Paterson v Victorian WorkCover Authority

[2019] VCC 1099

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No.  CI-17-04796

MARCUS WILLIAM PATERSON	Plaintiff
v
VICTORIAN WORKCOVER AUTHORITY	Defendant

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JUDGE:	HER HONOUR JUDGE K L BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:	21 March 2019
DATE OF JUDGMENT:	9 May 2019 (Revised)
CASE MAY BE CITED AS:	Paterson v Victorian WorkCover Authority
MEDIUM NEUTRAL CITATION:	[2019] VCC 1099

REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION

Catchwords:          Serious injury application – impairment of the right upper limb/shoulder – compensable injury – causation – 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 Pty Ltd & Anor (2006) 14 VR 602; Ansett Australia Ltd v Taylor [2006] VSCA 171; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Dordev v Cowan & Ors [2006] VSCA 254; Peak Engineering & Anor v McKenzie [2014] VSCA 67; The Herald & Weekly Times Limited and Victorian WorkCover Authority v Jessop [2014] VSCA 292; Richter v Driscoll [2016] VSCA 142

Judgment:              Leave granted to bring proceedings for damages for pain and suffering.  Leave refused in relation to loss of earning capacity application.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J B Richards QC with Mr C O’Sullivan	Maurice Blackburn
For the Defendant	Mr C A Miles	Wisewould Mahony

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 Laragon Pty Ltd (“the employer”) on 19 April 2013 (“the said date”).

2The body function said to be impaired is the right upper limb/shoulder.

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.

8       In 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.

9       Subsections (2)(e) and (f) recite the formula by which loss of earning capacity is to be measured.

10      Subsection (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[1] and Grech v Orica Australia Pty Ltd & Anor[2] in reaching my conclusions.

[1](2005) 14 VR 622

[2](2006) 14 VR 602

12The plaintiff swore three affidavits and was cross-examined.  The employer relied on an affidavit sworn by its manager, Mark Webber, on 13 March 2019 and an affidavit sworn by Renee Slade, employed by D&D Mechanical & 4WD (“D&D”), on 15 March 2019.  Also in evidence were medical reports and other material.  I have read all the tendered material.

The Plaintiff’s evidence

Background

13      The plaintiff was born in April 1958 and is currently sixty-one.  He now lives with his daughter in Murray Bridge.

14      The plaintiff grew up in South Australia.  After leaving school, he commenced teacher training but he stopped study after about a year.  He then started work with his father driving a front-end loader at a mine.  He did this work for approximately twelve years.  In 1983, he ran a post office.[3]

[3]History to Dr Thomas; Transcript (“T”) 36

15      The plaintiff then worked as a porter at a medical centre in Flinders.  In or about August 1996, whilst in that job, he suffered an injury to his low back.  He lodged a WorkCover claim and had some time off work. 

16      The plaintiff’s back pain was aggravated whilst riding a bike in January 1997 and he again required some time off work.  Once his back pain improved, he resumed work driving a front-end loader at a rubbish tip.

17      At around the time of his low back injury, the plaintiff was in a messy relationship.  His partner was a drug user and he began using various drugs, including heroin.  After a couple of years, he weaned himself off the drugs.

18      The plaintiff could not recall telling Dr Meegan, occupational physician, in February this year, that he had no psychiatric history before the said date.  The plaintiff agreed that he had a significant history of trauma and loss in childhood and had witnessed a number of very traumatic episodes up to 1992 which generated anxiety, intrusive memories, aroused or depressed mood, and attempts to avoid the memory and poly-substance abuse.[4]  However, the plaintiff denied, because of his drug use, he found it difficult to maintain a good work record and he did in fact have a good work record.[5]

[4]Report of Dr Wilson, psychologist

[5]T20

19      After his job at the rubbish tip ended, the plaintiff worked at a piggery for a few years.  He also did vineyard work, involving a lot of pruning trees and vines.  He still had occasional back pain but he put up with it and continued working.  His back pain got better as time went on.

20      The plaintiff agreed he had a number of criminal convictions for offences relating to drug use, alcohol abuse and dishonesty between 1997 and 2011.[6]

[6]T25

The 2012 transport accident

21      The plaintiff deposed he was involved in a transport accident on 12 October 2012 (“the transport accident”) after which he suffered some pain and swelling in his foot.  He attended the Emergency Department at Swan Hill Hospital where he underwent x-rays and was prescribed painkilling medication. 

22      The plaintiff confirmed he had deposed that he only hurt his foot in the transport accident and that he told a number of doctors, including Dr Chabrel, Dr Derendorf and Dr Thomas, he had no right shoulder problems before the said date.[7]  He also agreed he told Dr Baynes he only hurt his foot in the transport accident.[8]

[7]T4

[8]T5

23      The plaintiff was asked about a note of his attendance at the Berri Medical Clinic (“Berri”) on 28 November 2012, when Dr Quay noted:

“Results consistent with rotator cuff tendinopathy in right shoulder and degenerative changes, some inflammatory changes in left knee.  Reason for contact:  results given – explained to patient rotator cuff injury.  Actions:  a referral to Mr Scott Palmer and a Centrelink medical certificate.  Management:  Consider steroid injections for relief of pain, physiotherapy referral NSAIDSPRN.”

24      The plaintiff agreed he told Dr Quay he had right scapular pain as a result of the transport accident.  He denied she examined him on that occasion.  He did have an x-ray which she arranged.[9]

[9]T6

25      The plaintiff saw Dr Quay again on 6 December 2012.  He could not recall her referring him to Mr Scott Palmer or any other specialist.  He could not remember her suggesting steroid injections but agreed he had physiotherapy, which she organised.  She also prescribed some painkillers.[10]

[10]T7

26      Ms Steed at Renmark Physiotherapy Service noted, on 26 February 2013:

“MP – LBP – right leg.  HPC – 4 to 5 – 52 SHX of worsening LBP and r leg pain.  Woke up with the pain and had difficulty standing.  Began in back – but has now gone down his post thigh – leg and foot.  Grabbing pain in the back and some P and Ns in his leg.  L side okay.  Sleeping poorly with a pillow under his knees … PM … meds:  taking 2 x Tramadol and 2 x Panadeine Forte to sleep.  PMHX drug abuse … in November 2012 had MVA – was drunk driver of his vehicle travelling approx 100 kilometres when he lost control and hit a tree, became wedged between two trees.  Reports that he injured right foot or ankle and left knee.  Still can’t move his R shoulder properly.  Has tried not to tell many people about it because it was his fault.  Could barely move for a week.  Didn’t go to hospital.”

27      The plaintiff remembered going to this physiotherapist for low back pain, and confirmed the details in this note.[11]  He was also taking the medication referred to.  He had a history of low back pain in the past and a past history of drug abuse.  He confirmed the circumstances of the transport accident as described by the physiotherapist and agreed that he was then generally sore.[12] 

[11]T7

[12]T8

28      The plaintiff denied he had tried not to tell people about the transport accident because it was his fault.  He agreed he told the physiotherapist he could barely move for weeks but he did not go to hospital.  Before this accident, he had had a few drinks.  He was charged by police at the scene.[13]

[13]T9

29      The only treatment the plaintiff had in relation to the transport accident was an x‑ray at Swan Hill Hospital and he saw his general practitioner and physiotherapist.  He did not put in a claim.[14]

[14]T18

30      The plaintiff began work for the employer in December 2012,[15] having worked for it the previous season.  He was employed as a loader operator at an almond processing plant at Lindsay Point near the South Australian border.  At that time, he was living in Renmark, South Australia, and travelling to work in Victoria each day. 

[15]Confirmed by wage records, date started work in the Claim Form

31      The plaintiff denied he had told his boss, Mr Webber, before the said date, that he was having consistent physiotherapy for his shoulder.[16]

[16]T14

32      By the time the plaintiff started work with the employer, he had a little bit of right shoulder pain but his pain was mainly in the lower back and that was why he was seeing the physiotherapist because doing the loader operating stirred up his back.  The work was physically demanding.  Just getting up in the loader, if he had to do six or seven steps too fast, he had to use both arms to try and reach up and get into the driver’s seat.  His work was not a problem before the said date.[17] 

[17]T60

33      The plaintiff agreed he had approached Mr Webber to take him on in 2013 because he was desperate, but denied that the job was created specifically for him.[18]

[18]T9

34      The plaintiff agreed he had not completed a taxation return since 2011.  His job before working with the employer was trimming grapevines and orange trees.  He did not put in a taxation return because he was not earning enough money.[19]

[19]T19

35      In the year ended June 2010, the plaintiff’s taxable income was $41,099.00, made up of $37,985.00 from Flagstaff Piggery and $3,114.00 from another employer.

36      The plaintiff agreed that in the financial year ending June 2012, in total, he earned $20,122.00, being $1,050.00 from Riverland, a winegrowing business, $13,767.00 from the employer and $5,305.00 from Flagstaff Piggery.[20]

[20]T20

37      The plaintiff thought it sounded right that in 2012-2013, he earned a total of $34,077.00, made up of Riverland, $11,562.00 and wages from the employer, $22,515.00.[21]

[21]T52

38      The almond season was from February to about June-July.[22]  The plaintiff agreed he signed a contract to work with the employer from 25 February to late June 2013 to do a particular job.[23]  He was casual full time in that job and thought he was paid about $900 to $1,000 a week.[24]

[22]T20

[23]T22

[24]T19

The incident

39      On the said date, the plaintiff was working on a hammer mill.  The mill was used to crush almond husks into a powder.  He was required to remove a heavy steel plate from the mill.  Whilst doing so, the plate came quickly towards him.  He held onto it and fell to the ground.  The plate was heavy and it struck him on the right shin (“the incident”).  He immediately felt pain in his shoulders and in his left hamstring, and also in the shin where the plate had struck him.  Some co-workers came to his assistance. 

40      In the witness box, the plaintiff demonstrated the mechanism of the incident.  He was trying to hang onto the plate and he went down onto the ground, the right side of his body taking the weight.[25]

[25]T17

41      The plaintiff reported the incident.  He left work and went to see a physiotherapist for a pre-arranged visit for his back injury.[26]  His left hamstring was then particularly painful.  The physiotherapist applied ice to his leg. 

[26]T11

42      The note of that attendance at the physiotherapist reads:

“The S back has been getting better, however involved injured post L5 when leaving work one hour ago.  Was shifting heavy cast iron plate, tilted it back towards him when it slid back onto him and he had to catch it, holding it against his body in a crouch position when he felt the muscle in the back of his left thigh tear, then someone came to help and they lowered it to the floor.  Has come straight here from work.”

