Penn v Allied Express Couriers Pty Ltd
[2017] VCC 1956
•20 December 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-16-05356
| DAVID WILLIAM PENN | Plaintiff |
| v | |
| ALLIED EXPRESS COURIERS PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 25 and 26 July 2017 | |
DATE OF JUDGMENT: | 20 December 2017 | |
CASE MAY BE CITED AS: | Penn v Allied Express Couriers Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1956 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Left shoulder injury – whether such injury aggravated a pre-existing left shoulder condition to the extent of causing “serious injury” – whether plaintiff would have been in this position notwithstanding the compensable injury.
Legislation Cited: Accident Compensation Act 1985
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Advanced Wire & Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170; Acir v Frosster Pty Ltd [2009] VSC 454; Hunter v Transport Accident Commission [2005] VSCA 1; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242; Petkovski v Galletti [1994] 1 VR 436; AG Staff Pty Ltd v Filipowicz (2012) 34 VR 309; Philippiadis v Transport Accident Commission [2016] VSCA 1; Woolworths Ltd v Warfe [2013] VSCA 22; Guppy v Victorian WorkCover Authority [2010] VSCA 164; Aluthgamage v Select Care Personnel Pty Ltd (2012) 35 VR 494; Nicholson v Victorian WorkCover Authority [2016] VSCA 146; RJ Gilbertsons Pty Ltd v Skorsis (2000) 12 VR 386; Watts v Rake (1960) 108 CLR 158; Purkess v Crittenden (1965) 114 CLR 164
Judgment:Leave granted to the plaintiff pursuant to s134AB(16)(b) to bring proceedings for both “pain and suffering damages” and “pecuniary loss damages” in relation to the left shoulder injury suffered by him on or about 10 November 2012 during the course of his employment with the defendant.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A D B Ingram with Mr P A Czarnota | Shine Lawyers Pty Ltd |
| For the Defendant | Mr E Makowski | Russell Kennedy |
HIS HONOUR:
Introduction
1 By way of Originating Motion, Mr David William Penn (“the plaintiff”) seeks leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (as amended) (“the Act”) to bring common law proceedings for a left shoulder injury alleged to have occurred during the course of his employment with Allied Express Couriers Pty Ltd (“the defendant”) on or about 10 November 2012 (“the injury”).
2 The plaintiff seeks leave to bring proceedings for both “pain and suffering damages” and “pecuniary loss damages” within the meaning of s134AB(37) of the Act.
3 The plaintiff was the only witness to give evidence and be cross-examined. Both parties tendered a number of documents.[1] Counsel for the defendant, in response to being called to make an admission in relation to surveillance, made the following admission:
“On 5 October 2016, a period of surveillance from 6 a.m. to 1 p.m.; on 9 October 2016, from 7.30 a.m. to 12 p.m.; and on 11 October 2016, 7.30 a.m. to 5.30 p.m., which is, I’m instructed, a total of 21 and a half hours of surveillance, and there is a total of one hour, 24 minutes of footage.”[2]
[1]Refer to Annexure “A”
[2]See Transcript (“T”) 94, Lines (“L”) 14–19
Relevant legal principles
4 The Court must not give leave unless it is satisfied, on the balance of probabilities that the “injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s134AB(37) of the Act.[3]
[3]See 134AB(19)(a) of the Act
5 The plaintiff relies on paragraph (a) of the definition of “serious injury” contained in s134AB(37) of the Act. That paragraph reads:
“‘Serious injury’ means –
(a) permanent serious impairment or loss of a body function; or ... .”
6 The part of the body said to be impaired for the purposes of paragraph (a) is the left shoulder of the plaintiff.
7 In order to succeed, the plaintiff must prove on the balance of probabilities that:
(a)The “injury” suffered by him arose out of or in the course of, or due to the nature of, his employment with the defendant on or after 20 October 1999;[4]
(b)The “injury” and the resulting impairment must be “permanent” – that is, permanent in the sense that it is “likely to last for the foreseeable future”;[5]
(c)The “consequences” to the plaintiff of the injury in relation to “pain and suffering” and “pecuniary loss” must be serious – that is:
“When judged by comparison with other cases in the range of possible impairments … may be, fairly described as being more than significant or marked, and as being at least very considerable.”[6]
[4]See s134AB(1) of the Act and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at paragraph [11]
[5]See Barwon Spinners Pty Ltd & Ors v Podolak (op cit) at paragraph [33]
[6]See s134AB(38)(b) and ss(c) of the Act
8 Section 134AB(38)(b) of the Act provides that the consequences of an injury and impairment in terms of “pain and suffering” and “loss of earning capacity” are to be considered separately. In the event that a worker satisfies sub-paragraph (i) but not sub-paragraph (ii) of s134AB(38)(b) of the Act, the worker is entitled to have leave to bring proceedings for the recovery of “pain and suffering damages” only. A worker who satisfies the loss of earning capacity requirements of s134AB of the Act is entitled, as a “matter of statutory construction” to have leave to bring proceedings for “pain and suffering damages” and “pecuniary loss damages”.[7]
[7]See Advanced Wire & Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170 at paragraphs [60]-[64]; Acir v Frosster Pty Ltd [2009] VSC 454
9 In addition, in relation to “loss of earning capacity consequences”, the plaintiff has a specific burden[8] to establish:
(a)That as at the date of hearing, he has a loss of earning capacity of 40 per cent or more, measured (subject to certain irrelevant exceptions) as set out in paragraph (f) of s134AB(38) of the Act;[9]
(b)That after the date of hearing, he will continue permanently to have a loss of earning capacity which will be productive of a financial loss of 40 per cent or more.[10]
[8]See s134AB(19)(b) and ss134AB(38)(3) of the Act
[9]See s134AB(38)(e)(i) of the Act
[10]See s134AB(38)(e)(ii) of the Act
10 In determining the application the Court:
(a)Must not take into account psychological or psychiatric consequences of the “injury” for the purposes of paragraph (a) of the definition of “serious injury”. These can only be taken into account for the purposes of the disturbance of disorder within the meaning of paragraph (c) of the definition of “serious injury”;[11]
(b)Must make the assessment of “serious injury” at the time the application is heard;[12]
(c)Must give reasons that disclose the pathway of reasoning in dealing with the evidence, and the issues raised by the application;[13]
(d)Notes that the question of whether an “injury” satisfied the narrative test is largely a question of impression or value judgement.[14]
[11]See s134AB(38)(h) of the Act
[12]See s134AB(38)(i) of the Act
[13]See Hunter v Transport Accident Commission [2005] VSCA 1 at paragraphs [33]-[36]
[14]See Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242 at paragraph [67]
The issues
11 Leading Counsel for the plaintiff informed the Court that, essentially, his case was that “the employment injury which we put before Your Honour brought forward by some unspecified time but certainly brought forward a significant reconstructive procedure on the left shoulder, not just a repair, a reconstruction, and that the plaintiff’s employment capacity in his early 60s was completely lost whereas he would otherwise have anticipated working until he was about 70”.[15]
[15]T2, L13-20
12 In particular, Leading Counsel for the plaintiff submitted that the principles enunciated in Petkovski v Galletti[16] are relevant in establishing that the injury aggravated the pre-existing left shoulder condition of the plaintiff, bringing forward the need for surgery and resulting incapacity.
