and receiving text messages. Nowadays, these do not amount to anything much. They do not point to a capacity to learn modern computer programs used in commerce. Given the nature of one of his duties at Barra Steel as a storeman, it is surprising it is a long time since he last used a computer. That has left him with no computer skills. He once held a forklift licence. The regaining of one would not help him now. The gaining of one tells me nothing about his ability to learn.
128I am ignoring the fact he is now living in Cohuna and intends to stay there. I am also ignoring the fact Cohuna is about 60 kilometres from the much larger city of Echuca. The reason for his escape is probably psychological and I am prevented from considering it in the context of a paragraph (a) application.
129Looking at the body function related to his right shoulder, I consider Mr Noll satisfies both the narrative and threshold tests. He has no capacity for work and that is permanent. I consider each of the five proposed occupations is unsuitable for him. He lacks the capacity to perform them on any basis. I would make the same findings for the body function related to the left shoulder but not the cervical spine.
130I do not consider retraining or rehabilitation would make any difference.
Conclusion
131I will grant Mr Noll leave to commence a proceeding to recover damages for pain and suffering and pecuniary loss.
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