O'Farrell v Victorian WorkCover Authority

[2021] VCC 1270

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No.  CI-19-02800

BRENDAN WILLIAM GERARD O’FARRELL	Plaintiff
v
VICTORIAN WORKCOVER AUTHORITY	Defendant

---

JUDGE:	HER HONOUR JUDGE K L BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:	23 June 2021
DATE OF JUDGMENT:	7 September 2021
CASE MAY BE CITED AS:	O’Farrell v Victorian WorkCover Authority
MEDIUM NEUTRAL CITATION:	[2021] VCC 1270

REASONS FOR JUDGMENT
---

Subject:  ACCIDENT COMPENSATION

Catchwords:             Serious injury – left shoulder impairment – pain and suffering – loss of earning capacity – credit

Legislation Cited:     Workplace Injury Rehabilitation and Compensation Act 2013

Cases Cited:            Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Dordev v Cowan & Ors  [2006] VSCA 254; Cuturic v Spotless Facility Services [2018] VCC 889; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181

Judgment:                Application dismissed.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A D Ingram QC with Mr R Paoletti	Slater and Gordon
For the Defendant	Ms F Spencer	Minter Ellison

HER HONOUR:

1This is an application brought by Originating Motion by which the plaintiff applies for leave pursuant to the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) to bring proceedings to recover damages for injuries suffered by him arising out of his employment with Suparest Bedding Pty Ltd (“the employer”) which occurred on or about 30 May 2016 (“the said date”).

2The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury”.  The relevant body function is the left shoulder.

3Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.

4The impairment of body function must be permanent, in the sense it is likely to continue into the foreseeable future.

5The psychological or psychiatric consequences of a physical injury are to be taken into account solely for the purposes of paragraph (c) of the definition of serious injury and not otherwise.[1]

[1] Section 325(2)(h) of the Act

6Under the Act, the impairment must have consequences in relation to each of pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments, may be fairly described (at the date of the hearing) as being “more than significant or marked” and as being “at least very considerable”.[2]

[2] Section 325(2)(c) of the Act

7I am required to consider the consequences to this particular plaintiff viewed objectively arising from the injury.  Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.

8The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, the Act imposes specific burdens in relation to a claim for loss of earning capacity.[3]

[3] Section 325(2)(e)(i)-(ii) of the Act

9In this application, where there is a claim for loss of earning capacity, that loss must be to the extent of 40 per cent or more, both at the date of hearing and permanently thereafter. The formula by which loss of earning capacity is to be measured is set out in s325(2)(f) of the Act.

10Questions of rehabilitation and retraining must be considered in whether the 40 per cent loss has been established.[4]

[4] Section 325(2)(g) of the Act

11I have applied the principles edified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[5] and Haden Engineering Pty Ltd v McKinnon[6] in reaching my conclusions.

[5] (2005) 14 VR 622

[6] (2010) 31 VR 1

12The plaintiff relied on three affidavits and was cross-examined.  Further, the parties relied on medical reports and other documents which were tendered.  I have read all the tendered material, and also viewed video surveillance of the plaintiff during the hearing.

13The main issues in dispute in this application were causation and disentanglement.[7] 

[7]Transcript (“T”) 6

The Plaintiff’s evidence

14The plaintiff was born in December 1957 in Ireland.  He is now sixty-three.  He moved to Yarrawonga in about June 2019 due to his financial circumstances.

15In about 1969, the plaintiff migrated to Australia with his parents.  He finished school in Australia at the end of Form 3. 

16After leaving home, the plaintiff first worked in an upholstery factory.  He then obtained work with the employer for about ten years.  He was a leading hand and completed an apprenticeship in mattress and bedding. 

17The plaintiff then obtained work at a cold storage facility, working as a forklift driver and night supervisor, loading and unloading trucks.  He worked there for fourteen years before he was made redundant. 

18In about 1997 or 1998, the plaintiff returned to work with the employer, initially as a despatch manager and then as a delivery driver.

19His duties included driving a manual transmission truck to deliver bed mattresses and bed bases and then unloading these items at the point of delivery.  His duties were heavy and involved carrying, manoeuvring, pushing, pulling and lifting heavy mattresses and bed bases.  He also loaded the entire truck each day. 

20The Claim Form signed on 2 June 2016 set out that the plaintiff’s usual pre-injury pre-tax weekly earnings were $1,169.00 or $29.40 an hour.[8]

[8]        Sixty per cent = $696 per week

The work injury

21On the said date, the plaintiff was required to unload a very heavy electric bed base on his own.  He guessed that this bed base weighed around 100 kilograms. 

22The plaintiff was required to pull and drag the bed base towards the doors of the truck.  While doing so, he fell about four feet back off the truck, onto his left arm (“the incident”).  He felt pain in his left elbow and left shoulder and was bleeding from his left elbow. 

23The plaintiff initially saw Dr Mendis, the work doctor, at Tristar Medical Group.  Dr Mendis arranged a left shoulder ultrasound, which showed abnormalities consistent with an injury.  He advised the plaintiff he could return to light duties, so he did. 

24The plaintiff had physiotherapy treatment from June 2016 with Chris Ferian.  The following month, the plaintiff had an MRI scan of his left shoulder, which showed abnormalities including extensive tearing of the supraspinatus. 

25Dr Mendis referred the plaintiff to an orthopaedic surgeon, Mr Christopher Pullen, who first saw him on 24 August 2016.  He advised the plaintiff that the MRI showed significant biceps tearing and a near full-thickness tear of the supraspinatus tendon.  He recommended surgery. 

26On 10 January 2017, Mr Pullen performed a left shoulder arthroscopy, subacromial decompression and rotator cuff repair (“the operation”).  Following that procedure, the plaintiff was off work completely for three months and had physiotherapy with Rachel Ridley and did a gym program.  He used an ice pack but avoided painkillers as his brother had an addiction problem. 

27The plaintiff agreed there was an improvement after the operation and as Mr Pullen and his general practitioner reported, he was doing very well, and by June 2017, gradually returning to normal activities that he could tolerate.[9]

[9]T9

28The plaintiff returned to work on modified duties and hours on 10 April 2017, working five hours a day for three days a week, gradually increasing his hours  over time.  He returned to pre-injury duties and hours in about July 2017, even though he felt he was not ready, because he felt pressure from the insurer. 

29As Dr Mendis recorded in July 2017, the plaintiff had normal movement of his shoulder, had stopped physiotherapy and stopped gym, as he felt normal, and had normal activities at work.  In October 2017, he had been discharged from physiotherapy and was continuing with his return-to-work plan.[10] 

[10]T16

30The plaintiff’s employment with the employer was terminated around November 2017 after he had borrowed a mattress without permission.  If his employment had not been terminated, he was not sure how much longer he could have continued trying to do his job, which was heavy.

31In the end, he found another job with a customs company, Associated Customs and Forwarding Service (“ACF”), starting work in around March 2018.  His duties involved forklift and truck driving, much lighter duties than his pre-injury duties, as they did not involve unloading the truck or heavy lifting.  He took a pay cut and was earning $1,000 per week compared to $1,400 per week with the employer.[11] 

[11]2018 affidavit

32He was working up to six hours a week overtime with ACF and last worked with them in January 2019.[12]  He was a forklift driver and drove an automatic heavy rigid truck.  A lot of the items involved were products for Amazon, weighing 1 to 2 kilograms.  He was able to ratchet the strap using his right arm.  There was little force required in closing the gates or curtains on the truck.[13]  He could do five to six deliveries in one day and drive up to 200 kilometres.[14] 

[12]T11

[13]T13

[14]T17

33Prior to the incident, he used to work in pretty heavy work and was able to lift 20 kilograms easily.  He now found that if he lifted more than 5 or 10 kilograms repetitively, or more than 10 kilograms at once, it could cause discomfort.[15]

[15]2018 affidavit

34While he initially said the items he was moving weighed 1 to 2 kilograms, he then said they were 5 to 10 kilograms “at most.”[16]  He was then shown a Register of Injury form which set out he sprained his back lifting 25-kilogram bags on 8 June 2018.  He agreed he would lift that weight, but it was not every day.  It was the very odd occasion, and he would be lucky if it was once a month.[17]  He would accept that from time to time he was lifting far heavier than 5 to 10 kilograms and it could be as regular as once a month.[18]

[16]T15

[17]T19

[18]T20

35As at October 2018,[19] the plaintiff had pain and discomfort in his left shoulder on a regular basis.  He had pain if reaching overhead, using his arm repetitively or applying force to it.

[19]2018 affidavit

36In his second affidavit sworn on 16 December 2019, he described shooting left arm pain that caused him to leave work at ACF in January that year.  

37He ceased work with ACF in early 2019 because when he drove forklifts, and in particular trucks, he experienced shooting left arm pain and was concerned that this meant a deterioration in his pre-existing condition, but he was also concerned about his ability to safely control the vehicle he was driving.[20]

[20]2019 affidavit

38On 24 January 2019, the plaintiff had shooting pains down his left arm when driving a truck.  He agreed he was worried about these shooting pains and went straight to his doctor at Niddrie because he thought he was having a stroke.[21]  He was prescribed Mobic at that stage.[22] 

[21]T20

[22]T21

39He agreed that all his doctors initially thought the problem might be his shoulder and then they actually thought it was his neck because he was having trouble with his shoulder and neck.  After the shooting pains, he stopped work and that was the last time he worked.[23]

[23]T22

40Dr Zagarella referred the plaintiff for an anaesthetic and cortisone injection into the left side of his neck.  He responded well to the injection for about a month but then his symptoms returned and gradually started to build up again.   

