Pattison v Victorian WorkCover Authority
[2018] VCC 1533
•21 September 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-17-01652
| SEAN EDWARD PATTISON | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 September 2018 | |
DATE OF JUDGMENT: | 21 September 2018 | |
CASE MAY BE CITED AS: | Pattison v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1533 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – impairment of the left shoulder – pain and suffering – range – non compensable condition - disentanglement
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b), (37) and (38)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181; Peak Engineering & Anor v McKenzie [2014] VSCA 67
Judgment: Leave granted to bring proceedings for damages for pain and suffering.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr N J Dunstan | Maurice Blackburn |
| For the Defendant | Mr B R McKenzie | Hall & Wilcox |
HER HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of his employment with Hydro Chem Pty Ltd (“the employer”) on 6 July 2010 (“the said date”).
2 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act. There, “serious injury” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
3 The body function relied upon pursuant to clause (a) is the left shoulder.
4 Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.
5 The impairment of the body function must be permanent, in the sense that it is likely to continue into the foreseeable future.
6 The plaintiff bears an overall burden of proof upon the balance of probabilities.
7 By ss(38)(c) of the Act, the impairment must have consequences in relation to each of pain and suffering and loss of earning capacity which, “when judged by comparison with other cases in the range of possible impairments … fairly described [at the date of the hearing] as being more than significant or marked, and as being at least very considerable”.
8 I 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.
9 I 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
10 The plaintiff relied upon two affidavits and gave viva voce evidence. He was cross-examined. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s evidence
11 The plaintiff is presently aged thirty-seven, having been born in November 1980. He lives alone. He has a year old daughter, Ashlyn, with his partner, Deven.
12 The plaintiff went to school until Year 10, but struggled. He had a difficult time with his father and stepfather. Having left school, he worked as a tyre fitter, and then in a number of jobs, including storeman, forklift driver, security guard, truck driver and delivery driver.
13 Over the years, the plaintiff had a number of different injuries. In particular, he had about three left knee arthroscopies, the most recent just over a decade ago. He fractured his right wrist a couple of times as a teenager. He had been involved in three transport accidents. His eyebrow was lacerated in a nightclub fight.
14 In cross-examination, the plaintiff agreed he made no reference at all in his affidavits to suffering from myopathy. He did not know about it when he swore his first affidavit, but he did when he swore his second on 7 September 2018. By that stage, he had seen Dr Buzzard, neurologist, at Box Hill, and the Genetics Department at the Austin Hospital.[3]
[3]Transcript (“T”) 5
15 The plaintiff denied he was deliberately concealing that myopathy condition from the Court, and also from Dr Strauss, when he saw him earlier this year.[4] He agreed, in more recent times, he had been treated at Box Hill Hospital for myopathy.[5]
[4]T6
[5]T3
16 The plaintiff started work with the employer in 2008 as a water service technician. It was a full-time job which involved attending various buildings to clean the water cooling towers.
17 On the said date, whilst at work, the plaintiff fell down stairs at the Albert Road Clinic (“the premises”), landing heavily on his left side and his left arm (“the incident”).
18 The plaintiff worked the next day, but his pain increased. A couple of days later he saw his general practitioner, Dr Sebastian, who arranged shoulder scans.
19 The plaintiff was off work for a few months. He saw a chiropractor and was referred to a physiotherapist, Anna Sammells.
20 The plaintiff’s pain continued and he was referred to an orthopaedic surgeon, Mr Steve Csongvay. On Mr Csongvay’s advice, he had a steroid injection in his left shoulder in late 2010.
21 The plaintiff returned to work part time doing office duties and continued to see Mr Csongvay from time to time. He arranged an MRI scan of the plaintiff’s left shoulder. The plaintiff developed some numbness in his left arm and Mr Csongvay also arranged a cervical MRI scan.
22 When the plaintiff saw Mr Csongvay in early 2011, he recommended surgery. There were further MRI scans of the plaintiff’s left shoulder and neck. He underwent left shoulder surgery in about March 2011 (“the operation”).
23 After the operation, the plaintiff was off work for about three months. Initially, his shoulder seemed to improve. He saw Mr Csongvay from time to time.
24 The plaintiff returned to work in about mid 2011 on part-time modified duties. He had restrictions on lifting and was not to go up ladders; however, he did have to do some work beyond his restrictions, such as driving a manual car and driving for long distances.
25 Gradually, after the return to work, the plaintiff’s left shoulder became painful again. He continued to see Mr Csongvay throughout 2011. He was taking pain medication, including Endone.
26 In the second half of 2011, the plaintiff had a further injection in his shoulder. He continued to see Mr Csongvay until the first half of 2013, when he told the plaintiff there was not much more he could do.
27 The plaintiff continued to have shoulder problems and had further scans. He was prescribed Lyrica. At some point in 2012, he was referred to a counsellor to discuss some of his childhood issues.
28 In late 2012, the plaintiff was prescribed antidepressants, which he believed was partly because of his depression and partly to help manage the pain. He was also having physiotherapy and hydrotherapy.
29 Whilst working for the employer, the plaintiff had no problems because of myopathy, or any restrictions because of that condition.[6]
[6]T38
30 The employer terminated the plaintiff’s employment.[7] He believed, technically, he was made redundant because he was unable to go back to his normal job.
[7]April 2012 – report of Professor Buzzard dated 11 June 2014
31 The plaintiff got married shortly after he lost his job. He was then unemployed for about nine months, during which time he was supported by his then wife.
32 Eventually, the plaintiff got work as a yards man with CEVA, where he worked for about nine months. He found the job very difficult on his left shoulder.
33 Before commencing this job, the plaintiff signed an APS Work Fitness Declaration on 25 September 2013. He agreed, in that document, he answered “Yes” to questions about different tasks he might be able to undertake such as stretching and reaching, lifting more than 10 kilograms, repeated shoulder arm motion, repeated hand/wrist motion, repeated lifting, moving and carrying.[8] He denied he ticked “Yes”, because he had no difficulty with those tasks. He answered “No” to any work or sports-related injuries; however, the 2010 injury was still causing him problems in 2013.[9]
[8]T8
[9]T8
34 The plaintiff agreed he answered “No” to whether he had disabilities, permanent conditions or injuries. This was not because he was not having any problems with his left shoulder; he was having problems. He had also ticked “No” to any shoulder problem. That was not a true statement, it was untrue.[10]
[10]T9
35 The plaintiff gave incorrect answers on this form because he was desperate for work to pay the mortgage and his bills.[11]
[11]T38
36 A job description document for the role of forklift labourer at CEVA set out workers would be required to perform repeated shoulder/arm/wrist hand movements, lift up to 20 kilograms from the floor, waist and shoulder height, and carry up to 20 kilograms. The plaintiff agreed he signed a declaration that he acknowledged that these were job functions he would be required to perform and that he had to mention if he would have any difficulty performing those tasks.[12] He agreed he did not disclose any problems with his shoulder doing those movements; however, he did have a problem.[13]
[12]T10
[13]T11
37 In mid-2014, the plaintiff found another job with Vicpol as a trade’s assistant. Initially, he was hired as a casual, working thirty-eight hours a week. He worked in that role for two and a half weeks, but found it very difficult because he had to do tasks like grind metal poles, which made his shoulder very painful.