43      The note also set out examination findings at that time were confined to the hamstring, which was diagnosed as an acute hamstring tear.  A compression bandage was provided.  It was also noted there was a work incident report and general practitioner review “tomorrow AM” and a review on Monday. 

44      When it was pointed out to the plaintiff there was no mention of shoulder injury on that occasion, he said he was being treated by the physiotherapist for a back injury.[27]  He attended that day for general soreness.[28]

[27]T15

[28]T16

45      The following day, the plaintiff noticed a lot more pain in his right shoulder, extending down into his right upper arm.  He saw a general practitioner that day and was prescribed Celebrex and Panadeine Forte.

46      The plaintiff was asked about a subsequent attendance with Ms Sheed on 22 April 2013, when she noted:

“HS bruising really coming out.  Put in incident report form next day and has seen Dr Sims, has W Cert for shoulder and LHS.  R shoulder pain started next day.  Pain from shoulder into upper limb.  Hurts to move quickly…Pain on flexion and abduction of the right shoulder.”

47      The plaintiff ultimately said he reported the incident on the day thereof before he knocked off and he told Mr Webber he hurt his shoulder.  Mr Webber saw the bruising on the plaintiff’s leg when he visited the plaintiff’s house about a month later.[29]

[29]T9

48      The plaintiff agreed he signed an Incident Report on 20 August 2013.   He had, however, made a report of the incident in the incident book at work on the afternoon thereof, not just the following day, 20 April 2013.[30]  He signed the Incident Report when he went to work on 20 April 2013 to provide a medical certificate, which he had obtained from a female doctor at Renmark.[31]

[30]T12

[31]T13

49      The plaintiff denied that he decided on 20 April 2013 to blame his pre‑existing right shoulder problems on the incident.  He denied he had been keeping the transport accident secret because the accident was his fault.[32]

[32]T17

50      The plaintiff confirmed that the morning after the incident he was really sore all over.  His shoulder has not been any good at all since.  He then did not know his hamstring was going to get better and the shoulder pain was going to persist.[33]

[33]T61

51      The plaintiff thought the job he was doing with the employer still existed.[34]

[34]T14

52      The plaintiff completed a WorkCover Claim Form on 16 May 2013.  The claim was later accepted.  In that form, the plaintiff set out that he started working for the employer in December 2012.  His pre-tax hourly rate was $21.96, his usual pre-tax weekly earnings were $834.48, and six hours of overtime a week totalled $182.40.

53      On 27 May 2013, the plaintiff underwent ultrasound scans of his right shoulder and left hamstring.  He discussed his ongoing shoulder pain with his general practitioner and was referred to an orthopaedic surgeon, Dr Chabrel.

54      The plaintiff’s ongoing shoulder pain and being unable to work caused him to be very frustrated and moody.  In about June 2013, he broke up with his partner because of his mood changes.  He moved to Murray Bridge to live with his daughter.

55      In about mid-July 2013, the plaintiff attempted to return to work on a return to work plan.  This involved him working reduced hours but still operating the front-end loader.  His right shoulder pain was such that he was unable to climb onto the loader.  There were no other light duties available so he again ceased work.

56      The plaintiff first saw Dr Chabrel on 29 August 2013.  He referred the plaintiff for an MRI scan of his shoulder which took place on 2 September 2013.  The plaintiff saw Dr Chabrel about a week later and it was decided he would undergo surgery. 

57      The plaintiff had right shoulder surgery on 2 October 2013 (“the surgery”).  An operation record of that date detailed the plaintiff underwent right shoulder arthroscopic rotator cuff repair. 

58      The plaintiff’s right arm was then in a sling for approximately six weeks.  After the surgery, he continued to have pain in his shoulder and it was very stiff.  He then commenced physiotherapy.

59      The plaintiff continued to feel very frustrated and upset by being unable to work.  He was also frustrated by the lack of improvement in his shoulder post surgery. 

60      By late 2013, the plaintiff was drinking alcohol excessively.  In early December, he took an overdose of his painkilling medication which led to him being hospitalised.  Following this, his general practitioner referred him to a psychologist.  The plaintiff found this treatment very useful.  Over time, he stopped drinking alcohol and resumed his relationship with his partner.

61      Due to the ongoing pain and restricted movement in his right shoulder, the plaintiff avoided using his right arm, and used his left arm wherever possible.  In about July 2014, he was moving some of his partner’s furniture when he noticed some pain in his left shoulder.  He had an x-ray and ultrasound of his left shoulder on 22 July 2014 and subsequently, had some cortisone injections into that shoulder.

62      In 2014, the plaintiff’s weekly payments of compensation were terminated.  He began receiving Centrelink benefits.  His general practitioner continued to certify him fit for only restricted duties and hours.  Centrelink helped him to look for work and in March 2016, the plaintiff began some car washing work at D&D 15 hours per week.

63      As at the date of his first affidavit,[35] the plaintiff continued to do that work, 15 hours per week.  He could cope with the work; however, he was very careful with his right shoulder.  His boss knew about his injury and was very good to him.  The plaintiff found it very hard to find work because of his medical restrictions and he worried a lot about whether he would be able to keep his job.

[35]Dated 2 August 2016

64      The plaintiff started the job with D & D on 9 March 2016.  He thought he finished up in November 2017.  He left D & D because his arm was too sore.  He did not do work more than 15 hours a week because of that problem.[36]  He “tried to cope with the job”.[37]

[36]T27

[37]T28

65      Initially, the plaintiff said Ms Slade’s letter about his wages at D&D was accurate but then he said he was not working 38 hours all the time and he was not the head detailer.  A couple of times he worked 38 hours and this happened after two other blokes had been sacked and he had to do their job.  The plaintiff worked those hours because he was under pressure from his wife.  He did work 38 hours a week only when he could.[38]

[38]T29

66      The plaintiff agreed that he left D&D of his own accord, and family commitments was one of the reasons.  He turned up for work when required and did the work required of him reliably and regularly.  He agreed that in 2016-2017, he grossed $29,885 from that job.[39]

[39]T30

67      The plaintiff confirmed that he worked increased hours at D&D because of pressure from his wife to pay household bills and he was trying to do the right thing and be the breadwinner; however, when he did more than 15 hours, his level of right shoulder pain increased because the “ice” would only block it out for a couple of days and he would use his right arm excessively and then be sore again.[40]

[40]T55

68      The plaintiff confirmed he continued to report problems with his right shoulder to his general practitioner while working at D&D.  His arm “got to him” in the end and he could not keep working.  He was self-medicating and his arm was just so sore.  He was “living a lie” and trying to work and he could not do it.  To save face really from his wife, he just kept trying.  He had then had enough.  “The writing was on the wall” and he had been “up that road a lot of times” with the drugs so he had to do something.[41]

[41]T56

69      As of August 2016, the plaintiff was seeing his general practitioner usually every couple of weeks.  He also saw a psychologist and physiotherapist; however, the insurer no longer paid for his medical expenses, so these appointments were through Medicare and he could only go on a limited basis.  Sometimes he paid for extra physiotherapy sessions if his shoulder was really bothering him. 

70      The plaintiff then took Endep each day for his pain and depression.  He also took Cymbalta daily for his depression.  When his shoulder was particularly bad, he took Tramadol, usually a couple of times per week.  He had taken a lot of Tramadol since the incident and was then trying to reduce his intake.

71      The plaintiff had variable constant pain in his right shoulder, the severity of which varied.

72      The plaintiff is right-hand dominant.  Outside of work, he used to have a number of hobbies.  He played tennis and golf with his mates.  He could no longer play either sport due to the pain and restricted movement in his right shoulder.

73      The plaintiff used to own a dirt bike and went riding at least once per fortnight.  The vibration of the bike and the strength required to hold on would now be too much for his right shoulder and he had since sold his bike.

74      The plaintiff had always loved fishing, particularly surf fishing.  He was now limited to doing some hand line fishing that did not require him to cast and did not require as much strength in his right arm.

75      The plaintiff had lost a lot of strength in his right arm since his injury.  He noticed this when doing simple things like turning off the tap.  Putting on and taking off a shirt led to increased right shoulder pain.  He could no longer dry himself properly with a towel because the reaching caused him a lot of shoulder pain.  He struggled to do anything that involved him reaching his right arm above his head such as hanging out the washing or changing a light globe.

76      The plaintiff’s right shoulder pain continued to affect his sleep, although this had improved since he began taking Endep.  Even when taking that medication, he found that if he rolled onto his right side whilst asleep, he woke up in pain. 

77      Whilst he was grateful to have found some part-time work, the plaintiff worried a lot about his working future and ability to earn a decent income.  Most of his working life involved manual work that required a lot of use of his arms.  He did not know how to use a computer.

78      As at June 2017,[42] the plaintiff had a copy of his taxation return for the year ending 2010.  For the years ending 2011-2016, he did not lodge taxation returns.  For these years, he understood that he was below the taxable income threshold of $18,200.00 and therefore, was exempt from lodging a taxation return.

79      The plaintiff swore a third affidavit in March 2019.

[42]Second affidavit

80      In late 2016, the plaintiff had married his then partner.  The marriage did not go well, and they separated in late 2017.  The plaintiff then developed mental health issues and drug problems.  Since that time, he has been living with his daughter and his two grandsons.  He has a tiny bedroom with a single bed.[43]

[43]T30

81      The plaintiff has been in receipt of Centrelink benefits since he last worked in November 2017.

82      The plaintiff lost his driver’s licence in early 2018.  Although the period of suspension has finished, he does not have the money to pay the fines to get his licence back.[44]

[44]T25

83      The plaintiff continues to take Cymbalta daily and Endep each night for his pain, his depression and mental health issues.  He also regularly takes Tramadol for pain relief.  He has taken a lot of Tramadol in the past and it makes him feel vague and not himself, so he tries not to take it every day.  He agreed he has not been prescribed that medication for over a year, the last time being February 2018 from the Cadell Street Clinic.[45] 

[45]T39

84      The plaintiff smokes cannabis every day.  He usually smokes about an ounce per week.  The cannabis reduces both his shoulder pain and his anxiety levels.  He also uses “ice” about once per fortnight, but when he does so, typically it is for a couple of days at a time. 