[16][1994] 1 VR 436
13 When queried as to the issues between the parties, counsel for the defendant informed the Court that the decision of Petkovski v Galletti[17] and, more particularly, AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz,[18] have application. In particular, counsel for the defendant informed me that ultimately his submission will be that, on the evidence available leading up to the injury on 10 November 2012, the plaintiff could not discharge his onus in establishing that any aggravation which occurred on 10 November 2012 constituted a serious injury.
[17]Supra
[18](2012) 34 VR 309
14 Counsel for the defendant expanded on this submission in written submissions at the end of the case. In that document, it was submitted:
“3.a.The plaintiff has failed to discharge his burden with respect to proof that the … [injury] is productive of ‘serious injury’ consequences, because the evidence does not sufficiently support a finding that any aggravation is serious as defined; in particular, as regards the need for surgery being brought forward;
b.Further, the plaintiff’s present condition is in any event such that he does not meet the test for ‘serious injury’ when assessing the aggravation alone.”
15 Furthermore, in the written submissions, counsel for the defendant also submits that the plaintiff has a capacity for employment, and that he has failed to discharge his burden of establishing pecuniary loss.
The evidence of the Plaintiff
16 The plaintiff relies on two affidavits sworn on 5 July 2016 and 5 May 2017.[19] He adopted these affidavits to be true and correct to the best of his knowledge.[20]
[19]See exhibit 1
[20]T17, L16-19; The plaintiff did alter paragraph (4)(e) of his second affidavit by deleting the words “I have reviewed the Burwood Healthcare clinical notes”.
17 The plaintiff is a sixty-four-year-old (born August 1953) divorcee, who has two adult children who live with their mother.
18 The plaintiff attended Northcote Technical School and completed Form 4, after which he undertook a plumbing apprenticeship, which was completed in about 1975. Thereafter, he worked in the plumbing industry for the next twenty-seven years, interspersed with short periods of work as a delivery driver and/or a maintenance worker.
19 In or about 2002, the plaintiff commenced work as a courier with Capital Express and remained in that position until March 2008, when he commenced employment as a courier with the defendant. He notes that although he drives his own van, he worked exclusively for the defendant, and continued to do so up until the injury on 10 November 2012.
20 In his first affidavit, the plaintiff describes how he was diagnosed with epilepsy as an infant, and throughout most of his life this condition has been well-controlled with medication, with only one seizure over the last twenty-five years. He takes Dilantin on a daily basis and is reviewed by a neurologist every few years.
21 When a teenager, the plaintiff suffered recurrent dislocations in his knees and had surgery on his knees at that time. He describes having subsequently developed some arthritis in his knees which has “not interfered with my working duties during my adult life”.[21]
[21]First affidavit of the plaintiff at paragraph [7], page 17 Plaintiff’s Court Book (“PCB”)
22 Following his marriage breakdown in 2000, the plaintiff developed some Depression and sought treatment from his general practitioner and a counsellor for a short period of time, after which he had not been depressed for many years prior to the injury on or about 10 November 2012.
23 The plaintiff also describes suffering a left shoulder injury on 14 December 2004 when working for Capital Express. In particular, he deposes:
“… On that occasion, I tripped over a tailgate on a truck and landed on my left shoulder. Following this incident, I had some physiotherapy and was referred to an orthopaedic surgeon, Mr Grossbard. I subsequently underwent two hydrodilatation procedures and a manipulation under anaesthetic on 24 February 2006. After those procedures, my left shoulder improved, although I still experienced some discomfort from time to time. I had a couple of cortisone injections over the years which seemed to give me considerable relief.”[22]
[22]First affidavit of the plaintiff at paragraph [9], page 17 PCB
24 The plaintiff describes how, on 10 November 2012, he was required to attend a Repco Auto Parts warehouse in Doveton in order to pick up some boxes of auto parts for delivery. One of those items was a heavy car jack that was packed in a cardboard box and awkward to manoeuvre. The plaintiff deposes:
“I sought the assistance of a fellow courier to help lift the jack into the back of my Toyota Hiace van. As we attempted to lift the jack into the van, the cardboard box that it was packed in fell apart. As it did so, the strap that was around the box caught my left hand and wrenched my left shoulder downwards.
After this incident I felt the immediate onset of pain in my left shoulder and arm. … .”[23]
[23]First affidavit of the plaintiff at paragraphs [11]-[12], page 18 PCB
25 Later that day, the plaintiff attended his local general practitioner, Dr Nirosha Watapaldeniya, in Frankston, who referred him for an x-ray and ultrasound on his left shoulder, which was undertaken on 12 November 2012. The plaintiff deposes that he understood such scans to show some degeneration in the left shoulder joint, as well as some fluid in the long head of the biceps tendon, and possible adhesive capsulitis. Dr Watapaldeniya subsequently prescribed the plaintiff Naprosyn and Tramadol to ease the pain. The doctor also arranged for the plaintiff to be booked in for a hydrodilatation procedure.
26 Over the next few weeks, the plaintiff continued on at work “as best [he] could”.[24] He found it increasingly difficult to undertake deliveries at work and struggled with any lifting. Prolonged driving in the van also aggravated his shoulder pain.