38 After a few weeks, the plaintiff was offered a job as a causal forklift driver. He was then made a permanent. That job was much easier on his shoulder than the trade’s assistant work.
39 At some point, the plaintiff slipped in the driveway at home and fell, landing on his knees. He thought he used his left hand to break his fall. He could not remember that incident making much difference to his shoulder pain, but he probably saw a doctor.
40 The plaintiff’s marriage lasted less than two years. He and his wife then separated. He believed his injury created a lot of problems for the marriage and contributed to some degree to the break up, because he was not being supportive and he felt physically restricted in terms of housework and maintenance. He was snappy and short tempered because of pain.
41 In December 2015, the plaintiff had a fall at work and landed on his back, left wrist and ankle. He had to stop work and went to hospital, where he was told he had fractured his left wrist. He returned to work a week later wearing a splint, and he continued working as a forklift driver without doing the heavier work.
42 The plaintiff agreed the last time he might have mentioned his left shoulder to Dr Sebastian was 28 June 2013 if that was what the records show but All Medical should have records of shoulder complaints too.[14] He denied he last attended in June 2013 because he did not have much in the way of shoulder problems.[15]
[14]T22
[15]T31
43 The plaintiff started to attend Boronia Medical Centre (“Boronia”) in December 2015. For the two-and-a-half years before that, he thought he went to All Medical in Wantirna. He thought he might have gone there about ten times.[16]
[16]T22, T36
44 Attendances at Boronia, the plaintiff’s current work doctor, continued until April 2017.
45 The plaintiff agreed the Boronia notes only referred to left wrist and left leg and the clinic did not know anything about his left shoulder. He was reporting the injuries that happened then, not the ones that were already pre-existing. He was not sure whether he complained about his left shoulder to Boronia.[17]
[17]T24
46 The plaintiff denied there was no mention about his left shoulder at these various clinics because there was really nothing wrong with his left shoulder. There is something wrong with his shoulder. He has taken over-the-counter medication in recent years for his left shoulder. He does not take Panadol or Mersyndol for generalised muscle pain because there is no muscle pain in his hands.[18]
[18]T25
47 As of November 2016, when he swore his first affidavit, the plaintiff was under the care of doctors at Boronia. He took Panadol every work morning and Mersyndol every couple of nights.
48 The plaintiff then experienced constant left shoulder pain, the level of which fluctuated, depending on his activity. He felt numbness and discomfort down his left arm to his wrist. The symptoms down the arm were not constant, but came on depending on activity.
49 There were many activities that aggravated the plaintiff’s injury. Raising his left arm overhead was painful. He found hanging out the washing difficult, but he had to do it because he was living alone.
50 The plaintiff had difficulty when moving house and he needed friends to help him. He tried to limit himself to only lifting or moving small items, but even found that difficult.
51 At that stage, the plaintiff’s partner’s children were aged four, five and six, and lifting them up and holding them was very painful.
52 The plaintiff found cleaning the house difficult. Washing the shower was painful, and he needed to do it on his hands and knees, scrubbing with his right hand. As his left arm then had to take his weight, his shoulder pain increased.
53 Mowing the lawn was difficult. The plaintiff did it but doing so hurt his shoulder. His previous property had a very big lawn and it took him a long time to mow, and he had to do it in stages.
54 The plaintiff managed to do his own shopping, but if he had to carry heavy items, such as dog food, he tried to use his right arm. He did not walk his dog much because it was quite aggressive.
55 The plaintiff’s sleep was disturbed because of shoulder pain and he then woke up at least once each night in pain.
56 Before the incident, the plaintiff enjoyed activities like tinkering with gadgets and tools and building things. Thereafter, he had difficulty with these activities. He had recently built a fence, which took him six weeks, although it was only a small two-metre fence. Before the injury, it would have only taken him a weekend to complete. Because of his shoulder pain, he was much slower doing these types of tasks.
57 The plaintiff continued to work for Vicpol. He took time off here and there because of shoulder pain – every couple of months he called in sick. He worried he would eventually have to stop work because of his shoulder. If he did, he did not know what other work he could do. He is dyslexic and his reading and writing is average, and he struggles with spelling. He did not finish school and he had pretty basic computer skills. He had a Facebook page and managed to use an iPhone, and he used Siri to write messages and emails. He was not very good at maths and was diagnosed with Attention Deficit Hyperactivity Disorder when he was a child.
58 The plaintiff continued to feel quite depressed and he was frustrated with his limitations. He was then worried he would not be able to continue working and he worried a lot about the future. He had become much moodier and short tempered since his injury, and he found the pain made him snappy.
59 The plaintiff swore a further affidavit on 7 September 2018.
60 The plaintiff’s partner, Deven, will soon be moving in with him. Their daughter, Ashlyn, was born in July 2017. Deven’s three other daughters are now aged from eight to five. At the moment, she normally stays with the plaintiff on the weekends with Ashlyn.
Current work
61 The plaintiff continues to work at Vicpol as a full-time forklift driver. There is very little lifting required in this job and he spends 90 per cent of the time driving the forklift. Any lifting he has to do is only very occasional, and only involves weights of between 5 and 10 kilograms.
62 The plaintiff’s current work is light. He has not discussed with Dr Buzzard or any other doctor about continuing to work as a forklift driver.[19]
[19]T32
63 Whilst the plaintiff continues to work full time, he has to have a day off from time to time because of left shoulder pain, taking either a sick day or an annual leave day in advance. He feels his left shoulder is getting worse. On average, he takes about one day off every six weeks or so because of this injury.
64 The plaintiff denied that any time off given by doctors at the Pakenham Medical Centre, such as on 31 May 2018, was to do with myopathy. It was because of his shoulder.[20]
[20]T21
65 When Dr Buzzard noted that he was struggling at work due to the weakness in his hands, the plaintiff said that was not the situation. He was not struggling because of his hands,[21] he was struggling because of his left shoulder.[22]
[21]T19
[22]T20, T37
66 It was put to the plaintiff that his myopathy was going to have an effect on his ability to work and he said “probably”. He agreed that caused him worry. He did not know why that was not mentioned in his affidavit. He denied that problems using his upper limbs were due, in very large part, to his myopathy.[23]
[23]T35
67 The plaintiff is aware he can never go back to his pre-injury employment because of his left shoulder, and he has been told this by various doctors. That makes him worry about his future, because he has only ever done physical work, and was not very good at school. He continues to worry about what he would do in the future if he ever lost his current job. He can cope with it, because he does not have to do any heavy work that involves using his left arm.