85      The plaintiff continues to suffer constant pain in his right shoulder.  It does not go away.  He also continues to suffer pain in his left shoulder; however, his right shoulder pain is his worst pain.

86      The plaintiff agreed that he would have told Dr Thomas on examination in January this year, that he could not lift, his arm was weak, he could not lift over the shoulder and that he could not use his arm for any work.[46]

[46]T47

87      The plaintiff demonstrated how he keeps his right arm by his side “because when it was hanging down it was sore”.[47]

[47]T48

88      The plaintiff agreed he could still hang out the washing and help with the housework.  He mows the lawn when he can.[48]

[48]T40

89      In late 2018, and again this year, the plaintiff had a few physiotherapy sessions for his shoulders under the Medicare scheme.  He will not be able to afford more sessions when the free ones come to an end.

90      The plaintiff’s shoulder pain continues to affect his sleep.  He never sleeps through the night without waking.  He tosses and turns a lot during the night and he gets up every morning feeling frustrated and unrefreshed. 

91      The plaintiff’s days are long and boring.  He tries to go for a short walk each day to get out of the house, otherwise he spends a lot of time indoors.  He would love to be working if he was physically capable.  He cannot think of any jobs he could do with his shoulder pain.  He tried his best with the car washing work but was unable to cope.

92      The plaintiff has problems with his low back now and again, and did so before the incident.[49]

[49]T41

93      The plaintiff agreed he had had some tests to diagnose chronic obstructive airways disease.  He also has left shoulder problems.  He told Dr Meegan in February 2019 that he had pain in his left shoulder and thoracic spine, and neck, which interfered with his enjoyment of life.[50]

[50]T40

94      The plaintiff could have been sitting supporting his right arm most of the time when interviewed by Mr Hartley on 23 January 2019 – he did not make notes how he sat.[51]

[51]T42

95      The plaintiff agreed he had a long history of heroin use and that in his first affidavit sworn in 2016, he deposed he had weaned himself off drugs.  He could not recall telling Dr Baynes in September 2017 he was off drugs.  He agreed in 2013, he was on drugs and had taken an overdose and, subsequent to that, seemed to have got off drugs for a while but was back on them in 2018.[52]

[52]T26

96      The plaintiff agreed when he attended Cadell Street Clinic on 31 January 2018, he was on “ice” and other drugs and was provided with a Centrelink certificate.[53] He was given another certificate following an attendance on 22 February 2018 for depression, anxiety, drug addiction and use of “ice”.[54]

[53]T31

[54]T32

Work future and capacity

97      The plaintiff has not applied for work under his doctor’s directions since the car detailing job.[55]

[55]T34

98      The plaintiff was asked about whether he could do the jobs which Dr Baynes considered suitable. 

99      The plaintiff has never driven a forklift before but knows what it involves and would be able to operate a forklift if he was taught.[56]  He then said being a forklift driver would be hard work on his shoulder.  Every warehouse job he had experienced involved lifting to some degree and there would be maintenance required on forklifts.[57]

[56]T36

[57]T57

100     The plaintiff has never worked as an order picker or packer and if shown how, probably could not at the present because of his sore shoulder.  He agreed he could handle light cosmetic items but denied he could hold a hand held scanner above his elbow.[58]  He had no experience in that sort of work.  He could not do it because of the restrictions he is on as well as his right shoulder pain.  He had been certified to not lift above 10 kilograms and to have a 10 or 15-minute break each hour by Dr Derendorf, who left Cadell Street in 2014.[59] The plaintiff confirmed the restrictions placed by Dr Derendorf were “for the rest of … [his] life”.[60]

[58]T37

[59]T38

[60]T58

101     The plaintiff could not do the customer order clerk job because he has no computer experience.  He agreed he was literate in English and he could do simple data work if he could use his left hand.  When it was suggested he could work as a machine operator, light packer, light production work, sales and gatehouse operator, the plaintiff said he had been advised not to.[61]

[61]T39

102     The plaintiff would not be able to reliably and consistently hold down even the lightest of jobs on a regular basis because of the pain levels and he would be “just self-medicating to block out the pain”.[62]

[62]T57

103     The plaintiff thought he was unsuitable for a customer service job because of his extensive tattoos – “So if I was working at a counter the people would run out, mate.”  The plaintiff confirmed he was not computer literate.  Further, any machine operator job would also involve a degree of machine maintenance.[63]

[63]       T58

104     The plaintiff agreed that the job at D&D breached the guidelines imposed by Dr Derendorf as he worked more than 15 hours a week.  He described that as “terrible and bad”.  The way he was feeling now he could not work more than 15 hours in a carwash because of his pain levels and he did not want to put himself through it again.[64]

[64]T59

Surveillance

105     The plaintiff was then shown surveillance film of 15 minutes’ duration taken on 7 and 8 April 2017. 

106     On the first date, the plaintiff was shown cleaning a red car belonging to his housemate.  The following day, he cleaned another car belonging to his housemate.

107     On 7 April 2017 at 3.29pm, the plaintiff was initially filmed washing a red car using both hands in an unrestricted manner.  Around 3.34pm, it appeared he became aware surveillance was being carried out.  Thereafter, in my view, his entire demeanour seemed to change – cleaning almost entirely with his left hand, albeit with a feeble attempt to use his right hand at 3.56pm.  The film concluded soon after, with the plaintiff ceasing to clean the vehicle and staring ahead directly down the driveway at something in the vicinity of the surveillance vehicle. 

108     The plaintiff denied he was aware he was under surveillance on the first date.  He could use his arm more freely when he used “ice”.[65]

[65]T48

109     Surveillance footage of the plaintiff washing a vehicle parked in a driveway on 8 April 2017 was also shown. 

110     Between 1.06pm and 1.17pm, the plaintiff was polishing the vehicle with both arms using a cloth.  He interchanged freely between either arm with no apparent restriction and used both hands to wring out the wet cloth on multiple occasions.  Both hands were used to vigorously polish the vehicle and, at times, his right arm was fully extended at shoulder height to clean the car’s roof.  It appeared the plaintiff changed hands to better clean the vehicle rather than to overcome any pain or restriction in his right shoulder.

111     When it was suggested on the second date he was moving a lot better than he told doctors he could, the plaintiff explained it was only when he used “ice” and that was why he used to use it every morning.[66]

[66]T49

112     The plaintiff probably did tell Dr Baynes in September 2017 he was drug free.  He could not recall the conversation but he had been “trying to hide the fact”.[67] He confirmed there were periods when he did wean himself of drugs.  He still smokes cannabis every day and last took ice the week before the hearing.[68]

[67]T49

[68]T50

113     In re-examination, the plaintiff agreed he was shown on the first date working predominantly on the left side of the car using mainly his left hand and he did a couple of wipes with his right.  That was because he had to compensate for his right arm and it just did the soft swipe and he was getting “stuck into it” with his left arm.  When he was using his right arm, he was using “ice”.[69]  The pain increased with more intense use of his right arm.[70]

[69]T53

[70]T54

114     The plaintiff agreed on the second date, he was moving a bit more freely.  He had used “ice” that day and also the previous morning.[71]

[71]T54

115     The plaintiff explained he probably should not be taking Tramadol because it is an opiate and “it is heroin all over again” for him, so he has to be careful with that medication.  Therefore, he predominantly relies for pain relief on cannabis and “ice”.[72]

[72]T55

The Plaintiff’s medical evidence

Treaters

Ms Elyse Steed

116     Ms Elyse Steed, physiotherapist at Renmark Physiotherapy Service, reported in July 2014, having seen the plaintiff on 26 February and 12 March 2013 and also later between 19 April and 4 June that year.

117     On examination on 26 February 2013, Ms Steed noted:

“MP- LBP - R leg

HPC- 4-5/52s Hx of worsening LBP and R leg pain.  Woke up with the pain and had difficulty standing.  Began in back/butt but has now gone down his post thigh/leg and foot.  Gets grabbing pain in the back and some P & N’s in his leg.  L side ok.  Sleeping poorly with a pillow under his knees.

Hx: has had LBP in the past.  In Nov 2012 had MVA- was drink driver 0f his vehicle travelling approx 100km when he lost control and hit a tree, became wedged between 2 trees.  Reports that he #'s R foot or ankle, and L knee.  Still can't move his R shoulder properly.  Has tried not to tell many people about it because it was his fault.  Could barely move for weeks.  Did not go to hospital.

GH: poor.  Can;t sleep, losing weight, anxiety.”

(sic).

118     When the plaintiff attended on 12 March 2013, there was no mention of any right shoulder complaint.  The plaintiff reported his back felt better but pain in the foot and calf was worse.

119     Ms Steed noted the plaintiff attended on 19 April 2013, an hour after he injured his posterior thigh lifting a heavy cast-iron plate at work.

120     On observation, the plaintiff was heavily limping, and he had already begun to swell over the posterior left thigh.  All findings then suggested an acute hamstring tear which was managed with icing.

121     On 22 April 2013, when the plaintiff re-attended, Ms Steed could feel a significant hamstring muscle tear on palpation, confirmed by ultrasound, and significant bruising over the posterior left thigh.

122     The plaintiff reported that the day after the incident, his right shoulder really started to hurt from his shoulder into his upper arm, particularly when he moved his arm fast.  Objectively, his right shoulder active movements were limited by strength and pain, and his strength tests were reduced.  This suggested a right rotator cuff tear, for which the plaintiff was started on a graduated shoulder movement home program.

123     Ms Steed noted the plaintiff’s right shoulder continued to cause him pain and was not responding to conservative treatment.  An ultrasound on 27 May 2013 confirmed a full-thickness tear in the supraspinatus tendon.

124     There were further attendances on 5 and 15 May and 4 June 2013.  There was no note of a shoulder complaint on those occasions when the plaintiff complained of lower leg and back pain.

125     Ms Steed had not heard from the plaintiff since 4 June 2013.  She diagnosed Grade 2 left hamstring tear, right supraspinatus tear, and lumbar disc bulge.

126     Ms Steed advised that she had “addressed the plaintiff’s right shoulder as one of the stated claims”.

Dr Corina Sims

127     The plaintiff attended Dr Sims at Renmark Medical Centre on 20 April 2013. 

128     The history on that examination was:

“… sustained injuries at work, the day before, after lifting a large metal plate.  He complained of pain in the back of his left leg, in the right shin and the right ann.  He had already consulted with the local physio the day prior to seeing me.  On examination he had a tender anterior shoulder suspicious of bursitis with or without tendinopathy, abrasions on his right anterior lower leg with tenderness around the soft tissues of this area and very tender left hamstrings with no disturbance of range of motion and no bruising.”