[24]First affidavit of the plaintiff at paragraph [13], page 18 PCB
27 The plaintiff also described becoming depressed and anxious due to his ongoing problems, and had trouble sleeping at night, becoming emotional and tearful a lot of the time. As a result, he was prescribed Pristiq in February 2013, and by late February 2013, he had to cease work due to his left shoulder problems and Depression.
28 After ceasing work, the plaintiff underwent a hydrodilatation procedure on his left shoulder on 5 March 2013, followed by physiotherapy at Beleura Physiotherapy. After the hydrodilatation, his left shoulder continued to remain irritable, with the plaintiff experiencing ongoing pain and stiffness. His sleep remained poor and it was regularly interrupted by pain, causing a feeling of fatigue and ongoing tiredness. His Depression became worse, causing him to re-attend his local doctor in relation to these issues on 24 May 2013 and he was prescribed Endep, and later referred to a psychologist, Ms Lisa Lashanksy, who commenced treatment in October 2013.
29 The plaintiff returned to work with the defendant in mid 2013 on restricted hours, performing office duties. Although on restricted and light duties, he describes struggling on his return to work and was prescribed Norspan patches to help relieve the pain, and was also continuing to use Tramadol. By August 2013, he was finding work very difficult, causing him to take a couple of weeks off work before returning. At this time, he was referred to an orthopaedic surgeon for his ongoing shoulder problem.
30 In about September 2013, the plaintiff attended an orthopaedic surgeon, Mr Ian Young, and after further review, he was recommended to undergo shoulder replacement surgery. Approval for this procedure was sought from the insurer. Initially, the request was rejected and he was placed on a public waiting list.
31 In the interim, the plaintiff had ceased work with the defendant in or about November 2013, at which time he was told by the defendant that it no longer had any suitable duties available to him.
32 In early 2014, the plaintiff undertook a short computer course in order to obtain some further skills and qualifications, and although finding such course useful, his computer skills remained quite basic and he was unable to obtain any work in that industry.
33 In June 2014, the plaintiff commenced attending a psychiatrist, Dr Kruk, and describes himself as having “hit rock bottom”. The pain was overwhelming in his left shoulder and he lacked motivation and energy, and entertained thoughts of self-harm and suicide.
34 Around October 2014, the insurer accepted liability for the shoulder replacement surgery and he attended a further orthopaedic surgeon, Mr Richard Large, and after further x-rays, he underwent a left shoulder replacement performed by Mr Large on 16 May 2015, following which he was an inpatient in hospital for three days, before being discharged home on 18 March 2015.
35 After his discharge from hospital, the plaintiff’s left arm remained in a sling for several months and he had follow-up x-rays on his shoulders in May and June 2015 to check on the status of the shoulder replacement.
36 The plaintiff notes that following the surgery, there was a noticeable reduction in the level of pain, and although the left shoulder remained quite weak and stiff, the severity and the intensity of the pain had improved. The plaintiff describes “working hard” at his rehabilitation in order to try and build up some strength and improve function in the left arm. He notes that while there was some marginal improvement, the left shoulder continued to cause difficulties over the next eighteen months.
37 In or about April 2016, the plaintiff commenced performing volunteer work for City Life and was attending once a week for a few hours. He found such activities difficult to cope with due to his injuries and only attended for approximately three weeks. In May 2016, he began volunteering for Save the Children Fund, and performs customer service duties at an opportunity shop for two days a week, avoiding lifting activities and the use of his left arm.
38 As at the time of the swearing of his first affidavit – that is, 25 July 2016 – the plaintiff was off work and in receipt of a Newstart allowance from Centrelink and was continuing to do the volunteer work at the Save The Children Fund opportunity shop two days a week. He continued to experience pain and discomfort in the left shoulder, the intensity of which had reduced since the surgery, but he continued to experience sharp pain with any joint with any overhead movements or elevation of the shoulder. He has observed that while the shoulder is not too bad when he is at rest, he finds that he develops an aching pain if he tries to use the left arm for any physical activity or repetitive use.
39 The plaintiff no longer enjoyed a full range of movement in his left shoulder and has lost movement and strength in the left arm, which caused difficulty undertaking heavy lifting, using the left arm, and also to experience difficulty with reaching, pushing and pulling movements.
40 Across the front of the shoulder, the plaintiff has a scar that runs approximately 15 centimetres, which is pink in colour and quite noticeable from a distance. He dislikes the appearance of the scar and it serves as a permanent reminder of the injury and the surgery he has undergone. Since the shoulder replacement surgery, there has been some improvement in his mood with the reduction of pain levels, but nonetheless, he still experiences frustration from time to time when the shoulder pain flares up. In particular, the plaintiff noted that:
(a)Prior to the injury, he was a very keen ballroom dancer and that ballroom dancing had been a “passion of mine” since he was sixteen years of age. He had formerly danced at national level, and enjoyed dancing most weekends and a number of times a week prior to his shoulder injury. After the injury, he has endeavoured to go back to dancing, but found that he could not do so without suffering an increase in his shoulder problems. He abandoned the activity for quite some time and had recently begun attending a dancing class once a week with his partner, Denise. He describes himself as being “gutted” that his injury prevents him performing certain moves and limits his ability to dance with different partners;
(b)His injury has also interfered with his ability to perform gardening and cleaning duties around the home and he now has to pay for a gardener to undertake the lawn mowing. Furthermore, he is restricted in his ability to do vacuuming and has to break this chore up into small parts, and it takes him longer to clean the house these days. In particular, he finds mopping, and cleaning the bathroom and toilets very difficult due to the reaching and stretching involved;
(c)Prior to the accident, he would do grocery shopping on a monthly basis but now, as a result of the injury, he tends to shop on a daily basis to avoid carrying large amounts of shopping;
(d)Performing simple tasks around the house is now much more difficult – for example changing bed linen is hard for him to do now, and he also has difficulty changing light bulbs or performing basic maintenance around the house.
41 The plaintiff continued to take Tramadol, 50 milligrams each day, and also used Endep each night for his pain and Depression. As a consequence of these medications, he has suffered some reflux, and takes Nexium to help with those symptoms, and attends his general practitioner on an “as needs” basis. He continued with physiotherapy at Beleura up until early 2016, but recently has taken a break from that treatment.
