Parsonage v VWA

[2024] VCC 1502

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No.  CI-23-04976

CHRISTOPHER PARSONAGE	Plaintiff
v
VICTORIAN WORKCOVER AUTHORITY	Defendant

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JUDGE:	HER HONOUR JUDGE TSIKARIS
WHERE HELD:	Melbourne
DATE OF HEARING:	2 May 2024
DATE OF JUDGMENT:	2 October 2024
CASE MAY BE CITED AS:	PARSONAGE v VWA
MEDIUM NEUTRAL CITATION:	[2024] VCC 1502

REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION

Catchwords:              Serious injury application – injury to the left shoulder – pain and suffering only

Legislation Cited:      Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), s335(2)

Cases Cited:              Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Hooley v TAC [2019] VSCA 263; TTB SMS Pty Ltd v Reading [2020] VSCA 203

Judgment:                  Leave granted to the plaintiff to commence proceedings for pain and suffering

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R Lewis	Abbey Injury Law
For the Defendant	Ms C Shambrook	Hall and Wilcox

HER HONOUR:

Introduction

1This is an application for leave to bring common law proceedings pursuant to s335 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) for injuries suffered by the plaintiff at work on or about 6 September 2019 (“the said date”) and/or due to the work processes during the course of his employment.

2The plaintiff seeks leave to commence proceedings for pain and suffering damages only. 

3The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s325(1) of the Act. There, “serious injury” is defined relevantly as meaning:

(a)   “permanent serious impairment or loss of a body function”

4The body function relied upon in this case is the left shoulder.

5The relevant legal principles are well known and are not in dispute.

6The impairment of the body function must be permanent.

7The plaintiff bears the overall burden of proof upon the balance of probabilities.

8By s325(1)(c) of the Act, the plaintiff’s left shoulder impairment must have consequences in relation to pain and suffering which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “at least very considerable” and “more than significant or marked”.

9Section 325(2)(h) requires all psychological consequences to be ignored in determining the plaintiff’s application in relation to the physical impairment. 

10I 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.

11In reaching my conclusions, I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[1] and Haden Engineering Pty Ltd v McKinnon [2].

[1] (2005) 14 VR 622

[2] (2010) 31 VR 1

12The plaintiff relied on two affidavits, sworn 21 April 2023 and 8 April 2024. In addition, both parties relied on medical reports and other material which was tendered in evidence.

13At the hearing, the plaintiff gave evidence and was cross-examined.

14I have read all the tendered material and I will refer to the relevant evidence to the extent necessary in these reasons.

The issues

15The defendant conceded that the plaintiff suffered a compensable injury on 6 September 2019.

16The issue for determination is whether the plaintiff’s pain and suffering consequences meet the “very considerable” threshold required by the legislation.

Background

17The plaintiff was born on 10 September 1974 and is currently 50 years of age. He left school in 1993 aged 18, after repeating Year 11. Upon leaving school, he worked a variety of jobs as a nightshift cleaner, labourer, and was employed at a ship refitting facility. He also trained as a commercial cook and gained a certificate in commercial catering.[3] He learned to weld on the job between 2000 and 2009 working for a series of employers and became a proficient welder. He obtained a forklift license, which has since lapsed and worked as a storeman. Between 2010 and 2015 he did general mechanical work and worked in fabricating air conditioning ducts. In 2015 he drove a medium rigid (MR) truck, and he still holds an MR licence. From 2016 to 2019 he worked as a welder for a number of employers in work that included painting, installation and labouring.[4]

[3]        Affidavit of Christopher Parsonage sworn on 21 April 2023, Plaintiff’s Court Book (‘PCB’) 8 [3]

[4]        PCB 8 [8]

18On or about 19 July 2019, the plaintiff commenced as a welder with Fleetweld Specialized Vehicle Bodies (‘Fleetweld’), the employer. He was welding aluminium components and panels to build toolboxes and steps for trucks, and he had to repeatedly turn over toolboxes whilst building them.[5]

[5]        Ibid 9 [9]

19The plaintiff worked at a bench, without a jig, using clamps and a square to achieve the correct angles. The toolboxes were made mostly from pre-cut components and once complete some of the toolboxes were large enough to climb inside. Some were cut from aluminium sheets, each sheet weighing about 12kgs and were awkward to handle due to their size and propensity to flex while being carried. The plaintiff sometimes sought help from a co-worker to move large and heavy toolboxes off his bench, but he would do these tasks on his own when no co-worker was available.