Current treatment
68 The plaintiff deposed that he currently attends the clinic at Pakenham. He attends only occasionally for his left shoulder because he has been told there is not really much more that can be done for him apart from pain medication.
69 When told that the notes of the Clinic had no mention of his shoulder, the plaintiff said, as far as he was aware, they knew about it.[24] When he gets scripts, he also speaks to the doctors about his shoulder. He does not know whether this was recorded in the notes.[25] He has been treated at Pakenham for a range of different things. He agreed that myopathy was the only one that was mentioned in the notes.[26]
[24]T12
[25]T13
[26]T16
70 The plaintiff deposed that he continues to takes Panadol, normally six a day, when he is working; three in the morning and three in the afternoon. He also takes Mersyndol at night to help him get to sleep, approximately every second night.
71 The plaintiff understood he was taking Mersyndol for shoulder pain. He does not take it for aches and does not have any pain in his hands.[27] He denied any medication that had been prescribed was for myopathy and had nothing to do with his left shoulder.[28] He recalls being prescribed Mersyndol Forte, but denied it was for myopathy.[29]
[27]T17
[28]T21
[29]T14
72 The plaintiff denied Dr Buzzard recommended he take paracetamol and non-steroidal anti-inflammatories for his myopathy, not for his shoulder.[30]
[30]T29
73 Pakenham Medical Centre is involved in trying to get the plaintiff a disability parking permit, which he needs for his left shoulder because of problems opening the car door and twisting and holding it to his left. A disability space would give him more room. He then said the permit was for both his shoulder and myopathy.[31]
[31]T30
74 The only specialist the plaintiff has seen about his shoulder is Mr Csongvay. He agreed he had been referred to other specialists for myopathy. He has been told there is nothing they can do about his shoulder. There is still a problem with his left shoulder.[32]
[32]T34
Myopathy treatment
75 The plaintiff agreed there was wasting in his thumbs but had not noticed wasting of the muscles at the top of his hands. His fingers on both hands curled inwards slightly.[33]
[33]T16
76 The plaintiff agreed there was muscle wasting of his legs, problems with hands, forearms and legs, separate to his shoulder, but denied he is being treated for that. At Pakenham he has been seen for that and other things, that and his shoulder. He could not control what was written in the notes.[34]
[34]T33
77 The plaintiff has seen doctors about the myopathy because he is worried about his daughter having it. It does not really affect him that much.[35]
[35]T39
78 The plaintiff could not remember telling Dr Buzzard on 5 December 2016 that he had one hundred falls in more recent times because of his ankles rolling. He had a bad left knee and he always put it down to that. He agreed he told her that he did not have cramping of his muscles and only experienced occasional tingling in his hands, but no other sensory symptoms.[36]
[36]T18
79 Dr Buzzard wanted to do further tests and the plaintiff ended up being referred to Dr Williams, Neurology Registrar at Box Hill, whom he saw in February 2017. He did further tests, and the plaintiff went back to Dr Buzzard in January this year.
80 Dr Buzzard is trying to find out what is wrong. She has done some tests. She sees the plaintiff every six months and he is due to see her again in four weeks.[37]
[37]T26
81 There had also been a referral to a Dr Tim Day at the Royal Melbourne Hospital, whom the plaintiff probably saw a month ago. Dr Buzzard had also suggested physiotherapy. The plaintiff is yet to hear when this treatment is to start.[38]
[38]T29
82 The plaintiff saw an occupational therapist two weeks ago.[39] They wanted to make things easier for his hands – such as providing him with a special knife and fork. He confirmed his hands do not hurt. The occupational therapists are involved to help his hands work better.[40]
[39]T27
[40]T28
Current pain and restrictions
83 The plaintiff continues to experience constant left shoulder pain, depending on how much he has used his left arm. That pain varies between a pulling type sensation and an aching type of pain. It is sort of like somebody is dragging on his arm. The pain sort of shoots up into his neck a little bit.[41]
[41]T17
84 Basically, any activity involving using the plaintiff’s left arm, particularly overhead, aggravates the pain – such as hanging the washing on the line. He still does those activities, but does them with pain, and often has to stop and rest to relieve the pain.
85 The plaintiff has great difficulty lifting Ashlyn because of his left shoulder. It is painful, and he does it, but there are times the pain is so severe he cannot pick her up and has to ask Deven to do so and put her on his lap.
86 In re-examination, the plaintiff confirmed he has no problem lifting with his right hand and the myopathy results in no work restrictions being imposed by any doctor.[42] His current problem is with his shoulder, lifting things and straining and “stuff” at work.[43]
[42]T35
[43]T36
87 The plaintiff confirmed he has problems lifting his daughter because of his left shoulder not the myopathy.[44] No doctor has told him to stop any activities because of his myopathy, but he has problems with household activities because of his shoulder. He does not get any pain in his hands because of the myopathy, and has no symptoms.[45]
[44]T32
[45]T36
88 The plaintiff continues to find cleaning the house difficult because of his shoulder pain, and he relies heavily on his right arm as much as possible. He mows the lawn, but with difficulty. He often puts it off for as long as possible because he knows how painful it will be for his shoulder. When mowing, he often has to stop and rest in order to give his shoulder a break.
89 The plaintiff continues to do his own shopping, but normally carries any heavy items, such as dog food, in his right arm, and avoids, as much as possible, lifting anything very heavy with his left shoulder.
90 The plaintiff confirmed problems hanging out the washing and cleaning the floor of the shower were not to do with hands nor was mowing the lawn or problems carrying shopping.[46]
[46]T29
91 The plaintiff’s Ridgeback Cross Heeler has lots of energy and can be aggressive. The plaintiff has had to stop walking the dog because it is too powerful. The plaintiff needs to use two arms to walk and control the dog, but cannot do so due to problems he has using his left arm.
92 The plaintiff’s sleep continues to be disturbed on a regular basis because of his shoulder pain, and he is regularly woken up at least once a night. If he rolls onto his left shoulder during the night, this will normally wake him up. He denied problems with sleep was due to his hands.[47]
[47]T32
93 Prior to suffering injury, the plaintiff enjoyed handyman jobs around the house, including renovation work. He is now greatly restricted in those types of activities and avoids any activity above shoulder height because of his injury.
94 The plaintiff had problems with putting up the shed because he could not lift the pieces because of his shoulder. He does not have problems with his hands doing the tinkering. Everything worked the way it was meant to work.[48]
[48]T33
95 The plaintiff is less depressed than when he swore his last affidavit, but he continues to be anxious in relation to the future. He continues to get irritable and frustrated from time to time because of his chronic left shoulder pain and because of his restrictions.