41The plaintiff had marked restriction of neck movement when he saw Dr Zagarella on 1 August 2019.  He was sent for an MRI scan of his neck.[24]  He had an epidural injection on 14 August 2019 and later, a facet joint injection.  These neck procedures gave him relief for about a month and the pain “all come (sic) back again”.[25]

[24]        1 August 2019

[25]T23

42He agreed he had ongoing neck pain, as Dr Zagarella noted in late December 2019.  He was then sent to Dr Prentice for his neck pain.  He thought Dr Prentice was a spine specialist.[26]

[26]T24

43The plaintiff agreed he deposed in 2018 that he was not bothered by his neck or back, or any aches, and it was after 24 January 2019 that he had the onset of his new shooting pain, and that is when he stopped work.  He was off work for a little while at ACF.  They were good enough to keep his job for about a month, but he told them, in fairness to both of them, they should get another driver – “And we didn’t have a lot of savings, so we ended up – put out (sic) house up for sale and we brought a cheaper one in Yarrawonga so we had some funds to play with.”[27] 

[27]T27

44It was not only his neck, it was his shoulder then, but he just thought he could not keep working at ACF.  He agreed a large part of it, in addition to his shoulder, was his neck, but he would think if he only had the shoulder problem, he would not be able to keep going in that job.  He agreed however, before the shooting pain, he had been working okay, and he did not particularly have shoulder pain at that time, except for “some sort of pain doing manual work”.[28] 

[28]T27

45He agreed that it was the onset of these new shooting pains that stopped him working.  These were initially thought to be related to his shoulder, and the focus then turned to his neck, and there had been some nerve entrapment in that area.[29]

[29]T28

46After the shooting pains in January 2019, the plaintiff returned to his usual clinic and was referred for further scans, which he understood showed another tear in his shoulder. Mr Pullen suggested a shoulder injection, which made his shoulder okay for a little while.  He saw Mr Pullen in March or maybe May of 2019, and then the focus shifted to his neck.[30]

[30]T25

47He had not been sent back to Mr Pullen.  When last seen, Mr Pullen diagnosed a retear of the left shoulder and sent the plaintiff for an MRI scan in March 2019, which confirmed the tear.  He recommended a further procedure on the plaintiff’s left shoulder.  The insurer denied funding and the plaintiff has therefore been left with an unoperated shoulder in which there is known to be a significant tendon tear.

48He particularly wanted Mr Pullen to operate as he did not like taking painkillers.  He therefore put up with the pain.  He believed a second operation would help his pain as the first operation was beneficial in helping him control his level of pain. 

49The plaintiff does not have a current general practitioner in the local area because he does not have a lot of confidence in them.[31]  He does not take medication; he is not having physiotherapy; he has been discharged from Mr Pullen because the insurer would not pay for the surgery, and he has not seen him since.  He would be still going to his own general practitioner if he had been in Melbourne.[32]

[31]T63

[32]T64

50Mr Brazenor mentioned to him that he could have physiotherapy under Medicare, but he had not done anything about it.  He would rather get the operation than start all the physiotherapy.  He could not pay for the operation and “youse (sic) won’t pay for it”.  A mate of his had been on the public health waiting list for many years.  The plaintiff had not taken any steps to get on it.[33]  When it was suggested he did not want to wait because he did not really need the surgery, he said “[h]ave you ever tried to get anything done through the public health system?”  He had not done it because he knew if he was going to be waiting that long he “would probably be dead before [he] got in there.”[34]

[33]T64

[34]T65

51When it was suggested he had not done anything about any treatment because his shoulder was not that bad, he explained he had not done anything because “I was hoping that youse (sic) would come good and pay for the operation and then I’d go through all the physio like I did before and hopefully I’d come good, and there’s no guarantee with any operation”.  He had not done anything to challenge the insurer’s decision because “youse (sic) won’t do nothing about it to pay for it”, so he has not done anything either and has just put up with the pain.  Even when he had the first operation, he did not take any painkillers.[35] 

[35]T66

Pain and restriction of movement

52When he swore his December 2019 affidavit, the plaintiff continued to suffer persisting pain and disability in his left shoulder.  The pain extended up the left side of his neck and he had reasonably frequent headaches.  The pain was always there but the level of pain varied.  At worst, it was 7 out of 10. 

53This situation has continued.  The pain is constant, and he is never pain free.  On a good day, the pain reaches 3 out of 10 but on a bad day it could reach 8 out of 10. 

54His neck pain now is from his shoulder, he gets “shots” up his neck every now and again.  He agreed in the witness box he was pointing to the line from his shoulder to his neck.[36]  He agreed his neck pain is located at the left side of his neck.  His neck and shoulder pain is “all connected.”[37]

[36]T30

[37]T32

55He continues to have limited range of movement and strength in his left shoulder joint.  He is unable to lift his left arm above shoulder height without experiencing considerable pain.  Repetitive and forceful movements of the left arm increased his shoulder pain.  Lifting exacerbates his shoulder and he has given away his weights set which he previously used frequently.   

56He can move his neck quite freely; it just crunches when he does.  He moves everything, including his head, when he moves his neck.[38]

[38]T31

57He agreed he was doing his best to move when he was examined by Mr Aliashkevich.  He disagreed that he was shown in the surveillance film to move his head a far greater way than he demonstrated to Dr Aliashkevich.[39]

[39]T52

58The plaintiff demonstrated that to move his arm past the level of his shoulder caused him considerable pain and difficulty.[40]

[40]T33

59He agreed he had a habit of holding his left arm “sort of immobile” by his side, as he did when he was seen by Mr Brazenor.  He has a habit of holding it against his stomach “more or less.”  He does not lift anything if he can help it.[41] 

[41]T35

Yarrawonga

60In his December 2019 affidavit, the plaintiff advised he had moved to new premises in Yarrawonga.  His deteriorating financial circumstances necessitated the sale of his former residence.

61The plaintiff and his wife had a time share at Yarrawonga where they had been going every year for about the last twenty-five to thirty years.  He had all intentions of going there when he retired, but the situation changed and he was not getting any payments, and he said to his wife “well, we’re gonna have to do something”, so they obtained a valuation on the home and started looking for something a bit cheaper there that they could afford which left them with some money to deal with daily life.  It was always his retirement plan to do this at sixty-five, sixty-six.[42]

[42]T28

Work future

62The plaintiff’s work has always been manual, requiring strength in both arms.  He would dearly like to return to work if he was fit to do so.  They had some money left over from the sale of their house and he receives Newstart but their financial situation has become strained because of his inability to continue working

63Since the plaintiff has gone to Yarrawonga, he has not looked for any work.[43]  

[43]T29

64He would love to return to work if he was fit to do so.  Dr Pring had told him that while he could not do heavy manual work, there was no reason why he should not be doing other types of work.[44]  He suggested the plaintiff do some volunteer work, but the plaintiff did not know what he actually could do.[45] 

[44]        T68-9

[45]T69

65At the end of the month, he was going to have some discussions with his “personnel lady” at the department that looks after people with a disability and they were going to look into things once the Court case had finished.[46]  He is now on something like Newstart receiving $260 a week.[47] 

[46]T67

[47]T68

66The plaintiff remembers his interview with CoWork.[48]  

[48]        T70

67He was concerned he would not have the strength to help elderly people on and off the bus if he worked as a community or courtesy bus driver.  He accepted it would not be the same thing with children on a school bus.[49]  He accepted he could drive with one hand anywhere.[50]  There probably was no reason he would not be able to drive a school bus – “probably isn’t, but I don’t – I don’t know how I’d go”.[51]

[49]        T71

[50]        T72

[51]        T73

68He agreed that with a job like a school bus driver that did not involve any loading or unloading, there is no real reason he could not work on a 25 to 30-hour basis a week “if that’s the sort of hours they’re going to give to you”.[52]

[52]        T78

69He does not know of jobs where he would literally be driving and not doing any loading, unloading, lifting or anything, but he has not looked.[53]

[53]        T82

70He had “sort of given up” applying for jobs because what are the chances of trying to get work at his age?, and he had a history of being on compensation.[54]  He admitted he has made no job applications to test this.[55]

[54]        T73

[55]        T74

71He could not recall CoWork discussing a meter reader role with him.[56] He agreed that the walking in that job would not worry him.  He does not even know how to turn a computer on[57] so a suggested job could not involve computers.  His spelling is terrible, and his reading is not too bad.[58]

[56]        T74-75

[57]        T75

[58]        T73

72He accepted there was probably no reason he could not inspect meter connections for defects and damage, and report irregularities, but that if he had to write a report, he did not think it would be up to scratch.[59]  There would be no reason he could not drive to Albury or Wangaratta to work as a meter reader, working enough hours a week to make it financially beneficial to him, apart from the distance, which is a problem.[60]

[59]        T83

[60]        T85

73He accepted he could probably work as a forklift driver but would rather stick to part time.[61]   He wants to work part time, really for lifestyle reasons.  But if he needs money in his pocket, he would be willing to give away all his golf and he would have to work as he is slowly running out of money.[62]

[61]        T76

[62]        T77

74The plaintiff accepted that he took himself out of the Melbourne job market to move up to an area where he was going to retire.  He moved when he was sixty-one years old; however, if he could find work in Yarrawonga, he would still be working.[63]

[63]        T88

75The plaintiff struggles to keep his left hand on the wheel due to pain in his neck and shoulder.  He cannot put his left arm on the steering wheel for too long because it just flops, so he does all his driving with his right.  He thought the shoulder pain was probably more predominant than the neck pain.[64]  This could affect jobs like truck driving, forklift driving, bus driving and traffic controller work. 

[64]        T95 – re-examination

76He just used his right arm when moving a truck into a loading and unloading bay.[65] He has some experience in using lifting and tipping devices to load and unload vehicles.  He has a forklift licence and years ago when he was at “the freezer place”, he used to use an electric trolley.  If a forklift required two arms to operate  safely, he would say he would not have the ability to operate it.[66]

[65]        T95

[66]        T96

77Driving a bus, he would have trouble holding his hands at a certain height and with maintaining, servicing and cleaning buses.  He would be in trouble if he had to use his left shoulder to control the conduct of passengers on the bus if there was unruly behaviour.[67]

[67]        T97

78Working as a road traffic controller, he would be using one arm most of the time for loading the utility with equipment.  If he just had to stand there, turning a Go and Stop sign, he was not going to have any trouble.[68]

[68]        T97

79He could not do Uber driving, because he is no good with technology, and assisting passengers with luggage “would not be a very good idea”.[69]

[69]        T98

80He does not hold a Certificate II or III in Security Operations and would not think he would have the capacity to maintain order with his left arm.[70]

[70]       T98

81He would struggle working as a parking inspector, because he is no good at technology and he also would not be too good at writing out parking tickets.[71]

[71]        T98

82He has no training in inspecting meters and connections for defects and damage and reporting irregularities.  He has no experience in handheld electronic reading devices.[72]

[72]        T99

Activities – Domestic  

83Day to day in Yarrawonga, mainly the plaintiff sits out the back and watches television, “smokes too many cigarettes and drinks too much.”  He plays darts twice a week and goes for walks a fair bit, probably two to three times a week along the river.  Sometimes he takes his dog.  This was his life in effect.[73]   

[73]T36

84His wife tends to do most of the domestic chores such cleaning, washing clothes, food preparation et cetera.  He is heavily dependent on her to undertake tasks around the house. 