129     Celebrex and Panadeine Forte were then prescribed.

130     Dr Sims provided a WorkCover certificate on 20 April 2013 certifying the plaintiff unfit for work until 8 May 2013.  She noted the plaintiff’s stated cause for this disability/disease was:

“Lifting a disc from the hammer miller.  Came off quickly throwing him off balance, took the weight in the legs causing acute pain in the left hamstring, right shoulder and right shin.”

131     In Dr Sims’ opinion, the plaintiff was suffering from right shoulder bursitis, left hamstring strain, abrasion right shin, consistent with the accident at work.  The treatment plan was for physiotherapy.  Similar certificates were provided following examinations on 1 and 22 May, 12 June, 26 July and 8 August and 5 September 2013.

132     Dr Sims did not see the plaintiff after the surgery.

Dr Brad Derendorf

133     Dr Derendorf from Cadell Street Clinic last reported in December 2014.  The plaintiff commenced at that clinic in 2013.

134     In his July 2014 report, Dr Derendorf noted the incident injury and subsequent surgery.  Prior to the surgery, the plaintiff had greatly decreased physical use of his right shoulder and feared not working again.  As a result, he suffered deteriorating moods, depression and anxiety, poor sleep, and unfortunately was left to self-medicate with alcohol to cope.  He even took an overdose, necessitating an involuntary admission.

135     In the month after the surgery, the plaintiff’s treatment focused on achieving adequate analgesia, safely supported sleep management, and with this, he was able to discontinue his destructive abuse of alcohol and had maintained sobriety.  He was also greatly assisted by adequate and thorough physiotherapy and his mental health was significantly aided by Dr Wilson, psychologist.

136     Dr Derendorf noted that throughout the first half of 2014, with these new supports, the plaintiff was able to improve clinically to a maximum capability of restriction in his shoulder of only a 15-kilogram lift, no overhead work and working twenty to twenty-four hours a week, which was the situation at that time.  He noted this then continued to limit the plaintiff’s workability and work options and indefinitely into the future, unless he could gain further improvement.  Over-shoulder work would likely never become a practical safe option for him.

137     On 18 July 2014, the plaintiff complained about his left shoulder after moving some furniture and belongings from Renmark.  Clinically, he was quite upset, and his mental state had deteriorated quite significantly too with this compensatory injury, which ultimately proved to be a bursitis. 

138     Given all the above, Dr Derendorf thought the plaintiff’s current state of health mentally and physically with the standing restrictions on right shoulder use had been directly caused by the work accident.  It then continued to affect his day-to-day life and workability and indefinitely into the future.  To remain functioning ultimately, even at this reduced capacity, he thought the plaintiff would require ongoing medical, pharmaceutical, physiotherapy and psychological support indefinitely.  Hopefully, with the additional time and management the plaintiff’s abilities and, thus, work ability, would improve, and thus improve his saleability in the workforce.

139     Dr Derendorf again reported in December 2014, when he advised, unfortunately, the plaintiff remained little changed.  He was still greatly restricted in his activities of daily living by the pain caused by the incident, and also compensatory injury to his left shoulder.  He still required daily medications for pain and also resulting insomnia.  He was having physiotherapy for both shoulders.

140     Dr Derendorf then thought the plaintiff’s prognosis was slow and incomplete.  Potentially, in time, with ongoing care, he may further improve; however, his shoulders would definitely restrict future employment options.  He advised the plaintiff he should only consider work below shoulder height and, ideally, not of a repetitive nature, indefinitely.  Retraining for less manual work would also be an appropriate option.

Dr Nykola Wolianskyj

141     Dr Wolianskyj, also at the Caddell Street Clinic, reported in December 2015.

142     Dr Wolianskyj noted that the plaintiff had been seen on a monthly basis in regards to his right shoulder and depression and anxiety.  His progress had stabilised recently.

143     Dr Wolianskyj diagnosed right shoulder repair, bursitis and limited range of movement complicated by Post-Traumatic Stress Disorder, anxiety and depression.  The doctor noted the plaintiff had developed generalised aches and pains, but nothing specific had been identified or discussed.

144     On 31 January 2018, Dr Wolianskyj provided a Centrelink certificate for the plaintiff.  The doctor set out depression and anxiety were the conditions which impacted on the plaintiff’s ability to work.  Symptoms described were “lethargy and tiredness/poor concentration, general aches and pains low affect suicidal tendency drug abuse”.

Dr Nicholas Chabrel

145     Dr Chabrel, orthopaedic surgeon, saw the plaintiff on referral from Dr Sims on 29 August 2013, regarding his right shoulder injury.

146     After the initial review, Dr Chabrel referred the plaintiff for an MRI scan and x‑ray.  The MRI scan confirmed not only a supraspinatus tear with significant retraction, but also rupture of the long head of biceps.

147     On review on 10 September 2013, it was decided the plaintiff should undergo a rotator cuff repair by arthroscopic procedure, which took place on 2 October 2013.

148     At the second post-operative review on 25 November 2013, Dr Chabrel noted the plaintiff’s pain was starting to be better controlled, but that he needed to work on passive range of movement. 

149     When seen on 28 January 2014, right shoulder movement was decreased compared to the unaffected side.

150     When last seen on 15 April 2014, the plaintiff continued to have some restriction in both internal and external rotation, and flexion was 120 degrees, decreased from the previous review.  The plaintiff continued to be on slow-release Tramadol and Amitriptyline, and non-steroidal anti-inflammatories, but had stopped Diazepam.

151     On that occasion, shoulder stiffness was worse than pre-surgery, but sharp pain for which surgery was done had diminished. 

152     Dr Chabrel diagnosed a rotator cuff tear of the right shoulder associated with a long head of biceps rupture, which he believed was an acute on chronic situation, that being an extension of a pre-existing thinning or small tear of the supraspinatus to a large tear and the new occurrence of a biceps tendon rupture.

153     Despite the surgery, the plaintiff was left with a persisting long head of biceps rupture and stiffness of the shoulder relating to post-surgical pain and possibly post-surgical capsulitis.

154     On the basis of that last assessment, Dr Chabrel thought the plaintiff had limited capacity for work, with diminished ability to utilise his right upper limb because of stiffness and pain.

155     Dr Chabrel then thought the plaintiff was likely to see at least six months of further slow improvement of the right shoulder with the expectation he would continue his rehabilitation after that date.  If he did not regain any further range of movement in the months following, there might be a role for an arthroscopic lysis of adhesions within the shoulder, but Dr Chabrel would prefer to avoid that procedure if possible.

Ms Ann Traeger-Spees

156     Ann Traeger-Spees, physiotherapist from Full Circle Physiotherapy, initially saw the plaintiff on 26 November 2013, six weeks post surgery.

157     Ms Traeger-Spees then noted the plaintiff was on restricted duties.  She thought it was unrealistic to suggest he should return to employment that required overhead use of his arm or use of his arms for any excessive lifting; however, she thought that his current restrictions still left him capable of holding down a job in the future, as long as it fitted within the restrictions and his mental health was stable.

158     As of August 2014, Ms Traeger-Spees noted the plaintiff had recently been referred back with complaints of left shoulder pain, which she had been unable to assess.  She noted the limitation the plaintiff had in his right shoulder put him at risk of compensating with his left.  She thought he was likely to require ongoing physiotherapy management for these reasons.

Dr Sharoon Shirjeel

159     The plaintiff was seen at Bridgeview Family Practice SA on 17 March 2018, when he presented for a repeat prescription and complaining of forgetfulness and wanting help regarding his use of “ice” injections.  A referral to Drug and Alcohol Services South Australia, a CT scan of the plaintiff’s head was made.  The plaintiff reported that he was being followed by a psychologist from Goolwa for his depression.

160     Dr Shirjeel saw the plaintiff on the following dates:

·        24 April 2018, for his CT scan results and review of the chest x-ray done through another clinic which showed chronic obstructive pulmonary changes.  A general practitioner care plan was done with spirometry and review of his inhaler techniques.

·        9 May 2018, the plaintiff presented requesting a Centrelink certificate.  He reported about his work-related injury to right shoulder and shoulder pain.  As he had no previous record, Dr Shirjeel advised him to get his records transferred and in the interim, to keep following with his doctor who was looking after him in that regard.

·        3 July 2018, the plaintiff presented with tiredness and pain in his left shoulder and for review of his cough and for medical certificate.  He also mentioned that he was seen by the psychologist three weeks ago and stated that he is stable.

·        On 9 October 2018, the plaintiff presented for a Centrelink medical certificate.  He reported that he was not able to travel to Goolwa to see his psychologist and has not been taking his antidepressants and needed a prescription.  He also reported that he has not been able to see a physiotherapist for his shoulder pain.  Dr Shirjeel gave him a prescription and referred him to physiotherapy for his shoulder pain and to a psychologist for his depression.

·        19 December 2018, the plaintiff reported that he was still awaiting a psychologist appointment but had seen a physiotherapist and had been planned for more physiotherapy sessions.

·        15 January 2019, the plaintiff reported that he had attended three physiotherapy sessions, there was not much improvement in his symptoms and needing referral.  Dr Shirjeel also gave him a referral for an ultrasound scan of his shoulder.  The plaintiff reported that he is still awaiting mental health review.

161     Dr Shirjeel stated that based on the history, examination and symptoms described by the plaintiff, he did not show any capacity to work at this stage.

162     In her most recent Centrelink certificate dated 15 January 2019, Dr Shirjeel described the primary condition which impacted on the plaintiff’s capacity to work was anxiety and depression and the secondary/related condition “right shoulder injury, left shoulder pain”.  The symptoms listed were “lethargy tiredness, poor concentration, general aches and pains”.

Mr Marc Wilson

163     Mr Marc Wilson, psychologist, treated the plaintiff for alcohol abuse, complex Post-Traumatic Stress Disorder, Depression and WorkCover stress initially on 4 December 2013 and for 24 further sessions between 11 December 2013 and 21 February 2018. 

164     In his report of 12 February 2014, Mr Wilson took the following history of the plaintiff’s psychological condition:

“Mr. Paterson has a significant prior history of trauma and loss.  In childhood Mr. Paterson was severely and repeatedly physically abused with closed fist punches by his father. 

