Panzera v Tenderfresh Meats Pty Ltd
[2019] VCC 2287
•9 April 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-18-03578
| FRANK PANZERA | Plaintiff |
| v | |
| TENDERFRESH MEATS PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13, 14 and 15 February 2019 | |
DATE OF JUDGMENT: | 9 April 2019 | |
CASE MAY BE CITED AS: | Panzera v Tenderfresh Meats Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 2287 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – impairment of the left shoulder – impairment of the cervical spine – aggravation – disentanglement – credit – pain and suffering – loss of earning capacity
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s335(2)(d)
Cases Cited: Barwon Spinners & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia (2006) 14 VR 602; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Peak Engineering & Anor v McKenzie [2014] VSCA 67; Petkovski v Galletti [1994] 1 VR 436; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz (2012) 34 VR 309; Hayhill v Hodge 2006 VSCA 194; The Herald & Weekly Times & Anor v Jessop [2014] VSCA 292
Judgment:Applications dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R McGarvie QC with Mr L Allan | All States Legal Co Pty Ltd |
| For the Defendant | Mr R H Stanley | Lander & Rogers |
HER HONOUR:
Preliminary
1This is an application for leave to bring proceedings pursuant to s335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (“the WIRC Act”) in relation to an incident at work with Tenderfresh Meats Pty Ltd (“the defendant”) on 26 May 2014 (“the said date”).
2The body function said to be impaired is primarily the left shoulder, and the cervical spine in the alternative.[1] Counsel for the plaintiff indicated the cervical impairment was not being abandoned, but it was not being put as high as the left shoulder.[2]
[1] Transcript (“T”) 1
[2] T187
3The plaintiff bears an overall burden of proof upon the balance of probabilities.
4By s325(2)(b) of the WIRC Act, the impairment must have consequences in relation to pain and suffering which:
“… when judged by comparison with other cases in the range of possible impairments, or losses of a body function or disfigurement, as the case may be, fairly described [as at the date of the hearing] as being more than significant or marked, and as being at least very considerable.”
5I 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.
6Subsection s325(2)(h) of the WIRC Act provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
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.
8In this application, where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of 40 per cent or more, both at the date of hearing and permanently thereafter.
9Subsections (2)(e) and (f) recite the formula by which loss of earning capacity is to be measured.
10Subsection (2)(g) requires questions of rehabilitation and retraining be considered in determining whether the 40 per cent loss has been established.
11I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[3] and Grech v Orica Australia Pty Ltd & Anor[4] in reaching my conclusions.
[3] (2005) 14 VR 622
[4] (2006) 14 VR 602
12The plaintiff swore two affidavits and was cross-examined. Further, he relied on an affidavit sworn by his son, Phillip, on 1 February 2019. Also in evidence were medical reports and other material, including surveillance. I have read all the tendered material.
The Plaintiff’s evidence
13The plaintiff is a fifty-eight-year-old married man, having been born in February 1961. He split up with his wife in the middle of last year but they continue to live under the same roof.
14The plaintiff attended school to Year 10. Thereafter, he trained as a butcher, and has only worked in the meat industry since leaving school. Having done an apprenticeship, he worked for various companies, working as a butcher, boner and general meatworker.
15When he was about seventeen, the plaintiff had left shoulder surgery, but did not have any problems with his shoulder until the incident.
16In 2000, the plaintiff hurt his neck, shoulders and arms while working at SBA Foods (“the SBA injury”). He signed two Claims Forms in relation to the SBA injury. In the first, dated 2 February 2000, he described injury to both wrists, slicing fat off racks of lamb. In his second Claim Form signed 29 September 2000, he also mentioned a neck injury. When he completed the first Claim Form, he did not know his pain was related to his neck.[5]
[5] T15
17The plaintiff’s work capacity was affected by these injuries and he required a lot of treatment. He also had problems with depression and made a claim in respect of his injuries, which was ultimately settled in about 2008. He then received some lump sum compensation.
18The plaintiff deposed that he was able to get back to work as a butcher after the SBA injury, and mostly worked full time in that role until he started with the defendant.
19When told a release relating to the SBA injury was signed on 16 May 2006 with a settlement sum of $170,000,[6] the plaintiff could not say whether it was only after this settlement that he returned to any sort of work following the SBA injury.[7] He denied he presented himself, until the settlement, in such a way that he could not work, and that situation changed when he received the settlement money.[8]
[6] T40
[7] T38
[8] T39
20In about 2010-2011, the plaintiff had issues with anxiety and depression and also had a right thumb problem.
21In 2012-2013, the plaintiff worked for Rainbow Meats. The following year, he did some work for Woolpack Corner. He then started work with the defendant on or about 13 February 2014 as a full-time butcher. He worked about fifty to fifty-five hours a week, and was paid $24 an hour.
22In the 2012-2013 financial year, before his injury, the plaintiff earned $58,864 with Rainbow Meats, and planned to earn at least this amount working with the defendant.
23After the SBA injuries, it was extremely hard for the plaintiff to get back to butchering and to get on with his life in general, but he pushed himself really hard. Before his injury on the said date, things seemed to be going okay and he had planned to work in the butchering industry until he retired, but the injury had changed all that.
24The plaintiff was cross-examined extensively as to attendances at various doctors following the SBA injury.
25In February 2000, the plaintiff saw Mr Buzzard. The plaintiff could not remember at that time being told he had degenerative problems with his thumbs, but it must be right if that was what Mr Buzzard had written.[9]
[9] T13
26The plaintiff saw Dr Karna, rheumatologist, in May 2000. He noted the plaintiff was then still having problems with his thumbs, predominantly at the base of the left. Dr Karna thought the plaintiff had radiological evidence of bibasilar CMC joint thumb arthritis.
27The plaintiff could not remember being told he had arthritis in his thumbs at that stage, but was told later. Dr Karna then thought it would be difficult for the plaintiff to work in unrestricted butcher-type duties. The plaintiff agreed that would have been the situation three months after the initial injury.[10]
[10] T14
28The plaintiff saw surgeon, Mr Hugh Weaver, in October 2000. The plaintiff agreed he would have told him that if he used either of his hands within ten to fifteen minutes, the thumb regions simply swell up and the lower joint of the thumb was the area where he experienced the worst discomfort. His hands went numb from time to time. He agreed that condition would have caused him difficulties going fishing in 2000.[11]
[11] T16
29The plaintiff saw Mr Anthony Berger, hand surgeon, for treatment in February 2001. The plaintiff agreed, as it was then recorded, that he had quite severe limitation on activity, and had been prevented from returning to work because of his hand condition.[12]
[12] T17
30The plaintiff could not remember Mr Berger telling him that he had osteoarthritis in the lower joints of both thumbs, nor could he remember being told that there was a permanent impairment of both hands due to pain in the carpometacarpal joints.[13]
[13] T19
31The plaintiff returned to Mr Berger in March 2001. He was still then troubled by pain in his left thumb and pins and needles in his left hand particularly. He also had a problem with both elbows.[14] He would accept Mr Berger’s opinion that he would have been capable of only light non-repetitive duties at that stage. The plaintiff was then receiving weekly payments because he could not work.[15]
[14] T23
[15] T24
32The plaintiff was seen by Dr Laska, rheumatologist, for treatment in January 2001.
33Dr Laska wrote to Dr Sherif, suggesting it was appropriate to consider whether the plaintiff could return to his work as a butcher and expressing the view, given his total circumstances, it would seem unwise to rechallenge his joints. He suggested meat inspection as a possible job. The plaintiff could not remember that sort of conversation with Dr Sherif or it being said to him he had to give away the butchery.[16]
[16] T19
34The plaintiff could recall making a claim for permanent injury to his thumbs. A s98 claim was signed by him on 20 February 2001 in relation to injury to both hands, neck, shoulders, headaches, sleep disorder and sexual dysfunction.
35The plaintiff agreed that by making this claim he was asserting he had a permanent problem with his arm and hands, and also his neck. He did not remember a problem with both shoulders; he remembered the right. At that time, he had nerves from his neck pulling down and interfering with his right shoulder and causing pins and needles.[17]
[17] T20
36The application was rejected, so proceedings were issued in the County Court in December 2001 in which the plaintiff instructed Nowicki Carbone, solicitors. The Particulars of Injury listed neck and spinal injury, injury to both arms and hands and injury to shoulders.[18]
[18] T21
37The plaintiff was having symptoms in his shoulders at that time, probably more so than nerve tissues from his neck causing problems to his shoulders.[19]
[19] T21
38The plaintiff could recall having a cervical MRI scan in February or March 2001. The reports thereof seem to have been sent to Professor Byrne, but the plaintiff could not remember seeing him. He could recall being told at that time the MRI scan showed he had a disc protrusion in his neck, and it was possibly impacting on the spinal cord, but he could not remember surgery being suggested.[20]
[20] T22
39The plaintiff agreed, when he saw Dr Fail in March 2001, he was not able to use his thumbs for more than five to ten minutes before they started swelling up and hurting. He could not weed his garden or write, and it was difficult to do up his buttons. He had had to give up scuba diving and horse riding twelve months earlier because of his thumb condition. He used to do a lot of fishing, but it was difficult for him to spend much time fishing then. He had not attempted any work. He had looked at fishery and wildlife inspecting, and perhaps some security work.[21]
[21] T20
40The plaintiff agreed he also told Dr Fail he was depressed and had difficulty sleeping, and woke up due to the pain and worry. He thought, at that stage, he had seen John Karamanos, psychologist, and that he and his wife were fighting a lot because he just wanted to be left alone.[22]
[22] T23
41The plaintiff saw a rehabilitation consultant, Jeremy Gomez, in April 2001. He agreed, as Mr Gomez reported, his neck was then still a problem. A fusion operation was being strongly considered for his neck and that was discussed with him by a surgeon at the Royal Melbourne Hospital.[23]
[23] T25
42The plaintiff agreed, when he saw Mr Gomez in September 2001, he rated the pain in his right hand at five and left at eight. He rated his neck pain at seven constantly. The pain began in his neck and travelled along his shoulders, behind his collarbone and into his left arm – “more of a nerve”.[24]
[24] T25
43The plaintiff agreed, at that stage, he described his injury having caused a lot of damage and that he then no longer liked to be around people. He still enjoyed fishing but had to sell his boat because of the problems associated with that injury. He agreed, at that stage, he had answered a questionnaire in which he said he was sad all the time and could not snap out of it, and felt like he had nothing to look forward to. He agreed pain was interfering, to a significant degree, with his daily activity and the enjoyment and satisfaction he got from working. Taking part in a range of activities had changed significantly because of the pain. It had significantly impacted on his ability to do housework.[25]
[25] T26
44The plaintiff agreed he told Dr Fail, in December 2001, that he suffered from dizziness. He told him he enjoyed using the internet, but his neck and arms began to ache after twenty minutes. He also had difficulty sleeping. He was looking into a meat inspector’s course as he was worried about working in a cool room as it may aggravate his condition and because he obviously could not work as a butcher.[26]
[26] T27
45The plaintiff could not remember seeking re-instatement of weekly payments in July 2002. In those proceedings, his injuries were described as left hand wrist, arm injury – right and left hand wrist arm injury, neck injury and stress and anxiety.[27]
[27] T27
46The plaintiff was assessed by the Medical Panel in September 2003. The Panel then thought he had aggravation of osteoarthritis of his thumbs, cervical spondylosis, no current work capacity, and was likely to continue to have no current work capacity. The plaintiff could not remember what happened at the Panel.[28]
[28] T28
47In May 2003, the plaintiff agreed, as Mr Berger reported, that his left arm was deteriorating and he had continuing numbness and tingling in the fingers.[29]
[29] T28
48The plaintiff was seen by a vocational assessor in March 2003. The plaintiff agreed he could then only sit for half-an-hour because of his sore neck. His standing capacity was two hours and walking capacity, half-an-hour. He could raise both hands over his head, but could not handle weights with his arms elevated above chest height. He had problems hanging clothes on the line. He also had problems with fine motor skills because of his thumbs. His father was doing the housework, although he was an elderly man. During the day, the plaintiff did nothing and sometimes went for a walk for half-an-hour. He used to go fishing twice a week but could then only go once every two or three months and he could not go by himself.[30]
[30] T30
49The plaintiff agreed he sought a serious injury certificate in relation to the SBA injury and was making a claim because of his arms and neck. As of 2003, he was reporting dizziness and migraine and difficulty concentrating. He had a constant grinding pain in his thumbs. His neck pain was 7.5 out of 10 and probably 8 out of 10, and on bad days, without tablets, his pain was unbearable.[31] He was then taking six Panadeine Forte a week. Essentially, he was saying he plodded around the house and did not belong to any outside group and that he did not have any particular hobbies or interests.[32]
[31] T32
[32] T33
50The plaintiff agreed, when he saw Dr Davison in the January 2006 examination, he was still reporting bilateral thumb pain and constant aching at the base of both thumbs, more severe on the left, ongoing since 2000. He agreed he had sensory disturbance in both hands and tingling both palms. He reported constant burning sensation, together with the throbbing at night in his neck. He agreed that had essentially been the situation, with constant neck pain, since 2000. Dizziness was occurring perhaps once every one or two weeks for about five minutes, most of the time when standing.