85Prior to the incident, the plaintiff enjoyed gardening and was proud of his garden.  After the incident, doing the garden at his former residence, he found holding the shears for more than about five minutes difficult, and shovelling exacerbated his pain.  After five minutes of snipping, he was sore and had to stop.  Mowing and the Whipper Snipper had proven generally difficult.  His wife tended to mow the lawn and did most of the gardening and used the Whipper Snipper.  On very odd occasions, he tried to help her with the lawn mowing but he did not last very long.[74]

[74]2018 affidavit

86There is very little gardening maintenance to be done at the Yarrawonga house.

87The plaintiff had always been pretty handy around the house and generally painted a room each year.  He had tried painting since the incident but using the roller increased his pain and he paid his brother to do any painting.   

88Occasionally, the plaintiff’s left shoulder became sore if he accidentally slept on it.  He tended to wake in pain if he rolled onto it.  He now wakes most nights in pain and he and his wife sleep in separate bedrooms so she can get some sleep. 

89The plaintiff’s grandchildren are now five and two.  He can only lift the younger grandchild with his right arm and is restricted in his ability to play with them both.  This situation is a great disappointment to him.

Sporting and social

90As at late 2018, the plaintiff used to enjoy riding a bike but now if he hit a bump, it caused pain. The following year, he continued to ride his bicycle but far less frequently than before.  By 2021, he had given bike riding away. 

91The plaintiff cannot keep his left arm up for too long while driving as it really hurts.  He drives everywhere with his right hand; he does not do anything with his left.  However, he agreed that he could hold the wheel with his left arm down and not raised, despite only driving with one hand.  He can drive with one hand anywhere.[75] 

[75]        T72

Golf

92The plaintiff used to love playing golf before his injury and was pretty good at it.  After Mr Pullen said he had to stop playing golf for a while, the plaintiff returned to golf but was nowhere near as good as he was and could only manage half swings.  If he swings too far, he experienced shoulder pain and discomfort.[76] 

[76]2018 affidavit

93In his 2019 affidavit, the plaintiff deposed he had been unable to return to golf.  He enjoyed playing social darts twice a week at a club in Yarrawonga because he uses his right arm. 

94In his June 2021 affidavit, he deposed that he had played some golf but was limited in his swing and had no power in his shots, but he did enjoy getting out of the house.

95He does play a little bit of golf, but with very limited movement because he cannot swing a club like he used to.  He gave golf away, as he deposed in December 2019, because he could not handle it.[77]  He could not swing a club; it got too hard, because he then had shooting pains.[78] 

[77]T37

[78]T38

96He agreed he told Dr Aliashkevich and Dr Rowe in May this year that he was not playing golf. He was just mucking around, he was not playing, he was having just a swing and maybe a hit, bringing one club with him, and just hit around very slowly.  He agreed he had not played for a while.  Very recently he just had a bit of a muck around with a club.[79] 

[79]T38

97He does play nine holes, but with limited movement.  He had been doing so, probably the last couple of months.  He is a member at Yarrawonga.[80]  He was not playing competition or anything, he was only just going, as he said, with a club and having a hit around.  Having a hit and playing competition is completely different.[81]

[80]T38

[81]T40

98Before he hurt his shoulder and had the operation, the plaintiff was a member at Tullamarine and played competition.  After the operation, he did not play for three months because Mr Pullen told him not to.  When he moved to Yarrawonga, he joined up and tried to play, but it became too painful after a month or so and then he had to give it away.[82]

[82]T40-41

99Since then, he mainly just goes and has a hit and brings one or two clubs with him.  Most times he goes on his own and does not fill out a score card.[83] 

[83]T41

100After the shoulder operation, he went back to “B” Grade. His handicap, when he last played competition, was 16 or 17.  If he was lucky, he would have played once a week.  He kept on doing that until he had the shooting pains and then stopped for a while.[84] 

[84]T41

101He admitted he was not telling the truth when he told Dr Aliashkevich and Dr Rowe that he was not playing golf, because he was.  He was not playing competition, because he could not.[85]

[85]T42

102The plaintiff demonstrated his back swing, which was like a half sing.  He could not follow through.  He might hit the ball 75 metres if he was lucky.  He thought he was losing about half his driving power, with his back swing finishing around elbow height.[86]

[86]T43

103Surveillance film was shown of the plaintiff on 4 and 6 May 2021 attending the Yarrawonga Golf Club with a full bag of golf clubs.[87]  He thought his swing was  still “only a half swing”.[88]  He agreed that he actually hits the golf ball around 140 metres.  He plays both on a Tuesday and Thursday if he can.[89]

[87]Exhibit 2, earlier surveillance film was Exhibit 1 

[88]        T55

[89]T56

104He agreed on the film he was shown heading off to the course with what seemed to be a group of friends.  He plays with them sometimes, not all the time.[90]  He agreed he was shown carrying more than two clubs.[91]

[90]T54

[91]T55

105He disagreed that his practise swing was freer than he demonstrated in court.  It was the same half swing.[92]  He thought his tee shot went about 100 to 140 yards.  The distance depended on how dry the grass was.  He goes to the golf course sometimes twice a week, sometimes once a week.[93]

[92]T55

[93]T56

106He does not play golf for four hours.  The whole thing, with drinks, took four hours.  He had probably been playing for about two months at this level, it could be a bit longer.[94]

[94]T58

107He agreed he was played in a 9-hole competition reported in the Yarrawonga Chronicle on 31 March this year – the Yarrawonga Mulwala Golf Club men’s 9 holers.[95]  It was “a bit of a hit and giggle fun”.  Most of the blokes were a lot older than him.  He did not class it as competition; 18 holes is a competition.  He agreed he had won the Stableford on 25 March.[96] 

[95]T58

[96]T59

108His current handicap for nine holes is 9, and for eighteen holes it is 24.  He agreed, as reported in the Deniliquin Pastoral Times, that he came second in the B grade competition in the Riverina Veteran’s Golf in April 2021 – separate to the 9 holers.  He would not call it a competition but agreed Stableford was more serious than 9 holes.  The veteran’s competition is 18 holes.[97]

[97]T61

109The plaintiff won the 18 hole,  A Grade Stableford on 21 January 2021.[98]  At Shepparton on 26 May 2021, with the Mulwala Nine Holers, he was runner up in the Stableford.  He got an eagle in the John Dunston trophy.[99]

[98]T62

[99]T63

110When it was suggested to him that what he told the Court about his golf was nowhere near the truth, he said, “Well, playing a bit more golf than I probably said, yeah… it’s not all the time.”[100]

[100]T63

Surveillance

111There was also film of the plaintiff attending the local football on 6 April 2019.  He would not call that a daily activity.[101]  Before he moved to Yarrawonga, he watched his son play football at Tullamarine.[102]

[101]T44

[102]T45

112The plaintiff agreed he was moving his arms around and was quite animated while he was talking to his friend at the football.  He is not a cripple.  He cannot sit at home “morbid” all the time.[103]

[103]T48

113He was filmed on 22 October 2019 shopping, pushing a shopping trolley, carrying bags and lifting them into the boot.  He was able to do that, but when he lifts, he does it with two hands.  He agreed he was shown lifting a multipack of water off the trolley and putting it in the boot.  The other bottles he was shown carrying were empty stubbies to go to the recycling.[104]  He agreed he might have lifted his left arm above shoulder height to touch his head.  If he lifts his arm too high, sometimes he feels it afterwards.  He agreed he did not appear to be feeling anything afterwards in the footage.[105]

[104]T46

[105]T47

114The plaintiff agreed he was shown on film on 6 April 2019 lifting a tree fern.  It was just resting on his arm.  All the weight was on his right arm and it was not heavy.  He sort of vaguely remembered seeing himself sweeping the driveway.[106]  A lot of times, when he does things, he feels it afterwards, like he might not feel it at the time, then he goes in and says to himself “you idiot, you shouldn’t have done that”.[107]  

[106]T50

[107]T51

115When it was suggested that he could do more in the film than he had described to the doctors, the plaintiff said:  “I been honest all me life, so – that’s the way I was brought up so I’ve tried to do my best.  I’m not trying to – and I would have been happy just to get the surgery have to be here.”  (sic)[108]

[108]T52- the word “than” should be where “and” appears

Lay evidence

116The plaintiff’s wife, Kim, swore an affidavit on 22 June 2021.  They have been married for thirty-seven years, have two adult children and two grandchildren.

117She was aware the plaintiff had suffered left shoulder and neck conditions in the past, but to the best of her knowledge, prior to the incident, symptoms arising from those conditions have fully settled and he was able to do heavy manual work with the employer without restriction.

118As a result of the incident injuries, his lifestyle had been turned on its head.

119The plaintiff suffers from constant left shoulder pain extending into the left side of his neck, and has told her, and she has seen that he is in constant pain.

120The plaintiff had surgery to try and repair his left shoulder in January 2017 and seemed to recover well from that surgery, and they were hopeful for the future.

121Ultimately, his left shoulder condition deteriorated again and he was referred back by Dr Zagarella to see Mr Pullen again in March 2019, who recommended further surgery.  The insurer refused to fund the surgery and she has seen, as a result, the plaintiff has been left in chronic pain, of varying severity, experienced constantly on a daily basis. 

122The plaintiff is limited in his activities because of left shoulder pain and his range of movement is reduced, and there is a loss of strength in his shoulder.  When they visit their grandchildren, she has noticed he has difficulty lifting them and playing with them.

123The plaintiff used to enjoy undertaking weights at home, but is no longer able to do so for exercise.  When they lived at Tullamarine he enjoyed working in a large garden, but after he lost his work capacity they had to sell the house and move to Yarrawonga to a smaller premises.  She now undertakes most of the maintenance and cleaning of the house because of his restrictions.

124The plaintiff used to enjoy riding a bike for exercise but found the jarring in his left shoulder too much and had to stop.  The only recreation he has been able to maintain really is darts, which he enjoys, and can throw darts using his right hand.

125Through personal conviction, the plaintiff will not use any pain-relieving medication as his brother developed an addiction to painkillers.  Accordingly, she has seen that he simply has to put up with pain, as he has done for a number of years, with there being no sign of any improvement looking to the future.  He has resorted to alcohol to help cope with pain and loss of work and recreational activities.

126The plaintiff’s work activities have always required him to have physical strength.  He worked for the employer for about twenty years and was dependent on both shoulders to perform his work.