42 Although the shoulder replacement surgery has helped reduce some of the pain, he remains very anxious and concerned about the future, and has been told that the shoulder replacement may deteriorate over time and that he is likely to require revision of the replacement in ten to fifteen years’ time. He finds the prospect of further surgery later in life “quite daunting”.
43 The plaintiff feels as though his shoulder has forced him into premature retirement, and his inability to work has caused financial hardship and impacted on his self-esteem. He misses being able to work, but worries that with the shoulder the way it is, he will struggle to make any meaningful return to the workforce.
44 In his viva voce evidence, the plaintiff confirmed that he ceased paid employment at the age of sixty-one, and it was his intention to work until “at least 70 or beyond”.[25]
[25]T18, L19-21
45 In his second affidavit, the plaintiff deposed that he wished to “clarify and expand” on the matters in his first affidavit regarding the condition of his left shoulder before the injury on or about 10 November 2012. In particular, he deposed:
(a)In 2004 (earlier than the incident on 14 December 2004), the plaintiff had left shoulder and biceps pain from lifting at work, and muscular strain was diagnosed. He underwent physiotherapy and kept working;
(b)Following the incident on 14 December 2004, when the plaintiff tripped over the tailgate, he experienced left shoulder pain “on and off over the years”. He attended the orthopaedic surgeon, Mr Grossbard, several times for treatment, and understands that, from the clinical notes, he saw him four times in 2005, twice in 2006, once in 2008 and in 2011;
(c)Radiological scans were taken in May and June 2005, which showed degenerative change and an osteophyte formation. An ultrasound showed fluid in his biceps sheath, and in August 2005, Mr Grossbard diagnosed bicipital tendonitis, recommended an injection and started the plaintiff on Celebrex;
(d)The plaintiff again attended Mr Grossbard in September and October 2005, and had two hydrodilatations in about November 2005 and 24 February 2006, which significantly improved his pain;
(e)At that time, the plaintiff continued to work modified duties while having physiotherapy and taking Celebrex. His left shoulder occasionally flared up and he would have the odd day off work. Overall, he described himself as “managing reasonably well”;[26]
(f)In about August 2007, the plaintiff’s left shoulder flared up after the cessation of payment for physiotherapy. The plaintiff again attended Mr Grossbard in January 2008 and he was referred for repeat x-ray and ultrasounds, which showed osteoarthritis but, otherwise, were normal. Mr Grossbard recommended physiotherapy and anti-inflammatories, which caused the plaintiff’s pain levels to reduce;
(g)Between 2008 and mid-2010, the plaintiff’s left shoulder condition was reasonably good. As already recorded, in March 2008, the plaintiff commenced employment with the defendant and he described this work as generally lighter, and until the injury on 10 November 2012, he was “coping reasonably well”.[27] The plaintiff notes that his left shoulder would occasionally flare up and he would have occasional days off work but, overall, it was not affecting his day-to-day life;
(h)In May 2010, the plaintiff commenced attending a new clinic, the Tower Hill Medical Centre, after he moved to Frankston. He understands that the clinical notes of that clinic record that he attended there on several occasions over the next one-and-a-half years for a range of medical matters, including management of his Epilepsy, psychological counselling in relation to his son’s health at the time, and occasional left shoulder complaints;
(i)During this time, the plaintiff was experiencing occasional left shoulder pain, but was able to work and lead an otherwise normal life. He was attending ballroom dancing a few times a week and he was referred for a left shoulder ultrasound on or about 26 May 2010, which was “relatively normal”. He was also referred for an x-ray scan performed on 24 June 2010, which showed glenohumeral osteoarthritis, and he was referred for some physiotherapy at the Peninsula Sports Medicine Group. He was given some stretching exercises which caused his left shoulder pain to reduce, and did not otherwise affect his daily life or ability to work;
(j)In about May 2011, the plaintiff’s left shoulder pain flared up and was affecting his sleep at the time. He was prescribed Mobic, and referred back to see Mr Grossbard in about July 2011. Mr Grossbard was of the opinion that he needed an injection, and if that failed, he could consider arthrodesis or shoulder joint replacement;
(k)In August 2011, the plaintiff had an injection which reduced his pain considerably, but did not entirely resolve it, and he was otherwise able to manage to work, and otherwise lead a normal life;
(l)In or about December 2011, the plaintiff started attending the Young Street Medical Centre and attended in February and May 2012 for pain and Epilepsy medication. In May 2012, his left shoulder pain flared up and he was referred for a left shoulder ultrasound and x-ray, which was suggestive of adhesive capsulitis. In May 2012 and August 2012, he had two left shoulder injections. He was referred for further specialist review to the Frankston Orthopaedic Clinic, where he underwent injections, which provided considerable pain reduction but did not entirely fix his pain.