96 The plaintiff is right hand dominant and one of the ways he copes with his left shoulder injury is by relying on his right arm as much as possible. Since injuring his shoulder, he tries to avoid using his left arm as much as possible and this means he tends to do a lot of activities using his right arm.
The Plaintiff’s earnings
Financial year ending Earnings 2007
$49,697
2008
$47,801
2009
$36,169
2010
$41,017
2011
$42,877
2012
$43,197
2013
$42,446
2014
$43,601
2015
$55,063
2016
$58,898
2017
$60,753
2018
$56,328
Treaters
Dr Sebastian
97 The plaintiff first attended Moorabbin Clinic on 8 July 2010, reporting having fallen two days earlier at work, taking some weight on his left arm.
98 Dr Sebastian from that clinic reported in May 2012.
99 At that stage, Dr Sebastian diagnosed left shoulder tendinopathy and bursitis, persisting despite two doses of left shoulder-injected corticosteroid and subacromial decompression surgery. He also diagnosed Chronic Regional Pain Syndrome, with a pain program of physiotherapy, including hydrotherapy, acupuncture, analgesics, non-steroidal anti-inflammatory tablets, Nortriptyline and reduced work hours with light duties.
100 In Dr Sebastian’s view, the injury was work related. He then thought the probable duration of incapacity was unknown. He would expect the plaintiff would return to full normal duties over six to twelve months.
101 On 9 May 2012, Dr Sebastian certified the plaintiff fit for light duties, with a weight restrictions of 5 kilograms, no ladder work, seven and a half hours Monday, Tuesday and Thursday, including some administrative hours Wednesday, 8.00am to 11.00am and no driving greater than twenty minutes to worksite, preferably with an automatic car.
102 Dr Sebastian noted the plaintiff had had little change in the degree of incapacity since about August 2011. He did have a further fall at home getting into the car to go to work on 3 May 2012, which had aggravated his left shoulder pain. Notwithstanding that, Dr Sebastian believed the plaintiff’s symptoms had stabilised and he expected a slow gradual return to full recovery over six to twelve months.
Physiotherapy
103 The plaintiff was referred for physiotherapy at Moorabbin Physiotherapy Centre and first attended on 29 July 2010, where he saw Ms Sammells.
104 The plaintiff was last seen on 10 April 2012, when his shoulder condition appeared to be stable. He was attempting to increase his work hours to four days a week and Ms Sammells encouraged him to continue with his exercises.
105 Ms Sammells noted the plaintiff had been slowly and gradually increasing his work hours and attempting to do more with his left arm under the direction of Hayley Duncan from IPAR Consultants.
106 In Ms Sammells’ opinion, the plaintiff should regain his full physical capacity to use his left shoulder and should be able to return to unrestricted duties in the future. She thought he should then continue with his exercise program to improve his strength and endurance.
Mr Csongvay
107 Mr Csongvay, orthopaedic upper limb surgeon, first saw the plaintiff on 30 August 2010. He felt the plaintiff had developed a subacromial bursitis secondary to the trauma, and he recommended a steroid injection as the best next line of treatment.
108 The plaintiff returned on 22 November 2010, reporting he did not receive much relief from the injection. An MRI scan performed on 5 December 2010 was reported to show low-grade supraspinatus tendinopathy without evidence of a tear, with associated mild subacromial bursitis.
109 On review on 16 December 2010, Mr Csongvay explained the MRI scan findings to the plaintiff. The plaintiff then mentioned he had some episodes of left arm numbness associated with some neck pain. Mr Csongvay arranged a cervical MRI scan on 10 January 2011 which was reported to show moderate narrowing of the C5-6 neural foramina, more marked on the right. There was no left-sided neural impingement and the spinal cord was normal.
110 Upon discussing these findings with the plaintiff, Mr Csongvay recommended surgery in the form of left shoulder arthroscopy and subacromial decompression in view of the plaintiff’s persisting symptoms.
111 Surgery was carried out on 22 March 2011. Subacromial impingement and chronic subacromial bursitis were found on operation. A bursectomy and decompression was performed with an excellent surgical result.
112 Pot operatively, the plaintiff was seen on 4 April 2011 and reviewed on 10 May 2011.
113 On the later date, Mr Csongvay noted the plaintiff was making excellent progress with physiotherapy and he had regained near full motion in the left shoulder and his pain was minimal. He did not feel the plaintiff was then ready to go back to work.
114 When seen on 7 June 2011, the plaintiff was coping well with physiotherapy and had regained full shoulder elevation with good rotator cuff power. He still had some minor limitation of internal rotation.
115 Mr Csongvay had planned to return the plaintiff to light duties the following month and the plaintiff was cleared on 5 July 2011 to return to work. He had some dull ache in his shoulder and had difficulty sleeping on his left side but overall was managing well.
116 On review on 23 August 2011, the plaintiff mentioned increasing left shoulder ache and demonstrated reduced elevation. His symptoms had significantly deteriorated after increasing work hours to five hours a day, five days a week.
117 On 27 September 2011, Mr Csongvay injected the plaintiff’s left shoulder to give some symptomatic relief and try and clarify ongoing symptoms.
118 On review on 8 November 2011, the plaintiff noted some improvement following the injection and he was progressing slowly. He had only very mild rotator cuff weakness. He was still experiencing rotator cuff irritability but with less frequency.
119 Mr Csongvay recommended the plaintiff increase strengthening exercises. He felt the plaintiff was ready to increase his work hours with an aim to get back to normal pre-injury duties over the following six months.
120 On examination on 31 January 2012, the plaintiff was only working three days a week and felt he was coping with those hours. He described some pain, but maintained full active range of motion. Mr Csongvay was not able to explain the plaintiff’s ongoing deterioration and had no specific intervention to offer him.
121 Mr Csongvay next saw the plaintiff on 18 June 2012, when he continued to have ongoing discomfort in the left shoulder but was managing to work three and a half days a week.
122 Mr Csongvay noted an MRI scan of 16 February 2012 showed some very mild supraspinatus tendinopathy and post-operative changes in the shoulder. Following an ultrasound of 8 March 2012, it was reported there was diffuse inflammation of the supraspinatus tendon with impingement on abduction. Mr Csongvay was inclined to believe the MRI scan and could not explain this discrepancy.
123 Mr Csongvay then thought the plaintiff required ongoing physiotherapy, hydrotherapy and acupuncture to manage his pain, but also to strengthen his rotator cuff. At the time, he was losing hope the plaintiff would make a full recovery and told him it was likely he would always have some limitation in his shoulder which will limit his ability to perform activities and do strenuous and repetitive lifting with his left arm.
124 The plaintiff was last seen on 12 March 2013. He then continued to have chronic ache in the left shoulder which was limiting his activities at home and work, but he was managing on limited hours at work.
125 The plaintiff had not seen any significant help from physiotherapy or Lyrica. He maintained near full mobility in the left shoulder with near normal power in the rotator cuff. He demonstrated only mild subacromial irritability.