127The plaintiff has now left at the age of sixty-three, with a known recurrent tendon tear and subject to significant restrictions in his shoulder.  She has seen that at his stage in life, and suffering from this level of disability, he does not have any real prospect to return to work, and they have now relocated to a town with a population of about 12,000 people and far fewer employment opportunities that were available in Melbourne.

Treatment – general practitioners

Dr Mendis

128The plaintiff first consulted Dr Mendis, general practitioner, on 30 May 2016, who then noted the plaintiff had suffered a work-related injury when he fell of a truck, with impact over his left elbow.  An x-ray of the left elbow was organised. 

Dr Zagarella

129Dr Zagarella provided a “General Practitioner Short Report for WorkSafe” on 25 June 2019. 

130He described the injury as rotator cuff injury with AC joint and subacromial inflammation, bursitis, supraspinatus tear.  He noted limitations for work due to chronic severe pain, marked limitation or ability to drive or lift or perform manual duties, affecting sleep and concentration, had been withdrawn and sad regarding the impact of reduced ability to do manual duties and lifting at home, had needed to sell house and move to cheaper location. 

131In response to the question why there had been a decline in the plaintiff’s work capacity as a recent certificate set out no capacity for employment when the plaintiff had returned to full-time normal duties in June 2018 reporting no difficulties with his duties at that time, he stated – “[The] symptoms never completely resolved & there was gradual deterioration until now & no longer able to work as a driver/deliveryman.  No long term response to cortisone injection.  Surgery recommended & I agree.”[109]

[109]No mention of the ACF job or shooting pains

Mr Pullen, shoulder surgeon

132The plaintiff first saw Mr Pullen on 24 August 2016.  He noted a left shoulder MRI had shown a near-full-thickness tear of the supraspinatus tendon and significant biceps tearing.  He recommended the plaintiff undergo surgery.

133The plaintiff underwent a left shoulder arthroscopy, subacromial decompression and rotator cuff repair on 10 January 2017 at St Vincent’s.  Mr Pullen advised that he would require six to eight weeks off work and then would be fit for light duties, consisting of no lifting with the left arm, no work above shoulder height, no repetitive work and reduced hours for three to six months. 

134On 25 January 2017, Mr Pullen referred the plaintiff for physiotherapy treatment of his left shoulder.

135On review on 22 March 2017, Mr Pullen noted the plaintiff was progressing well.  When seen on 21 June 2017, the plaintiff had progressed very well post-surgery, had a good range of motion and minimal pain.  He encouraged the plaintiff to continue to gradually mobilise as tolerated and that he could gradually return to his normal activities as tolerated.   

136Mr Pullen thought that the prognosis for the plaintiff’s left shoulder was positive, no further surgery was planned, and it will likely return to near normal function. 

137In early 2019, Dr Pullen received correspondence from Dr Zagarella advising the plaintiff had ongoing left shoulder pain and that he had diagnosed left shoulder adhesive capsulitis, requesting re-assessment and management of the plaintiff’s left shoulder symptoms.

138When seen on 6 March 2019, the plaintiff explained that his left shoulder pain had failed to resolve after the 2017 surgery and was becoming worse.[110]  He then had a restriction in both active and passive movements and wasting of the supraspinatus and infraspinatus muscles.  Mr Pullen felt the plaintiff may have suffered a retear of the left shoulder rotator cuff tendons and recommended an MRI scan. 

[110]There was no mention of shooting pains, neck problems or work at ACF

139An MRI scan in March 2019 showed a full-thickness partial width tear of the posterior fibres of the supraspinatus tendon with fluid in the subacromial/subdeltoid bursa. 

140Following receipt of the MRI report, Dr Zagarella again wrote to Mr Pullen, suggesting the plaintiff may benefit from a corticosteroid injection into the AC joint and subacromial bursa.

141Mr Pullen saw the plaintiff on 27 March 2019 and discussed the MRI scan results.  He encouraged the plaintiff to undergo a left AC joint and subacromial bursa cortisone injection and recommended he consider a review by a rheumatologist to discuss his ongoing joint pains.

142The plaintiff underwent a left shoulder injection on 2 April 2019. 

143On 15 May 2019, the plaintiff told Mr Pullen he was having ongoing difficulties with left shoulder pain and only brief improvement in symptoms after the injection.  Mr Pullen also discussed further surgery and the plaintiff told him he was keen to proceed and asked him to contact his insurer.  He thought the clinical indication for the surgery was left shoulder pain, stiffness and weakness as a result of a work injury. 

144At that stage, no approval had been received from the insurer for the surgery and  the plaintiff had not returned for further review. 

145Mr Pullen thought the plaintiff will be restricted in his ability to perform pushing, pulling and lifting activities, both as solitary or repetitive activity as a consequence of his shoulder injury.  Repetitive or prolonged use of the left shoulder would also be limited.  He would be unable to undertake overhead activities.

146Mr Pullen thought the plaintiff’s prognosis for his left shoulder condition was uncertain and the long-term outcome would depend on the result of the proposed surgery.

147Based on the clinical and radiological information, it did not appear the plaintiff was at increased risk of developing shoulder arthritis in the short term.  However, without the surgery, he is at risk of developing further tearing of his rotator cuff tendons which may lead to muscle atrophy and eventually to cuff tear arthropathy.

Dr Prentice, neurologist 

148Dr Prentice examined the plaintiff in March 2020.

149On examination, he found a limited range of neck movement with some tenderness in the left side of the neck and in the left trapezius, with increased cervical muscle tone.  The plaintiff had a limited abduction of the left arm due to his shoulder stiffness, but there was no other specific weakness or wasting. 

150Dr Prentice noted the plaintiff’s current constant pain was limited to the left neck and shoulder region and suspected it was multifactorial.  He could not exclude some degree of left C4 radiculopathy but thought the plaintiff could be better suited to trying some baclofen for muscle spasm and neuropathic pain instead of another nerve root injection.

Investigations

151The plaintiff had a left elbow x-ray on 30 May 2016.  No recent fracture was detected and there was no evidence of an elbow joint effusion.

152Following a left shoulder ultrasound on 1 June 2016, it was reported there was an acute on chronic supraspinatus tendinosis with bony irregularity and vascularity.  There was limited external rotation, suggesting frozen shoulder (adhesive capsulitis).  There was degenerative change of the acromioclavicular joint with joint bulging, but not currently tender.  There was mild bursitis and impingement around 90 degrees.  There was further 7 x 5 x 5 millimetre area of focal tendinosis suggested.

153There was an MRI scan of the left shoulder in July 2016.  It was concluded there was subacromial bursitis, severe supraspinatus and infraspinatus tendinopathy with extensive articular surface tearing of the supraspinatus greater than 75 per cent of the thickness across the entire width, with a full-thickness tearing at the posterior edge.  Extensive articular surface spraying and tearing of the subscapularis.  No associated biceps subluxation, but there was biceps tendinopathy seen within substance tearing, extending back to the biceps anchor.

154Mr Pullen organised an MRI scan of the left shoulder organised by Mr Pullen in March 2019.  It was reported the previous rotator cuff surgery was noted and the screw anchors appeared satisfactory.  There was a full-thickness partial width tear at the posterior fibres of the supraspinatus, with fluid in the subacromial subdeltoid bursa.  Moderate joint synovitis was visualised.

The Plaintiff’s medico-legal evidence

Dr Kennedy, sports and industrial physician

155Dr Kennedy assessed the plaintiff on 30 November 2017.  The plaintiff had recently been sacked for an unrelated matter and had been working normal duties for three to four months until his recent termination. [111]

[111]This examination predates employment with ACF and the shooting pains

156The plaintiff then complained of limited movements on the left side at the shoulder joint, as well as problems lifting above head height with the left arm, repetitive movements with the left arm, and with golf, gardening and other domestic activities.

157On examination, Dr Kennedy found tenderness over the anterior aspect of the glenohumeral joint and also over the AC joint.  Range of motion was restricted and with pain. 

158He considered the plaintiff to have sustained a significant left shoulder injury at work on the said date.  He thought that there were no obvious discrepancies between his current symptom presentation and the clinical findings on examination. 

159Dr Kennedy considered the plaintiff’s prognosis in relation to the left shoulder joint as fair, as it was probable that he would continue to have some restrictions with the movements of the left arm at the shoulder joint, affecting both domestic, social and recreational activities but also his work capacity.  He considered the plaintiff fit to return to modified occupational duties, avoiding repetitive use of his left arm at the shoulder joint under any load or stress. 

Dr Clark, occupational physician

160Dr Clark examined the plaintiff on 4 December 2019. 

161The plaintiff reported that he had a normal post-operative rehabilitation course and eventually returned to work after about three months in April 2017.

162When he returned to pre-injury duties in July 2017 post surgery, he had persistent pain and restricted shoulder mobility and was unable to cope with his duties and his employment was eventually terminated in November 2017. He then found work with another company as a forklift driver and truck driver.  That job did not involve heavy manual lifting and he was able to cope with the work, albeit with some restrictions because of his left shoulder condition. 

163He eventually resigned from that job because he was unable to cope with his situation in January 2019.[112]  He said he decided to move to Yarrawonga to live for financial and other reasons and he had been unable to find suitable work.

[112]No mention of neck complaint or shooting pains in January 2019 leading to ceasing work

164On examination, the plaintiff reported left-sided neck and shoulder pain with restricted movements of his left upper limb.  He said he could do little in the way of physical activities with his left arm, and that he was frustrated by his condition and the restrictions it caused, despite wanting to continue to work. 

165Dr Clark noted the plaintiff’s neck movements were restricted in all directions and that he removed his upper outer garments with difficulty.  There was no spinal tenderness or muscle spasm on palpation of his neck, and no neurological abnormality was detected on testing of upper limbs.  There was tenderness on palpation of the left shoulder and movements were markedly restricted by pain.

166Dr Clark considered the plaintiff did not have a current work capacity and that incapacity was indefinite. 

167Dr Clark thought the plaintiff suffered from neck and left upper limb dysfunction, to which his injuries of claim were a significant contributing factor and remained material contributors to his current condition.  He thought further shoulder surgery was reasonable, as was neurological assessment of the plaintiff’s neck condition. 

168Dr Clark thought the plaintiff’s prognosis was indefinite, dependant on the outcome of further shoulder surgery, if he decided to have it.  He thought the plaintiff’s current painful neck condition restricted his mobility and contributed to his incapacity for many normal activities, particularly those lifting and bending, and should be subject to a neurosurgical assessment. 