In 1976 at the age of 18 Mr. Paterson witnessed his deceased brother’s severely injured head and body shortly after the motor vehicle accident which killed him. 

In 1985, in his late 20’s, Mr. Paterson and another man were held at gunpoint by a man who was apparently in a psychotic episode.  That man also had two women tied down.  Mr. Paterson witnessed the man injecting the first woman with heroin against her will.  The man then beat the second woman and forced her to cut her own wrists.  The episode ended when a swat team of police officers stormed the house.

In 1992 Mr. Paterson observed his cousin be crushed by a dozer in an accident at the mines where they both worked.  In this incident Mr.  Paterson observed his cousin’s legs protruding from the rock slide which crushed him, he helped dig him out, and he worked unsuccessfully to resuscitate him. 

Each of these incidents generated anxiety, intrusive memories, autonomic arousal, depressed mood, and attempts to avoid the memory of the incidents in a variety of ways including polysubstance abuse.  The drug use, in turn, was associated with a subsequent, very checkered work history.  However, those symptoms were entirely in remission at the time of Mr Paterson’s work injury on 20 April 2013.  Following this work injury, however, post-traumatic stress and depression symptoms strongly returned.  Mr. Paterson experienced intrusive memories both of his work injury and of all of the traumatic incidents described above.

A further complicating factor is that this most recent employment was unusually important to Mr. Paterson following his history of polysubstance abuse and periodic joblessness.  His status as a breadwinner and thus someone who was doing his share in family relationships had become central to his self-esteem.  He specifically told his employer that he would do a good job and ‘you’ll never get rid of me’.

When he later lost the job as a result of the work injury, that job joss became one of a list of losses subsequent to the injury.  His ptsd and depression symptoms themselves were experienced as losses.  These included intrusive memories of all three traumatic events, nightmares, autonomic arousal, startle responses, hypervigilance, feeling upset at events that reminded him of the accident, trying to avoid thinking about the incidents, loss of interest in daily events, feeling distant and cut off from other people, sleep problems, difficulty concentrating and irritability and anger outbursts.  In addition his loss of self-esteem at having again lost a job (even though it was not remotely his fault) and his subsequent financial fears weighed especially heavily on him because they threatened his built sense that he was now financially capable and secure.”

165     Mr Wilson then considered the plaintiff’s depression and Post-Traumatic Stress Disorder symptoms, viz his inability to concentrate, his fatigue, his emotional liability and especially his anxiety prevented him from being able to perform the duties of any work hardening position. 

166     Mr Wilson thought the plaintiff’s psychological condition had not stabilised.  Due to his history of losses and the unpredictable nature of the symptom course of repeated traumatisation, he was unable to make this prognosis. 

167     Mr Wilson thought the plaintiff would well recover quite quickly with the belief that he is again gainfully employed.  He believed that were the plaintiff able to concentrate, he would be able to be function well in a number of positions.

168     Mr Wilson again reported on 17 January 2019.  He then noted the plaintiff’s clinical history as complex.  His psychological disorders had been complex Post-Traumatic Stress Disorder, Major Depression and polysubstance abuse. 

169     Mr Wilson thought the complex Post-Traumatic Stress Disorder stemmed from a sequence of childhood abuse and adulthood trauma which caused a variety of symptoms including autonomic arousal, multifaceted anxiety, depression and substance abuse.  The plaintiff reported those symptoms to be in abeyance in the context of his stable life and employment at the time of his work injury.  Following the injury, the traumatic symptoms re-appeared.  The stressors which followed the work injury, including financial and legal anxieties associated with the WorkCover sequence itself, further exacerbated his symptoms.

170     Mr Wilson diagnosed the plaintiff with complex Post-Traumatic Stress Disorder, Major Depression, and polysubstance abuse in partial remission.  He did not know the plaintiff’s current psychological status, having not seen him for over a year.

171     Despite not knowing his current psychological status, Mr Wilson thought that the plaintiff’s history during the time he was his patient would strongly imply a further need for the treatment of complex Post-Traumatic Stress Disorder.  Mr Wilson believed that that treatment would also comprise the primary treatment for the plaintiff’s depression and substance abuse.

Mr Shailesh Godhani

172     Mr Godhani, of Spine Physiotherapy, wrote to the plaintiff’s solicitors on 26 February 2019.

173     Mr Godhani saw the plaintiff for the first time on 5 November 2018 for back pain under an enhanced primary care program. 

174     Mr Godhani noted, while history taking, the plaintiff mentioned to have a work injury five years ago, and he still feels pain with overhead activities and stiffness in his shoulder.  Previously, the plaintiff had physiotherapy for his shoulder pain; however, the exercises were making his pain worse so he stopped it.

175     Mr Godhani planned to continue management and design, and implement an exercise program which suited the plaintiff’s needs without increasing his pain.  He was to monitor the plaintiff’s progress and change his exercise program in ten weeks’ time as per change in his condition.

The Plaintiff’s medico-legal evidence

Mr John O’Brien

176     Mr John O’Brien, orthopaedic surgeon, reported on 22 January 2019, having examined the plaintiff that day. 

177     Mr O’Brien noted in April 2013, the plaintiff was in the process of inspecting blades on a hammer mill which required him to undo and lower an inspection plate as he was holding onto the inspection plate with his hands, the plate suddenly let go, fell towards the ground and as he held onto the handles he was dragged forwards and downwards to the right side, which immediately caused a stretching sensation in the vicinity of his shoulder. 

178     The plaintiff reported pain in the posterior aspect of his left thigh.  The pain was so severe that he was unable to continue his work and thus attended a local doctor in Renmark, who arranged investigations of the shoulder and thigh.

179     On examination, right shoulder flexion was 130 degrees, with 90 degrees of abduction, 30 degrees of extension, 20 degrees of adduction, 40 degrees of internal rotation and 70 degrees of external rotation.  There was quite marked tenderness over the anterior, superior and lateral aspects of the right shoulder.  Pain was reproduced on active abduction and external rotation.  There was some noted weakness in the muscles of the right shoulder girdle.  The contour of the right biceps muscle was abnormal indicating a rupture of the long head of biceps tendon.

180     Mr O’Brien thought current physical signs demonstrated evidence of persistent rotator cuff tendinopathy in addition to evidence of rupture of the tendon of the long head of biceps, this causing the obvious chronic right shoulder pain and restricted movement.

181     There appeared to be no direct relationship of the left shoulder symptoms to employment.

182     Mr O’Brien regarded the prognosis for this plaintiff’s right shoulder pathology as poor, as he will continue to experience chronic right shoulder pain and restricted shoulder movement.

183     Mr O’Brien thought the plaintiff did in fact describe ongoing disability associated with pain and loss of function of the right shoulder.  Physically, he would certainly not be capable of undertaking his pre-injury seasonal work, which obviously involved quite heavy manual duties.  Indeed from the physical perspective, the plaintiff could not undertake any significant physical duties.  Mr O’Brien noted, in fact, the plaintiff obviously failed to cope with part-time work as a car detailer, which obviously involved the repetitive use of the right dominant arm.  Given his employment background and the marked physical restriction involving the right dominant arm, Mr O’Brien would consider the plaintiff to be now permanently totally incapacitated.

184     Mr O’Brien did not consider the plaintiff would return to any form of gainful employment.  Further, the plaintiff is permanently, moderately limited in his general, social, domestic and recreational activities.

Dr Clayton Thomas

185     Dr Clayton Thomas, occupational physician, examined the plaintiff on 23 January 2019.

186     The plaintiff told him of a previous motor vehicle accident in 2012 in which he had an injury to his foot but no shoulder injury.

187     Dr Thomas noted the day after the incident, the plaintiff had pain in the back of both hamstrings, the right arm and right shoulder and was referred for physiotherapy.  He was also given analgesics and anti-inflammatories.

188     On examination with Dr Thomas, the plaintiff’s primary problem was his right shoulder.  It was weak and painful and he was not able to lift it above shoulder height.  He could only use his right upper limb with the shoulder tucked in against the side of his body.  He could not use that limb on his dominant side in any other capacity.  He did not have the strength to be able to maintain any static postures with the arm away from the side of his body.

189     Dr Thomas was not convinced there was any wasting of the plaintiff’s right shoulder moreso than his left side at the back of the shoulder girdle but it did appear that the area over the deltoid on the right was slightly wasted compared to the left.

190     The plaintiff had an absent right long head of biceps on the right.  He had a ‘Popeye’ muscle right arm.  Supraspinatus was noted to be weak.  Range of movement was full range.  Impingement signs were mildly positive with positive empty can and negative Hawkins’ sign.  Left shoulder movements were well preserved and strong.

191     Dr Thomas thought the plaintiff had a sudden stress overload primarily to his right shoulder on 19 April 2013 which tore the right rotator cuff.  He considered the plaintiff’s rotator cuff to have become deficient.

192     In Dr Thomas’ view, the plaintiff effectively could not use his right shoulder from an industrial perspective, noting the function of the shoulder was to allow the hand to be placed where the hand needs to be placed.  A weak painful right shoulder precluded that from occurring. 

193     Dr Thomas noted the plaintiff could only use the right upper limb with the shoulder tucked in against the side of his body.  He could not use the upper limb on his dominant side in any other capacity.  He did not have the strength to be able to maintain any static postures with the arm away from the side of his body. 

194     Dr Thomas thought the plaintiff did not have the capacity to return to pre-injury work duties, even with restrictions.  He certainly could not work in an unrestricted manner.

195     Dr Thomas considered, given the plaintiff’s previous work history – which had been physical labouring throughout his working life – that the injury was to his right upper limb, his age and place of residence, he did not have any realistic capacity for work. 

Dr John Meegan

196     Dr John Meegan, occupational physician, reported on 11 February 2019 following an examination that day.

197     Dr Meegan noted the circumstances of the transport accident in which the plaintiff lost control of the vehicle as he went around a corner.  The plaintiff said he was not wearing a seatbelt and had been drinking alcohol. 

198     The plaintiff said there was an injury to his left foot with a fracture treated with a plaster.  Further, he complained of some pain in the right shoulder following the transport accident.   

199     The plaintiff’s general practitioner appeared from the notes to have suspected rotator cuff tendinopathy, but no ultrasound was undertaken.  The plaintiff said  there  was  mild  right  shoulder  pain  and  he initially  felt  sore  all  over  following  the transport accident.   He said his right shoulder pain following that accident had resolved and he was free of shoulder pain, neck and thoracic pain prior to the subject work injury.