20The plaintiff worked on 6 September 2019 and on Saturday 7 September 2019, he woke with a painful left shoulder. On 10 September 2019, he saw his general practitioner Dr Richard Shawyer who prescribed medication and certified him unfit for work for the day. From 11 September 2019, he was certified fit only for activities not involving the left arm. He underwent a bilateral shoulder ultrasound on 10 September 2019   which showed partial tendon tears in both shoulders. He returned to work and on 17 September 2019 suffered more pain from lifting so he was sent home as he was struggling to cope with the work. He attended Dr Shawyer and was prescribed glycerol trinitrate patches and was certified unfit for work. He was certified fit for work from 2 October 2019 subject to a 10kgs lifting limit and to avoid work requiring the left arm to be raised above shoulder height.[6]

[6]        PCB 10 [16]

21The plaintiff deposed that his employer advised his employment would be terminated if he did not resume a full range of duties. He went back to normal duties and as he favoured his left shoulder, he started to feel pain in his dominant right shoulder. He attended Dr Shawyer, who certified him unfit for all work until 11 October 2019. 

22The plaintiff’s employment with Fleetweld was terminated on 14 October 2019 due to his inability to resume his pre-injury duties.

23On 23 November 2019, the plaintiff lodged a WorkCover claim which was accepted.[7]  

[7]        Ibid 11 [21]

24On 2 January 2020, Dr Shawyer referred the plaintiff to Professor Minoo Patel who he saw on 14 January 2020. Professor Patel injected both shoulders on 20 January 2020, and on 22 January 2020 the plaintiff underwent an MRI investigation. The plaintiff underwent a further right shoulder injection on 7 February 2020. The right shoulder improved considerably.[8]

[8]        Ibid 11 [24]

25On 3 July 2020, Professor Patel performed an arthroscopic repair of the labral tear in the left shoulder.

26The plaintiff commenced physiotherapy with Mr Ryan Nugara, and by early December 2020 Mr Nugara considered that the plaintiff was fit to return to work with a 5kgs lifting limit.[9]

[9]        Ibid 12 [30]

27Whilst the plaintiff remained unemployed, he helped a friend fix his car in November 2020 and in January/February 2021, he assisted a friend’s elderly mother with her garden. His right shoulder was functioning well by this stage. He enrolled in a traffic control course and sought to upgrade his MR truck license to a heavy rigid (HR) license and then a multi-combination (MC) license. He did not ultimately obtain either an HR or MC license as he did not attend the test due to an unrelated illness.

28He explored a job opportunity as a tow truck driver, through a business operated by a friend, but was unable to take up that position because of the left shoulder injury. He received an offer of truck driving work with Australian Waste Recyclers through the involvement of an occupational rehabilitation agency Konekt Workcare who were funded through the WorkCover scheme. He started at 15 hours per week in December 2020 with the hope of increasing his hours. He was in the job for a couple of weeks but found that it included a manual handling component of picking up hard rubbish, and he could not perform that because of his left shoulder injury.[10]

[10]        PCB 13 [35]

29Following the left shoulder surgery, he developed neck pain and tingling sensations in the ring and pinkie fingers of the left hand. The neck pain eventually subsided as did the tingling sensations which persisted until August 2021. They ceased for a few weeks but then returned with associated left elbow pain.[11]

[11]        Ibid 15 [43]

30In December 2021, he underwent left shoulder and left elbow ultrasounds. There was no elbow abnormality reported, although bursitis and a full thickness, but incomplete tendon tear, were found in the shoulder. He underwent a further cortisone injection to the left shoulder on 22 December 2021.[12]

[12]        Ibid 15 [44]

31In May 2022, he underwent nerve conduction studies which did not demonstrate any abnormality. He attended regular physiotherapy until 20 June 2022. He found physiotherapy to be helpful and by March 2022 he was able to split wood for an elderly aunt. He also helped a friend who was involved in motor racing by acting as pit crew.