169He considered the plaintiff’s treatment after the subject incident reasonable and appropriate, but that his left shoulder condition had deteriorated since and he was restricted by it now.  He thought further left shoulder surgery was reasonable and appropriate if the plaintiff wanted it, and that the neck condition warranted further investigation.

170Dr Clark made no reference to the neck injections in late 2019, although noting the cervical MRI. 

Dr Aliashkevich, neurosurgeon

171Dr Aliashkevich examined the plaintiff on 18 May 2021. 

172He was provided with the affidavits and all the medical reports.  In addition to the incident injury, he noted the plaintiff started experiencing increasing left neck and shooting left arm pain in early 2019 and had not worked since.  An MRI scan was arranged, and the plaintiff underwent a CT-guided cervical injection, which helped for three or four weeks. 

173On examination, the plaintiff complained of pain in his left shoulder and neck.  He scored his pain at 3 to 4 out of 10 on a good day and 7 to 8 out of 10 on a bad day, which he felt across his shoulder and up into his neck.  The left arm pain and pins and needles subsided in late 2019.

174Before his injury, the plaintiff enjoyed playing golf, darts, used weights at home and did gardening.  He cannot do these due to his injury, except playing darts, as this is a right-handed activity.

175On examination, the plaintiff demonstrated a normal gait and posture.  He had difficulty elevating his left arm above his head.  Significant tenderness was reported on palpation of the left trapezius region without muscular guarding.  On distraction, the range of neck movement seemed to improve. 

176In relation to the plaintiff’s injuries sustained at work on the said date, Dr Aliashkevich diagnosed chronic left shoulder and neck pain, aggravated multilevel cervical spondylosis and C5-6 and C6-7 disc osteophytic formation with left dominant foraminal stenosis. 

177In terms of causation, having regard to the physical and repetitive nature of long-term employment as a delivery driver, the history and mechanism of the incident – chronic left neck pain since about early 2019; evidence of previous neck problems in 2002 which required a cervical MRI scan; incomplete relief after conservative treatment and a left shoulder arthroscopy; temporising relief after a cervical injection around August 2019; clinical examination; radiological results; available medical documentation and general practitioner’ notes and medical reports – he considered, on the balance of probabilities, the plaintiff’s employment in general  as a potentially material contributing factor to exacerbation of a pre-existing degenerative condition of the cervical spine to a degree greater than minimal.  He was not able to identify in the material, strong evidence to suggest that the incident caused any cervical injury to a degree greater than minimal.

178With the longstanding nature of the plaintiff’s cervical spine condition, he considered it substantially stabilised from a neurosurgical perspective.

179With the improved left brachialgia on conservative treatment since 2019, he did not think any specific treatment regarding the chronic cervical spine condition would be needed at this stage, and suggested a range of treatment that would be appropriate in the case of a flare up of his brachialgia or neck pain.

180Dr Aliashkevich noted that the assessment of the plaintiff’s left shoulder and upper limb were outside of his area of expertise.  The only treatment listed that is referrable to the left shoulder is to continue treatment with an orthopaedic shoulder specialist. 

181Given the improvement of the plaintiff’s radicular left arm pain since 2019, but significant C5‑6 and C6-7 foraminal narrowing on MRI, he recommended restrictions with lifting and carrying weights to 10 kilograms, no regular or vigorous pushing or pulling, using heavy tools, working overhead, heavy dragging and carrying, no exposure to jarring vibrational forces and no repetitive or sustained neck bending, tilting or twisting.

182Dr Aliashkevich thought these restrictions were likely to continue for the foreseeable future to a significant extent.

183Considering the MRI findings, he would not recommend participation in any strenuous or repetitive physical employment that would exceed these restrictions, and this would be the situation for the foreseeable future.

184Taking into account the significant findings on MRI, and putting aside the complex shoulder problems, he believed the plaintiff could theoretically have some capacity for suitable employment under the suggested restrictions, and an assessment would be required by a qualified occupational specialist before consideration of such employment.

185He considered the plaintiff’s prognosis is guarded, as he suffered from chronic left shoulder and neck pain, requiring further treatment. 

Dr Rowe, specialist occupation physician

186Dr Rowe examined the plaintiff on 19 May 2021 in relation to his left shoulder injuries sustained during the course of his employment with the employer.  He was provided with the plaintiff’s 2018 and 2019 affidavits.

187The plaintiff continued to report pain and weakness in the left shoulder, lack of mobility in all directions and pain into the left side of his neck.  Pain was aggravated by overhead or repetitive use of the left arm.  He avoided strong analgesics due to a family member’s previous addiction.  He was under the care of Dr Zagarella.  The plaintiff said he did not feel safe operating heavy equipment because of the shooting pains in his left arm and weakness in his left hand.

188On examination, there was severely restricted movement of the left shoulder.  There was wasting of the left upper arm, measuring 4 centimetres smaller in circumference than the right.  There was obvious rupturing of the biceps tendon.  The plaintiff had very poor grip strength of 7.5 kilograms in his left hand, compared to 30 in his right over repeated trials using a hand dynamometer.  There was loss of range of cervical movement with lateral rotation and flexion, particularly to the left, about half range. 

189Dr Rowe diagnosed an internal derangement of the left shoulder, involving subacromial bursitis, severe supraspinatus and infraspinatus tendinopathy with tearing of the supraspinatus, infraspinatus, subscapularis and rupture of the biceps tendon.  He noted that the first surgery was not very successful.  Further surgery was proposed but was not approved by the insurance company. 

190He noted the plaintiff used to enjoy playing golf, using weights in the gym, riding a bike and doing home maintenance and repairs, but had been unable to continue.  He enjoyed playing darts a few times a week, which he was able to do with his right dominant hand.

191As a result of left shoulder injury, the plaintiff would be permanently restricted from activities involving pushing, pulling or lifting, repetitive pushing, pulling or lifting, prolonged sitting or standing, overhead activities, forward reaching, repetitive or sudden head turning and prolonged driving or operating heavy equipment vehicles.  

192Considering his left shoulder alone, the plaintiff was not fit to return to unrestricted pre-injury duties or indeed, any physical employment.  Considering his left shoulder injury alone, he is not fit to return to alternative or suitable employment.  He has limited education and no formal qualifications.  He had no experience in an office or sedentary work.  He would likely require extensive retraining or re-education in a more sedentary field to return to the workforce.  However, at sixty-three, he is not a realistic candidate for retraining or re-education and would not be a desirable candidate for employment in an open labour market.  He required further surgery.

193As a result of his left shoulder injury alone, he would continue to have restrictions on his social, domestic, recreational and sleep quality.  He is very limited in his capacity to help out with housework and gardening, and can no longer enjoy playing golf, riding his bike or performing minor home maintenance and repair work.

194When asked about a neck condition, Dr Rowe said he could not answer this fully.  It was likely the plaintiff had aggravated some underlying age-related deterioration in the cervical spine; however, no radiological investigations had been provided to confirm this diagnosis. 

195The plaintiff suffered with persistent chronic pain on a daily basis and was reluctant to take medication.  The prognosis was not good and he was at increased risk of developing arthritis and/or further degeneration of the shoulder, and in the cervical spine, as a result of his injuries.  Dr Rowe noted it was unlikely the surgery would take place without a guaranteed positive outcome which, of course, no surgeon could provide.

196Although provided with surveillance reports, Dr Rowe made no comment in relation thereto.

Medical evidence – treaters

Dr Zagarella 

197On 25 July 2017, the plaintiff presented to Dr Zagarella.  There was then normal movement of the shoulder.  He had ceased physiotherapy and ceased gym, as he felt normal and was doing normal activities at work.

198On 18 October 2017, it was noted that physiotherapy had discharged, so the plaintiff could undertake a return to work plan.  On 7 December 2017, the plaintiff was noted to have resigned and was looking for part-time work.

199On 16 April 2018, it was noted the plaintiff had a new job with import/export, with minimal lifting.  He was noted to have lost weight but had no other symptoms.  There were attendances for an unrelated matter on 19 and 30 April, 7 May, 14 May, 4 September, 10 October and 18 October 2018.

200On 24 January 2019, it was noted in “History”:

“had surgery to L shoulder 2 years ago was good last

2/12 becoming painful again surgery 10/01/2017

under W/C

as driver at work pain is aggravated need new

w/c … [claim]

new job will have to claim from previous employer.”

(sic)

201On 27 February 2019, the history was shoulder pain ongoing, unable to drive and no other work duties available.

202In March 2019, there was a referral to Mr Pullen and an MRI scan was arranged. 

203On 18 April 2019, it was noted the plaintiff was still not able to drive and that is his employment skill.

204On 20 May 2019 – “Unable to drive.  Ongoing pain.  [Moving] to [country] on 6/52 and sold house to facilitate this.  Letter [to] [Mr] Pullen … .”

205On 13 June 2019, “stable and awaiting Sx.  Moving to Yarrawonga tomorrow.”

206On 1 August 2019, the plaintiff attended Dr Zagarella, complaining of shoulder and neck pain.  Under “History”, it was noted “ongoing severe shoulder pain.  Examination consistent with radiculopathy”.  On examination, it was noted there was marked restriction of movement at lateral rotations in the CX spine. 

207An MRI scan of the cervical spine was planned for 4 August 2019.  “?Radiculopathy.  Known L shoulder pain consistent with RCS bursitis impingement.  Severe L neck pains and radiation typical of mild cervical radiculopathy.” 

208In terms of diagnostic care, there was to be a CT-guided CS injection at left C3-4 facet joint – treatment for radiculopathy at the C4 dermatome.  A similar treatment plan for left C6 nerve roots.

209Dr Zagarella also noted: “C3-4 facet joint OA with some nerve impingement and C6-7 facet joint OA.  DDD with more definite entrapment and both consistent with his symptoms and clinical examination.”

210On 9 September 2019, the plaintiff presented for review after the CT-guided CX injections.  Overall, he was better.  “Likely to be related more to cervical spine.  Waiting financial settlement for house so entitled to Centrelink overall okay.   Injections have been of benefit.”

211On 23 December 2019, Dr Zagarella reported neck pain was ongoing.  Injections done two to thirteen ago, wanting specialist referral.