200     On examination, the plaintiff complained to Dr Meegan of pain at both shoulders, worse on the right, some associated numbness in the neck and discomfort at the left hamstring.  He did not report some scapulothoracic pain and neck pain.  Low back pain had resolved.  Aggravating factors were heavy lifting, overhead activity and repetitive shoulder movement, prolonged or repetitive bending, neck flexion and static back and neck postures.  He said prolonged standing and walking and use of stairs and steps could aggravate his hamstring.  He was woken by pain and he had difficulty lying on the shoulders.

201     On examination, the plaintiff had no local tenderness at the shoulders, with him complaining of deep shoulder pain, worse on the right than the left.  He had about half normal range of movement at the right shoulder and two-thirds at left shoulder globally.  Impingement signs were negative.  He had some deformity of the right biceps in relation to long head rupture.

202     There was some tenderness at the left hamstring.  At the right shoulder, scars from arthroscopy blended with the plaintiff’s tattoos.  Impingement signs were negative.  The plaintiff had some deformity of the right biceps in relation to long head rupture.

203     There was diffuse, mainly right-sided, cervical and scapulothoracic tenderness and there was asymmetry of movement in both regions, with greater restriction for right-sided rotation and left-sided lateral flexion in the cervical spine and greater restriction of right-sided lateral flexion and rotation of the thoracic spine.

204     Dr Meegan diagnosed right shoulder rotator cuff repair and decompression of impingement but with some residual shoulder pain and loss of movement to about half normal.

205     Dr Meegan imposed restrictions for the plaintiff’s shoulder of no heavy lifting over about 5 kilograms, work above shoulder height and repetitive shoulder movement. 

206     Dr Meegan noted the plaintiff did trial returning to car detailing over a twelve-month period but with difficulty and had to cease that.  He was unable to return to his pre-injury work due to the shoulder problem.

207     Dr Meegan thought the same restrictions would apply to the plaintiff’s left shoulder and the plaintiff’s thoracic and neck conditions would give some limitation for prolonged or repetitive bending and neck flexion and static back postures. 

208     Further, Dr Meegan considered the plaintiff could not return to full-time unrestricted work in relation to these limitations, including those outlined for the right shoulder. 

209     Given the plaintiff’s background in manual work and his current age of sixty, Dr Meegan thought his restrictions were such that it would prove difficult, if not impossible, for him to return to the workforce.  He was in effect unemployable given his restrictions, education and with lack of transferrable skills and having mainly worked in manual work previously. 

210     Dr Meegan considered the plaintiff’s prognosis will be that he will likely suffer similar restrictions for the foreseeable future. 

Investigations

211     There was an x‑ray of the plaintiff’s right shoulder on 3 December 2012.

212     It was reported the right shoulder joint was enlocated and the glenohumeral joint was congruent.  The acromiohumeral distance was greatly reduced.  The AC joint demonstrated degenerative changes.  Underlying rotator cuff tendinopathy was suspected.  Further imaging with ultrasound was suggested.

213     The plaintiff underwent a right shoulder ultrasound on 27 May 2013 which showed evidence of chronic full-thickness of the mid and posterior supraspinatus tendon fibres, degenerative AC joint and narrow subacromial space. 

214     An x-ray of the plaintiff’s chest was undertaken on 25 January 2018.  “Shortness of breath on exertion, peripheral oedema, chest clear?” were reported.

215     It was reported the lungs were then hyperinflated with features of COPD.  Cardiac size was normal.  Hilar and mediastinal contour appeared unremarkable.  There was no overt pulmonary oedema; no pleural effusions, consolidation or collapse.  No definite evidence of pneumothorax.  Deformity of right posterior eighth and ninth ribs were compatible with old healed fractures.

Vocational evidence

216     A vocational assessment was completed by Paul Hartley of Vocational Directions Pty Ltd on 8 February 2019.

217     Mr Hartley thought the plaintiff realistically had a paucity of transferable skills for work within his much-reduced current residual functional capacity based on his right shoulder injury and his poor ability to sustain right dominant hand activity unless the shoulder/arm was tucked closed to his body.

218     The plaintiff would thus require additional education and/or experience to be able to access alternate employment to the manual work he had always undertaken.  Such retraining assistance had not been forthcoming in the period since the injury. 

219     Given his age; his very poor level of transferable skills, education and experience; his worker’s compensation history; his lack of sound employment history; his current lack of a driver's licence and his rural location in Murray Bridge; his presentation at assessment; the lack of retraining provided to him and his lack of computer skills, Mr Hartley thought the plaintiff’s saleability/marketability for new employment was extremely poor and that he was not realistically likely to gain employment within his educational, training or experiential base and residual functional capacity, that he would be able to undertake in a consistent, reliable or permanent manner without the risk of re-injury.

220     Therefore, having considered and discussed each of the jobs suggested as suitable in the three IPAR vocational assessment reports from 2013 to 2014, any of the employment options were not considered "suitable employment” for the plaintiff.

Letters of instruction to medico-legal examiners

221     In letters of instruction to Dr Thomas of 18 December 2018, Mr O’Brien of 19 December 2018 and Dr Meegan of 8 February 2019, those practitioners were forwarded the Berri records.

222     All correspondence also included the following paragraph:

“In October 2012, our client was involved in a motor vehicle accident.  He was treated at the Emergency Department of Swan Hill District Hospital.  He complained of pain and symptoms in his right shoulder.  He underwent an x‑ray to his right shoulder at the time (enclosed).  This showed underlying rotator cuff tendinopathy.  His condition improved and our client was able to continue with consistent employment.”

The Defendant’s lay evidence

223     Mark Webber, manager of the employer, swore an affidavit on 13 March 2019.

224     Mr Webber confirmed the plaintiff was employed as a casual operator during the 2013 season, having worked the previous season, and approached him to take him on in 2013 because he was desperate for money. 

225     The plaintiff’s job was to load hull trucks and operate the hammer mill.  This job was created for him.  He reported to the team leaders who reported to Mr Webber. 

226     Close to the end of the day on the said date, Mr Webber was in the office when he received a phone call from the plaintiff’s physiotherapist.  Calls had to come through the front desk as there was no mobile range.  The physiotherapist was calling to remind the plaintiff of an appointment later that day.

227     Mr Webber went to find the plaintiff to pass the message on.  When he saw the plaintiff, the plaintiff told him he had “stuffed up” and did not hold the hammer mill door correctly as he had opened it and that as a result, he had hurt his leg.  He told him he would be fine.  The plaintiff did not mention having injured his shoulder at that time.

228     Mr Webber advised the plaintiff his physiotherapist had called and Mr Webber then left.

229     The following day, Mr Webber checked in on the plaintiff to see how he was doing and was shown the bruising on his leg.  Later that day, the plaintiff completed an Accident Report Form which alleged injuries to the left hamstring and right shoulder.  This was the first time the employer was made aware of an alleged right shoulder injury.

230     Prior to the claimed injury on the said date, the plaintiff had told Mr Webber that he had been undergoing consistent physiotherapy for his shoulder.

231     The job performed by the plaintiff no longer exists.  After he ceased work, the duties were incorporated into another position.

232     Ms Renee Slade, office administrator of D&D, swore an affidavit on 15 March 2019

233     On 25 September 2017, Ms Slade wrote to the defendant’s solicitors requesting reimbursement for lost wages for the plaintiff.

234     In that letter, Ms Slade advised the plaintiff left D&D of his own accord due to family commitments, last working on 10 January 2018. 

235     Ms Slade advised she was writing on behalf of the plaintiff who was D&D’s head cleaner/detailer.  On the following dates, namely 6 and 7 September 2017, he had a leave of absence for a medical check over, affecting his earnings for that period.  She had calculated the earnings he would have earned on those days being employed with D&D.

236     Ms Slade advised the plaintiff received $22.86 per hour casual.  The number of hours worked per week was 7.6 hours daily, totalling 38 hours per week.

237     Ms Slade noted that on 4 September 2017, the plaintiff worked 7.6 hours, as was the case on 5 and 8 September 2017.  He would have potentially earned on those days absent an amount of $347.48.

The Defendants medico-legal evidence

238     Dr Geoffrey Graham, occupational physician, examined the plaintiff in Adelaide on 3 February 2014.

239     Dr Graham noted the plaintiff was employed as a loader operator by Laragon Almonds when, on the said date, he undid an inspection plate on a hammer mill.  He pulled on the plate, which weighed 50 to 60 kilograms, and it dropped back suddenly.  He attempted to hold it but collapsed to the ground.  He was immediately aware of pain in the left posterior thigh and of abrasions on the anterior right lower leg.  He was also aware of soreness in both shoulders and upper arms.  He left work and drove himself home.  The following day, he attended the duty doctor at the local clinic.

240     On examination, the plaintiff reported to Dr Graham that he had constant pain in the right shoulder which he rated as 5 to 6 out a maximum of 10, worse if he lay on his side.  His left side was then symptom free but he had not tested it.  No past history of shoulder or thigh injuries were noted.

241     The plaintiff told Dr Graham he had been attending physiotherapy treatment three times per week since mid-October 2013, then approaching four months which suggested in excess of forty visits.  The plaintiff remained with marked limitation of movement and ongoing pain in the shoulder.

242     Examination of the plaintiff’s neck revealed a reasonable range of movement.  Examination of his right shoulder revealed a marked limitation of movements.  The impingement sign was negative.

243     In Dr Graham’s view, the plaintiff had the capacity to participate in a new employer services program, including possible retraining.

244     It was unclear to Dr Graham whether the plaintiff would make any further recovery or whether his current condition, now four months from surgery, was the best which would be achieved.  He considered it reasonable to seek the opinion of the plaintiff’s treating orthopaedic surgeon in this regard.

245     Dr Graham agreed that an additional history of an ongoing shoulder problem from November 2012 at least until 26 February 2013 indicated a significant injury to the shoulder and brought into question the significance of any further alleged injury.

246     Further, Dr Graham agreed that the lack of any specific comment in relation to the right shoulder at the consultation with the physiotherapist on 19 April 2013 raised some question as to the extent of any injury sustained on that day.

247     The new information available to Dr Graham led him to believe that the incident of 19 April 2013 probably did not materially contribute to the plaintiff’s current incapacity and need for treatment.