126 Mr Csongvay believed the plaintiff had a chronic pain condition in relation to the left shoulder and he could not identify an obvious structural problem that could be corrected surgically. He recommended the plaintiff maintain his current work restrictions. He suggested re-examination if further deterioration.
127 Mr Csongvay thought there was a clear relationship between employment and the plaintiff’s symptoms. He believed the plaintiff had a current capacity for work; however, he was very likely to be permanently limited to his current level of activity, which involved less than normal hours and less strenuous and repetitive work with his left arm. He would not expect the plaintiff to be able to return to his pre-injury duties at any time in the future.
128 After more than two years of recovery, Mr Csongvay considered the plaintiff’s recovery to have plateaued.
Medico-legal examiners
Associate Professor Buzzard
129 Professor Buzzard saw the plaintiff on 11 June 2014 on behalf of QBE.
130 The plaintiff stated that in the incident he suffered left shoulder pain, a sore neck and pain in the region of the shoulder blade.
131 On examination, the plaintiff told Professor Buzzard he had pain in the left shoulder since the incident. The pain was static and made worse by doing too much. He was taking Mersyndol, three tablets every two or three nights, to help him sleep.
132 The plaintiff told Professor Buzzard he was sacked by the employer in 2012 because he could not do his job. He could not physically carry things he was meant to be carrying, such as 15-litre drums of chemicals up to the roofs of buildings and he was meant to be carrying a pressure washer weighing about 10 to 15 kilograms. At the time of being sacked, the plaintiff was doing modified duties for three-and-a-half days a week. He had a 5-kilogram lifting limit and was not allowed to climb ladders.
133 On examination, Professor Buzzard noted there was gross wasting of the muscles between the thumb metacarpal bone and the index finger metacarpal bone, with an absence of thenar musculature on both sides. He told Professor Buzzard this was first diagnosed when he was going for a pre-employment medical with the employer.
134 On examination, there was some restriction of left shoulder movement.
135 Professor Buzzard thought the plaintiff injured his left shoulder in the incident. In essence, the injury was a rotator cuff injury which had been treated; however, not completely successfully.
136 Professor Buzzard thought it reasonable to accept the plaintiff does have continuing pain and some limitation of shoulder movement, and that is not likely to change in the future.
137 Additionally, Professor Buzzard noted the plaintiff does have a problem of wasting of musculature of both hands, which pre-dated the accident, and it appears to be a congenital deformity. It did not appear to be symptomatic.
138 Professor Buzzard also thought it reasonable to accept the plaintiff did suffer from an injury to his neck in the incident.
139 So far as the plaintiff’s employment is concerned, Professor Buzzard thought he is not able to work in a job requiring a full range of movement of his left shoulder or neck. He thought it reasonable to accept that this would preclude the plaintiff from pre-injury employment.
Mr Grossbard
140 Mr Garry Grossbard, orthopaedic surgeon, examined the plaintiff on 14 August 2018.
141 The plaintiff told Mr Grossbard he was using Mersyndol each other night and used about six Panadol each day. He was not undergoing any other specific treatment.
142 Mr Grossbard noted the plaintiff had marked wasting of his hand musculature which was being investigated by a neurologist.
143 The plaintiff described a pulling feeling in the left side of his neck, which was intermittent. It was not severe and was annoying rather than disabling. Mr Grossbard noted the major pain appeared to be over the left shoulder, largely on the top, constant and dragging in nature, worse with activity. At best, the pain was 4 out of 10, but reached a maximum of 10 out of 10. The plaintiff woke five or six times each night because of shoulder pain.
144 The plaintiff thought he had lost motion in the left shoulder and was unable to lift his arm above his head. He described a feeling of weakness of the arms.
145 Mr Grossbard concluded the plaintiff had restricted motion consistent with the development of a capsulitis which had not fully resolved. There was no evidence of major rotator cuff tear, but some evidence of muscular atrophy, which was not related to the incident.
146 Mr Grossbard thought the plaintiff suffered an injury to his rotator cuff in the incident and also to his neck, in the presence of pre-existing degenerative changes.
147 Mr Grossbard concluded the plaintiff had had a surgically treated rotator cuff injury which had become complicated by the development of a capsulitis and had persistent loss of motion of the left shoulder.
148 Mr Grossbard noted the plaintiff is currently working in a job where he is not required to be active at or above shoulder height and he believed that would be a limitation into the foreseeable future. He thought the plaintiff’s neck injury caused intermittent issues, but his major ongoing issues related to his left shoulder. He considered the major limitation on the plaintiff returning to normal activity related to the left shoulder and a job requiring heavy lifting, particularly at or above shoulder height, may well cause aggravation of the cervical injury.
149 Mr Grossbard believed ongoing treatment should remain conservative and he would not be recommending any further surgery. He regarded the situation as stable and unlikely to change in the foreseeable future.
Dr Nigel Strauss
150 The plaintiff saw Dr Strauss, psychiatrist, on 13 June 2018.
151 The plaintiff told Dr Strauss he has limited movement of his left shoulder and that his left arm was weak if he was overactive and using his left arm too much. At the end of the working day, the pain increased, but he had a mortgage to pay and said he was persistent and stoical.
152 The plaintiff described his problems with activities of daily living in similar terms to his affidavit. He told Dr Strauss he does get frustrated and irritable, and sometimes depressed, but was not tearful and had not been suicidal. His main concern was frustration because of his limitations. He had to take analgesia at night because the pain in his shoulder frequently woke him up.
153 Dr Strauss did not consider that currently the plaintiff’s situation involves a psychiatric illness. He did not believe the plaintiff had a psychiatric condition, but certainly he was affected by mild symptoms of anxiety and depression and had a good deal of frustration and irritability. In other words, he is subject to emotional distress as a consequence of his physical circumstances, but he is not suffering from a psychiatric illness and, therefore, has no incapacity for employment on psychiatric grounds and does not require any treatment on a psychiatric basis.
The Defendant’s medical evidence
154 Clinical notes from Moorabbin Clinic from 8 July 2010 to 23 June 2013 were tendered. The first visit, post-incident, was on 8 July 2010, when the plaintiff saw Dr Sebastian.
155 There were then numerous attendances on Dr Sebastian for left shoulder complaints, until the plaintiff was last seen on 28 June 2013.
156 Those notes set out the prescription of Mobic in August 2010, the addition of Panadeine Forte in September 2010 and the addition of Mersyndol in March 2011.
157 As of December 2011, the plaintiff was working three days, five hours a day. His left shoulder remained painful at night and morning, with low grade discomfort during the day.
158 As at February 2012, the plaintiff had ongoing left constant shoulder pain.
159 As of 24 April 2012, the following work restrictions were noted “increase of admin hours +add 3 hours of admin on wed limit driving 20 mins prefer auto”.