Dr Pring – general practitioner at Yarrawonga Medical Centre

212On 2 November 2020, Dr Pring noted the plaintiff was new patient.  He had been on Centrelink certificates for the past few years for rotator cuff issues in the left shoulder and cervical spondylosis:  “Been fighting to have operation done on it, Workcover not agreeing to it.  Not that impaired by it looking at starting golf again soon.  Probably shouldn’t be on long term Centrelink certificate.”

213Dr Pring noted on 12 November 2020 that there was a further discussion regarding chronic neck and shoulder pain, “not really disabling at the moment, was able to play 9 holes of golf the other day.  Main issue is with reduced movement and weakness in shoulder.”  He should be fine to perform some work after four  weeks – “won[’]t be able to do heavy manual work but no reason he can[’]t do other types of work ….  Brendan seems to be accepting of this.”

Mr Pullen, orthopaedic surgeon  

214Mr Pullen wrote to TriStar Medical Group on 24 June 2017, having reviewed the plaintiff that day.  He noted the plaintiff had done very well following his shoulder surgery.  He had an excellent range of motion and minimal pain and he had encouraged him to mobilise as tolerated.  Mr Pullen offered to review the plaintiff again if he had further difficulties and noted he can gradually return to his normal activities as tolerated. 

215On 10 January 2017, Mr Pullen wrote to “whom it may concern” that the plaintiff had recently undergone shoulder surgery and would be unable to play golf for three months.

Medico-legal evidence

Dr Slesenger, occupational physician

216Dr Slesenger first saw the plaintiff in March 2017, two months after the arthroscopic surgery.

217He re-examined the plaintiff in May 2019 to review his medical and other health services, and consider weekly payments and further treatment.

218Since the last evaluation, the plaintiff advised there was a gradual improvement in his left shoulder symptoms, with an improvement in range of movement.  He was able to return to pre-injury duties on a graduated return to work plan, and left work in November 2017 for an unrelated matter.  He was out of work for some months, before securing employment with ACF, where he worked Monday to Friday driving a truck and loading and unloading freight using a forklift.

219The plaintiff advised he started with ACF around March 2018 and adhered to the job demands, however, advised of a gradual increase in left shoulder pain and associated restricted range of movement.  He advised the symptoms deteriorated over a period of a few months until he eventually ceased work as he was not able to perform the job demands, and had not worked since January 2019.[113] He returned to Mr Pullen who organised a further MRI which showed evidence of a further tear.

[113]No mention of shooting pain in January 2019

220The plaintiff then reported ongoing pain in the left shoulder with restricted range of movements, with difficulty forward reaching, over shoulder reaching and difficulty lying on his left side.

221Dr Slesenger noted the plaintiff was due to move to Yarrawonga (he gave up his home due to financial reasons).  Currently, he was not engaging in any sporting activities.

222Dr Slesenger diagnosed soft tissue injury, rotator cuff tear, bursitis and adhesive capsulitis, which had resolved, and chronic left shoulder pain and more recent recurrent rotator cuff tear.

223He then thought the plaintiff could not return to pre-injury duties, noting his current symptoms, functional limitation and the pre-injury job demands.  He did, however, think the plaintiff retained a capacity for work, avoiding sustained forward reaching, over shoulder reaching, avoiding pushing, pulling, carrying or lifting over 5 kilograms and avoiding repetitive shoulder tasks.

224He thought the plaintiff’s current impairment was multifactorial.  There was at least a partial element to his presentation that related to the compensable injury and there was also an element of his presentation due to a further rotator cuff tear.  He noted there had been a material decline in the plaintiff’s presentation which occurred over the course of the last twelve months, with increasing pain and restricted range of movement around the left shoulder. 

225The current impairment was at least in part related to the compensable injury and subsequent surgery, and was partially related to the subsequent workplace manual handling tasks associated with his ACF employment.  He also thought that the initial injury and surgery would have increased the risk of a further deterioration while working at ACF.

226Dr Slesenger reported further in July 2019, having been provided with the DVD surveillance footage.  Having noted the film of the plaintiff opening his boot and sweeping, and film on 6 April 2019, when he was observed standing and watching a game of football, and a week later, walking two dogs and at the football, standing and walking around the perimeter of the oval, Dr Slesenger thought that footage showed a significant inconsistency between that which was demonstrated and described at evaluation and that which was observed. 

227On examination, the plaintiff demonstrated a very severe restriction to left shoulder movements, however, on surveillance, his movements were improved.  There was also an absence of avoidance of the impaired side. 

228Accordingly, he thought the plaintiff’s capacity was greater than that which was demonstrated and described at evaluation.  He thought the plaintiff retained the capacity for work with restrictions which should be amended, namely no push, pull or carry over 15 kilograms on an occasional basis and 10 kilograms on a regular basis, and avoid sustained over shoulder reaching.  He thought the plaintiff should be managed conservatively with an exercise program.  He did not have the expertise to comment on surgery. 

229On re-examination in  November 2019, the plaintiff described residual left shoulder pain which was moderate to severe and aggravated by activity.  He advised there had been no change in symptom complaints since the last examination

230Under sports and hobbies, Dr Slesenger noted the plaintiff was able to walk his dog daily and played darts twice weekly.  He used to enjoy golf, but had ceased as a result of the accident. Otherwise, he watched television.

231In summary, Dr Slesenger thought the plaintiff continued to present with residual left shoulder pain following the incident.  He remained at work there until November 2017 and then commenced work with ACF, working as a delivery driver, and ceased that role in early 2019 and had not worked since, and there was no return to work plan in place.

232Dr Slesenger confirmed the plaintiff could not return to pre-injury duties because they required manual handling of weights in excess of 80 kilograms based on the  plaintiff’s current symptoms and functional limitations, the clinical findings and the DVD.

233Dr Slesenger was then forwarded Co Work’s Vocational Assessment and Labour Market Analysis of November 2019 which identified a number of suitable vocational options.

234He was satisfied the plaintiff could return to work as a point to point truckdriver.  He may require retraining, although he held a heavy vehicle licence.  There may be tasks associated with this role that could lie outside his capacity limits and he recommended a job specific worksite assessment before a return to this role.  He recommended consideration be given to him returning to work as a tip truck driver with automated gates and tarpaulins.

235He was generally optimistic the plaintiff could return to work as a forklift driver or bus driver within the suggested restrictions but there might be some tasks outside his capacity and a worksite visit would be required.  He thought the plaintiff retained a capacity to perform the duties associated with the role of road traffic controller within the suggested restrictions. 

236He recommended the plaintiff initially returned to work four hours a day, four days per week, increasing to pre-injury hours over six weeks. 

237On re-examination on 1 February 2021, the plaintiff advised there had been no change in his symptoms. 

238Dr Slesenger was provided with the general practitioners’ notes, reports from Dr Clark and Dr Kennedy, reports of treatment and investigations organised by Mr Pullen, and also the plaintiff’s 2018 and 2019 affidavits.

239Under “Social and Domestic History”, he noted the plaintiff continued to live in Yarrawonga and continued to avoid domestic duties.

240The plaintiff clarified his job demands at ACF, confirming he was not required to manually load and unload pallets, but was required to close gates and curtains, and also perform strapping duties.

241In terms of the cervical spine, Dr Slesenger noted there was some uncertainty as to the timing of the onset of symptoms, however, these appear to have developed around the time his symptoms deteriorated in 2019. The plaintiff had further investigations, including a CT scan and a steroid injection into his neck.  Neck pain had persisted.  He advised that it had continued at a severe level, although not as intense as the left shoulder pain.

242Dr Slesenger thought there was no independent cervical spine injury but, rather,  cervical spinal symptoms were due to radiating symptoms from the left shoulder.  In support of that, he noted the clinical examination did not identify tenderness around the cervical spine and the restricted range of movements demonstrated on formal evaluation improved on distraction.  Further, while he noted the global weakness throughout the left upper limb, this was noted to be collapsing and not consistent with organic pathology. 

243In terms of activities, the plaintiff said he occasionally worked outdoors, continued to live in Yarrawonga and was not engaging in domestic duties.  He could walk once a day, but had not been able to play darts over the last twelve months because of COVID.

244Dr Slesenger had concerns with regard to the plaintiff’s overall presentation and noted on clinical examination, severe restriction of left shoulder and cervical spinal movements, however, they were noted to improve upon distraction.  There was no wasting around the left shoulder, despite the weakness and restricted range of motion identified, and there was evidence of manual tasks recently being performed.

245Dr Slesenger thought the prognosis must be guarded given the length of the impairment and disability, and poor response to treatment to date.

246Dr Slesenger again confirmed his views as to the plaintiff’s employment capacity and that he would be likely to be able to return to work on a full-time basis within six months.

247Dr Slesenger had concerns with regard to the plaintiff’s overall presentation and recommended a review of his employment records with ACF, confirm the job tasks undertaken there and any medical declarations or pre-employment medical evaluations performed while working there.

248In a supplementary report of May 2021, Dr Slesenger noted the plaintiff advised that he used to enjoy golf but had ceased as a result of the accident.

249Dr Slesenger was provided with surveillance dated 2 December 2020 and October 2019. 

250Dr Slesenger thought what the footage disclosed was consistent with the examination findings, namely the observation that the plaintiff had an improved range of movements upon distraction with regard to cervical and the left shoulder.  Also, there was no evidence of avoidance of the left side when viewing the footage. 

251Dr Slesenger also noted the footage was contemporaneous with previous evaluations by himself and when examined in 2019, the plaintiff demonstrated a moderate restriction to range of cervical spinal movements which improved upon distraction and a restricted range of left shoulder movements, which was inconsistent with his capacity demonstrated on the film.

252Dr Slesenger’s opinions outlined in previous reports remained unchanged.   

253A further supplementary report was provided by Dr Slesenger after he was forwarded Mr Brazenor’s 2021 reports and the subsequent CoWork report of 5 May 2021 and further film from 22 and 23 October 2019.  That footage reinforced his previous observations that there was inconsistency between the clinical examinations and the footage. 

254Dr Slesenger thought the majority of the tasks as an Uber driver fell within the plaintiff’s capacity limits, however, there may be some tasks that lie outside those limits, with heavy lifting of luggage or wheelchairs, and in those circumstances, he would anticipate that the plaintiff would either decline the fare or ask the customer for help.  He thought the plaintiff could return to work as a security officer/patrol gatehouse, but duties required to restrain intruders would lie outside his capacity.

255Dr Slesenger thought the plaintiff could return to work as a parking inspector/parking officer and a meter reader role within the suggested restrictions. 