Dr Michael Baynes

248     Occupational physician, Dr Baynes, first saw the plaintiff in September 2017.

249     The plaintiff then gave a history of the incident and subsequent treatment, and advised there was a slow improvement after the surgery.  He then underwent physiotherapy over the next two years, with slow progression and improvement.

250     The plaintiff advised there were no light duties available and he did not return to work.  More recently, he had obtained part-time work washing cars, working two to three hours a day.  He could work at a self-paced rate.  He had not received any retraining over the years.

251     The plaintiff reported he had no longer had problems with his left thigh, which had settled with conservative treatment.

252     The plaintiff said that if he overdid it with his right shoulder, he got pain over the anterior shoulder joint.  He continued to have restricted movement of the right shoulder and some weakness.  He advised he was uncomfortable sleeping on his right shoulder, and found lying on his arm was more painful than raising it.  He also reported occasionally his right bicep tended to twitch.  He could lift around 10 kilograms, but had difficulty hanging out the washing due to difficulty with upwards reach.  He advised that his left shoulder was not as bad as the right, and would only ache if he overdid it.

253     Examination of the right shoulder revealed flexion to 140 degrees, abduction 100 degrees, extension 30 degrees and adduction 30 degrees.  Internal rotation was to 30 degrees with normal external rotation.  The left shoulder revealed flexion to 150 degrees, abduction 100 degrees and extension 30 degrees.  Rotation was normal, as was adduction.

254     Palpation revealed significant tenderness over the anterior right shoulder joint.  There was also some minor tenderness over the left anterior shoulder joint.  There was no evidence of twitching or spasm of the bicep muscle.  Neurological examination of the upper limbs was normal.  Grip strength was normal.

255     Dr Baynes thought the plaintiff suffered a right rotator cuff tear undergoing relatively successful arthroscopic surgery and repair.  He continued to have a limited range of movement and ongoing pain in the right shoulder.  His hamstring injury had resolved.

256     Dr Baynes noted the plaintiff had also developed bursitis in the left shoulder at a later date, and had minor symptoms in that shoulder, improved by a series of cortisone injections.

257     Dr Baynes thought the plaintiff was fit for alternative duties where there was no lifting greater than 15 kilograms on an occasional basis, and 10 kilograms on a regular basis, and no lifting above shoulder height.  He thought the plaintiff should not be involved with forceful pushing or pulling with the right shoulder, and should not be involved in repetitive actions across the right shoulder.  He should not be exposed to vibration forces.

258     Dr Baynes believed the plaintiff was fit to work 30 hours a week on an initial basis, but full-time hours with work hardening.

259     Dr Baynes noted the plaintiff was presently working as a car washer, which he believed was appropriate.  He considered the plaintiff fit to undertake machine-operated work, like packer work and light production work.  The plaintiff was also fit to undertake work as a sales representative and sales assistant, and also work as a gatehouse operator, and with retraining in terms of computer skills he would be fit to work as a warehouse clerk. 

260     Dr Baynes concluded the plaintiff would be fit to undertake work roles in warehousing and factories as well as office-type work with further training particularly.  Computer training would be appropriate.

261     On re‑examination on 29 February this year, the plaintiff advised there had been no real change in his condition since the last examination; however, his marriage had broken up and he now lived with his daughter and grandchildren.

[115]T96 - this submission ignores Dr Baynes’ view that the plaintiff can work 30 hours per week

319     It was submitted the fundamental point was the consequence to the plaintiff, having gone from being a man who albeit having some mild shoulder pain that had largely resolved, was able to work up to 76 hours a week earning $2,279 to what was submitted was the rather pitiable sight in the video on 7 April 2017 when he could barely use his right arm for any period of time.[116] 

[116]T95

320     The plaintiff had not needed surgery before but needed it thereafter.  It was submitted the consequences of the incident were to change a man who could work and did not need surgery to one who needed surgery and could no longer work.[117]

[117]T95

321     Counsel for the defendant submitted the plaintiff had a poor work record before the incident.  He did not file taxation returns from 2011 to 2016 as he explained his earnings did not reach the threshold, although some of his pay records indicated this was incorrect.

322     In general terms, it was submitted the plaintiff did not cease work at D&D because of any shoulder complaints, but for family reasons.  Further, there was no evidence that his shoulder condition deteriorated during 2017, leading to him having to cease work.  Against this background, there were significant drug problems and psychiatric issues which in fact dominated the plaintiff’s presentation at that time.

323     Dealing with shoulder specifically and ignoring consequences related to mental health or drug issues, I am satisfied the consequences of the plaintiff’s right shoulder impairment are “serious” and permanent as at the date of hearing.[118]

[118]Peak Engineering & Anor v McKenzie [2014] VSCA 67

324     As I noted earlier, I am satisfied at the time of the incident, the plaintiff did not have any right shoulder problem relating to the transport accident that was interfering with his heavy work or required ongoing medical treatment.

325     However, after the incident, the plaintiff has continued to suffer right shoulder pain of varying severity, as noted by his general practitioner.  I do not accept, however, the plaintiff is as restricted by pain as he claims. 

326     Although this shoulder pain has been described as bilateral by the plaintiff’s general practitioner, this is not a case however where it is suggested there is a left shoulder problem because of overuse to guard against the right.  Mr O’Brien did not see such a connection.[119]  Further, the plaintiff suffered a specific injury to his left shoulder in mid 2014, over a year after the incident, when lifting furniture, as Dr Derendorf confirmed, following which bursitis was diagnosed and treatment undertaken.

[119]T76

327     Following the incident, the plaintiff underwent increased physiotherapy and he ultimately came to the surgery in October 2013.  Whilst stronger painkillers have been prescribed in the past, following the incident and the surgery, the plaintiff has not been prescribed Tramadol for over a year.[120]

[120]T75

328     As the injury involves the plaintiff’s right dominant upper limb, there is some restriction in the range of activities he can perform but I do not accept his right arm is as useless as he described to Dr Thomas, particularly given the vigorous movement thereof shown on the film.

329     As a result of his shoulder injury, as all doctors have opined, I accept the plaintiff is no longer capable of unrestricted heavy physical work;[121] however, for the reasons discussed below, in terms of the loss of earning capacity application, I am not satisfied he has established the requisite 40 per cent loss on a permanent basis.

[121]Haden Engineering (supra) at paragraph [15]

330     I am satisfied there is some interference with domestic activities because of right shoulder pain but the plaintiff still does housework, mows the lawn and still does some river fishing.[122]

[122]T76

331     Whilst the plaintiff claims a problem sleeping due to shoulder pain, it is apparent from his general practitioners’ notes that the plaintiff has had nightmares and other psychiatric issues which at times have affected his sleep.

332     In addition to his right shoulder complaint, the plaintiff has a range of other health problems, like chronic obstructive airways disease and back problems requiring physiotherapy from time to time before the incident until November last year with Mr Budani, to whom he was referred specifically for his back pain.[123]

[123]T76

333     Whilst the plaintiff does not describe any difficulties associated with his drug use and there is no medical evidence in this regard, save from his general practitioners, the plaintiff having denied any use to a number of examiners, there clearly are issues with the plaintiff’s mood, memory and concentration as a result of this drug use and, accordingly, his reliability for employment.  These psychiatric symptoms have been the primary condition listed on Centrelink Certificates during 2018 and early 2019.   

334     In terms of hobbies, there is no suggestion the plaintiff had more than a social interest in tennis and golf before the incident.  If he now has difficulty playing these sports, it may be due to his back, or his left shoulder, or his lung issues, or his neck, or a combination of those issues, as counsel for the defendant submitted.[124]

[124]T77

335     Taking into account all the evidence, I am satisfied the consequences of the plaintiff’s right shoulder impairment – in particular ongoing pain, the need for treatment and the inability to do unrestricted heavy physical work – are more “significant” or “marked” and satisfy the statutory definition of “serious”.  Further, such consequences are permanent, having continued, despite surgery, for nearly seven years.

336     Accordingly, I grant leave to bring proceedings for damages for pain and suffering.

Loss of earning capacity

337     Having satisfied 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).

338     The 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. 

339     The former must be calculated by reference to the six-year period specified in s325(2)(f).

340     “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.

341     It 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.

342     The plaintiff carries the onus of proof in relation to economic loss and particularly in establishing satisfaction of the criteria in paragraphs (e), (f) and (g) therein.[125] 

[125]Barwon Spinners & Ors v Podolak (supra)

343     I am therefore required to determine a “without injury” earnings figure.  Submissions were made by counsel in this respect.

344     Counsel for the defendant pointed out the plaintiff’s poor work history and the fact the plaintiff had been on Centrelink payments since 2011, 2012 and 2013 and continuing.  He filed no taxation returns from 2011, yet he earned up to $42,000 in the three years prior to the incident, although he explained he had not put in a return because his earnings were below the tax threshold.[126]

[126]T69

345     Further, whilst psychologist, Dr Wilson, noted the plaintiff was going well working for the employer, it was seasonal work of about four months a year.  It was not yearly stability.  In that job, in the year before the incident, the plaintiff was a low earner, with income of only $20,122.[127]

[127]T72

346     Counsel for the defendant put two alternative “without injury” earnings figures.  The first was an average of the plaintiff’s earnings in the three years prior to the incident – a sum of $34,642, 60 per cent of which is $20,785 – $400 per week. 

347     The alternative approach was to take the plaintiff’s best income year, in which he earned $42,705, 60 per cent of which is $25,623 – $492 per week.[128] 

[128]T70

348     Relying on the plaintiff’s wage records, counsel for the plaintiff submitted in the week ending 26 February 2013, and the plaintiff worked 67 hours, and over the following weeks into March 2013, he worked 76 hours per week.   

349     Counsel for the plaintiff submitted the appropriate figure was therefore $2,279, the plaintiff’s earnings in the week of 22 March 2013, 60 per cent of which is $1,367.00.

350     However, when the plaintiff’s wage records are closely examined, the pay periods were in fact fortnightly, as counsel for the defendant pointed out in reply.[129]

[129]T104

351     The figure on that basis would be half thereof – $1,140.00, 60 per cent of which is $684.00.

352     In my view, had the plaintiff not been injured, the figure which most fairly reflects his earning capacity is in the vicinity of $45,000 annually – 60 per cent of which is $27,000 or $519 per week.

353     Whilst there was a demonstrated capacity to earn around $1,100 per week in the weeks the plaintiff worked 38 hours, this work was seasonal, for only four months of the year.  In the year prior to the incident, the plaintiff earned only $20,000 in this role.  His work record prior thereto was patchy, with ongoing psychiatric and marital issues. 