51The plaintiff’s neck was stiff on walking; he was depressed. He had a lifting limit of about 5 kilograms, could not drive long distances and was then taking six Panadeine Forte, as well as Voltaren.[33]
[33] T34
52The plaintiff agreed that what was being shown was a pretty hopeless situation a man without much hope after six years on after his injury. He disagreed, however, that realistically, he was still just plodding around really not doing much because of a six-year history of hand and neck pain. He did not think he could not be a butcher six years after the SBA injury. He did not remember alternate work being suggested.[34]
[34] T34
53The plaintiff thought the first job after this injury was supervising a butcher shop, but he could not really remember.[35]
[35] T35
54In cross-examination, the plaintiff was then taken to a number of histories taken by examiners to whom the plaintiff did not appear to have mentioned his problems related to the SBA injury.
55The plaintiff saw Dr Marshall, rheumatologist, on 9 June 2015. She noted that “Frank doesn’t recall having pain at these regions prior to the fall although there’s a history of left clavicle fracture at 13”. He could not recall what he told her about his early condition. He then said he did not have pain in his neck before the incident.[36] He did not have any problems at the time. He denied he misled Dr Marshall. She would have had the history and she would have known about it. He did not lie.[37]
[36] T42
[37] T43
56The plaintiff could not really remember much about an examination by Dr Thomas in May last year. He probably would have told him that as a teenager he fractured his left collarbone.[38] He did not think Dr Thomas had asked him whether he had any problems with his shoulder or neck in the past.[39]
[38] T44
[39] T45
57The plaintiff denied making up this explanation on the run.[40] He would not try to pull the wool over the doctor’s eyes.[41]
[40] T45
[41] T46
58The plaintiff could vaguely recall seeing Mr Stapleton in 2015. The plaintiff gave a similar explanation of his apparent failure to tell him about any problems with his neck or shoulders before the incident.[42]
[42] T47
59The plaintiff was told Mr Stapleton then looked through previous reports and then asked him about earlier neck problems, and the plaintiff agreed he did have neck problems some years ago.[43] He denied he lied to Mr Stapleton.[44] He denied he was not upfront with Mr Stapleton about his history when he first asked him questions.[45]
[43] T48
[44] T48
[45] T49
60Dr Horsley was wrong, noting the plaintiff had been off work for two or three years after the SBA injury because he had been out of work for at least six years. He was not that smart to downplay the length of time he was off work.[46] He thought when he worked at Rainbow Meats, it was later than 2003 as Dr Horsley reported.[47]
[46] T49
[47] T50
61When asked about his failure to tell Mr Kossmann about his pre-incident complaints, the plaintiff said his memory was bad about doctor’s appointments.[48]
[48] T114
Work post the SBA injury
62It was not until after the completion of evidence that I was provided with the following summary of the plaintiff’s taxable income which made it clear where and when he worked with various employers after 2005.
Summary of taxable income
Financial year ended Employer name Gross income 30 June 2005 Tasman Group Services Pty Ltd $33,374.00 30 June 2005 Williamstown Bay & River Cruises $739.00 30 June 2006 Tasman Group Services Pty Ltd $30,460.00 30 June 2007 Veolia Environmental Services Australia Pty Ltd (council truck) $4,567.00 30 June 2007 Metroll Laverton Pty Ltd (sign man) $4,460.00 30 June 2007 CGU Workers Compensation $312.00 30 June 2008 No information found - 30 June 2009 No information found - 30 June 2010 FoodWorks Retail Pty Ltd (shopping centre butchers shop) $13,669.00 30 June 2010 Otway Pork $237.00 30 June 2010 Rainbow (Caroline Springs) Pty Ltd $32,037.00 30 June 2011 F&S Family Gourmet Meats (own butchers shop Melton) $10,496.00 30 June 2012 Rainbow (Caroline Springs) Pty Ltd $20,376.00 30 June 2013 Rainbow (Caroline Springs) Pty Ltd $58,864.00 30 June 2014 Rainbow (Caroline Springs) Pty Ltd $6,792.00 30 June 2014 Woolpack Corner Pty Ltd $16,598.00 30 June 2014 Tenderfresh Meats Pty Ltd (from February 2014) $10,432.00 63Before these details were provided, the plaintiff gave conflicting versions of his work history after the SBA injury and I indicated I had no confidence in his evidence as to his employment history after the 2000 injury until starting with the defendant in February 2014.[49]
[49] T129
64The plaintiff could have “worked in road construction” as noted on 27 September 2006 by the Elms Family Medical Centre (“the Elms”).[50] He thought that was with the council but could not remember if this was before his SBA claim settled. In that job, he was just holding a stop sign.[51]
[50] T36
[51] T37
65The plaintiff thought staying away from butchering and, over time, the rest he had from it, sort of helped him get back to work. Doing other small jobs like council work “was not him,” he could not do them.[52]
[52] T37
66When the plaintiff attended the Elms on 3 October 2007, it was noted – “feels tired last three months since starting work as a butcher in Thomastown …”. This work would have been with a friend.[53] The plaintiff could not remember how he coped. It was only a short job.[54]
[53] T37
[54] T60
67The plaintiff agreed it was a pretty sad tale of constant neck pain for six years at least after 2000, and also constant hand pains, both of which caused an inability to work. He agreed that to be out of work for six years because of these ongoing conditions, when aged only forty, was pretty monumental and he would not easily forget that period in his life.[55]
[55] T40
68The plaintiff agreed he had been at pains, in his second affidavit, to stress that his incident injuries had robbed him of a career in butchery and without them he would have continued as a butcher. He guessed he would have.[56] He then agreed he clearly was not up to being a butcher in 2006.[57]
[56] T50
[57] T51
69After the SBA injury, the plaintiff thought he had a light job with the council for less than twelve months. He was then off work for probably three or four months before going to Rainbow Meats in Caroline Springs for three years. He did not know what year. He was a supervisor in a butcher’s shop. He thought he was a good supervisor, and he knew how to make sure workers did what they had to do.[58]
[58] T63
70As a supervisor at Rainbow Meats, the plaintiff had to instruct workers how he wanted things done. The only manual work was demonstrating tasks, like boning out carcasses.[59]
[59] T64
71The plaintiff then went to Woolpack, where he worked as a supervisor for less than twelve months.[60] He then started work for the defendant. He did not think there was a gap between the Woolpack job and starting work with the defendant.[61]
[60] T52
[61] T53
72The plaintiff denied there was there anything else, other than his sore hands, in the period from the SBA injury until he started work with the defendant that was affecting his work.[62]
[62] T53
73The plaintiff confirmed he also had periods in 2010-2011 with anxiety and depression; however, nothing else was affecting his earnings or his ability to work other than that problem.[63]
[63] T53
74The plaintiff then agreed that he was sentenced to jail in 2008 and spent twelve months in prison from October 2008 to October 2009. He was incarcerated for after pleading guilty to trafficking in a drug of dependence and attempting to cultivate a narcotic plant in a commercial quantity. The committal was in May 2007.[64] He guessed that the trafficking offences occurred in 2005-2006.[65]
[64] T54
[65] T55
75The plaintiff did not mention his criminal history in his affidavits because it was something he was not proud of and he did not think it would be relevant to anything.[66]
[66] T56
76The only note of any jail attendance was in Dr McLay’s note of 9 October 2009, which read:
“… interested in applying to Centrelink for unemployment benefits - disability pension ... has suffered from chronic cervical and right arm pain for years since work injury in 2000, currently also suffering and medicated for depression ... brought in a stack of papers including specialist reports detailing his c5c6 disc injury, psychiatrist reports from an apparent court case with [W]ork[C]over that he was paid out in 2006. He has been in jail for the last 12 months came out Thursday … would like to work part time at some stage but his pain and depression prevent him at the moment.. his pain is mainly right arm.”
77The plaintiff could not remember attending the Elms soon after getting out of jail and asking to go on a disability pension. He could not remember having brought in a stack of papers but he may have.[67]
[67] T60
78The plaintiff could remember pain at that time having pain in the right arm and having an operation. He thought he maybe wanted to apply for a pension, but not disability. More than likely he was claiming he had weakness in his right arm and some left wrist pain, and these were conditions that had continued from 2000 which he agreed just did not go away.[68]
[68] T61
79The plaintiff agreed, in 2009 when out of jail, he could not go back to work because of his injuries, because of his neck and arm pain.[69]
[69] T61
80The plaintiff may have seen Dr Sheriff on 11 April 2011. That was the first time he had seen him in years as the plaintiff had shifted out of the area.[70]
[70] T62
81Dr Sheriff then noted:
“oa has become active unable to continue work done supervisory roles, never seen other doctors he says.”[71]
[71] T62
82The plaintiff was shown Dr Sheriff’s medical certificate of 11 April 2011 in which he stated the plaintiff was unable to work anymore due to pain swelling and deformity which was likely to persist. The plaintiff could recall Dr Sherif then saying that he should look for work, for something else.[72]
[72] T63
83The plaintiff agreed, on 19 April 2011, he also went to the Elms reporting problems with his thumbs, and asked for a prescription for Panadol Osteo. He agreed the problem was sufficient enough to prevent him working in his chosen profession.[73]
[73] T65
84The plaintiff agreed that he continued to be certified in 2011 as unfit to work as a butcher, and that was due to his neck and hands from 2000. He agreed he needed to be able to function in those areas to work as a butcher.[74]
[74] T66
85The plaintiff was then shown a certificate of December 2011 following an attendance with Dr O’Connor,[75] when he complained of daily headaches and severe reduced range of neck movement and pain and weakness of the MCP joints/osteoarthritis. He could not remember this attendance,[76] but the note would be right.[77]
[75] Certified the plaintiff unfit for any work until 31 January 2012
[76] T66
[77] T67
86The plaintiff agreed the headaches, in his view, were caused by the disc protrusion suffered in 2000. He was then having headaches and migraines daily that lasted up to half a day. He could not remember reporting to his doctor he was not able to work as a butcher.[78]
[78] T67
87The plaintiff agreed that the certificates from April through to December 2011 were to the effect he was not working because of old-standing issues with his neck and hands, and he was reluctant to return to work at the end of that year because of headaches and anxiety.[79]
[79] T68
88Between the end of 2011 and seeing Dr Sheriff again in early 2014, the plaintiff thought he did not see that doctor.[80] He confirmed he did not think he had seen anybody.[81]
[80] T70
[81] T72
89The plaintiff attended the Modern Medical Centre in Caroline Springs on two occasions in 2012 for unrelated issues.[82] During that period, he started feeling good and started feeling better.[83]
[82] T131
[83] T132
90Dr O’Connor’s note of a visit on 3 December 2011 read:
“Request received to alter certificate stating OA temporary not permanent… If Frank calls back pls advise him that even when he has no pain the osteoarthritis is still there and therefore permanent.”