[26]See second affidavit of plaintiff at paragraph [4(c)], page 26 PCB
[27]See second affidavit of plaintiff at paragraph [4(e)], page 26 PCB
46 In particular, the plaintiff deposed in his second affidavit that:
“Despite all of the above, prior to 10 November 2012, I was able to work for the Employer with the occasional day off work. I was able to live a reasonably unimpeded life. I was able to undertake ballroom dancing with my partner, Denise a few times a week … I was able to drive everywhere. I had my good days and bad days, but I was not experiencing pain every day and my pain levels were relatively mild in comparison.”[28]
[28]See second affidavit of the plaintiff at paragraph [4(j)], page 26 PCB
47 In his second affidavit, the plaintiff deposed as to his current pain and restrictions as follows:
(a)He suffers daily severe pain which is “significantly higher” than what he was experiencing before 10 November 2012. He continues to experience sharp pains when he moves his left shoulder or arm, or elevate his arm to, at, or above, shoulder height. Since the injury, prolonged driving causes his left shoulder pain to flare up, causing him not to do much driving and, ultimately, he sold his car. He now travels most places using public transport, but the motion and movement of public transport tends to aggravate his shoulder pain. He continues to experience the same consequences outlined in paragraphs 28 to 29 and 30 to 34 of his first affidavit;
(b)Before the injury, he was able to cope and manage with Celebrex, Mobic and Panamax on an “as needs” basis. Occasionally he would take Panadeine Forte. Since the injury, he has been prescribed, and taken, Tramadol daily, which takes the edge off the pain, but does not alleviate the pain. He continues to see Dr Watapaldeniya about one to two times per month, and tries to do some swimming at local pools when his pain permits;
(c)Although prior to the incident there were suggestions that he would have to undergo possible left shoulder surgery at some time in the future, the condition was such that the plaintiff was still coping and managing, and did not feel that surgery was needed. After the injury, and the result of the significant increase in the nature and extent of the frequency of pain in his left shoulder, he decided surgery was needed;
(d)He confirmed that his injury has had a significant impact on his ability to engage in ballroom dancing, which he has undertaken since the age of sixteen. In particular, he deposed:
“… I enjoyed dancing and meeting new people. This was the one thing in my life I was very good at. I was never a sporty person. Dancing was part of who I was. It was my release and main passion in life. It is the one thing I really looked forward to. I worked my way up through the amateurs and was a professional for many years. Now, I feel that it has been taken away from me. Ballroom dancing requires the free and unimpeded use of one’s left arm. Being the ‘leading arm’, the male is required to elevate and maintain the left arm in an extended position while dancing. The left arm is also elevated to above shoulder height to spin one’s female partner. I was able to do this before 10 November 2012 a few times a week. Since the Incident on 10 November 2012, however, I cannot dance without pain, and I cannot move like I used to. This upsets me greatly and has impacted me significantly.”[29]
(e)The injury has caused him to suffer significant sleep problems. Prior to the incident on 10 November 2012, he was generally able to get a “decent, largely uninterrupted sleep”.[30] Since the injury, he has had sleep problems most nights and tries to avoid sleeping on his left hand side;
(f)His ongoing left shoulder pain has affected his relationship with his current partner of thirteen years, Denise. Because of the ongoing pain he has described, he is not able to dance as much as he would like to with Denise and, furthermore, ongoing pain has affected their intimacy. Prior to the injury, he describes having a reasonably healthy sex life and since then has been aware of, and is conscious of, his injury and pain, which inhibits intimacy;
(g)Before the injury, his mental state was reasonably good – he did have a brief period of depression when his marriage broke down, as detailed in his first affidavit. Furthermore, he had an argument with his boss in about January 2008, which caused him to feel anxious and depressed, and in about mid-2010, had a brief period of counselling and was prescribed medication for depressive symptoms arising out of his son’s state of health. Since the injury, and particularly since about February 2013, he has developed some severe depression and feels stressed and upset at not being able to live his normal active life, and being able to work. Initially he was prescribed Pristiq and later, Endep, in about May 2013. He continues to take Endep, 100 milligrams nightly. In about June 2014, he was referred to the psychiatrist, Dr Robert Kruk, who he saw on about seven occasions during 2014 and early 2015. However, he did not think the continuing counselling sessions were helping him emotionally, and he continues to take Endep, but does have anxious and depressed thoughts.
[29]See second affidavit of plaintiff at paragraph [8], page 27 PCB
[30]See second affidavit of plaintiff at paragraph [9], page 27 PCB
48 The plaintiff has not worked since about October 2014 due to his left shoulder injury and Depression, and feels he is unable to perform work as a courier, as such work involves prolonged driving and the use of his left hand to steer a vehicle. Furthermore, he considers that his ongoing left shoulder pain impedes his ability to perform manual labouring work, or work involving prolonged driving. Although he has retrained, undertaking a short computer course, he continues to have very limited computer skills and knowledge. He notes he has never worked in an administrative or office-based job, and he does not know what work he could perform on a reliable or regular and consistent basis, which would not aggravate his injury.
49 On 19 November 2012, the plaintiff completed and submitted a WorkCover Claim Form for his left arm and shoulder injury, and such claim was accepted, and weekly payments commenced on or about 25 February 2013.
The cross-examination of the Plaintiff
50 The cross-examination of the plaintiff substantially related to the condition of, and the treatment to, his left shoulder leading up to the injury on 10 November 2012. He was questioned in relation to various complaints recorded by doctors and the treatment that he underwent in relation to his left shoulder. He was also cross-examined about the state of his shoulder after the injury, and more particularly after the shoulder replacement surgery, when he was questioned about his current capacity for employment.
51 In order to gain some perspective of that cross-examination, it is necessary to refer to some of the attendances by the plaintiff at the various medical clinics. On the evidence before me, the plaintiff attended the following medical clinics in relation to his left shoulder:
(a)initially at the Burwood Health Care, situated at 400 Burwood Road, where the notes commence from about 24 May 2005 and continue until about mid-2010 (“the Burwood Road notes”);
(b)the Tower Hill Medical Centre, situated at 143 Frankston–Flinders Road, Frankston, where the notes commence from approximately 19 May 2010 and continue until approximately mid-2011 (“the Tower Hill notes”);
(c)the practice of Dr Nirosha Watapaldeniya, who practises at 89–97 Young Street, Frankston, where the notes commence from about 15 December 2011 and continue until approximately April 2016 (“Dr Watapaldeniya’s notes”).
Initially, I refer to the notes up to approximately November 2013, when the plaintiff ceased employment with the defendant.
52 Such medical records are interspersed with various attendances on the orthopaedic surgeon, Mr Grossbard.
53 I refer to various consultations recorded in the Burwood Road notes:
· 24 May 2005: The plaintiff consulted the clinic complaining of left shoulder pain since December 2004. Examination revealed limited internal rotation, and he was referred for an x‑ray of the shoulder, and prescribed analgesics and physiotherapy.
· 2 June 2005: The plaintiff confirmed that he fell in December 2004 at work and injured his left shoulder. A tentative diagnosis was made of rotator cuff injury. The plaintiff was referred for an ultrasound and also given a certificate for two days off work.
· 10 June 2005: The plaintiff was given a certificate for modified duties for the period from 10 June 2005 to 8 July 2005.
· 20 June 2005: The plaintiff complained of shoulder pain the previous night and not getting any sleep, and reports that he has had the same pain since December 2004. He reports that he does not take anything for the pain, but feels he would be fine if he could just sleep. He was given a certificate to be off work one day.
· 6 July 2005: The plaintiff was given a further certificate to be off work one day.
· 10 July 2005: The plaintiff complained of a rash but also sought a certificate for modified duties from 9 July 2005 to 5 August 2005, which was supplied. A referral was arranged for the plaintiff to attend the orthopaedic surgeon Mr G Grossbard.