32In March 2021 the plaintiff obtained full-time employment with Daalder Exhaust and Towbars (‘Daalder’), fitting exhausts and welding exhaust components together. He had known the owner of Daalder for over 20 years and also had a friend who was working there so was able to obtain that work through his connections. He worked at Daalder with a 10kgs lifting restriction. He was unable to lift the 20kg or 35kg towbars and had support from his co-workers and the employer. He was off work for periods due to COVID lockdowns and there were times when there was not enough work, and he was sent home. The plaintiff remained with Daalder until late August 2022, and ultimately left due to dissatisfaction with the rate of pay.[13]

[13]        PCB 14 [39]

33The plaintiff described the work of fitting exhausts as involving overhead work. The car to be worked on was raised by a hoist and the plaintiff set the hoist at the most comfortable level for him to minimise the degree to which he needed to raise his hands above his head. A co-worker would introduce the towbar to the vehicle with the use of an overhead lift as this task was too heavy for him. Once the introduction was done, he helped secure the towbar to the vehicle.[14]  Much of the above head work was done with his right hand although there were times when he used both hands such as when lifting an exhaust pipe or muffler into place where it would be supported by a stand until it was secured to the car. Pipes and mufflers for cars are made of mild steel or stainless steel, and for the most part are not heavy. Daalder also supplied and fitted truck exhaust systems, but as this was heavier work, he rarely did that.[15]

[14]        Affidavit of Christopher Parsonage sworn on 8 April 2024, PCB 22 [2]

[15]        Ibid 14 [38]

34The job at Daalder also involved welding exhaust components together and the use of a drop saw to cut exhaust tubing to required lengths. The saw was fixed with an integrated stand and a coolant reservoir. He was required to carry the tubing to the saw.[16] By mid-December 2021, his physiotherapist advised him against using the saw. He was able to resume using the saw after undergoing a cortisone injection on 22 December 2021. The work at Daalder was obtained after the employer applied for the WorkSafe Incentive Scheme for Employers (WISE) subsidy.[17]

[16]        Ibid 22 [3]

[17]        Ibid 22 [6]

35In September 2022, the plaintiff obtained employment with Shisham Stanley Group (‘Shisham Stanley’) as a casual welder and became a permanent employee in December 2022. His hourly rate was higher than what he earned at both Fleetweld or Daalder. He was involved in the manufacture of steel hardware for the concrete industry. He rarely handled weights weighing more than 10kg and did not lift anything weighing more than 15kg. There was no requirement for work above shoulder height and his co-workers were supportive. This was less than the weight of the large toolboxes he was lifting with the Fleetweld. He could not do work involving lifting or carrying the larger custom plates nor was he involved in welding big jigs that supported precast concrete panels.[18]  

[18]        Ibid 15 [41]

36Before his injury, he enjoyed general good health and did not recall experiencing any shoulder problems except for two occasions, the first following a motorcycle accident in 2000 when he bruised his collarbone in a motorcycle accident and the second in January 2017 when he saw a doctor at the Carey Family Practice because of right shoulder pain but could not recall any particular injury.[19]

[19]        Ibid 16 [48]

37He had crushed his right thumb in September 2012 and had in the past drunk too much and used illicit substances. He had experienced knee pain from time to time and left wrist pain whilst working with Daalder.[20] He also suffered facial lacerations whilst employed with Daalder from which he recovered.

[20]        Ibid 16 [49]

The Plaintiff’s evidence

38The plaintiff agreed in cross examination that the work he did with Daalder involved some overhead work although he mainly used his right hand to do so. He did some fitting of the smaller towbars. This was consistent with what he deposed to in his affidavits.

39After he left Daalder he was able to find work about a month later at Shisham Stanley and did not have any trouble finding that job. He only left that job because he was made redundant in March 2024, and he readily conceded that he did not have any problems with the left shoulder whilst working at Shisham Stanley.  He said though that whilst he was able to undertake the work he was “putting up”[21] with his left shoulder pain. He conceded that if he was having problems with the left shoulder, he would have consulted his doctor about it. He also agreed he consulted his doctor about other issues over the years. He acknowledged that he said to his physiotherapist that his shoulder felt good after splitting wood but that he was using a pickaxe which did not put strain on his left shoulder.[22] He also conceded that when he attended Professor Patel, Professor Patel examined him and found a full range of motion of the shoulder.