91The plaintiff denied that when he saw Dr O’Connor, he asked her to change his certificate which set out his hand problem was permanent.[84]
[84] T70
92The plaintiff could not remember having physiotherapy at Melton Health towards the end of 2011 when shown a referral letter from Dr O’Connor advising the physiotherapist the plaintiff had problems with daily left-sided headaches likely radiating from the neck, noting a 2000 neck injury may be contributing.[85]
[85] T71
93The plaintiff ultimately returned to butchery after the 2000 injury because there was nothing else he knew. He had no skills, no schooling for anything, having started that type of work at fourteen.[86]
[86] T124
94The plaintiff then gave further details of his work since the SBA injury. He thought he would have worked for a short period of time in Reservoir and then Rainbow Meats. He then added he thought he had his own shop before going to jail.[87] He only worked at Rainbow Meats once.[88]
[87] T124
[88] T125
95The plaintiff operated a shop at Melton. He went there for a trial and was going to lease it. He did not continue there because he was not making any money.[89]
[89] T125
96The plaintiff thought he worked less than twelve months with his friend in Reservoir.[90] He stopped because he found work elsewhere he thought as a butcher. Working for his friend was short-lived before he had the trial in the shop, so it was after he had been in jail.[91] After that he had issues with anxiety and depression.[92] He thought he might have worked as a traffic controller for maybe four months. He thought he was off work for a while after that and lived on his superannuation for a while.[93]
[90] T126
[91] T127
[92] T128
[93] T128
97On his return to work as a butcher in about 2012, the plaintiff had a little bit of pain with this thumbs, but it was bearable. At no time since then had his thumbs been such he was not unable to work as a butcher.[94]
[94] T129
Work with the Defendant
98The plaintiff deposed that he had some problems with his thumb while working with the defendant but kept working.
99The work with the defendant was hands-on, whereas at Woolpack it was supervisory.[95] He agreed the job with the defendant in old-fashioned butchery was the first time he had done that work for many, many years.[96]
[95] T72
[96] T73
100The plaintiff could remember requesting investigations of his thumbs when he saw Dr Sheriff in April 2014. He was complaining at work that his thumbs were swelling up again. He was finding it hard with his job.[97] He agreed that that just would not have been a niggle that came out of the blue and it was a problem he was having doing his normal trade as a butcher as of April 2014. He agreed it was a problem that had not gone away since he was pulling the skins off racks in February 2000.[98]
[97] T73
[98] T74
101The plaintiff disagreed, at that stage, he realised that butchery was out for him because of his thumbs.[99] His aim was to supervise in his trade. Despite the certificates in 2011, he thought he could do that.[100]
[99] T74
[100] T75
102The plaintiff’s thumb complaints in April 2014 did not prevent him from working at any time during that period.[101]
[101] T130
103The plaintiff could not remember, two weeks before the incident, going to his doctor at the Elms asking to take his folder or his documents. He could have. He might have been wanting them because of problems with his hands.[102]
[102] T71
The incident
104On the said date at work, very early in the morning, a meat delivery had come in and the carcasses were on hooks. As the plaintiff was pulling a cow carcass, weighing about 75 to 85 kilograms, along a rail, the carcass fell on him. He tried to protect himself with his arms, but all the weight fell on him and he fell to the ground (“the incident”).
105The plaintiff felt a crack in his neck and tingling in his hands, and he had pain in his neck and upper back and shoulder areas.
106After the incident, the plaintiff took himself to Sunshine Hospital, where he had a CT scan of his neck and shoulders and was told he had some soft tissue injuries and was given painkillers.
107That morning, the plaintiff contacted his boss, Paul, from the hospital and told him what happened. The plaintiff then saw his general practitioner, Dr Sheriff, on 27 May.He sent the plaintiff for a left shoulder ultrasound and x-ray. Dr Sheriff put the plaintiff off work.
108Not long after the injury, the plaintiff started to feel very depressed about his physical condition and the fact he could not work. He was frustrated by his restrictions and became anxious about the future. His WorkCover claim was rejected and that made it extremely difficult for him to afford any medical treatment.
Later treatment
109On 25 June 2014, the plaintiff had a neck CT scan organised by Dr Sheriff. On review, the doctor advised him to have an injection into his left shoulder.
110Dr Sheriff also referred the plaintiff to John Karamanos, a psychologist, and Dr Kim Le Marshall, rheumatologist, whom he saw on 9 June 2015.
111Dr Sheriff arranged for an x-ray and ultrasound of the plaintiff’s right shoulder, which occurred on 17 June 2016. Further treatment was recommended by the general practitioner, but the plaintiff had not been able to attend because he could not afford it.
112In August 2016, the plaintiff had an injection in his left shoulder that did not help much at all.
113When he swore his first affidavit in April 2018, the plaintiff was regularly seeing Dr Sheriff, who was giving him WorkCover certificates. He was also seeing Mr Karamanos for psychological treatment. The plaintiff was then taking codeine, Panadeine Forte, Voltaren and Temazepam.
114As of February 2019, the plaintiff has continued to manage his left shoulder and neck pain as best he can, taking medication, and not using his left shoulder unless he has to.
115In September 2018, the plaintiff saw his general practitioner because of poor sleep due to neck and shoulder pain. He took the plaintiff off Serepax and recommended 5 milligrams of Valium.
116The plaintiff presently takes about six to eight Panadol a day. Heavier medication he had taken had not helped him much and gave him bad side effects. Every night for sleep, he takes Apotex Sleep Assist, recommended by his general practitioner as a replacement for Valium.
117The plaintiff sees Dr Sheriff every few months, both in relation to his left shoulder injury and other general health problems.
118The plaintiff has not seen his psychologist for about a year, as he was not finding the sessions very helpful. He had also stopped taking antidepressants because he was getting bad dreams from that medication, feeling sick in his stomach and sweating a lot.
119The plaintiff did not know agree he only saw the rheumatologist once was because he recognised, really, he was having continuing pain he had had for the previous fifteen years and there was no point doing anything about it. He was sent to many specialists, he just did not have the money to see them.[103]
[103] T85
120The plaintiff is presently on the waiting list for pain management at the Sunshine Hospital for treatment to his shoulder.[104]
[104] T86
121The plaintiff could not recall the radiologist, in 2014, writing to Dr Sheriff and suggesting an MRI scan of his right shoulder. The plaintiff has not discussed this with Dr Thomas, or with anyone else. It was totally wrong that the plaintiff’s lack of proactive seeking of treatment was indicative of not having much wrong with his shoulder or that recognising anything symptomatic in his shoulder was probably related to his neck and, therefore, he had let it slide because it had been so long.[105]
[105] T87
Pain – April 2018
122As of April 2018, the plaintiff had constant left shoulder pain of an aching nature that got worse with any activity. Repetitive movements of his left arm, while lifting anything heavy with it, or trying to put it above his head, would make the pain worse.
123The plaintiff had consistent neck pain, which was not as bad as his left shoulder pain, but it was still a problem. Looking up or down and turning his head from side to side caused neck pain, and he suffered migraines when his neck pain was worse. From his neck and left shoulder area, the pain seemed to go down into his left hand and arm, and he got a funny feeling in his hand, like tingling or numbness.
124At night, the plaintiff’s left shoulder and neck pain made it difficult to get to sleep and hard to get comfortable. He could also wake during the night due to pain, and in the mornings, he felt sore and tired and like he had not had a restful sleep.
125Pre-injury, the plaintiff enjoyed recreational pursuits such as swimming and fishing, but his neck and left shoulder stopped him from doing those activities the way he used to. Fishing was a great passion, but he then found it very hard to tie knots in the line, and bait the hook and hold the rod. Casting was also a problem.
126Pre-incident, the plaintiff scuba-dived. Because of his neck and left shoulder condition, he could not swim through the water properly anymore, so he had to stop going.
127The plaintiff also used to enjoy bow hunting, and went a lot with his friends. He now could not draw a bow because of his neck and left shoulder pain, and had to stop hunting.
128Also, pre-incident, the plaintiff enjoyed motorbike riding and boating, and doing repairs and tinkering with his boat and bike. It was too painful after the incident for him to do these activities, so he sold the boat and bike. It was also too painful on his arms to ride the bike.
129The plaintiff’s social life had dropped off a lot and he did not see his friends much anymore, having previously enjoyed their company when boating, hunting or fishing. He also felt he did not have anything to talk to them about these days, and did not have much of a desire to see them.
130The plaintiff’s ability to take out his boat and go fishing remains restricted by his injuries and he has also been unable to get back to bow hunting either.
131Not much has changed in terms of the consequences since this affidavit. The plaintiff continues to have consistent left shoulder pain, which feels like it is behind his collarbone. It aches, and when he moves it too much, the pain gets worse. Movements above his head are particularly painful, and that pain travels from there down into his left arm, and he still gets a funny tingling feeling down there. He also gets some aching in his right shoulder, which he believes has come on as a result of over-reliance on that arm, as Dr Sheriff has advised.
132The plaintiff still has neck pain, which is particularly bad after being in the one position too long. His neck pain is more tolerable than his left shoulder pain, which he considers to be his real problem, and is probably twice as bad as his neck.
133The plaintiff gets daily headaches that seem to come from his neck. They last for a few hours and he takes Panadol to help with these.
134The plaintiff has problems using his two thumbs. He has difficulty gripping things or performing intricate tasks involving his thumbs, however he thinks this is not anywhere near as bad as his neck and left shoulder problems.
135The plaintiff agreed he continues to have neck pain and headaches, and did so before the incident. His thumb pain is not as bad, but it continues.[106]
[106] T80
136When it was suggested to the plaintiff, realistically, he has the same pain in his shoulder as he did pre incident, he said it was now different. It was just under his armpit before, not travelling down his left arm. He agreed he had pins and needles and tingling in his hands before the incident.[107]
[107] T84
137The plaintiff explained that back then his pain was from his neck to his shoulder and the back of his collarbone and he felt that the pain from his neck up to his collarbone. Now he is just feeling the pain on the shoulder and it is not coming all the way down. He did not think the reality was what was old was new again.[108]
[108] T85
Work
138The worse consequence of the plaintiff’s injuries had been not being able to work as a butcher, which he had done all his life and really enjoyed. The work just suited him. He thought he was good at it, and particularly liked working with his hands and passing on his knowledge to younger butchers. He had been told he would never go back to work as a butcher and that really upset him.[109]
[109] First affidavit
139The plaintiff considered each of his left shoulder or neck injury alone would stop him working as a butcher. It is very physical work and involved a lot of craning over a table and using his left arm.
140In mid to late 2017, the plaintiff’s son put him on his company’s books. At that time, the plaintiff had completely run out of money. His official job in his son’s painting business on industrial sites was supervisor on a part-time basis. Basically he drove from site to site and supervised some of the employees. He did not do any manual work himself.