· 21 July 2005: The plaintiff complained of a flare-up of left shoulder pain and was given a certificate for one day off work.
· 5 August 2005: The plaintiff was given a further certificate for modified duties from 6 August 2005 to 2 September 2005, and it was noted that he was still working and had limited internal rotation of the left shoulder.
· 13 August 2005: The plaintiff was given a further certificate for modified duties from 13 August 2005 to 2 September 2005, and also a certificate to be off work altogether from 11 August 2005 to 12 August 2005.
· The plaintiff was examined by Mr Grossbard on 15 August 2005, and in a report dated 16 August 2005, Mr Grossbard states, in part:
“… He told me he is right handed and works as a courier. In December 2004 he fell at work causing a forced abduction injury to his left shoulder. He said at that stage he had mild pain but returned to work. The pain increased that evening and he reported the incident. Since then treatment has been with physiotherapy with only slight improvement. He told me he has pain over the shoulder which radiates into his arm up to his neck. He said the pain can be intermittent and come on at any time. He has difficulty changing gears of his vehicle but has not noticed any loss of shoulder movement. He said he did have some mild shoulder discomfort a year ago whilst at work but this improved.
Mr Penn has good general health apart from being on Dilantin for epilepsy. His last fit was 16 years ago.
Clinically he had a full range of neck movement with slight pain on extension of the neck. His shoulder exhibited a good range of movement with pain on abduction beyond about 100o. There were positive impingement signs and he was tender to palpate over the biceps tendon. There was also some pain at the front of his shoulder with forced supination of the forearm.
Radiologically there was some early degenerative change with an inferiorly placed osteophyte on the humeral head. An ultrasound does not reveal any rotator cuff tear but there is fluid in the biceps tendon sheath.
I suspect this fellow has a bicipital tendinitis. There is nothing to suggest a major rotator cuff tendon injury.”[31]
[31]See exhibit 5, pages 254-255 PCB
Mr Grossbard started the plaintiff on Celebrex.
· 20 August 2005: The plaintiff complained of pain in the left shoulder, and he was advised not to lift heavy objects. He was given a certificate for modified duties from 13 August 2005 to 2 September 2005.
· 25 August 2005: The plaintiff was given a further certificate for modified duties from 20 August 2005 to 23 August 2005.
· 1 September 2005: The plaintiff complained of pain in the left shoulder after just having physiotherapy and was given a certificate to be off work for two days.
· On 13 September 2005, Mr Grossbard reported back to Dr Rubini Selvaratnam that the plaintiff had some minor benefit from using Celebrex and that he felt that the physiotherapy had improved his shoulder, notwithstanding that he continued to have pain particularly after activity, and things were worse at the end of a day’s work. At that stage, the plaintiff still had a full range of movement, although tender anteriorly over the biceps tendon. The plaintiff considered that he wished to consider physiotherapy rather than the risk of an injection which might rupture the biceps tendon.
· 14 October 2005: The plaintiff was given a certificate for modified duties from 14 October 2005 to 30 October 2005.
· 26 October 2005: The plaintiff exhibited painful forward flexion and abduction, and was given a certificate for modified duties from 26 October 2005 to 11 November 2005, and one day off work on 26 October 2005.
· On 25 October 2005: Mr Grossbard wrote to Dr Selvaratnam, noting that the plaintiff had developed a global loss of movement which would suggest that he had capsulitis or frozen shoulder, and that consideration should be given to hydrodilatation.
· 3 November 2005: The plaintiff considered his left shoulder pain had “worsened”, and he was given a certificate to be unfit for all duties from 31 October 2005 to 4 November 2005 and a certificate for modified duties from 7 November 2005 to 13 November 2005.
· On 30 November 2005: Mr Grossbard wrote to Dr Selvaratnam advising him that the plaintiff only had “modest benefit” from hydrodilatation but was now able to sleep at night. Mr Grossbard noted that at that stage, the options of the plaintiff were either repeating the hydrodilatation, leaving things alone, or considering manipulation under anaesthesia. It was decided at that stage just to leave things alone for a couple of months.
· 3 November 2005: The plaintiff noted improvement after hydrodilatation, and certificate given for modified duties from 7 November 2005 to 13 November 2005, together with a certificate to be off work for two days.
· 7 December 2005: It was recorded that the plaintiff was sleeping well, and considering having manipulation under anaesthesia in two months’ time. The plaintiff was not keen on having further dilatation. Certificate given for modified duties from 14 November 2005 to 14 January 2006, together with a certificate for being off work for one day.
· 1 February 2006: The plaintiff reported that left shoulder pain flared up that day, and he was advised not to lift heavy weights greater than five kilograms. He was given a certificate to be off work from 1 February 2006.
· On 2 February 2006: Mr Grossbard wrote to Dr Selvaratnam noting that the plaintiff continued to have left shoulder pain “although he describes it as being bearable”.[32] Mr Grossbard also notes that the plaintiff had lost a little bit of his shoulder and suggested that the plaintiff undergo a shoulder manipulation.
[32]See exhibit 5, page 260 PCB
· On 2 February 2006: Mr Grossbard also wrote to the agent of the defendant, noting that the plaintiff continued “to be troubled by capsulitis of the left shoulder”. Mr Grossbard stated that the plaintiff would benefit from a further hydrodilatation and manipulation of his shoulder under anaesthesia. On 10 February 2006, liability was admitted for such procedures and on 24 February 2006, the plaintiff underwent hydrodilatation of the left shoulder with manipulation.
· On 14 March 2006: Mr Grossbard wrote to Dr Selvaratnam and commented that the plaintiff “has had some benefit from his hydrodilatation”.[33] Mr Grossbard also notes that the plaintiff has improved a little and the pain is a lot less.
[33]See exhibit 5, page 264 PCB
· 9 May 2006: Such consultation was approximately two months after the second hydrodilatation, and the plaintiff was complaining of pain on the left side of his neck. Again, he was advised not to lift heavy objects greater than five kilograms.
· 16 May 2006: The plaintiff again was certified fit for modified duties from 10 May 2006 to 9 June 2006.