160 In January 2013, Dr Sebastian noted the plaintiff remained with a chronic pain situation of the left shoulder. Physiotherapy had stopped about two months ago as it did not seem to make any difference.
161 On the last visit of 28 June 2013, Dr Sebastian noted “shoulder not complaining of any significant new symptoms or particular change, plans to do truck-forklift driver course”.
162 Notes from Boronia Medical Centre from 1 December 2015 to 9 August 2017 were tendered. There was no reference to any left shoulder complaint during that period.
163 It was noted there was a workplace injury on 1 December 2015, when the plaintiff fell from two metres onto concrete, landing on his lower back and left wrist.
164 On 6 April 2017, it was noted the plaintiff’s leg “got stuck between a steel container & another drum”.
165 The last attendance of 9 August 2017 mentioned Austin Health Genetics Neuro Clinic letter.
166 The notes from Pakenham Family Clinic from 19 May 2017 to 19 July 2018 were tendered.
167 During that period, there were no references to any left shoulder complaint.
168 On 19 May 2017, Dr Marshall noted muscle wastage over the hands and wrists and legs, and that the plaintiff needs to see neurologist.
169 Throughout that period, Mersyndol Forte tablets were prescribed.
170 It was noted on 16 March 2018 – “ongoing script for Mersyndol Forte that helps generalise muscle ache and pain. Underlying genetic related myopathy seeing specialist at Box Hill. Doesn’t have any spasm.”
171 Generally, the “reason for contact” was genetic myopathy or myopathy.
172 On 31 May 2018, it was noted a work medical certificate was printed – “takes paracetamol and MG powder in day – little help med cert – too sore to work today as forklift driver in Bayswater”.
173 On 6 July 2018, it was noted the plaintiff was taking Mersyndol Forte, one at night, for pain and sleep for years and needed further script. Disabled parking application. Diagnosed with intrinsic muscle weakness with genetic origin, progressively decline in muscle strength, attending multidisciplinary clinic.
174 On 13 July 2018, it was noted that Maurice Blackburn was phoned regarding the Court appearance. “Dr Lin cannot attend as Dr Lin has never seen this PT regarding any issues other than scripts. Our other doctors have also not seen this pt for anything injury/work related therefore no doctor from this clinic can attend the hearing to give evidence.”
Eastern Health
175 Dr Buzzard, neurologist from Eastern Health, wrote to Dr Lim at Boronia in December 2016, thanking him for the referral of the plaintiff for an opinion regarding intrinsic hand muscle wasting.
176 Dr Buzzard noted the plaintiff was unable to recall when he first noticed the wasting in his hands. About eight years ago, a general practitioner commented he had quite marked wasting of the muscles. The plaintiff had not noticed any changes; however, he had started to adapt his activities due to hand weakness.
177 Examination of the upper limbs revealed profound wasting bilaterally. The plaintiff described reduced sensation over the medial aspect of his hands bilaterally, but no other sensory changes. Lower limb examination revealed severe medial quadriceps wasting, with mild and more distal wasting of the lower limbs.
178 In summary, Dr Buzzard thought the plaintiff presented with a longstanding history of upper limb distal muscle wasting as well as quadriceps wasting of the lower limbs, but then it remained to be determined whether his symptoms were due to a Myopathy or perhaps a motor myopathy, with milder sensory involvement. The potential long history, as well as suggestion of maternal involvement, raised the possibility of an hereditary condition, although other acquired conditions remained in the differential diagnosis. At that stage, Dr Buzzard suggested nerve conduction and EMG studies, as well as some blood testing.
179 Dr Cameron Williams, Neurology Registrar, saw the plaintiff on 27 February 2017, to follow up his long-term bilateral small hand muscle and quadriceps wasting.
180 It was noted that since the last visit at Box Hill there had been no significant change.
181 Dr Williams had discussed the case with Dr Buzzard. They felt the plaintiff had a chronic progressive myopathy that predominantly affected his distal upper limbs and proximal lower limbs. It was felt it was a hereditary myopathy rather than an inflammatory one, which was particularly relevant now, as the plaintiff and his partner had just found out they were pregnant together. Dr Williams arranged some further tests.
182 The plaintiff was again seen in the general Neurology Clinic on 22 May 2017 to review his suspected hereditary myopathy. It was noted, reassuringly, since the last visit, the plaintiff had no clinical deterioration.[49]
[49]Dr Williams
183 On 31 January 2018, Dr Buzzard wrote to Dr Marshall at the Pakenham Clinic.
184 Dr Buzzard noted the plaintiff returned that day for ongoing review of his presumed genetic myopathy. She noted, unfortunately, his symptoms are continuing to worsen and he has had a number of falls. He is struggling at work due to weakness in his hand.
185 Examination that day was largely unchanged. The most striking feature was severe intrinsic hand muscle weakness and wasting, together with quadriceps wasting. Dr Buzzard noted the pattern of a distal upper limb and proximal lower limb weakness was slightly unusual.
186 To push things forward, Dr Buzzard had suggested referring the plaintiff to the Royal Melbourne Neuromuscular Clinic to see Dr Day. The plaintiff also needed to be seen by Allied Health, in particular, occupational therapy and physiotherapy, and she had put through a referral; however, she was sure that they would need to forward this through to Monash.
187 Dr Buzzard noted the plaintiff’s pain was problematic. He has had issues in the past with medications that alter neurotransmitters due to his underlying ADHD. For the moment, she suggested he try and limit his medication to paracetamol and non-steroidal anti-inflammatories, and she planned to catch up with him routinely in six months.
Medico-legal examiners
Mr Ian Jones
188 Mr Jones, orthopaedic surgeon, examined the plaintiff on 26 July 2018.
189 The plaintiff reported a pulling sensation, indicating the left shoulder girdle. At night, he described some left upper arm pain extending into his left forearm, with numbness extending into the left hand. Aching in the shoulder girdle was said to increase with the use of the left arm.
190 The plaintiff reported he relied on a single Panadeine Forte, one at night for pain, as well as Panadol, up to five, for a working day. He reported left shoulder movements were restricted, in that he is unable to lift his left shoulder at or above shoulder height and had difficulty holding his young daughter. Specifically, he had no complaint involving his cervical spine.
191 On examination, clinical assessment of the cervical spine revealed a full range of pain-free movement. Neurological examination of both upper limbs was normal, apart from obvious wasting of the intrinsic muscles of the left and right hand, with some clawing of the fingers of both hands.
192 The plaintiff’s left shoulder exhibited some slight deltoid muscle wasting. Subjectively, there were signs of slight subacromial tenderness to palpation.
193 Mr Jones concluded current physical findings were those of a patient with a normal range of neck movement and neurological examination of both upper limbs, apart from the muscle wasting. In the left shoulder, the plaintiff had a slight to moderate restriction of the extremes of movement.