141The plaintiff did not consider this to be a real job, and it was something his son had created for him out of pity, because he did not have any money and because he was feeling too depressed sitting at home all day. He did not think his son would employ anyone else to do this role.
142The plaintiff had worked as a butcher all his life and that was all he really knew how to do. He was not the best with English reading and writing, and spelling was difficult, and he often made mistakes. He did not think he could do any sort of job that required more than very basic English language skills. He also was not very good with numbers, and anything that needed to perform calculations would be a real struggle.
143The plaintiff’s son now has about forty painters working for him and three staff. The plaintiff works between four and six days a week, usually an eight-hour day.
144An average day for the plaintiff usually involves going out to one of the sites and making sure everyone is there on time. He will then pass on whatever instructions his son has given him for the painters work that day. While the painting is going on, his job will be to make sure the work is getting properly done, and do things that need to be done, like cleaning brushes or going to buy things. He has to carry paint tins that are up to 15 litres in volume, but he tries to make sure to use two hands and does so in short bursts, but even then it will still hurt his shoulder. He will often drive to a few different sites for his son in one day. He just spends a lot of time standing around onsite trying to occupy himself.
145The plaintiff has tried to do the actual painting work twice since he started, most recently about a month earlier. He is left handed, so he has to use that hand to paint. After trying it, he found his left shoulder was really painful and sore. Also, he is just not very good at painting.
146The plaintiff confirmed that he thinks his son has given him a job out of pity so he does not lose his house. It is better than sitting at home all day, but just being at work makes the plaintiff a bit depressed. He feels he is just there as a bit of charity and the plaintiff knows he does not belong. He feels like he is costing his son money, rather than doing anything useful and he misses feeling useful.
147The plaintiff is paid a variable amount each week. In the 2017-2018 year, his son paid him $47,924 gross, however, the plaintiff has to pay for his own fuel.
148Last year, the plaintiff had over $3,000 of expenses related to work. That means he has lost a lot of money compared to what he was earning as a butcher, when he was earning closer to $60,000 per year. The injuries have really been hard on his finances and he is under a lot of financial pressure.
149Above everything else, the plaintiff desperately misses being a butcher. It is all he had ever done in life and all he knew how to do. His whole life has been working in the meat industry. He thinks about his old job all the time, working with his hands and mentoring the younger blokes and getting a lot of satisfaction out of that role. He felt he knew the job very well and had a lot to offer, although he was getting older. It was hard work of course, but he put up with all that because he enjoyed it a lot.
150The plaintiff agreed he is a good supervisor in his current job. It gets him out of the house, gets him conversing with other workers. However, he denied he had the satisfaction of a job well done when it was finished. He still had feelings of anxiety and worthlessness.[110]
[110] T76
151The plaintiff thought he might have told Dr Sheriff he was working with his son, but he was not too sure. The plaintiff could not recall telling him that he was resigned to not working again. Dr Sheriff knows what the plaintiff does.[111] The plaintiff could clearly remember saying something to him. He could not remember if he told Dr Sheriff he worked part time or full time.[112]
[111] T77
[112]T78, Dr Sheriff’s note of 10 July 2018 was the first mention of the plaintiff’s job with his son. He noted the plaintiff was working for his son and felt it was not really a job and felt intense guilt about it.
152The plaintiff agreed he told Mr Stapleton in March 2015, grasping with his left hand became unbearably painful. This was probably worse pain than before the incident. He then said his hands are not too bad now.[113] He thought it was more his shoulder than his hands which was causing problems with work.[114]
[113] T80
[114] T81, T83
153The plaintiff agreed he needed his thumbs to be a butcher, to be a fisherman, to do housework and to do activities such as bow hunting. His thumbs, in their current state, interfere with all those activities, but he still does them.[115]
[115] T82
154The plaintiff confirmed his complaints to Dr Horsley of neck pain and associated restrictions continue today.[116] The description of neck pain would prevent him from working and would interfere with his ability to sleep and participate in his hobbies.[117]
[116] T83
[117] T84
155The plaintiff disagreed that he only had a slight restriction of shoulder movement when seen by Mr Dooley in 2015. The plaintiff confirmed that he is unable to lift his arm without great pain.[118]
[118] T88
156The plaintiff was taken to his description of his pain in the first and second affidavit and the significant restriction in his movement. He tried to avoid putting something over his shoulder[119] and tried not to lift his arm because it was painful. He tried not to do any overhead movements of his arm. He tried to avoid the heavier aspects of carrying things like paint. He had difficulty with lifting.
[119] T89
157The plaintiff agreed he reported difficulty with his neck in 2006 and being only able to lift 5 kilograms. He does not still have many problems lifting because of his neck, but he does because of his arm. The problem with lifting was just pulling on his shoulder. It is not too bad to lift something with his left arm, but it is once he goes above his shoulder.[120]
[120] T91
158No one at work knows the plaintiff is disabled because he does not tell anyone. It just does not happen that he has to reach above shoulder height. He confirmed he spent a lot of time on the site just trying to occupy himself. He felt useless.[121]
[121] T91
159Video surveillance film was then shown.
160On 31 January 2019, the plaintiff was shown working at Melbourne University about two weeks earlier. He had a bag over his left shoulder in which he was carrying his lunch. He agreed he lifted with his right hand what appeared to be a quite heavy bucket full of paint remover, 15 litres.[122]
[122] T95
161The following day, the plaintiff was working at a site in South Melbourne. He was initially shown bending down, stripping, using a tool to scrape the bluestone. He was later shown working on a cherry picker. He had to put some paste on some cement to strip the paint off. He was not directed to do that job, it was his job. He was the supervisor on the site. There were two other workers there. The plaintiff was showing the other man in the cherry picker what had to be done, and there was another man working on the ground.[123]
[123] T97
162The plaintiff was then shown using a paintbrush with his left hand high above his head at close to a vertical angle, painting the guttering and eaves. Doing so was not too bad when he took Panadol, it is just sometimes his right arm gets sore and he ends up using his dominant arm. He feels the pain later on at night when the Panadol wears off.[124]
[124] T98
163The plaintiff was then shown extending both hands right up into the gutter, putting on paper and covering the paste. He agreed his hands were extended well above head height. He agreed there was no restriction or problem shown when he was doing that activity.[125]
[125] T99
164Later in the film, the cherry picker was lowered, and the plaintiff was shown doing similar tasks, reaching further above his head. He did not ask the co-worker to do the job he was doing, because he had his own job. The plaintiff was then shown using a paintbrush to affix some more glue to the underside of the gutter, again, with his left arm upstretched.[126]
[126] T100
165The plaintiff agreed he was shown in the cherry picker, working for about two hours applying glue and paste, and then some paper to the fascia and guttering. He denied the film showed a fairly free movement of his left arm. Pain would make the movement not free.[127]
[127] T102
166The plaintiff denied as a supervisor, if he had a real difficulty doing that work, he could have palmed it off to another worker.[128] The job had to be finished that day and they were one man short, that is why he took Panadol, because he knew he had to do it.[129]
[128] T102
[129] T103
167The plaintiff confirmed his significant restriction of shoulder movement. He denied there was only a slight restriction of movement as Mr Dooley described.[130] He could not lift his arm without medication.[131]
[130] T103
[131] T104
168It was also suggested to the plaintiff his movement on the film was inconsistent with his level of movement in the witness box. He confirmed he did not “let it happen” that he had to reach above shoulder height, he had to work over shoulder height.[132] He could not move as he was filmed without the help of medication. He confirmed as he had deposed, that at work, he essentially plodded about trying to occupy himself.[133]
[132] T105
[133] T106
169The plaintiff confirmed he had done actual painting about twice since he first started with his son, the most recent time being a month ago and how, after having to use his left hand to paint, he found his left shoulder was really painful.[134]
[134] T107
170The plaintiff agreed he was just as valuable to his boss as the co-worker. He agreed painting with glue is not different to painting with paint.[135]
[135] T107
171The plaintiff was then taken to various Facebook entries. He identified his son’s boat, which was purchased last year. He described it on Facebook as “the love of his life”.[136] The plaintiff agreed his fishing passion was interrupted by virtue of his hand injuries, going back to 2000.[137]
[136] T108
[137] T108
172The plaintiff was also shown at a family dinner, holidaying in Rye last year and sitting on a jet ski in the shallows at Rye on Australia Day. He said he was not riding the jet ski.[138] He agreed he was wearing a jet ski jacket. He just sat on the back seat in the shallows. He did not go on the back of jet ski when it was moving fast in deeper water.[139]
[138] T109
[139] T110
173The plaintiff was somewhat confused as to whose jet ski he was shown sitting on, and who owned another he was shown near in another photograph.[140]
[140] T111
174The plaintiff agreed he was shown on 6 November 2017 using his left hand to de-bait or de-hook a fish.[141]
[141] T112
175There was also a photograph of a lady standing on the plaintiff’s back.[142]
[142] T113
176When it was suggested that those photographs did not show a man down in the dumps but, rather, someone who had got a bit going on, the plaintiff did not think so, not as much as he used to.[143]
[143] T113
177In re-examination, the plaintiff was taken to a number of photographss before the incident and confirmed he was shown camping, diving and with his bow.[144]
[144] T117
178There was also a photograph of a very large fish the plaintiff caught in Thailand before the injury. Even though the trip was in 2013, the picture was posted in 2014.[145]
[145] T121
179The plaintiff held the large fish he caught in November last year in his right hand. His son mainly pulled it in. The plaintiff does not fish as often as he used to. He went probably three or four times last year, always in his son’s boat, with his son’s assistance.[146]
[146] T123
180The plaintiff had no problems immediately prior to the incident with his hands but then said, at times, they were painful. However, he was able to keep working.[147]
[147] T133
181The plaintiff confirmed his attempts at painting that he deposed to.[148] As a result of that activity, he had pain in his left shoulder, and at night lost a lot of sleep.[149]
[148] T134
[149] T135
182The plaintiff confirmed his shoulder pain was different to before the incident. In the past, it was more of a pinching nerve going through the back of his collarbone, and now the pain, is like a lump on the bone, causing him a lot of grief.[150]
[150] T135
183The plaintiff confirmed a lot of what he was shown lifting on the film was light.[151] Scraping for about thirty minutes is the type of work that could cause him difficulties, causing like a grinding in the shoulder.[152]
[151] T136
[152] T136
184The plaintiff confirmed two workers did not show up at the Dorcas Street job on 1 February this year. The job had to be finished within two days. His son was stressing about the situation. The plaintiff knew he had tablets in the car and took four of them. That night he paid for it. He felt a throbbing coming from his left shoulder. He did not do that work the following day. He was sent somewhere else, because he told his son he could not do the job.[153]
[153] T137
185The plaintiff confirmed he slowly got back to a range of sporting activities after the SBA injury, probably in about 2005, about the time when he was working as a Stop/Go man. He got back into fishing first, and was probably fishing three times a month at the time of the incident. Since the incident, he has been three times a year.[154]
[154] T138
Lay evidence
186Phillip Panzera, the plaintiff’s son, swore an affidavit on 12 February 2019. He is the director of a commercial painting company, “Platinum Edge”, which does painting work on various commercial and industrial sites. He has around forty painters and supervisors and also a few office staff.
187After the plaintiff’s injury, he told Phillip he was struggling financially and mentally, so Phillip offered him work in the business which he thought would be good for him financially and help with his mood.
188Phillip sees the plaintiff a few times a week when visiting worksites. His work involves going to bigger sites, making sure the workers turn up on time and the work is done properly. The plaintiff also does some odd jobs onsite. It is handy to have him there because the workers know there is a Panzera onsite, so they will not muck around, but the majority of time, the plaintiff does not do anything particularly useful and Phillip considers the position to be more of a favour than a real job.