[21]        Transcript (‘T’) 11, Line (‘L’) 13-14

[22]        T11, L25-30

40When he found work with Daalder, he agreed the only restriction was a lifting limit of 10kg and a restriction on overhead work.

41He was questioned about volunteering as a pit crew member for his friend and he estimated he would have attended six or seven races. He described the process of changing tyres using rattle guns which did not require much physical strength and changing of a tyre likely occurred only once during the races.[23] He also conceded that whilst he performed mechanic work on bikes, riding a motorbike had not been a hobby of his for a number of years.

[23]        T12, L12-25

Medical Evidence

42The plaintiff was treated and managed by Dr Shawyer following his injury.

43Dr Shawyer in his certificate of capacity dated 9 April 2024, certified that the plaintiff could use his left shoulder with modifications in respect of reaching above shoulder height and with a restriction on lifting up to 10kg. He also noted on the certificate that the plaintiff was performing rehabilitation exercises.[24]

[24]        PCB 92

44After Professor Patel operated on the left shoulder, he referred the plaintiff for physiotherapy and prescribed isometric and self-directed shoulder strengthening exercises.[25]

[25]        Ibid 96

45The plaintiff saw Mr Nugara, treating physiotherapist, following the arthroscopy in July 2020. He was reporting symptoms of pain and discomfort with movement overhead and lifting items greater than 5kgs.[26] By 10 March 2021, Mr Nugara commented that the plaintiff’s capacity to lift was increased to a 10kgs maximum.

[26]        Ibid 107

The plaintiff’s medico-legal reports

Dr Joseph Slesenger, specialist occupational physician

46The plaintiff was assessed by Dr Slesenger on 9 February 2024 and 14 February 2024. In his report dated 13 February 2024, Dr Slesenger noted a history that the plaintiff was diagnosed with a bilateral labral tear after he was referred for investigations due to complaining of bilateral shoulder pain to Dr Shawyer. His left shoulder symptoms were worse than his right, and he had undergone a left shoulder arthroscopic labral repair on 3 July 2020.[27]

[27]        Ibid 62

47The plaintiff advised Dr Slesenger that he had residual pain over the anterolateral aspect of his left shoulder, and he described the pain to be moderate but occasionally severe, with the pain worse with activity, lying on the left side, and over shoulder reaching.[28]

[28]        Ibid

48Dr Slesenger reported that the plaintiff had difficulty forward reaching, laterally raising and difficulty lying on his left side. The plaintiff advised of weakness in his left arm making him more reliant on his right arm.[29]

[29]        PCB

49The plaintiff could dress, wash, shower and toilet himself. He could also attend to his domestic duties, such as cooking, cleaning, shopping and doing laundry, and could drive without restriction.[30]

[30]        Ibid 63

50On examination, Dr Slesenger noted tenderness over the anterior shoulder.[31] He was satisfied that the plaintiff suffered from a soft tissue injury to both shoulders and the right shoulder rotator cuff injury had resolved but the left rotator cuff tear and SLAP tear required a shoulder arthroscopy and posterior labrum repair, and the plaintiff was left with chronic left shoulder pain.[32]

[31]        Ibid 65

[32]        Ibid 68

51The plaintiff did not take any medication, was still under the care of his general practitioner, and no longer attended physiotherapy.

52Dr Slesenger confirmed that the plaintiff “has residual impairment of the left shoulder relating to the injury” but retained capacity for work with restrictions, namely: [33]

(a)   No pushing, pulling, carrying of lifting over 10kgs.

(b)   Avoiding sustained over shoulder reaching.

(c)   Avoiding sustained forward reaching.

[33]        Ibid

53Dr Slesenger observed that the plaintiff was fortunate to secure full time work but if he were to “become job detached” he anticipated the plaintiff would have some difficulty securing employment on the open job market given his employment history, his literacy skills, his computer skills and his lack of qualifications.