194 Mr Jones thought the plaintiff suffers from the effects of a work aggravated soft tissue injury to the left shoulder which has been surgically treated. He had been left with some residual pain and stiffness symptoms in his left shoulder. Mr Jones noted the usual course of such a procedure is one of gradually improving shoulder pain symptoms with an increased range of movement following physiotherapy, but on occasions, patients are left with some residual stiffness symptoms and some ongoing pain.
195 Mr Jones thought the prognosis for the left shoulder was one of ongoing stiffness in the near future, with pain in proportion to the demands made on the left shoulder. He thought it unlikely further treatment would be required.
196 Mr Jones believed the plaintiff would be able to continue in his current position as a forklift driver/storeman, provided he is not required to engage in any heavy lifting involving his left arm above 3 kilograms and there is no requirement to use his left arm at or above shoulder height, particularly in regard to heavy pulling or pushing.
197 The plaintiff reported he could manage all activities of daily living. Mr Jones advised him against attempting any activity requiring heavy pulling, pushing or pushing the left arm above 3 kilograms, or attempting to lift or push above shoulder height.
198 In relation to the plaintiff’s hereditary diagnosis of chronic progressive hereditary myopathy, Mr Jones thought the opinion of a neurologist would be required to assess any restrictions appropriate for this unrelated condition.
Overview
199 It is not disputed that the plaintiff suffered a compensable injury to his left shoulder in the incident. The consensus of medical opinion is that his surgically treated rotator cuff injury has become complicated by the development of a capsulitis.
200 There is no suggestion of any pre-existing left shoulder problem, or any significant non-organic component to the plaintiff’s current presentation.
201 The issues in this case are ‘range’ and also the role played by an unrelated myopathy in the plaintiff’s present condition.[50]
[50]T2
202 Counsel for the defendant submitted that myopathy was the “elephant in the room” and that in this case, therefore the principles in Peak Engineering & Anor v McKenzie[51] apply.
[51][2014] VSCA 67. T39
203 In Peak,[52] Maxwell P described the difficulty faced when a separate injury is also producing pain and suffering consequences for the claimant, as well as the relevant injury.
[52]ibid
204 In such circumstances:
“The Court must decide whether the consequences of the original injury are ‘more than significant or marked, and ... at least very considerable’. For that purpose, it is necessary — so far as the evidence permits — to identify the consequences properly referable to the original injury, and to exclude the consequences referable to the subsequent injury.”[53]
[53]At paragraph [1]
205 The President found that the judge was:
(a) bound to identify, and exclude, the continuing consequences for the plaintiff of the unrelated injury; and
(b) when the consequences properly referable to the relevant injury were identified, identify them as “serious”.[54]
[54]At paragraph [2]
Credit
206 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[55]
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
[55](2010) 31 VR 1 at paragraph [12]
207 Counsel for defendant submitted there is a lot of detail in the first affidavit about the plaintiff’s pre-incident health but no mention at all about myopathy. More significantly, his second affidavit was the perfect opportunity to “bring it up to speed” and disclose the condition, but the plaintiff did not do so.[56]
[56]T46-47
208 It was submitted the failure to touch on those matters at all reflects badly on the plaintiff’s credit in terms of assessing the significance of his left shoulder condition.[57]
[57]T46
209 In those circumstances, it was submitted I ought to have significant reservations in relation to the plaintiff’s evidence about other matters, and on that basis, refuse the application.[58]
[58]T47
210 Counsel for the plaintiff submitted the plaintiff was a straightshooter[59] who had got on with his life in the face of a significant shoulder problem, continuing to work with pain to support his young family.
[59]T56
211 Further, it was submitted the plaintiff was a pretty unsophisticated man, suffering from dyslexia, and poorly educated. In his understanding, the myopathy had not progressed, but since the birth of his daughter, he was keen to determine whether there was a family incidence, and that is why he has sought medical treatment.[60] Further, any treatment in relation thereto has largely involved a series of tests.
[60]T52
212 I accept the plaintiff was an honest unsophisticated witness. Whilst there was no mention of myopathy in his affidavits, it became clear when he gave evidence that he does not view that condition as being of any particular significance, save for his concern as it is genetic that it will be an issue for his children.
213 I also consider the plaintiff somewhat of a stoic with a strong work ethic, having worked consistently since the incident despite left shoulder pain and restrictions.[61]
[61][2008] VSCA 260 at paragraph [4]
Pain
214 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[62]
“The evidentiary basis of the pain assessment will ordinarily comprise the following: inter alia
(a) what the plaintiff says about the pain (both in court and to doctors);
… .”
[62]supra
215 The plaintiff continues to experience constant left shoulder pain, depending on how much he uses his left arm. That pain varies between a pulling-type sensation and an aching type of pain. He has particular difficulty with overhead activities.
216 The plaintiff has described his pain in similar to terms to doctors such recent medico-legal examiner, Mr Jones, to whom the plaintiff complained of a pulling sensation involving the left shoulder girdle, an aching with increased activity and pain at night.
217 The plaintiff has recently rated his pain at best at 4 out of 10 and at worst 10 out of 10. As he told Dr Grossbard, his major pain appears to be over the left shoulder and causes him to wake at night and gives him problems with driving.[63]
[63]T52
218 Whilst the plaintiff acknowledges wasting in his hands and lower limbs as a result of the myopathy, he repeatedly denied in his viva voce evidence that he has any pain in his hands or arms from that condition.
219 Doctors who have treated the plaintiff for myopathy have noted weakness in the plaintiff’s hands and generalised muscle ache and pain, not any particular left shoulder pain.
220 All medical examiners accept the genuineness of the plaintiff’s left shoulder complaints and restrictions. Restricted shoulder movement was consistently found by recent medico-legal examiners.
221 Counsel for the plaintiff relied on the significant restriction of movement found on Mr Grossbard’s examination and his view that the global loss of motion in the left shoulder was consistent with the diagnosis of capsulitis.[64]
[64]T53
222 Whilst aware of the plaintiff’s myopathy, medico-legal examiners, Professor Buzzard, Mr Grossbard and Mr Jones, all consider that his shoulder condition continues to result in restriction of movement, ongoing pain and interference with his activities.
223 Mr Jones advised the plaintiff against attempting any activity requiring heavy pulling, pushing or using the left arm above 3 kilograms, or attempting to lift or push above shoulder height. Professor Buzzard and Mr Grossbard thought similar restrictions were appropriate.
Treatment
224 The plaintiff initially had conservative treatment, including physiotherapy and steroid injections, but ultimately had to come to surgery in March 2011.
225 Post operatively, the plaintiff had ongoing problems with his left shoulder, as Mr Csongvay detailed in his report. He required further physiotherapy and injections. In March 2013, when he discharged the plaintiff, Mr Csongvay did not suggest further treatment and thought the plaintiff’s recovery had plateaued.
226 Since then, a shoulder complaint has been recorded only once, by Dr Sebastian on 28 June 2013, when he noted the plaintiff’s shoulder condition was unchanged.