189While the plaintiff’s official title is supervisor, he does not do the same work as other painting supervisors who are employed in the business, who do a lot of hands-on work and painting. The plaintiff does not know much about painting.
190If the plaintiff was not Phillip’s father, he would never have employed him, and he would have hired someone else who had a painting background and who could assist with actual painting work onsite.
191The plaintiff is paid $25 an hour, from which he has to pay his expenses, such as fuel.
192The plaintiff sometimes complains to him about his neck and shoulder being sore. Onsite, Phillip will see the plaintiff visibly struggling to use his left arm. Often he looks just gassed towards the end of the day. Phillip has never known the plaintiff to be a big complainer though, so they do not talk about his injuries all that often and he does not think the plaintiff likes to be pitied.
193While the plaintiff never got back to 100 per cent after his 2001 big? work injury, Phillip thought he fought very hard to get back to work and get on with his life. The plaintiff was living with him before the second injury in 2014.
194They often went fishing together at Altona or on holidays near Rye. Sometimes the plaintiff went fishing by himself. They still go these days, but the plaintiff is not able to do what he used to and will not go out without him. He tells Phillip he cannot launch the boat alone. When they are out, he will need to help the plaintiff tying knots and casting.
195Another father and son activity they did before the 2014 incident was motorbike riding near Daylesford with their friends. The plaintiff would ride around himself, and it was a big occasion socially. The plaintiff did so.
196Before his injury, the plaintiff often went bow hunting with his own friends. This was not an activity Phillip shared, but the plaintiff seemed to enjoy it a lot. Phillip could not recall him going since the injury. He could not speak for the plaintiff, but his own observations were that the injury had led him to leading a much less active life than beforehand.
Treaters
197The plaintiff’s general practitioner, Dr Sheriff, has provided a number of reports.
198The first consultation in relation to the incident injury was on 27 May 2014. However, Dr Sheriff had treated the plaintiff for many years beforehand, and there are a number of his clinical notes available in relation to those attendances. The defendant tendered a number of reports from Dr Sherif relating to the SBA injury to his thumbs and neck.
199In both his clinical notes[155] and reports, Dr Sheriff noted he saw the plaintiff when a heavy cow carcass fell on him as he fell backwards, taking the entire weight and sustaining a fall. Dr Sheriff thought the mechanism was consistent with the plaintiff’s stated injuries to his back, left shoulder, both arms and hands, and possible abdominal injuries.
[155] 27 May 2014
200In August 2014, Dr Sheriff diagnosed left supraspinatus tendinopathy without focal tear, left longhead of biceps tenosynovitis and left subdeltoid subacromial bursitis, noting the investigations undertaken to that stage.
201In essence, Dr Sheriff thought that the fall had caused a number of injuries to the plaintiff, who told him he was able to work normally without seeing doctors prior to this injury.
202In his first report, there really was not much focus on any neck injury or neck complaints, although Dr Sheriff’s initial impression was that it was likely there were extensive soft tissue injuries in that area, as well as the shoulders, arms and wrists. He initially thought the plaintiff’s suffered a cervical neuropraxia type injury.
203Dr Sheriff noted that the plaintiff’s employer called him in the fairly early phase of the injury and he detailed the findings to him of injuries to the shoulders and hand.
204Dr Sheriff suggested the plaintiff consult a rheumatologist and a neurologist, but the plaintiff could not afford those consultations.
205As of February 2015, as the plaintiff was unfit for work, Dr Sheriff supported him with a treating doctor’s report to Centrelink. At that stage, he thought the plaintiff’s progress had been one of pain and disability, and he certainly needed further scans of his left shoulder as there was also a suggestion of a left labral tear. He would also need Cortisone for his impingement.
206Dr Sheriff then thought the plaintiff may have cervical radiculopathy secondary to degenerative disease, which was probably aggravated by the incident with extensive soft tissue injuries. He noted the plaintiff also had degenerative osteoarthritis in the left thumb possibly aggravated by his heavy manual work. He thought the plaintiff’s symptoms were considerable, with severe psychological impact, and referred him to a psychologist. He thought the overall prognosis was poor.
207In his report of June 2017, Dr Sheriff noted the plaintiff had made poor progress as the symptoms continued to worsen. A return to work was discussed, but the plaintiff was in no physical state, with severe pain and poor sleep. He had now developed well entrenched depressive symptoms with poor sleep, heightened anxiety, reduced attention span and agitation, and was now resigned to the thought that he would never work again. He had poor hand strength and was not able to grip properly. He had poor transferable skills, and Dr Sheriff could not see any vocational training that would have any effect on him.
208Dr Sheriff repeated his earlier stated findings and opinion. He thought, at that stage, the overall prognosis was poor.
209In Dr Sheriff’s view, the plaintiff had considerable soft tissue injuries involving neck, shoulders, arms and wrists. He noted treatment modalities had been poorly followed due to the plaintiff’s inability to attend because of financial constraints.
210Dr Sheriff then thought the plaintiff had no capacity for pre-injury duties and was not optimistic he could hold down a job, noting he was illiterate. His capacity to undertake work in the future appeared poor and unlikely. He thought pain and suffering, stress or anxiety experienced by the plaintiff had been considerable. In fact, he thought he suffered from Post-Traumatic Stress Disorder (“PTSD”). Activities of daily living had been affected. The plaintiff socialised little and had become a recluse and he had severe financial hardship.
211In his April 2018 report, Dr Sheriff repeated his comments about the plaintiff’s resignation to the thought he would never work again, his poor hand strength and inability to grip properly, his poor transferable skills and the fact vocational training would have little effect on him.
212In essence, the incident had caused a number of injuries. The plaintiff told him he was able to work normally prior to this injury. His symptoms were considerable with severe psychological impact.
213Essentially, in this report Dr Sheriff repeated the matters previously referred to.
214In his last report of January 2019, in addition to all the previous matters noted, Dr Sheriff noted that the plaintiff ceased work as a butcher after the injury. He lived at home with his father, and more recently with a friend. It was unclear as to his long term goals, but he wanted to do a job with less manual work in the future. He saw a psychologist for depression.
215Dr Sheriff further noted that the plaintiff tried desperately to find work. He found some work in his friend’s company in a part-time capacity, as he had significant financial hardship and continued to suffer with his symptoms from the 2014 injury.
216Dr Kim Le Marshall, consultant rheumatologist, saw the plaintiff on one occasion on 9 June 2015 on referral from Dr Sheriff for his neck, left shoulder and bilateral thumb pain.
217The plaintiff described to Dr Le Marshall the onset of pain at the neck, the left shoulder region and both thumb bases following the incident. He did not recall having pain at these regions prior to the fall, although there was a history of a left clavicle fracture in 2013.
218Dr Le Marshall thought there was thumb base, left shoulder and neck pain following the injury in the setting of underlying degenerative arthropathy and supraspinatus tendonosis.
219Dr Le Marshall suggested injections, splinting of the thumb and additional analgesia. She felt like the plaintiff needed to set some long-term goals around employment prospects and that an occupational physician may be valuable in this regard.
220In a medico-legal report dated 8 May 2018, Dr Le Marshall advised she was unsure what treatment the plaintiff undertook. He was to make contact with her as needed. She was unable to comment on the deterioration in symptoms as she did not review him, and recommended he see an occupational physician.
Investigations
221The plaintiff had a CT scan of his cervical spine in May 2014. It was reported there was endplate sclerosis and osteophyte formation of C5-6 and, to a lesser degree, C7 secondary to degenerative change. There was resultant moderate severe C5‑6 and C6-7 right neural exit foraminal stenosis. Spinal canal calibre was generally adequate. There was no pre vertebral soft tissue thickening, stranding or haematoma.
222There was an x-ray of the left shoulder on 27 May 2014. The impression was “? Old injury to the left shoulder”. Degenerative change was seen at the glenohumeral and acromioclavicular joints.
223The plaintiff had an ultrasound of his left shoulder in May 2014. It was reported that there was left supraspinatus tendinosis/ tendinopathy without focal tear. There was left longhead of biceps tenosynovitis, left subdeltoid subacromial bursitis with bursal impingement on abduction during dynamic scanning. It was noted ultrasound-guided left shoulder steroid injection may be of therapeutic benefit. If clinical suspicion of subtle rotator cuff tear, capsular or labral tear is high, then MRI of the left shoulder would be helpful.
224There was an x-ray and ultrasound of the left shoulder in June 2016. It was reported there was left biceps tenosynovitis, small intrasubstance tear of the left anterior supraspinatus, left subacromial bursitis associated with bursal impingement (ultrasound guided steroid injection can be performed for further management), mild to moderate degenerative change of the left AC joint, no recent bony abnormality or malalignment of the left shoulder, soft tissue calcification adjacent to the greater tubercle of the left humerus likely representing background calcific tendinosis – better appreciated on the plain film.
Medico-legal evidence
225Dr Clayton Thomas, consultant in rehabilitation and pain medication, saw the plaintiff in May 2018.
226The plaintiff told him that as a teenager he fractured his left collarbone. Outside of that he did not mention any specific disabling previous problems. Dr Thomas noted looking through the background documents, it appears the plaintiff did develop pain in his thumbs which occurred roughly in 2000. At the same time, he was diagnosed with Bilateral Carpal Tunnel Syndrome. Dr Thomas noted, further, in any case it would appear that the plaintiff had continued to work as a butcher throughout most of his working life.
227On examination, the plaintiff reported the main issue was pain in the left shoulder girdle over the left collarbone with a pulling to the left side of the neck, radiating down to the left elbow. He reported pins and needles and numbness involving the left hand, mainly the little finger.
228Vocationally, the plaintiff had not returned to work with the defendant. He was now working with his son in his son’s painting business. Dr Thomas noted that it sounded like a reasonably large operation involving industrial sites. As such, the plaintiff drove to various locations in order to supervise and check the quality of the work. He had been doing that for thirty to forty hours for the last two years.
229On examination, Dr Thomas thought there was slight wasting around the left shoulder girdle, and the left shoulder was minimally tender to palpation, and movements were limited by pain. Rotator cuff strength was well preserved, except for the supraspinatus tendon which appeared to be weaker. There was a positive Tinel’s sign at the left elbow. Neck movements were mildly limited but movements did not refer any pain into the plaintiff’s upper limb or shoulder girdle. Neurologically, examination of the upper limbs was normal.
230Dr Thomas thought it appeared there was a significant injury in the incident. Clinically, it was unclear as to the precise nature of the left shoulder problem. He noted it was stiff and weak, and there was some wasting. He suggested the plaintiff required further investigations, including a CT scan of the left shoulder and an MRI scan. He noted the plaintiff’s presentation was suspicious of a glenohumeral osteoarthritic-type joint and further investigation was needed to clarify if that was the case or not.
231Dr Thomas did not think the nature of the problem was related to simply a rotator cuff strain. Range of movement was markedly stiff and there was no evidence that that was a capsulitis-type picture.
232In addition, Dr Thomas thought the plaintiff had some ulnar nerve symptoms on the left with a positive Tinel’s sign. That was intermittent only at night and was probably due to a positional situation, and was only really without any significance.
233Dr Thomas indicated that the primary problem was to the left shoulder and did not think the plaintiff’s neck was implicated. It was slightly stiff but it would appear that he had long-term neck problems prior to the incident.
234Dr Thomas thought the left shoulder was the dominant problem, noting someone who developed pain in the shoulder often experienced secondary pain in the neck and vice versa.