The defendant’s medico-legal reports

Associate Professor Anthony Buzzard, general surgeon

54Associate Professor Buzzard examined the plaintiff on 9 February 2023 to assess both of the plaintiff’s shoulders for the purposes of an impairment assessment. The plaintiff reported to Associate Professor Buzzard that he continued to experience left shoulder pain, but the pain was now static and that he could not lie on his left shoulder for more than five minutes.[34] The plaintiff reported that he could do daily living activities such as driving, dressing himself, washing himself, feeding himself and toileting.[35]

[34]        Defendant’s Court Book (‘DCB’) 95

[35]        Ibid 96

55Upon examination, Associate Professor Buzzard observed a decreased range of movement of the plaintiff’s left shoulder, and he was of the view that it is reasonable to accept that the plaintiff should not be carrying out work involving very heavy lifting.[36]

[36]        Ibid

Dr Graeme Doig, general orthopaedics and trauma

56On 15 November 2023 Dr Doig assessed the plaintiff. Upon examination the plaintiff had a positive impingement sign in his left shoulder with a restricted, active range-of-motion.[37]

[37]        Ibid 105

57Dr Doig noted that the plaintiff was only capable of performing modified duties and returned to full time work as a welder with a lifting restriction in place.[38]

[38]        Ibid

58In Dr Doig’s opinion there is no further treatment required for the plaintiff’s left shoulder in the short to medium term, although he may benefit from a one-off, sub-acromial, cortisone injection to ease his impingement symptoms.[39]

[39]        Ibid 106

The parties’ submissions

Plaintiff’s submissions

59It was submitted on behalf of the plaintiff that:

(a)   The Court should accept the opinion expressed by Dr Slesenger in relation to the restrictions on the plaintiff’s employability. Dr Slesenger as an occupational physician, was specifically trained and had the expertise to comment on the plaintiff’s capacity to work into the future. The Court should prefer his opinion in respect of the appropriate limitations on the plaintiff’s capacity.  The restriction on his vocational options and capacity went beyond a limit on lifting more than 10kgs and ultimately this was a very considerable consequence. 

(b)   Following his injury, the plaintiff was effectively in protected employment and was only able to work with the assistance of his coworkers given the restrictions on his ability to undertake his duties.

(c)   I was referred to Hooley v TAC[40] which touched on the consequences to a plaintiff who could return to their pre-injury employment.

(d)   In terms of pain and suffering, he was not challenged in cross examination as to his account of his pain.

(e)   The plaintiff’s credit was not impugned and if anything, the plaintiff understated his consequences.

[40] [2019] VSCA 263

Defendant’s submissions

60The defendant submitted that:

(a)   Whilst it admitted that the plaintiff suffered a left shoulder injury and impairment, which was not trivial, it did not rise above the level to be at least very considerable, and the Court was referred to the Court of Appeal’s observations in TTB SMS Pty Ltd v Reading[41].

(b)   In relation to the vocational impairment, he retained the ability to undertake mechanical work. He was able to find employment and the only restriction was a lifting limit of 10kgs. On his own evidence he was an impressive and skilled welder and able to do the work. The defendant submitted that the plaintiff is an attractive employee on the open labour market.

(c)   The plaintiff could swing a pickaxe, garden, volunteer in a pit crew and he agreed that his interest in motorcycling was not a current one.

(d)   His sleep was only impacted two to three nights in a week.  In relation to the indicia set out in Haden Engineering[42], he was not taking prescription medication, he was able to work, and he ceased work for reasons other than his capacity. There was no ongoing treatment from his general practitioner, and he had last consulted him in 2021. He conceded that if he had pain, he would have consulted his doctors, and he had not attended his physiotherapist since June 2022. He did not depose to being in constant pain.

(e)   Dr Buzzard’s opinion was he only could not carry out work involving very heavy lifting. Dr Doig similarly considered that he had a good prognosis, and he only placed a restriction on lifting. Dr Slesenger was the only doctor who placed a restriction on overhead lifting as well as on weight.

(f)    That the opinions of the physiotherapist and general practitioner ought to be preferred as they know the plaintiff most intimately and the only restriction on capacity is lifting over 10kg.

(g)   The plaintiff is unemployed not for reasons relating to his left shoulder. There was no evidence from the plaintiff’s last two employers that his work was “sheltered” or the limitations or restrictions were accepted by these employers.