227 Counsel for the defendant submitted the lack of treatment since that time, particularly in face of significant myopathy, meant any shoulder impairment was not serious.[65]
[65]T41
228 There was no reference to any left shoulder complaint in the notes of Boronia Medical Centre where the plaintiff attended from 1 December 2015 to 26 April 2017.[66]
[66]T41
229 Again, there was no reference to any shoulder complaint in the records of the Pakenham Family Clinic where the plaintiff has been seen from May 2017. It was submitted the only condition of which that practice was aware was myopathy in relation to which time off had been certified and medication prescribed.[67]
[67]T41
230 Further, it was submitted it should not be accepted that the plaintiff’s doctors at Pakenham know about his left shoulder, as not only is there no shoulder complaint in the notes, but there is a specific mention that the doctors at that practice would be unhelpful in the present case because they do not know anything about the plaintiff’s shoulder.[68]
[68]T40
231 It was submitted the absence of a treating general practitioner’s report was very significant, as treating general practitioners are always a ‘cornerstone’ to the application. Dr Sebastian’s last report was in May 2012, so it is of no real assistance as it is so old. It was submitted Mr Csongvay’s report was similarly unhelpful because it, too, was old.[69]
[69]T42
232 In response, counsel for the plaintiff relied on the very supportive reports of Professor Buzzard, Mr Jones and Mr Grossbard. As counsel for the defendant conceded, this was the plaintiff’s best point,[70] although Mr Jones deferred to a neurologist’s opinion.[71]
[70]T43
[71]T44
233 It was submitted by counsel for the plaintiff these medico-legal examiners “all line up” that the plaintiff has significant ongoing limitations and restrictions because of the left shoulder injury.[72]
[72]T54
234 In response to the submission the plaintiff’s condition was such that he did not need medical treatment, counsel for the plaintiff relied on Mr Csongvay’s advice to the plaintiff years ago there was nothing more he could do. It was submitted since then, the plaintiff has got a new partner, four daughters under the age of eight, including a baby, has got himself back to work and just gets on with life the best he can.[73]
[73]T56
235 Whilst there is an underlying, unrelated condition that has developed, in that the plaintiff has become more aware about it, counsel for the plaintiff submitted no-one is saying there is any further shoulder treatment that is appropriate, apart from medication, and the plaintiff says he does take it.[74]
[74]T49
236 Reliance was placed on the plaintiff’s history to various doctors that he takes medication for his shoulder pain. Further, it was submitted no doctor seems to have any doubt he needs that medication for that condition.[75]
[75]T51
237 Counsel for the defendant however stressed the plaintiff needs medication for myopathy.[76] Further, the plaintiff is seeing doctors in relation to the myopathy only. It was submitted Dr Buzzard, in her most recent report of January 2018, described significant problems in that regard.[77]
[76]T44
[77]T43
238 I accept that the plaintiff continues to suffer genuine pain and restriction in his left shoulder movement.[78] His failure to seek medical treatment in relation thereto after 2013 can be explained by the advice given to him by Mr Csongvay that there was nothing further that could be done.
[78]T51
239 Whilst he may be prescribed medication for his myopathy, I accept the plaintiff has, since the date of the incident, required painkilling medication for his shoulder condition. Initially, this medication was quite strong, with prescription of Endone and later, Lyrica. In more recent times, he takes Panadol daily and Mersyndol about every second night.
240 Mersyndol was first prescribed for the plaintiff’s shoulder in March 2011. As was noted in the Pakenham Family Clinic file, in July 2018, the plaintiff was taking Mersyndol Forte, one at night for pain and sleep for years.
Activities
241 The plaintiff described interference with a range of activities – sleep, handyman work, picking up his child, walking the dog, driving, housework involving overhead activities or heavy use of his left arm, mowing the lawn and shopping – as a result of his shoulder pain.
242 However, counsel for the defendant submitted that these activities were curtailed, to a very large part, by myopathy.[79] Dr Buzzard had referred the plaintiff to an occupational therapist who was helping him with things around the house and the plaintiff, himself, said the myopathy had even affected his ability to cut up things or hold a knife and fork.[80]
[79]T45
[80]T46
243 Whilst the plaintiff experiences some weakness in his hands and instability in his lower limbs from the myopathy, I accept that in activities requiring use of the left shoulder, in particular overhead activity, his left shoulder continues to cause him difficulties separate from this other medical condition.
Work
244 The plaintiff was unable to return to full-time normal duties with the employer after the incident despite surgery. At the time he stopped this job, he was working three-and-a-half days per week on restrictions. Professor Buzzard noted his problems with work at that time. [81]
[81]See paragraph [132] of my Judgment
245 The plaintiff’s next job at CEVA as a yardman was very difficult on his left shoulder and he stayed there for only about nine months.
246 The plaintiff’s current job as a forklift driver at Vicpol is much easier on his shoulder, with 90 per cent of the time spent driving the forklift, and he does not have to do heavy lifting involving his left arm.[82]
[82]T50
247 Treating surgeon, Mr Csongvay, in March 2013, having discussed in some detail the plaintiff’s lack of progress post surgery and his ongoing problems with pain and difficulties working, did not expect the plaintiff to be able to return to his pre-injury duties at any time in the future.[83]
[83]T50
248 All medical practitioners who have expressed an opinion as to the plaintiff’s work capacity in more recent times agree that because of his left shoulder, he is unable to do unrestricted heavy work of the nature he engaged in pre incident.
249 Counsel for the defendant submitted however that while those orthopaedic surgeons might put restrictions on the plaintiff’s capacity for work, the real difficulty, according to his treaters, was his hands. As Dr Buzzard noted in January this year, the plaintiff was struggling at work due to weakness in his hands.[84]
[84]T45
250 However, the plaintiff’s myopathy is longstanding and did not affect his work with the employer. When seen by Professor Buzzard in mid 2014, he noted the myopathy did not appear to be symptomatic. No doctor has advised the plaintiff that there should be restrictions on his current employment, or any other activities, because of this condition.
251 Further, when aware of this condition, having examined the plaintiff, medico-legal examiners still concluded the plaintiff is restricted in his work and other activities due to his left shoulder condition.
252 Taking into account the consequences of the plaintiff’s left shoulder condition alone, I am satisfied that his impairment in relation thereto is “serious”. There are some issues of hand weakness as a result of myopathy but overall, it is the left shoulder injury that causes the plaintiff the most significant difficulties in a range of areas discussed above.
253 The plaintiff is still a young man, now aged thirty-seven.[85] There is no suggestion that his shoulder condition which has persisted for nearly eight years is likely to improve to any significant extent. In my view, any impairment relating thereto is permanent.
[85]Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181 paragraph [43]
254 Accordingly, I grant leave to the plaintiff to bring proceedings for damages for pain and suffering
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