235Dr Thomas accepted that the nature of the physical injury and impairment of the left shoulder precluded the plaintiff’s ability to perform pre-injury work and he would have difficulty with heavier tasks with his left upper dominant limb. The difficulties would be moderately significant from a vocational perspective and incapacity and impairment would continue into the foreseeable future.
236As a consequence of the physical injury to the neck, left shoulder and wrists, Dr Thomas thought the plaintiff does not have the capacity to perform pre-injury work, noting the left shoulder was the dominant problem. The plaintiff’s neck pain and stiffness had been present for years. The plaintiff did not mention the wrist problems to him, but clearly they had been problematic in the past.
237However, as a consequence of the shoulder injury, Dr Thomas thought the plaintiff had a capacity to perform suitable employment, noting he was currently working in a supervisory capacity and had been doing so for the last two years.
238Dr Thomas commented “if it were not for a benevolent employer”, he thought the plaintiff would have significant vocational difficulties, noting he had worked as a butcher all his life, and the problem of the left shoulder does place a significant level of disability on him. He would not be able to work carrying carcasses in an abattoir on a permanent basis.
239Dr Thomas also accepted that as a result of the physical injury to the left shoulder, the plaintiff’s ability to function socially, domestically and recreationally would be impacted upon, and that would be for the foreseeable future. Dr Thomas also thought there was a degree of pain and suffering and distress or anxiety experienced by the plaintiff. He considered the prognosis would be better determined by up-to-date imaging.
240In Dr Thomas’ view, the plaintiff’s problem was more in keeping with an osteoarthritic glenohumeral joint,? and those investigations would clarify the situation and also enable determination of future treatment options, and also the prognosis.
241Dr Robyn Horsley, occupational physician, examined the plaintiff in June 2018 and took a detailed occupational history.
242The plaintiff told her that working as a boner he had developed increasing symptoms in bilateral thumbs and neck. He went off work, put in a claim, and was off work for two or three years.
243Dr Horsley understood the plaintiff returned to work in 2003-2004 to a retail shop in Caroline Springs, where he worked for three years full time, with no specific restrictions as a butcher, and dealt with the discomfort.
244Dr Horsley noted that the plaintiff then opened his own shop in Melton, which he sold after a year because of his marriage break up. He then began working at Rainbow Meats, where he worked for three years in a retail shop, managing twenty-five staff. The mixture of management and hands on work was 50/50. He left because of a disagreement with his boss.
245Dr Horsley noted the plaintiff then obtained a role with the defendant in early 2013 as a hands-on butcher.
246Dr Horsley also noted the plaintiff remained off work until his son provided him with his current part-time supervisory work for fifteen to twenty hours a week in his painting company. She noted the plaintiff was unable to work as a butcher because of his ongoing disability.
247Dr Horsley understood the plaintiff suffered an injury to his neck and left shoulder in the incident. He reported chronic neck pain varying on the visual analogue scale from 4 out of 10 up to 8 out of 10. It was caused by repetitive overreaching, pushing, pulling and above shoulder activities and also by static postures. The discomfort in the neck could radiate into the left shoulder girdle but not the left arm.
248The plaintiff reported chronic left shoulder discomfort, varying from 5 out of 10 up to 9 out of 10. He experienced headaches on a daily basis.
249Dr Horsley noted the plaintiff’s functional tolerances were reduced, with sitting limited to forty minutes, walking ten to fifteen minutes, dynamic standing ten to fifteen minutes, driving thirty minutes and static standing five minutes.
250On examination, there was a good range of right shoulder movement with some discomfort at extremes. There was a reduced range of left shoulder movement. There was mild fear avoidance behaviour exhibited. The test for supraspinatus and the AC joint test was positive on the left. Using the Jamar, the plaintiff had 10 kilograms force on the left and 28 kilograms on the right.
251There were some trigger points in the cervical spine on light touch palpation, but none in the left shoulder girdle. Forearms, circumference was 26.5 centimetres on the right and 28 centimetres on the left, with forearm circumference 24 centimetres on the right and 23.5 centimetres on the left. Check measurements?
252Cervical movement was reduced.
253Noting the plaintiff had been diagnosed with advanced degenerative change in the joints of both thumbs, Dr Horsley commented, however, the primary issue was, from his perspective, his neck and left shoulder.
254Dr Horsley thought the plaintiff presented with ongoing mechanical neck pain and left shoulder disability. He presented with no clinical radicular features. He had pre-existing cervical spondylosis.[156] She noted the plaintiff was previously diagnosed with bilateral carpal tunnel, but his symptoms resolved after he ceased work.
[156] See radiology 2000
255Given the length of time since the injury and the ongoing nature of the plaintiff’s symptoms, she believed that the disability was likely to persist. She thought he would benefit from referral to a psychologist.
256Dr Horsley noted up-to-date radiology would be available to provide a more precise estimate of capacity to work, as there was no recent radiology of the neck.
257In the incident, Dr Horsley believed the plaintiff aggravated the underlying pre-existing cervical spondylosis and developed left shoulder bicep tenosynovitis with a small intrasubstance tear of the left anterior supraspinatus, aggravation of pre-existing degenerative change in the left AC joint, and left subacromial bursitis, based on the 2016 radiology.
[172] T85
335It was submitted that it was difficult to understand the nature of the left shoulder condition, but it was conceded it did not necessarily need a diagnosis.[173] What was required was an understanding of what the condition was so that the Court could properly attribute the claimed consequences.[174]
[173]Barwon Spinners (supra) required an understanding of what the condition was so that the Court could properly attribute the claimed consequences; T159
[174] T147
336It was submitted the involvement of the plaintiff’s neck and the shoulder makes it even more necessary to understand what is happening with the shoulder and be satisfied that any consequences presently claimed are not just consequences of the old neck injury at SBA. In these circumstances, it was necessary to have a proper medical assessment of what was going on in the shoulder.[175]
[175] T159
337It was submitted, really, there is not a new pain or new injury. The plaintiff describes his shoulder pain now in similar terms as he did to doctors like Dr Remy in 2001.[176] In this context, counsel also relied on Dr Thomas’ concerns about the lack of recent shoulder investigations.[177]
[176] T160 – pain in “his shoulders to his collar bone and left armpit”
[177] T160
338Further, while the plaintiff may say there is now some left shoulder wasting, in 2004, Dr Sheriff noted decreasing power and some wasting of the proximal muscle secondary to disuse. It was conceded, of course there is going to be wasting with an eighteen-year chronic condition.[178] The Court needed to be satisfied there was something clinically going on in the left shoulder productive of pain. Dr Thomas is saying the evidence is not there.[179]
[178] T161
[179] T162
339When doing the initial ultrasound in 2014, the radiographer also called for a more extensive investigation of the plaintiff’s left shoulder. Dr Sheriff did not take up that suggestion and thereafter, there was only the one referral to a rheumatologist.[180]
[180] T163
340It was submitted that was indicative of any shoulder problem not either being conducive of pain of any great consequence, or the plaintiff recognised it was the same pain he had had for many years.[181]
[181] T163
341In response, counsel for the plaintiff submitted that pre incident, the plaintiff was complaining it was his neck causing shoulder issues, now it is his left shoulder, a different kind of pain.[182] There was a new injury to the shoulder – consistent with the mechanism of the injury.[183]
[182] T184
[183] T186
342Further, Mr Kossmann, and other medical practitioners, were happy to make a shoulder diagnosis in the absence of investigations. Mr Kossmann thought there was a new rotator cuff pathology and also aggravation of degenerative change.[184] He thought the plaintiff needed further maintenance treatment in relation to the left shoulder, not commenting on any need for further investigations.[185]
[184] T191
[185] T194
343Mr Dooley accepted there was a soft tissue injury to the neck and left shoulder.[186]
[186] T193
344Mr Williams did not find wasting when he examined the plaintiff in 2014 but Dr Thomas did so three years later.[187]
[187] T193
345In my view, the plaintiff suffered a new, discrete injury to the left shoulder in the incident.
346The contemporaneous evidence supports the occurrence of a shoulder injury on the said date. Before the incident, there were no investigations undertaken of the plaintiff’s left shoulder. Whilst an injury to the “shoulders” was listed in a number of court documents relating to the SBA injury, there is no evidence of the plaintiff having any specific treatment for his left shoulder prior to the incident.
347The plaintiff’s description of the mechanism of the injury is consistent with a left shoulder injury.
348The day after the incident, the plaintiff reported suffering injury to his neck and right shoulder to Dr Sheriff, who then organised investigations of the plaintiff’s left shoulder soon thereafter and again in 2016. These investigations which showed bursitis, tendinosis and in 2016, a small intrasubstance tear.
349The plaintiff described an injury to his left shoulder in his Claim for Compensation signed by him on 30 May 2014.
350The plaintiff had steroid injections into his left shoulder in 2014 and 2016. He was referred to rheumatologist, Dr Le Marshall, in 2015 for his thumbs, shoulder and neck.
351When it was suggested to the plaintiff, realistically, he has the same pain in his shoulder as he did pre incident, he explained the pain was now different. It was just under his armpit before, not travelling down his left arm.[188] He did not think the reality was what was old was new again.[189]
[188] T84
[189] T85
Pain
1 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[190]
“The evidentiary basis of the pain assessment will ordinarily comprise the following:
(a) what the plaintiff says about the pain (both in court and to doctors);
… .”
[190] (2010) 31 VR 1 at paragraph [11]
352The plaintiff continues to have consistent left shoulder pain, which feels like it is behind his collarbone. It aches, and when he moves it too much, the pain gets worse. Above head movements are particularly painful, and that pain travels from there down into his left arm, and he still gets a funny tingling feeling down there. He also gets some aching in his right shoulder, which he believes has come on as a result of over-reliance on that arm, as Dr Sheriff has advised.
353The plaintiff still has neck pain, which is particularly bad when in a static posture too long. His neck pain is more tolerable than his left shoulder pain, which he considers to be his real problem, and is probably twice as bad as his neck. He gets daily headaches that seem to come from his neck. They last for a few hours and he takes Panadol to help with these.
354The plaintiff still has problems using his two thumbs. He has difficulty gripping things or performing intricate tasks involving his thumbs, however, he thinks this is not anywhere near as bad as his neck and left shoulder problems. He did agree, however, that activities as simple as grasping a knife with his left hand becomes unbearably painful.[191]
[191] T80
355Interestingly, when seen by Mr Stapleton in March 2016, the plaintiff advised that his thumb condition had in fact worsened since the incident. However, it was not contended during the hearing that this was in fact the situation.[192]
[192] T189
356The plaintiff agreed he continues to have neck pain and headaches, and did so before the incident. He then said his thumb pain is not as bad, but it continues.[193]
[193] T80
357The plaintiff has consistently reported to doctors, save for Dr Horsley, to whom he described neck pain of a similar level, that his left shoulder is his main complaint.
358As a result of his left shoulder pain, the plaintiff claims to have difficulty with repetitive movements of his left arm, lifting anything heavy with that arm or putting it above his head. The latter, he insisted, he “[doesn’t] let it happen”.[194]
[194] T91
359The plaintiff continues to take six to eight Panadol per day but does not really specify for which of his conditions he takes this medication, although specifically mentioning his headaches.[195]
[195] T164
360Whilst counsel for the plaintiff submitted the plaintiff’s left shoulder precluded a return to hands-on butcher’s work, the plaintiff deposed the main consequence of the injury to each of his neck and left shoulder injury is that he can no longer work hands-on as a butcher in a trade he loved.
361Other activities said to be affected by his neck and shoulder injury include fishing, scuba diving, bow hunting and motorbike riding.
Aggravation
362In this case, where there is a pre-existing condition – osteoarthritis of both thumbs and a neck condition – I must consider what the evidence discloses as to the plaintiff’s pre-incident condition and determine whether any additional impairment resulting from the incident injury is serious and permanent.