[41] [2020] VSCA 203 at para 31

[42]        Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1

Impairment consequences

Consequences of the injury

Pain

61In his first affidavit the plaintiff deposed to having pain in the left shoulder every day which he described as less bothersome on weekends but more troubling at work and after completing a working day. The pain was more intense in the cold. Lifting, carrying, pushing or pulling could provoke pain, especially if the movement was repetitive. He did not extend the left arm above shoulder height.[43]

[43]        PCB 18 [57]

62In his second affidavit, he confirmed he had pain every day which was worse in the cold and that he used a wheat pack on his shoulder virtually every day. The pain was worse with lifting and overhead activity. The pain had not been as troublesome since losing his job.

Medication and medical treatment

63The plaintiff tried to manage without painkilling medication, and he took over the counter Panadol a couple of times a month, on average, usually after a hard day at work.[44] Since losing his job he had not taken painkillers.

[44]        Ibid 18 [60]

Work capacity

64The plaintiff deposed that the greatest long-term consequence of his left shoulder injury was in the field of employment. He did not have any formal welding or boilermaker qualifications, not having done an apprenticeship. He did not have a welding ticket which was required for some fields of welding work.[45]

[45]        Ibid 19 [64]

65He had developed a high level of skill after many years of experience. If he had not developed this skill and was only able to rely on his capability as a labourer, his shoulder injury would put him in a very difficult position. He was seriously disadvantaged by the injury and the range of welding jobs he could safely undertake, and he was restricted in his ability to lift heavy weights, restricted in the ability to lift lighter objects requiring two hands repetitively, and unable to work two-handed above shoulder height for extended periods. He would struggle to work in construction where welders have to lug equipment around the building site.[46]

[46]        PCB 19 [65]

66He deposed that he would be incapable of performing the type of welding work he was engaged in at Fleetweld and the welding work he did for a variety of employers that he worked for before Fleetweld, due to the left shoulder injury. He had no experience of clerical and administrative work. His MR licence was a possible route for other work but driving involved manual handling of freight and courier work which he could not do. In addition, long periods behind the wheel were uncomfortable. A trip taking an hour and 20 minutes was almost his limit.[47]

[47]        Ibid 20 [68]

Sleep

67In his first affidavit he deposed to an inability to sleep in his left side because lying on the shoulder provoked pain. On most nights of the week his sleep was interrupted, waking in pain having rolled onto the left shoulder. On occasions he struggled to return to sleep.[48]

[48]        Ibid 18 [59]

68In his second affidavit, he confirmed that his sleep remained disturbed although now only two to three times a week.

Activities of daily living

69The plaintiff was living in a large boarding house whilst working for the employer so there was no requirement to clean or perform household chores. After moving from the boarding house and into his current home, he had to relocate four times. He described his shoulder as a hindrance when packing and carrying his possessions when moving. On two occasions he lived with a couple who did his laundry and cleaning as they recognised it was difficult for him.[49]

[49]        PCB 19 [63]

70He relied on a tumble dryer instead of hanging out his clothes and lived in a small studio apartment which was easy to keep clean.

Sports and hobbies

71In relation to his interest in motorcycling, he conceded that this was not a current hobby. Although he was not a qualified mechanic, he knew his way around cars and motorcycles and had helped out mates in the past with repairs as well as working on his own vehicle.  Since swearing his first affidavit he had not been able to service his own car and worked on cars only within his limitations.

Findings

72The plaintiff described himself as “not a whinger” with a fairly high pain threshold. The plaintiff’s counsel described him as 49-year-old less than privileged, unsophisticated male who suffered a left shoulder injury during the course of his employment. Having had the opportunity of seeing the plaintiff give his evidence, I agree with these descriptions. The plaintiff struck me as a hardworking, stoic individual who did his best to overcome the setbacks he faced in life. His credit was not challenged by the defendant. I accept he was honest and genuine, and I accept his affidavit evidence and his sworn evidence as to his pain and suffering consequences and the left shoulder restrictions.

73I accept that the radiology, investigations and medical reports confirm that the plaintiff sustained a left shoulder posterior labrum tear with paralabral cyst which was treated with arthroscopic labrum repair. The medical evidence is largely consistent.