· 30 June 2006: On examination, the plaintiff complained of slight pain on abduction of left shoulder, and had limited medial rotation. He was advised to continue to use Celebrex as required. Again, he was certified fit for modified duties from 3 July 2006 to 28 July 2006.
· On 14 March 2006, Mr Grossbard wrote to Dr Selvaratnam stating the plaintiff had “some benefit from his hydrodilatation”. Mr Grossbard noted that the plaintiff felt he had “improved a little and the pain is a lot less”. Mr Grossbard at that stage thought there was nothing further to do, and did not make a specific time to review the plaintiff again.
· 18 July 2006: The plaintiff was again given a certificate for modified duties.
· 5 September 2006: The plaintiff was complaining of a left shoulder ache, and given a further certificate for modified duties from 29 July 2006 to 3 October 2006. He continued to have physiotherapy, Celebrex tablets, and work restrictions.
· 21 September 2006: The plaintiff complained of shoulder pain the day before, and a further certificate for modified duties was given for the period 29 September 2006 to 19 October 2006.
· 31 October 2006: The plaintiff gave a history that on 26 October 2006 he lifted something awkwardly and could not drive on 27 October 2006. Examination at that time revealed limited internal rotation, minimal external rotation but abduction was “okay”. The plaintiff was given another certificate for modified duties for the period from 30 October 2006 to 27 November 2006.
· 8 December 2006: The plaintiff reported that he was getting tension headaches from his shoulder injury and was taking Celebrex and aspirin for his headache. A Dr Angela Gavralas examined him on that day and noted:
“OE no tenderness over bicipital insertion or subacromial space. Tender over trapezius muscles with tension ++ in muscles
flexion at 70 degrees getting pain in biceps region but able to fully flex, full extension, full abduction with pain, internal rotation limited to lower back
working as courier, manual car causing some discomfort, not lifting over 5 kg
physio alternates twice weekly and once weekly.”[34]
[34]See page 92 PCB
A further certificate for modified duties from 26 November 2006 to 26 December 2006.
· 19 January 2007: A further certificate given for modified duties from 27 December 2006 to 23 January 2007.
· 30 March 2007: The plaintiff complained of a flare up of his left shoulder pain and it was noted at that time he was having twice weekly physiotherapy and that the flare ups of left shoulder pain could occur without any definite “trigger”. The plaintiff also noted that he modified his work so modified duties were not mentioned.
· 1 June 2007: The plaintiff had a flare up of pain on 30 May 2007 and was off work for one day.
· 17 August 2007: The plaintiff gave a history that his left shoulder was exacerbated recently and having physiotherapy but had a bad night and could not go to work. Examination revealed the left shoulder was painful on movement and there was a script given for Voltaren.
· 24 August 2007: The plaintiff complained of a flare up of left shoulder pain the night and he could not sleep and too tired for work today. He was given a certificate to be off work for one day and it was noted the pain seems to get worse towards the end of the week but improves with rest and physiotherapy. Examination of the left shoulder revealed tenderness anteriorly. Full ROM. The plaintiff was to have further analgesics, physiotherapy and avoid aggravating activities.
· 11 October 2007: The plaintiff requested that he needed something to help his sleep as unable to sleep at night due to left shoulder pain, although the physiotherapy had been helping. At that time a script for Panadeine Forte was given.
· 19 October 2007: It is recorded that there has been longstanding left shoulder pain which was better with “physio” but payments for this have “ceased”. The plaintiff also states that he has been advised that his work position is “tenuous”. The plaintiff reported he is a bit down because of ongoing left shoulder pain. Again, there was tenderness over the superior posterior aspect of the left shoulder, limited internal rotation, otherwise movements were okay.
· 21 December 2006: The plaintiff was again referred to Mr Grossbard by Dr Jason Chua, who informed Mr Grossbard that the plaintiff was having pain in his left shoulder which was worse at night and that his symptoms have got worse since he stopped physiotherapy.
· In a letter dated 1 February 2008 addressed to Dr Chua, Mr Grossbard states, in part:
“Although he had some improvement after his last hydrodilatation and manipulation of the (L) shoulder, he has had a recurrence of pain to the extent that he is kept awake at night. When he is resting he has very little discomfort but activity causes an increase in pain.
Clinically there is no muscle wasting but there is still a global loss of motion of the shoulder.
In the first instance, I think repeating the x‑ray and ultrasound would be appropriate. Depending on the outcome of this, we can decide whether a further hydrodilatation would be useful.”[35]
[35]See exhibit 5, page 266 PCB
On 15 February 2008, Mr Grossbard wrote to Dr Chua that after seeing the plaintiff’s x‑ray and ultrasound, such were suggestive of a “gleno-humeral osteoarthritis”. Mr Grossbard stated there was no evidence of major tendon disruption. In particular, Mr Grossbard stated:
“David’s options are fairly limited. He will be best off returning to his physiotherapist for a short spell. The use of some anti-inflammatory medication would also be of benefit and the possibility of a steroid injection into the shoulder could also be considered. If these measures fail and life becomes a misery, then his option would include total shoulder joint replacement. At the age of 54 it would be nice to avoid that option for as long as possible.”[36]
[36]See exhibit 5, page 267 PCB
· 14 January 2008: The plaintiff presented with “work related stress” involving interpersonal conflict at work exacerbated recently after an argument with his supervisor. He was referred to a psychologist.
· 30 July 2008: The plaintiff presented with some exacerbation of his left shoulder pain and was certified unfit for work for one day.
· 22 February 2008: The plaintiff presented with an exacerbation of his left shoulder pain and there was a letter written “To Whom It May Concern”:
“This is to certify that David has had a[n] exacerbation of his previous left shoulder pain. He has seen the orthopaedic surgeon Garry Grossbard who feels this is most likely glenohumeral arthritis and that David should have further physiotherapy.”[37]
[37]See page 87 PCB
He was given a certificate for one day off.
· 13 March 2008: The plaintiff presented with left shoulder pain, and the doctor noted that he was presently seeing Mr Grossbard and there had been a recommendation for physiotherapy. The pain had been exacerbated the previous night, and he was given a certificate for two days off work.
· 13 May 2008: The plaintiff presented with a history of a pulling injury at work the previous Friday whilst catching a falling mattress, and had pain in the front near the biceps area. He was referred for an ultrasound and continued with Celebrex.