363In Petkovski,[196] the Full Court of the Victorian Supreme Court accepted the proposition that –
“A comparison must be made of the condition of the applicant immediately before the accident with his condition thereafter and an assessment made of the extent of that additional impairment and if that additional impairment was not serious so it was said then leave must be refused. …”
[196] ibid
364Counsel for the defendant addressed at length in relation to this issue.
365Based on the cross-examination and numerous histories given by the plaintiff, it was submitted from 2000 to 2006, the plaintiff was in a very dire state. He could not work, and doctors had told him it would be unwise to rechallenge his hand joints. He had problems with his neck, daily headaches, difficulty sleeping and even had difficulty with his hobby of fishing.[197]
[197] T146
366In 2003, the Medical Panel found the plaintiff had no current work capacity on a permanent basis. Doctors, like his general practitioner, Dr Sheriff, had told the plaintiff it would be inadvisable ever to go back to being a butcher.[198]
[198] T146
367It was submitted it was unarguable before the incident that the plaintiff had constant pain and inability to work, a requirement for medication, a reduction in hobbies, reduced ability to attend to household chores, restricted tolerances and an impediment to sleep.[199]
[199] T145
368It was submitted the plaintiff must point to a change in the situation from 2006 because the claimed consequences, now, are so similar to what were problems in 2000 to 2006. This was the crux of the case. The question was posed: How does a man, in 2006, who is so dire, present to us today, saying “Well I’ve still got the same symptoms but it’s not from that injury”.[200]
[200] T147
369In those circumstances, it was submitted one would expect reliable evidence from the plaintiff to demonstrate an improvement in his condition leading up to his employment with the defendant and also supporting affidavits from friends or family members and from bosses, about a transformation in that time. The absence of such evidence causes an inference that evidence would not have assisted the plaintiff’s case.[201]
[201] T147
370However, there is some evidence which it was submitted is “sketchy” about what is going on between 2006 and 2014.
371The plaintiff’s common law claim was settled in 2006. That year, he attended the Elms on 27 September, when it was noted he was working in road construction. The plaintiff had a drug problem in 2005 and 2006. He worked as a butcher for a friend for a short time and he was feeling very tired from that work, as the Elms 2007 note set out. There was no affidavit from that friend for whom the plaintiff worked.[202]
[202] T148
372The plaintiff then went to jail. He agreed that by 2008, he had not really been in butchery at all, or much.[203] Post-jail, he went straight to the doctor, whose notes record the plaintiff then requested a disability pension. At that time, he complained of chronic cervical right arm pain which he had had since 2000. He advised he would like to do some part-time work, but he could not because of pain and depression. It was submitted, clearly, there was no dramatic improvement by this time in October 2009.[204]
[203] T148
[204] T149
373The plaintiff then attended Dr Sheriff in April 2011. His thumb osteoarthritis was active, and he was unable to work, even in a supervisory role. Certificates provided by the plaintiff’s general practitioners during that year described severe generalised osteoarthritis, with the plaintiff being certified unfit for any work until 31 January the following year. During that time, the Elms issued Centrelink certificates for permanent impairment due to the neck and arthritis.[205]
[205] T149
374Right through 2011, the clinical records detailed the plaintiff had a C5-6 disc protrusion, permanent, with daily headaches, and a severely reduced range of neck movement, bilateral osteoarthritis, pain and weakness. Analgesia and physiotherapy was required.[206]
[206] T150
375It was submitted therefore that two years before the incident, the plaintiff was greatly symptomatic and that realistically, not much has changed. There had been limited attempts to work and it was conceded “some earnings”, but the same condition as in 2006 continued. It was submitted the plaintiff had not brought to the table sufficient evidence to say there had been improvement from 2006 to January 2012, or from that time.[207]
[207] T151
376It was submitted the Rainbow Meats’ work was supervisory. There was no affidavit from that employer. It was not known why the plaintiff stopped work there, and “there was a lot of mystery about that work”.[208]
[208] T151
377It was submitted the onus required not just those “paltry” references but proper evidence from the plaintiff, supporting affidavits from family and friends and from his employers, particularly in the situation where he was permanently incapacitated until late January 2012. It would have been helpful to know what the plaintiff was doing at various places where he worked and also what was happening in his family life.[209] There is no evidence that there has been an improvement. Dr Sheriff is silent on this issue, and he is “the crux”.[210]
[209] T152
[210] T153
378It was submitted the evidence did not support this great transformation. Even when working with the defendant, the month before the incident, the plaintiff was back at the doctor wanting an urgent x-ray and ultrasound for his thumb. He agreed his thumbs were then swelling up again, and he was finding it hard at work, and that it must have been pretty bad. It was a real problem, the problem going back to 2000.[211]
[211] T154
379It was submitted there cannot be any doubt the plaintiff’s life as a butcher had been “evaporated” because of his osteoarthritic hand condition. The great improvement that somehow has been fostered in the last two years before the incident was “fanciful” and did not have the evidence to support it. “Indeed, what evidence there is, actually tears it down.”[212]
[212] T154
380Further, in his April 2018 report, Dr Sheriff had noted the plaintiff “is now resigned to the thought he will never work again,” stating in the following sentence, “he has poor hand strength and unable to grip properly”, a situation it was submitted was clearly referable to the osteoarthritis.[213]
[213] T155
381It was submitted any return to work since 2000 had been sporadic and really only accommodated if it was supervisory. The plaintiff had lost his trade prior to the subject injury and that loss cannot be considered a consequence thereof. The “impassioned pleas” in his affidavit to this effect should not be accepted.[214]
[214] T155
382It was submitted, in terms of Peak,[215] non-compensable injuries had to be stripped away, and the ability to work was one of them. In the Peak context, the consequences of the thumb condition “had to go”.[216]
[215] Peak Engineering & Anor v McKenzie [2014] VSCA 67 (“Peak”)
[216] T156
383Counsel for the defendant then posed the question: Would not the hands impact on the same activities as claimed to be affected by the left shoulder? Reference was made to the complaints of severe hand pain and the plaintiff’s acknowledgement that this pain interfered with a range of activities – fishing, bow hunting, house work and even doing up his shoelaces.[217]
[217] T158
384It was submitted the Court “just could not see the wood from the trees” when it came to identifying what consequences are flowing from the compensable injury, be it a shoulder or be it an aggravation of the neck.[218]
[218] T158
385It was submitted the absence of any attendances on general practitioners between 2011 and 2014 was not enough to explain the claimed improvement. The plaintiff was a “woeful historian and one did not know whether there was perhaps another clinic out there”.[219]
[219] T159
386It was submitted that Mr Kossmann’s report was somewhat corrupted because of the inaccurate history. Simply concluding the plaintiff had an aggravation of underlying degenerative changes is not enough if he was unaware of the plaintiff’s situation pre incident.[220]
[220] T163
387Importantly, Dr Sheriff knows the plaintiff’s history, but he does not do much with this knowledge. He seemingly attempts to “sort of guild the lily” on his reporting, and it was submitted he could not be relied on.[221]
[221] T163
Submissions on behalf of the Plaintiff
388Counsel for the plaintiff submitted, from 2009, the plaintiff started establishing a real and substantial work history. It was conceded 2011 was a bad year, but otherwise the plaintiff made a good return to work.[222]
[222] T174
389In 2010, the plaintiff earned $45,000. The following year, he had problems with anxiety and depression and was prescribed anti-depressant medication.[223] The only work in 2010-2011 was in the plaintiff’s own shop – F & S Family Gourmet, where he earned $11,000.[224]
[223] T175
[224] T176
390In response to the defendant’s criticism about the lack of any supporting evidence of an improvement in the plaintiff’s condition, counsel for the plaintiff submitted “the dollars speak for themselves”. Further, the plaintiff could not be expected to get evidence from Rainbow Meats because he left there because of a disagreement with his boss.[225] Even as a supervisor, the plaintiff was doing hands-on work demonstrating, and was able to earn nearly $60,000.[226]
[225] T176 – history to Dr Horsley
[226] T178
391It was submitted that the plaintiff’s osteoarthritis complaint in April 2014, a month before the compensable injury, was an infection.[227]
[227] T179
392Further, in response to the lack of clinical notes of GP attendances between April 2011 and April 2014, it was submitted it “beggared belief” the defendant has not been diligent in finding all the plaintiff’s available medical records.[228]
[228] T179
393It was submitted that pre incident, the plaintiff had recovered his ability to work in his trade, not only as a supervisor, but to work hands-on as shown by his earnings at Rainbow Meats.[229]
[229] T177
394In response to my criticism about the lack of any analysis by Dr Sheriff of the plaintiff’s pre and post-incident condition, counsel for the plaintiff said the doctor was “busy”.[230] It was submitted Dr Sheriff’s less than perfect reporting ought not to affect a case where there was clear evidence from the plaintiff and the ATO indicating what the plaintiff was capable of doing.[231]
[230] T180
[231] T181
395Further, while Dr Sheriff did not make much mention of the nature of the plaintiff’s current work, it was not as if the plaintiff told him he was only working a couple of hours a day.[232]
[232] T182
396It was submitted there was plenty more evidence helpful to the plaintiff in this case than Dr Sheriff, including the Facebook evidence which showed, pre-incident, the plaintiff went bow hunting, riding a Harley Davison, owned his own boat, went camping and went overseas. It was submitted the plaintiff had got back to a very active lifestyle and also full-time butchery before the incident, to his credit, when people had told him he would not be able to.[233]
[233] T183
397It was submitted there was really a demonstration of the plaintiff’s stoicism, the fact that he had pushed through and got back to work, and was getting on with his life until the incident happened.[234]
[234] T184
398The previous injuries to the hands and neck did not stop the plaintiff returning to full-time work as a butcher and earning substantial income after 2010. It was submitted the left shoulder was a completely different matter. He has described it as being twice as bad as the neck. The shoulder was very much the primary injury.[235]
[235] T186
399It was submitted it was the shoulder which is, in substance, what has stopped the plaintiff from working as a butcher and prevents him working other than a couple of hours when he “dosed to the max” on painkillers to enable him to do hands-on work.[236]
[236] T187
400Whatever problems the plaintiff had in his neck, whatever niggles in the early years, did not stop him from earning his living as a butcher.[237] While the plaintiff needed his thumbs to do a range of activities, as well as work, he had returned to those activities, like fishing, with his ongoing thumb problems, before the compensable injury.[238]
[237] T188
[238] T189
401Having got away from butchering and giving it a rest for a while, the plaintiff had sufficiently recovered to get back to butcher’s work.[239]
[239] T190
402It was sought to explain the absence of treatment by the lack of funding and reliance was placed on the need for an injection and the presence of wasting in the left shoulder.[240]
[240] T190
Economic loss
403Dealing first with this application, in addition to satisfying the narrative requirements to obtain leave in relation to loss of earning capacity, the plaintiff must also establish that –
(a) at the date of the hearing, he has a loss of earning capacity of 40 per cent or more – s325(2)(e)(i); and also
(b) after the date of hearing, the relevant loss of earning capacity will continue permanently – s325(2)(e)(ii).
404The measurement of loss of earning capacity is set out in paragraph (f) which requires a comparison between:
(i) “without injury” earnings; and
(ii) “after injury” earnings.
405The former must be calculated by reference to the six-year period specified in s325(2)(f).
406“Without injury” earnings consist of the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion had the injury not occurred.
407It is to be calculated by reference to that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity.