354     Further, the plaintiff maintained he did not file taxation return from 2011 to 2016 as his income was too low, although it appears he did earn nearly $42,000 in 2010-2011.

355     Unlike in Jessop,[130] there was no evidence the plaintiff hoped to work more hours for the employer if they were available.  His work did not depend on how busy the employer was.  The work was seasonal.  In those circumstances, there was no evidence that the plaintiff hoped to work more with the employer as it became busier.  Further, there was no suggestion the workload for other employees of the employer increased.

[130]The Herald & Weekly Times Limited and Victorian WorkCover Authority v Jessop [2014] VSCA 292 at paragraph [15]

Has the Plaintiff suffered a 40 per cent loss?

356     Counsel for the plaintiff submitted the plaintiff had suffered the requisite loss, as he has no capacity for suitable employment.

357     Reliance was placed on Dr Meegan, who imposed a 5-kilogram lifting limit and thought the plaintiff was effectively unemployable.[131]  Dr Thomas and Mr O’Brien considered the plaintiff was totally incapacitated.[132]

[131]T103

[132]T102

358     It was submitted the plaintiff was battling with the carwash work 15 hours a week according to Dr Derendorf’s certification, and he worked because he needed to pay his bills.  The plaintiff was a man motivated to work and he did try to do so within the restrictions imposed until he could not cope any longer.[133]

[133]T98

359     It was submitted the clinical notes were at least consistent with someone who had been working in the face of pain and had “run out of steam”, wanting to restrict his use of Tramadol using marijuana and “ice” instead.[134] 

[134]T99

360     Counsel for the plaintiff also submitted physical capacity was not the only relevant consideration in this application and the plaintiff had to be looked at as a whole person.[135]  In this case, he was nearly sixty-one, with a mental health issue by way of drug addiction.  He was now unemployable.[136]

[135]Richter v Driscoll [2016] VSCA 142

[136]T103

361     Even on Dr Baynes’ 30 hours, which was rejected, the plaintiff would suffer the requisite loss.[137]

[137]T101 – based on the higher figures/fortnightly

Overview

362     Prior to ceasing work in late 2017-early 2018, post incident, the plaintiff during the 2016-2017 financial year, earned $29,885 or $574 per week.  Based on the hourly rate of $22.86, as Ms Slade deposed, the plaintiff worked an average of 25 hours per week if he worked every week of the year.

363     During this time, the plaintiff agreed that he turned up for work when required and did the work required of him reliably and regularly.[138]   

[138]T30

364     If the plaintiff was only working 15 hours per week as he claimed, at the rate described by Ms Slade, he would have grossed only $17,830.  Working 38 hours at this rate, he would have been earning $868.68 per week.

365     Whilst not capable of working full time in an unrestricted manner, I am satisfied, based on the available D&D wage figures, the plaintiff had the capacity to work at least 25 hours per week in that job, not the 15 hours claimed by him to be his maximum.

366     As counsel for the plaintiff conceded, Dr Derendorf’s certification of fitness to work 15 hours per week[139] was at an early stage - in 2014.[140]

[139]Seems to be 20-24 hours

[140]T98

367     When deciding this application, it is also necessary to consider why the plaintiff ceased the D&D job in late 2017, early 2018.

368     As the plaintiff admitted, and Ms Slade confirmed, the plaintiff left D&D for family reasons.  His marriage broke down and he moved to live with his daughter.

369     I do not accept there was a deterioration in his right shoulder condition causing him to cease working at D&D as he also claimed.

370     Counsel for the plaintiff conceded nothing could be pointed to in the general practitioners’ notes supporting a deterioration in the plaintiff’s shoulder condition during 2017, although counsel relied on four identical entries relating to the plaintiff’s shoulder that year.[141]

[141]T99

371     Prior to those entries, in earlier March/April 2016, Dr Wolianskyj noted the plaintiff’s right shoulder pains seemed to be settling and “shoulder felt ok - slight aches and pains”.  In August 2016, that general practitioner first noted:

“Still having shoulder pains and greatly limited activity with shoulder.  Bilateral.  Still limiting work options …  Tramal use less, has been using shoulder more, Tramadol helping.”

372     There were identical entries on 1 February, 14 June 14, 23 October and 22 November 2017.  On the last date, it was simply noted “as does more work pain gets worse”.

373     After the plaintiff left D&D, his complaints to his general practitioner were mainly drug related or of a psychiatric nature.  His marriage had broken up and he moved to live with his daughter and grandchildren.

374     After ceasing work, straight away the plaintiff went on to Centrelink benefits for drug-related issues, with the initial Centrelink Certificate at Cadell Street for drug and psychological issues, not his shoulder.[142]

[142]T71

375     The entries in the Cadell Street notes were largely drug related and there was no mention of the plaintiff’s shoulder when he first attended.  Dr Wolianskyj completed the certificate on 31 January 2018, as earlier described.[143] Counsel for the plaintiff conceded ongoing certification for Centrelink was for mental health and drugs issues.[144]

[143]see paragraph [142] of my judgment

[144]T100

376     Having commenced attending Bridgeview in January 2018 when the plaintiff was seen for depression, the first mention of any shoulder complaint by him was in May 2018 when he was seeking a Centrelink certificate.[145]

[145]T71

377     In the most recent Centrelink Certificate from Bridgeview in January this year, Dr Shirjeel largely repeated the symptoms described by Dr Wolianskyj in the certificate of January 2018 but did not include low affect, suicidal tendency and drug abuse as symptoms.  The primary condition was anxiety and depression and the secondary related condition “right shoulder injury, left shoulder pain”.

378     As counsel for the defendant submitted, these medical notes were not the picture of a man who just could not take it anymore.  It was a picture of a man whose marriage had broken up and who had moved address, who had an increasing drug problem, which had been the pattern of his life over time, as described by Mr Hartley and also the psychologist, Dr Wilson.[146] 

[146]T72

379     Further, it is apparent those doctors who consider the plaintiff has no capacity for suitable employment have reached this view based on acceptance of the plaintiff’s complaints of significant restriction of his right upper limb – complaints I do not accept, based on the level of movement shown in the film.  It is not a situation where the plaintiff is unable to sustain right dominant hand activity unless his shoulder/arm is tucked closed to his body as he described to Mr Hartley. 

380     I am mindful of what was said by Chernov JA in Dordev v Cowan[147] in relation to the plaintiff’s credit in this type of case:

“A plaintiff’s credibility is relevant not only to whether his evidence should be accepted but it is also relevant to the reliability of the medical evidence because the opinions of the doctors are essentially dependent on the credibility and reliability of the history given to them by the plaintiff.”

[147][2006] VSCA 254 at paragraph [14]

381     Accordingly, in this case, what appear on their face to be medico-legal opinions supportive of the plaintiff’s claim must be looked at in the light of my views as to his credit.

382     I do not accept as a result of any right shoulder alone the plaintiff does not have a capacity for any work as a number of doctors have opined.

383     The medico-legal examiners who held that view were not told by the plaintiff of his “ice” use, with Dr Thomas being told specifically by him that he was no longer a user.  Dr Meegan was told the plaintiff had no previous psychiatric problems and was unaware of the use of even cannabis. 

384     Dr Meegan also thought the plaintiff’s thoracic and neck conditions would give him some limitation for various work activities.

385     Vocational assessor, Mr Hartley, was simply told by the plaintiff that his general practitioner had certified him as not fit for any work and was unaware of the contents of the recent Centrelink certificates.

386     Further, all such examiners accepted the plaintiff left D&D because of increasing shoulder pain and difficulty coping, Mr O’Brien commenting that “in fact, the plaintiff obviously failed to cope with part-time work as a car detailer”. There was no mention by these examiners of the drug and family problems the plaintiff was experiencing at that time.

387     Whilst Dr Shirjeel thought the plaintiff did not show any capacity for work in 2019, that doctor did not explain whether the plaintiff’s incapacity was physically or psychologically based, simply stating that this view was based on the history and examination and symptoms described by the plaintiff.  This doctor had, however, certified the primary diagnosis was psychiatrically based in the most recent Centrelink certificate.

388     Further in this regard, the plaintiff’s treating psychologist, Dr Wilson, considered the plaintiff to be incapacitated for work on psychiatric grounds.

389     Taking into account all the evidence as a result of any right shoulder impairment, I am not satisfied the plaintiff has suffered the requisite loss of 40 per cent - based on 60 per cent of $45,000 - $519 per week.

390     The plaintiff had demonstrated the capacity to work at least 25 hours per week in quite physical work at D&D, requiring the use of both arms.  I am not satisfied that he left that job because of increasing shoulder problems, rather the reasons were of a family nature and also related to the plaintiff’s increasing illicit drug use.

391     I reject the submission by counsel for the plaintiff that the plaintiff’s drug use and mental condition are relevant when considering the plaintiff’s capacity for suitable employment based on his right shoulder complaint.  These are issues that I am specifically required to ignore when considering the plaintiff’s capacity for employment as the Court directed in Peak Engineering.[148]

[148](Supra) at paragraph [24]

392     I am satisfied, in terms of his shoulder condition, the plaintiff has the capacity to undertake work of a similar nature to that undertaken at D&D and also duties of the type suggested by the vocational assessor.  The plaintiff does have a work capacity, in my view, to work at least 25 hours per week – a view not dissimilar to that expressed by Dr Baynes, who thought the plaintiff had the capacity to work 30 hours per week on an initial basis.

393     As counsel for the defendant submitted, the jobs suggested in the  2017 vocational report are very detailed in terms of what is involved.[149]  The job picking had an overhead reach of about 1.6 metres but that could be done with the left hand.  As counsel also submitted, the job specifications had been carefully thought out.  The forklift driving was in a warehouse, not on the road.  Any computer work was really data entry, “not clever computing” and could be taught on site.[150]

[149]T73

[150]T74

394     I also note in this regard, the plaintiff was educated to Year 12 and did a year of teacher training so he has some capacity for other than manual work.

395     Working 25 hours a week in the following suggested roles, the plaintiff would earn as an order picker $597.50 ($23.90), customer service ordering clerk $572 ($22.88) and forklift operator $600 plus ($62,668 per annum).     

396     Taking into account all the evidence, I am not satisfied the plaintiff has suffered the requisite loss of 40 per cent.

397     Accordingly, the application in relation to loss of earning capacity is dismissed.

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