74I accept the opinion of Dr Slesenger with respect to the restrictions on lifting and working above head height. I note the opinion is consistent with the medical certificate signed by Dr Shawyer in April 2024. These restrictions compromise the plaintiff’s vocational options open to him. I note that Associate Professor Buzzard did not examine the plaintiff with a view to determining his vocational capacity but for the purposes of an impairment assessment. Dr Doig commented that the plaintiff had returned to full time welding work with a lifting restriction.  The plaintiff’s evidence, which I accept, is that the work did not involve overhead reaching and it is not clear from Dr Doig’s report that he obtained details regarding the type of work the plaintiff performed at Shisham Stanley.  He was provided with radiology and investigations as well as clinical records, but it does not appear that he had the benefit of the plaintiff’s affidavits which outlined the restrictions the plaintiff faced. Given Dr Slesenger is an occupational physician and expressed an opinion within his specialty, and given the limitations in relation to Associate Professor Buzzard and Dr Doig’s opinions, I prefer Dr Slesenger’s opinion

75The plaintiff is stoic and to his credit obtained work within his restrictions. He has a remarkable work ethic. His work experience has been exclusively in labouring and physical work and that is essentially what he is suited to. The injury has compromised the use of his left shoulder  to a very significant degree and has precluded him from engaging in significant aspects of the work for which he is reasonably suited.

76In this regard, I accept that the plaintiff is precluded from undertaking the sort of heavy welding work he performed with Fleetweld. His employment was terminated when he could not return to a full range of duties. I accept his evidence that he could not perform the type of welding work he did for the employers that he worked for before his time with Fleetweld.

77After sustaining his injury, I accept that he did not have the ability to take up a business opportunity through a friend, to work as a truck driver due to his left shoulder pain and restriction. The job with Australian Waste Recyclers was short-lived, did not progress beyond 15 hours per week and even then, posed difficulties to the plaintiff because of manual handling demands. In addition, the work was secured through the assistance of Konekt. 

78The work with Daalder was secured through industry contacts, subsidised through WISE and he was able to perform it because management and his coworkers accommodated his restrictions.  The work at Shisham Stanley was comparatively light, did not involve above head height work and compatible with his observed restrictions. In addition, Shisham Stanley were aware of his left shoulder restriction and management were aware of his limited strength and his work colleagues were understanding.

79I reject the defendant’s submission that the plaintiff would be an attractive employee on the open labour market. To the contrary, the plaintiff had been able to secure and maintain employment due to the good will and accommodations of his coworkers and employers. I accept his evidence in this regard and the defendant did not point to any contrary evidence. Since being made redundant and at the time of the hearing of the application, he had not been able to find work within his restrictions despite looking. He is highly motivated and determined but must contend with the reality that he does not have the free and unrestricted use of his left shoulder and ability to perform work in a field which often involves heavy manual work, of a type he regularly engaged in before his injury. 

80As the Court of Appeal said in Hooley v TAC, (although I note the applicant in that case was younger than the plaintiff):[50]

“He has already been precluded from engaging significant aspects of work for which he was otherwise reasonably suited. That preclusion is ongoing and will persist in the decades to come. It is not to the point to say that he is now earning more than he was at the time he was injured or that he presently has a position which permits him to delegate to others tasks that he himself cannot do without restriction.”

[50] [2019] VSCA 263 at para 46

81His medication intake is limited to over-the-counter pain killers because he is careful in how he uses his left shoulder. The plaintiff has engaged with doctors when required and no further treatment is envisaged other than perhaps cortisone injections to relieve the impingement symptoms, as confirmed by Dr Doig.

82The plaintiff is precluded from engaging in significant aspects of work for which he was reasonable suited. At the time of injury he was 45 years of age, and no doubt would have looked forward to at least two decades of employment in his chosen field. I accept that the impairment to his left shoulder permanently precludes him from a range of occupational pursuits to which he is suited.

83I consider that his pain and suffering consequences, which were not challenged, in relation to his pain and sleep, as well as the need to take over the counter mediation when he is required to use the left shoulder to any degree, particularly whilst employed, and the compromised vocational options he is now faced with, constitute a serious long term impairment to the plaintiff, when judged by comparison with other cases in the range of possible impairments and losses at least very considerable and certainly more than significant or marked.

Conclusion

84Leave is granted to the plaintiff to commence common law proceedings for pain and suffering only in respect of the injury suffered in the course of his employment on or about September 2019.

85I will hear argument with respect to costs.

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