408The onus is on the plaintiff to affirmatively prove on the balance of probabilities that he has sustained the relevant loss of earning capacity, establishing satisfaction of the criteria in paragraphs (e), (f) and (g).[241]
[241] See Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at paragraph [70]
409I am therefore required to determine a “without injury” earnings figure. Submissions were made by counsel in this respect.
410Counsel for the plaintiff relied on the plaintiff’s earnings of $58,864 in the 2012-2013 financial year as the appropriate figure. Sixty per cent of this sum is $35,318 or $679.20 per week.
411Counsel for the defendant submitted it “affronted logic” to simply say the plaintiff “just discharged the onus by one line in his tax records saying he earned $58,000”.[242] It was submitted there would be the need for pretty cogent and conclusive evidence to turn back on that twelve-year history to somehow suggest there had been a dramatic improvement to 2014.[243]
[242] T151
[243] T151
412Whilst not putting an alternative figure, counsel submitted the figure suggested on the plaintiff’s behalf was one which most fairly reflected the plaintiff’s “without injury” earning capacity. It was a once off, the plaintiff had a poor work record beforehand and there was also the worsening condition of his thumbs shortly prior to the incident.
413In all the circumstances, I do not consider the suggested figure is one which most fairly reflects the plaintiff’s earnings without injury.
414Evidence of the plaintiff’s actual earnings will not always be the best evidence of his earning capacity. I must assess all the evidence to determine the scenario that most fairly reflects the plaintiff’s earning capacity.[244]
[244] The Herald & Weekly Times Limited v Jessop [2014] VSCA 292 at paragraph [54]
415Evidence beyond the three-year window is relevant only to the extent that it may shed light on the plaintiff’s earning capacity within that window.[245]
[245] Hayhill Pty Ltd & Ors v Hodge [2006] VSCA 194 at paragraphs [9]-[11]
416Save for the reference to $58,000 earnings with Rainbow Meats in 2012-2013 in the ATO document provided at the end of the hearing, there are no details from that employer of the type of work and hours worked by the plaintiff that financial year. It seems the duties were largely supervisory, although the plaintiff said some hands-on demonstration work was required.
417This sum was clearly the largest earned by the plaintiff since the SBA injury and he has not been able to earn in the vicinity of that amount at any other time.
418In the 2009-2010 financial year, the plaintiff only earned $32,037 working for Rainbow Meats. The following year, there were no earnings from that employer. The plaintiff had significant issues with anxiety and depression. He was also certified totally unfit for work from April to June 30 2011 because of neck pain and or osteoarthritis of his thumbs.
419This certification extended into the 2011-2012 financial year until 31 January 2012. The plaintiff then earned $20,376 for the remainder of that financial year with Rainbow Meats.
420In the 2013-2014 financial year, before the incident date, the plaintiff earned $6,792 working for Rainbow Meats, $16,598 from Woolpack Corner and then $10,432 from the defendant after 13 February 2014 – a total of $33,825.
421The plaintiff maintains that he was fit to resume hands-on butcher’s work when he started with the defendant on 13 February 2014. He agreed the job with the defendant in old-fashioned butchery was the first time he had done that work for many, many years.[246]
[246] T73
422At the time of the incident, the plaintiff was working 52 hours a week earning $1,200 a week according to his Claim Form.
423There is no medical evidence that the significant osteoarthritic condition suggested by the plaintiff had resolved by the time he started work with the defendant. Dr Sheriff would have been the doctor to comment on this issue and he is silent.
424However, Mr Stapleton, in 2015, did report that basal joint arthritis is of its very nature a condition of gradual progression so one would expect though the years the plaintiff’s arthritis in the base of his thumbs would get worse.
425Significantly, within two months of commencing work with the defendant, the plaintiff was attending Dr Sheriff with significant thumb pain, and investigations were arranged.
426I do not accept the submission that this complaint was an infection, given the plaintiff’s admission of the seriousness of his thumb condition at that time.[247]
[247] T178 – see paragraph 379 of my Judgment
427Taking account of all the evidence, I am not satisfied that had the plaintiff not been injured in the incident, he would have earned in the range of the large figure suggested by counsel for the plaintiff. In my view, the plaintiff’s significant thumb problems would have interfered with his ability to work as a hands-on butcher and earn this sort of amount. In those circumstances, the figure suggested by counsel for the plaintiff does not most fairly reflect the plaintiff’s “without injury” earning capacity.
428In any event, whether this suggested figure, or a lower one is accepted, for reasons explained below, the plaintiff does not suffer the requisite 40 per cent loss, working in his current role as a supervisor, which I find to be suitable employment.
429The limited medical evidence from the plaintiff’s treaters does not support the plaintiff’s loss of earning capacity claim in relation to his left shoulder injury.
430Dr Sheriff does not state that any current incapacity for work as a butcher relates either to the plaintiff’s left shoulder of neck. As counsel for the defendant submitted, Dr Sheriff commented in a number of his reports that the plaintiff is resigned to the thought he could not resume this work – seeming to state the basis thereof is his osteoarthritis.
431Further, there is no explanation from that practitioner of an improvement in the plaintiff’s condition in 2013/2014 to the effect that the plaintiff was fit for this work but for his later incident injuries.
432In her one examination in 2015, Dr Le Marshall made no comments in this regard.
433The medico-legal evidence in relation to this issue is somewhat supportive of the plaintiff’s application. However, whilst Mr Kossmann supports a reduced work capacity on basis of neck, left shoulder, back and wrists separately – he did not know the true extent of the plaintiff’s pre-incident problems.
434Although Dr Horsley thought the plaintiff had a limited work capacity, before being definitive in this regard, she required up-to-date radiology of the plaintiff’s left shoulder and cervical spine and access to the 2014 radiology.
435In the absence of any detailed history of the plaintiff’s significant pre-incident neck and thumb problems, commenting that the plaintiff continued to work as a butcher throughout most of his working life, Dr Thomas thought the plaintiff was unfit for work as a butcher due to his left shoulder but was fit for his present supervisory job with whom Dr Thomas described as a “benevolent employer”.
436Mr Dooley thought, based on the plaintiff’s left shoulder and cervical spine injury, the majority of which resulted from the plaintiff’s psychological reaction to his situation, the plaintiff would have a physical capacity to carry out light physical work and clerical duties.
437Mr Stapleton had doubts about the plaintiff’s truthfulness, concluding the incident aggravated for a short while the discomfort in his thumbs and left shoulder but as at March 2016, he thought the aggravation had settled.
Current work
438The plaintiff has worked for his son from mid to late 2017. In the 2017-2018 financial year, the plaintiff earned $47,924 gross. There is no suggestion that this employment will not continue.
439Counsel for the plaintiff submitted the plaintiff is now effectively in a charitable position in this job, which he does not enjoy. His son was available for cross-examination, but the defendant chose not to cross-examine him.[248]
[248] T185
440It was submitted the plaintiff was currently not a valuable employee. That was not his perception, or his son’s perception.[249] No alternative employment has been proffered by the defendant as being suitable for the plaintiff and “all he has got is a job from a sympathetic son and he would not have similar luck in the open market”.[250]
[249] T195
[250] T195
441Counsel for the defendant submitted the plaintiff has retained the ability to work for his son as a supervisor – in essence the same job title he had before at Rainbow Meats. The plaintiff works up to six days a week, including consecutive days. He is a valuable employee, and his son admits that, as does the plaintiff.[251]
[251] T167
442It was submitted it is important to note that the current job accommodates the plaintiff’s problematic non-compensable symptoms. So it is a pretty good job for him. Butchery was not available because of the non-compensable symptoms, and now he has got a job that is.[252]
[252] T167
443Counsel for the defendant submitted the plaintiff’s son’s affidavit was not sufficient, detailing very little understanding of what the plaintiff actually does at work. He is not there with the plaintiff anyway. His son does not explain or comment upon any dramatic improvement causing the plaintiff being able to go back to work in more recent times.[253]
[253] T166
444In my view, the plaintiff is doing a real job. Not only is he capable of supervisory work in this role as he did with Rainbow Meats, the plaintiff is clearly able to be a hands-on painter and valuable employee. He is able to attend work consistently eight hours a day, four to six days a week. Whilst at work, as the film showed, the plaintiff is not looking for things to occupy himself with. His contribution appears equal to that of his co-workers.
445Taking into account all the evidence, suffering from basal arthritis that was progressively worsening, I am satisfied the plaintiff’s ability to work as a hands-on butcher had long gone before he started work with the defendant.
446Whatever is accepted as the “without injury” earnings figure, whether it be $58,000 or a lower figure, I am not satisfied that the plaintiff has established a 40 per cent loss of earning capacity as a result of either his left shoulder or cervical spine-related injury.
447Accordingly, the plaintiff’s applications in relation to loss of earning capacity are dismissed.
Pain and suffering
448If I was against the plaintiff in relation to economic loss, counsel for the plaintiff submitted, in terms of pain and suffering, he had lost a trade he loved. Further, he is not enjoying the range of activities in his life as he used to.[254]
[254] T196
449Counsel for the defendant submitted that Facebook entries indicated that the plaintiff’s activities had not been interfered with to any great extent by any left shoulder problems.[255] Further, his hands would have impeded his involvement in his hobbies before the incident.[256]
[255] T167
[256] T168
450Firstly, for the reasons discussed earlier in the context of the plaintiff’s loss of earning capacity application, I do not accept the plaintiff has suffered the main consequence claimed – a loss of ability to do hands-on work in his trade.
451I accept the plaintiff suffered a new shoulder injury in the incident. Shoulder treatment has been limited, with one specialist referral that also related to his neck and thumb conditions. No shoulder surgery was suggested.
452The plaintiff continues to take six to eight Panadol per day but it is not clear for what condition – his shoulder, his neck or his thumbs.
453Given the seriousness of his thumb condition, I am not satisfied any incident-related shoulder pain results in any additional consequences, save for a restriction in overhead shoulder activities. However, given the level of movement in this regard shown on the video over an extended period of time painting and doing other overhead tasks, this claimed restriction is not significant.
454I am not satisfied the plaintiff had returned to a wide range of sporting activities before the incident given his worsening thumb condition and his significant neck problem. In any event, the plaintiff continues to go fishing and apparently enjoy riding on a jet ski since the incident.
455Taking into account all the evidence, I am not satisfied the consequences of any left shoulder impairment meet the statutory threshold.
456Accordingly, the application is dismissed.
457Largely for the same reasons, I make a similar finding in relation to the cervical spine – an application that was not abandoned but not pressed strongly by counsel for the plaintiff.
458Clearly, whilst the plaintiff complains of neck pain, he focussed on his left shoulder as his main complaint. Pre incident, he agreed he had ongoing neck problems and daily headaches.
459Counsel for the defendant submitted that in terms of the plaintiff’s neck, nothing really had happened in the incident, it was not impacted by the incident.[257]
[257] T157
460As of 2012, the plaintiff had a permanent neck impairment certified by the Elms.[258] It was submitted nothing had changed from the 2001 cervical MRI findings.[259]
[258] T156
[259] T156
461It was submitted the medical evidence was not high enough to put the neck as being an injury simpliciter or an aggravation injury in the proper sense.[260]
[260] T158
462I accept, however, that there was an aggravation of the plaintiff’s cervical spine condition in the incident, but not an aggravation that could be described as serious.
463Whilst the one specialist referral to the rheumatologist did involve the plaintiff’s neck in addition to his left shoulder and thumb conditions, no neck surgery or particular treatment was then suggested.
464There have been various investigations of the plaintiff’s cervical spine but no specific treatment undertaken or recommended
465In all the circumstances, I am not satisfied any incident-related aggravation of the plaintiff’s cervical condition is serious.
466Accordingly, the application is also dismissed.
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