256Given the plaintiff’s current deconditioned state, Dr Slesenger recommended a return to work of four hours, four days a week, increasing to pre-injury hours over six to eight weeks. 

Mr Graeme Brazenor, neurosurgeon  

257Mr Brazenor saw the plaintiff in February 2021, having been provided with an extensive range of documents.

258The plaintiff indicated his left trapezius muscle on the left side of his neck between his neck and shoulder was the area of predominant pain.  Sometimes that gave shots of pain into his neck, but he denied pain in the actual shoulder joint region and it became clear the left trapezius pain was the one which the plaintiff maintained prevented him from returning to any form of work. 

259When asked by Mr Brazenor why he had not had any treatment, the plaintiff said they would not pay for it and “I am darned if I’m going to pay for it”.  He suggested the plaintiff get a referral for assessment at a public hospital and he had the physiotherapy that is permitted under Medicare. 

260Mr Brazenor noted, as the plaintiff came in from the waiting room into the consulting room, he held his left arm fairly immobile against his body.  He told Mr Brazenor he could not hold his left arm up on the steering wheel.  He asked the plaintiff how he spent much of his day and he said he watched a lot of television.  The plaintiff said he walked his two dogs and, domestically, said his wife does everything and says “‘you’re flamin’ useless’”. 

261Whilst the plaintiff held his arm immobile while seated and delving into his box of documents and x-rays, both hands delved into the bag relatively simultaneously, seeming to demonstrate equal use of two arms.  Mr Brazenor noted, in the film he had seen, there was not a single time where the plaintiff appeared to favour his left arm, much less hold it immobile against his body, as he did on examination.  Mr Brazenor thought there was some suggestion of a cervical pain generator.  Range of neck movement was very restricted, said to produce discomfort, and forward flexion and lateral flexion to either side were excursions, which were said to cause left trapezius pain.

262On the left shoulder girdle there was visible wasting in the left supraspinatus, which Mr Brazenor noted he had read was longstanding, and certainly secondary to chronic supraspinatus tears since 2002.

263In more than forty years’ experience of attempting to distinguish shoulder joint pain from pain referred from the cervical spine, he had never encountered trapezius pain caused by shoulder pathology and it was more likely to be referred from the cervical spine.

264On the balance of probabilities, he thought the plaintiff received a further injury to his previously injured left shoulder in the incident, following which he had surgery.  That, in Mr Brazenor’s opinion, was where the certainty ended.  He noted the plaintiff sought no shoulder treatment and the last scan was in August 2019.  Further, he appeared to use his upper limbs symmetrically when delving into the bags, and there was a marked difference between his carriage of the left arm in the rooms compared to the normal postures and carriage uniformly demonstrated on the film. 

265There was a significant question as to whether, at this late stage, the plaintiff experienced significant pain in his left shoulder.  He described no pain on examination, which was typical of shoulder pain, and from the examination, he concluded the left trapezius pain, which the plaintiff alleged prevented him from seeking work, was certainly not from the shoulder, but more likely referred from the cervical spine from left sided foraminal stenoses at C4-5 and C5-6.

266With respect to the allegation of the neck injury or pain referred from the cervical spine to the left trapezius, the Tristar records ending in February 2017 and Niddrie Medical Centre records ending in December 2019, showed absolutely no complaint of neck pain and no postulation of neck origin of the plaintiff’s pain until the first mention in the Niddrie entry on 1 August 2019, when it was recorded left shoulder pain is now almost felt on the left side of the neck.  The pain arose almost three years after the incident, accordingly, it was Mr Brazenor’s firm view that the evidence against neck injury or any pain referred from the neck arising from the incident, was incontrovertible.

267On balance, he thought the plaintiff now suffers from chronic changes of cumulative injury in the left shoulder and mild pain in the left trapezius referred from chronic degenerative changes in the cervical spine.  Evidence would appear to indicate that, in both areas, the plaintiff’s body showed such changes and was symptomatic in 2002, and there was solid evidence that the shoulder received further significant injury in the incident, but the neck did not. 

268The weight of evidence also indicated that the only sequel of the incident, which the plaintiff continued to carry is, on the balance of probabilities, that this further left shoulder has rendered him permanently unfit for pre-injury duties or any job requiring vigorous use of both arms.  He noted no further treatment was indicated and, significantly, the plaintiff sought none. 

269The road traffic controller role was unsuitable if there was a requirement for any moving of heavy traffic barriers, but the positions of truck driver, automatic load and unload, forklift driver and suburban bus driver were suitable, as equally were the positions of security guard on patrol, meter reader, parking officer or Uber driver.

270Mr Brazenor was asked to provide a further report, having been given Dr Slesenger’s February 2021 report and further surveillance just recently taken in December 2020.   He reiterated, unchanged, the conclusions set out in his earlier report.

271Noting Dr Slesenger thought current impairment was predominantly related to any injury at ACF, Mr Brazenor commented the plaintiff’s disability is now minor and the only restriction he would now place on further employment was he would not have to wrestle large items of furniture.  Thus jobs the plaintiff could do now, full time, beginning now and working until normal retiring age, would include being a tram driver or Uber driver, driving a heavy truck where he did not have to manually handle a lot of freight, being a security guard on patrol, or in the role of a parking officer or meter officer.

272Considering the extensive documentation and radiology, together with interview and examination in February 2021, Mr Brazenor found no evidence for neck injury in the incident, or since.  The evidence is that they are chronic age-related degenerative changes only and the films rule out any significant neck symptoms or symptoms referred from the neck.  There is no evidence for injury over the course of employment, either of the shoulder or neck. 

273The films were concordant and speak to a minimal or no disability in the left shoulder or cervical spine, contraindicating only the limiting of heavy furniture in further full-time employment for the plaintiff. 

274Mr Brazenor made no changes to his report after being forwarded the May 2021 reports of Dr Aliashkevich, Dr Rowe’s, Dr Slesenger and Co Work.

Vocational evidence

275Hayley Morey, occupational therapist from CoWork, provided a report of 18 November 2019 in which she went through a range of suggested vocations and reported the plaintiff’s response thereto. 

276In terms of community or courtesy bus driver, he said: 

“No – I’d lose my temper (with the old people) – I’d drive a school bus.”

277Working for Vinnies as a truck driver or for an opportunity shop: 

“Probably have to go to Albury and I don’t want to have to do that.”

278In terms of a meter reader:

“The walking – that wouldn’t worry me – Yeah, if it’s a job that keeps me out – wouldn’t be a problem.”

279In terms of a forklift driver in a fruit packing shed: 

“Most of them are seasonal jobs.  Prefer not to do seasonal work”

280In the role of forklift driver: 

“Yeah – probably could.  Rather stick to part-time, if I could.”

281The earnings for those suggested jobs were:

(a)   truck driver ꟷ automatic load and upload, annual income $70,512, average weekly $1,356 and average hourly wage $35.68;

(b)   forklift driver ꟷ annual income $54,756, average weekly $1,053 and average hourly wage $27.71;

(c)   bus driver ꟷ annual income $72,127, average weekly $1,387 and average hourly wage $36.50;

(d)   road traffic controller ꟷ annual income $59,904, average weekly $1,152 and average hourly wage $30.32.

282Ms Morey provided a supplementary report in May 2021, having read Dr Slesenger’s reports.  She added to suggested suitable employment:

(a)   Uber driver ꟷ annual income $45,656, average weekly $878 and average hourly wage $23.10;

(b)   security officer patrol gatehouse ꟷ annual income $67,964, average weekly $1,307 and average hourly wage $34.39;

(c)   parking inspector/parking officer ꟷ annual income $62,052, average weekly $1,251 and average hourly wage $32.92; and

(d)   meter reader ꟷ annual income $53,300, average weekly $1,025 and average hourly wage $26.97.

Other documents

283The Shepparton News of 28 January 2021 reported that the plaintiff won the YMGCR A grade Stableford on 21 January.

284The Yarrawonga Chronicle of 31 March 2021, reported the Yarrawonga Mulwala Golf Club Men’s Nine Holers on 23 March was won by the plaintiff.  The following day, he won the Stableford.

285The Deniliquin Times of 5 May 2021 reported that the plaintiff won the YMGCR Stableford on 26 April 2021.  He was the runner up in the B Grade competition

286The Shepparton News of 26 May 2021 reported that the plaintiff shot an eagle on 18 May 2021 in the Nine Holers.  He was the runner up in the Stableford 20 May 2021.[114]

[114]      Shepparton News and Deniliquin Pastoral Times

Overview

Credit

287As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[115]

“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”

[115]      (ibid) at paragraph [12]

288Counsel for the defendant submitted there is a big credit issue in this application and the plaintiff should not be accepted as being as disabled as he claims.  The whole import of his affidavits was he was not able to do very much – certainly not paying competition golf and winning.[116] Further, his presentation on the various films was inconsistent with his level of movement on examination.[117] 

[116]T116

[117]T117

289In response, counsel for the plaintiff submitted whatever was said about the plaintiff’s credit, it can be organically determined that the pathology requiring treatment is present, and that is likely to have significant consequences in terms of his activities.[118]

[118]T130

290In my view, the plaintiff was not a truthful witness.  His affidavit and his initial viva voce evidence significantly understated the level of his involvement in golf.  In response to my own questions, he confirmed, prior to seeing the film and the competition records, that he did not play competition golf.  This was simply untrue, as was his evidence he just carried a couple of sticks around and had a hit by himself.

291Further, the level of left shoulder involvement shown on some of the surveillance films was inconsistent with the restriction of movement found by a number of examiners. 

292Given the plaintiff’s willingness to deliberately mislead me, I have significant concerns as to the reliability of his evidence as to his level of pain and restrictions and the employment consequences of any left shoulder impairment.

Loss of earning capacity application

293There is no dispute the plaintiff suffered a compensable injury to his left shoulder in the incident. It was diagnosed as a tear of the left supraspinatus, treated surgically by Mr Pullen in January 2017.

294The plaintiff accepted he made a good recovery from that procedure.  As Mr Pullen recorded in mid 2017, by that stage, the plaintiff had minimal pain and a good range of shoulder movement and he was discharged from his care.  The plaintiff also ceased physiotherapy in July 2017.

295He returned to work on modified duties and hours on 10 April 2017, gradually increasing his hours over time, returning to pre-injury duties and hours in about July 2017.

296While he deposed he was not ready to return to work at that stage but did so because of pressure from the insurer, he worked full-time normal duties until his employment was terminated in November 2017, after he had taken a mattress without permission.  During that time, there was no restriction on his duties or complaints to his general practitioner of any difficulties doing his job because of left shoulder pain.

297The plaintiff then obtained work with ACF in about March 2018.  Although he described these duties as lighter than those with the employer, it became apparent he did some heavy lifting in that role.[119]  There were, however, no reports of any left arm/shoulder pain doing these duties until 24 January 2019, when he complained of shooting pains down his left arm while driving (“the shooting pains”).

[119]       Occupational Health and Safety Register of Injury Form – date of injury 08/06/18

298Before then, the plaintiff was managing well at ACF and working up to six hours per week overtime.[120] 

[120]T103

299The shooting pains were a new pain – not of the type described in his first affidavit sworn in December 2018.  He felt like he was having a stroke and saw his doctor immediately.  He has not worked since.

300In my view, the plaintiff gave up work as a result of the shooting pains and then took up his retirement plan, moving to Yarrawonga where he and his wife had had a time share for twenty-five to thirty years, that they visited every year.  While it might have been earlier than he intended, the plaintiff sold up in Melbourne and made that move then because he could not work as a result of the new shooting pains.[121] 

[121]T104

301As counsel for the defendant submitted, going to Yarrawonga was always what the plaintiff and his wife wanted to do and now they are living a nice sort of retirement lifestyle with the plaintiff playing golf twice a week, darts, walking the dog, having beers at the local club, with no intention of going back to work at this point, and has made no attempt to do so.[122] 

[122]T104

302Only a matter of months after the episode of shooting pains, Dr Zagarella noted on 20 May 2019: “Moving to country on 6/52 and sold house to facilitate this”.  As at 13 June, was “moving to Yarrawonga tomorrow”.

303To succeed in this loss of earning capacity application, the plaintiff must establish, as at the date of hearing, that he would have been working and that he has suffered the requisite loss of 40 per cent on a permanent basis as a result of any incident related left shoulder impairment.[123]

[123]Cuturic v Spotless Facility Services [2018] VCC 889; s325(2)(f) of the Act

304If I am not satisfied this is the case, the effect of any left shoulder condition on his ability to do a range of jobs at present is not relevant to my determination.

305I do not accept the plaintiff has suffered the requisite loss.  In early 2019, he left the workforce because of the shooting pains.  He has shown no interest in seeking work since leaving ACF, where this condition arose.  He has made no attempt to obtain work in Yarrawonga and, in my view, he has taken up the life of a retiree. 

306As the plaintiff said:  “I would have been happy just to get the surgery and [not] have to be here.”[124]  

[124]T52 – seems to be a transcript error – leaving out the word “not”

307Further, leaving aside the issue of retirement, I am not satisfied the plaintiff has suffered the requisite loss, whether as a result of any left shoulder condition or issue with his cervical spine.  While he may not have the capacity for unrestricted physical work, on his own evidence, he has the capacity to do a number of the suggested jobs.

308There was no reason why he could not work 20 to 25 hours as a school bus driver if those hours were available.[125]  There was probably no reason why he could not work as a meter reader – apart from the driving distance to Albury or Wangaratta,   which was “inconvenient”.  He could work part time as a forklift driver.  He also said he would think about working if it was financially worthwhile.[126]

[125]      20 hours x $36 = $720

[126]      T78

309Further, Dr Pring’s notes in November 2020 are consistent with the plaintiff having a work capacity at that time.

310The plaintiff agreed he loved his footy and his golf “but if I need money in me (sic) pocket, I’d willing to give away all me golf and I’d have to work because were slowly running out of money so I’m going to have to try and find – and my wife’s not working either.”[127]

[127]T77

311Taking all the evidence into account, I am not satisfied the plaintiff has suffered the requisite loss and his leave application in relation to loss of earning capacity is dismissed.

The Plaintiff’s present condition

312There is a real dispute on the medical evidence, with some examiners identifying a neck injury and others a shoulder, and some multifactorial.[128]

[128]T103

313Counsel for the plaintiff submitted the neck is not the prime driver.  It might have driven the plaintiff out of employment some years ago, but the prime driver now is the shoulder.[129]

[129]      T31

314However, in my view, it is the neck condition that is the predominant cause of the plaintiff’s pain. I am not satisfied the retear currently plays any significant role.[130]

[130]T122

315Initially, the plaintiff’s general practitioner thought the shoulder was involved in his inability to continue work. The plaintiff was sent to Mr Pullen, who eventually diagnosed a retear after a further MRI scan and suggested an injection, which was of little assistance.  He then suggested further surgery and made a request of WorkCover in this regard on 15 May 2019 which was subsequently denied by letter dated 13 August 2019.

316While Mr Pullen sought funding from WorkCover for the further surgery to address the retear, he was unaware of the shooting pains which had caused the plaintiff to cease work with ACF.  He had simply been told by the plaintiff that his left shoulder had deteriorated since he was discharged from his care in July 2017.  Beyond this history – which was incorrect – Mr Pullen provided no other basis for seeking funding from the insurer, not commenting specifically on the cause of the retear.  He lacked the correct history to inform his analysis of causation.[131] 

[131]T135

317The plaintiff has the onus of establishing what is the cause of the re-tear.[132]  While there was no countervailing orthopaedic opinion pointing in some other direction to Mr Pullen’s apparent acceptance it was related to the incident injury,[133] no such opinion was sought, with most examiners unaware of the episode of shooting pains and simply accepting that there was a gradually deteriorating situation with the left shoulder.

[132]T110

[133]T129

318As Chernov JA said, in Dordev v Cowan & Ors,[134] the opinions of the doctors are essentially dependent on the credibility and reliability of the history given to them by the plaintiff.

[134][2006] VSCA 254

319Accordingly, in this case, what appear on their face to be medico-legal opinions supportive of the plaintiff’s application, must be looked at in the light of my views as to the plaintiff’s credit and histories given by him.

320While the cause of the retear is unclear, the plaintiff was able to keep working at ACF with no shoulder issues until the shooting pains in January 2019.[135] One of the grounds on which the insurer denied funding for the further surgery was that the deterioration of symptoms coincided with work at an alternative employer. 

[135]T108

321The focus of treatment in more recent times has also been on the plaintiff’s neck.  He has not seen Mr Pullen since May 2019 and sought no further treatment for his shoulder since that time.  His last attendance with a specialist was in March 2020 when he was referred to neurologist, Dr Prentice, for his spinal issues.[136]

[136]T106

322Dr Zagarella referred the plaintiff for investigations of his neck with an MRI scan in early August 2019.  There was then an epidural injection into his neck on 14 August 2019 and a facet block injection the following day.  By September 2019, Dr Zagarella thought the plaintiff’s condition “was more likely to be related to Cx spine”.  In December that year, he referred the plaintiff to neurologist, Dr Prentice, who saw him in March 2020. 

323There is limited current medical opinion that the plaintiff’s current left neck/trapezius pain is related to any incident injury to his left shoulder. 

324Dr Prentice suspected the plaintiff’s pain in the left neck and trapezius was multifactorial, noting muscle spasm was probably a major part of it but he could not entirely exclude some degree of left C4 radiculopathy. 

325Mr Aliashkevich had the full history and focussed on the plaintiff’s neck condition and suggested a range of restrictions on his work duties based on the longstanding character of the plaintiff’s complex multilevel cervical spine degeneration.[137] 

[137]T121

326While Dr Rowe, occupational physician, noted the shooting pains, he did not comment on their role in the plaintiff’s current presentation.  He was unable to answer fully whether the plaintiff suffers a neck condition as he had not been provided with radiological investigations to confirm this diagnosis.  He was alone in his diagnosis of a biceps tear.[138]  He also based his opinion on severely restricted movement on examination which was not shown on the film, in relation to which he did not comment.[139] 

[138]T112

[139]T113

327Occupational physician, Dr Slesenger, was an outlier in his view that cervical spinal symptoms were due to radiating symptoms from the left shoulder. 

328Mr Brazenor also had the full history.  On examination, the plaintiff denied pain in the actual shoulder area and it was the left trapezius pain he maintained prevented him from returning to work.  In Mr Brazenor’s view, that pain was certainly not from his shoulder but more likely referred from the cervical spine from left sided foraminal stenoses at C4-5 and C5-6.

329As counsel for the defendant submitted, “no doctor does the job of disentangling the good recovery from surgery, the onset of shooting pains with another employer, then look at the cervical investigations, weigh it all up and out pops this shoulder injury”.[140] 

[140]T114

Pain and suffering consequences

330I am not satisfied any incident-related left shoulder impairment results in consequences which are “serious” as at the date of hearing.

331While further shoulder surgery was suggested in May 2019, the plaintiff has had no further treatment for his left shoulder since seeing Mr Pullen at that time.

332The plaintiff takes no painkilling medication.  He made no attempt to source physiotherapy treatment through Medicare.  He has also made no attempt to get on a public waiting list for the proposed surgery.  That situation tells against someone with a significant shoulder problem.[141]

[141]T117

333While he maintains he continues to suffer from pain in the left side of his neck and in the trapezius area rated 3 to 8 out of 10, he does not suffer a continuous substantial level of pain.  Confirmatory of this situation, is that he does not require treatment.[142]

[142]      Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181 at paragraph [48]

334He does have some limitation in the range of left shoulder movement and strength which would limit his ability to do heavy housework or gardening, but he is still able to play golf and do a range of other activities as demonstrated on the various surveillance films.[143]

[143]      Sweeps driveway and puts large tree fern into car on 6 April 2019, unpacks a full shopping trolley on      22 October 2019, lifts a full carton of beer with on 2 December 2020

335While the plaintiff’s wife corroborated his evidence as to a range of consequences of his left shoulder injury, she failed to mention his work at ACF and was clearly wrong when she said his only recreation is darts when he obviously enjoys playing golf on a regular basis. 

336Although the plaintiff would not have the capacity to do unrestricted work with his left shoulder as Mr Brazenor concluded, I do not accept he would be working in any event for the reasons I have discussed in the context of his loss of earnings application. 

337While his back swing may be somewhat reduced, the plaintiff retains the ability to play golf two days a week at Yarrawonga.  As the local records indicate, not only does he continue to play competition golf, but he has had some success in a number of competitions.  He also continues to play darts.

338Taking into account all the evidence, I am not satisfied that the pain and suffering consequences of any incident-related left shoulder impairment are “serious” as at the date of hearing.

339Accordingly, the application is dismissed. 

- - -