· 3 October 2008: The plaintiff gave a history of in part that he still experiences stiffness and night pain, but is continuing to do courier work. The plaintiff also noted that physiotherapy had helped him in the past.
· 28 October 2008: It was recorded that the plaintiff was stressed by the conciliation process and could not sleep last night, but had no suicidal ideation.
· 20 March 2009: The plaintiff attended on Dr Jason Chua and was given a certificate to be off work from 20 March 2009 to 22 March 2009. It is recorded in the notes that:
“Since last review, left shoulder pain has persisted but p[atien[t] just put up with it. On 16/3/09 tripped over at work and fell forwards onto outstretched hands, exacerbated his left shoulder pain. ... Not having any treatment currently. OE [on examination] – tender left medial upper arm, mild tenderness left mid thoracic back, full arm ROM except internal rotation (hand to lower lumbar spine), pain with abduction and flexion > 90 degrees and full external rotation.”[38]
A prescription was written for Voltaren.
[38]See page 85 PCB
54 I refer to a letter from Dr Chua to a conciliation officer dated 3 November 2008, wherein he stated, in part:
“Overall however, since then [that is from the time of the further hydrodilatation and manipulation under anaesthesia on 24 February 2006], Mr Penn has continued to have left shoulder pain which is aggravated by activity. At times the pain will flare up, generally after activity but sometimes without a clear trigger, disrupting his sleep, and usually causing Mr Penn to take 1-2 days off work to rest and recover.
Mr Penn has continued to work as a courier during this time, modifying his duties such that he minimises heavy lifting or excessive use of his left shoulder to try to prevent the pain from flaring up. He has found that rest and physiotherapy helps transiently alleviate his pain.
Mr Penn was reviewed by Garry Grossbard on 15/02/08 because of his ongoing left shoulder pain. He was diagnosed as having gleno-humeral osteoarthritis. He was advised for a short spell of physiotherapy, anti-inflammatory medication, and the possibility of a steroid injection was raised. Mr Penn was also advised that if these measures fail and his symptoms were severely impacting his life, he could be considered for a total shoulder joint replacement.
Mr Penn is still able to work, however he continues to [have] left shoulder pain which is generally aggravated by activity and as such he should avoid repetitive heavy lifting or use of his left shoulder. He may also use analgesics or anti-inflammatory medications as required ... .”[39]
[39]See exhibit 5, page 125 PCB
55 On 8 June 2010 the medical records of the plaintiff at the Burwood Health Centre were transferred to the Tower Hill Medical Centre.
56 I refer to various consultations recorded in the Tower Hill notes:
· 19 May 2010: At what appears to be the initial consultation at the Tower Hill Medical Centre, the plaintiff gave a history of suffering from epilepsy, experiencing various stresses including his son having testicular cancer, a left temple skin lesion, and left shoulder and knee pain which was described as a chronic work issue. At that time Dilantin was prescribed (for the epilepsy) and Panadol Osteo tablets. An ultrasound of the left shoulder was also ordered.
· 21 May 2010: The plaintiff underwent a general review and in part was directed to physiotherapy for shoulder pain which had improved with the Panadol Osteo.
· 1 June 2010: The plaintiff was reviewed after the ultrasound of the left shoulder which was reported as not showing any tears, and it was queried whether the plaintiff suffered adhesive capsulitis. The plaintiff was prescribed Voltaren and advised to undergo physiotherapy.
· 22 June 2010: The plaintiff reported that he was attending a physiotherapist, and was having better relief with the Panadol Osteo.
· 2 July 2010: The plaintiff gave a history, amongst other things, that his left shoulder was “doing better post physio/Panadol Osteo”.
· 24 August 2010: The plaintiff gave a history of being depressed, and there was discussion about his skin condition and his epilepsy.
· 30 September 2010: There was no complaint of left shoulder pain.
· 4 April 2011: The plaintiff complained, amongst other things, of left shoulder pain which he described as “bad at present”. At that time the plaintiff gave a history that he had a work injury in December 2003 after which there was pain, and the shoulder was frozen then settled down. He considered it was a tendon injury and has not lost much time off work and has undergone physiotherapy and two cortisone injections. He noted that he cannot lift much weight and is awake at night. It was noted that x‑rays the year before showed osteoarthritis in the shoulder joint but with no tears. He was prescribed Voltaren.
· 30 May 2011: The plaintiff complained of left shoulder pain being a “real problem” and experiencing poor sleep. At that consultation Panadol Osteo and Voltaren were ceased, and he was prescribed Mobic and Panadeine Forte. Furthermore, he was referred again to Mr Garry Grossbard. The letter of referral from Dr Trevor Andrews dated 30 May 2011 states, in part:
“I understand you treated him for several months after a work injury to his left shoulder in 2003. (a fall onto the outstretched left arm).
He is now living in Frankston and works full time for a different courier company (5.5 days 12 hour days). The concern is his left shoulder pain which shows severe osteoarthritis of the glenohumeral joint. His other shoulder is normal. The pain interferes with his sleep and enjoyment of life. He has about 90 abduction and flexion but almost no rotation.
We have pushed the dose of voltaren and paracetamol but it is partially effective and his Liver function tests have deteriorated so a different regime has been started. … .”[40]
[40]See Exhibit 5, page 273 PCB
In a letter dated 26 July 2011, Mr Grossbard informed Dr Andrews that:
“Many thanks for asking me to review David who I have not seen for three years. He continues to have issues in relation to his osteoarthritic left shoulder which seems to have deteriorated to some extent since I saw him last.
I think the first step is to undertake a steroid injection, which I shall arrange. If this fails to improve him significantly his options will include arthrodesis or shoulder joint replacement.”[41]
On 4 August 2011, Mr Grossbard injected the left shoulder, which was noted to be moderately degenerative.
[41]See Exhibit 5, page 275 PCB
57 I refer to the various consultations recorded in Dr Watapaldeniya’s notes:
· 15 December 2011: Seemingly this was the first time that the plaintiff attended Dr Watapaldeniya, where he gave a history of a variety of medical issues involving chronic cough, depression due to social issues, obesity, epilepsy, and some degree of headache and dizziness. Furthermore, the plaintiff noted that he had chronic shoulder pain following a workplace injury. Dr Watapaldeniya arranged a variety of investigations, including an ECG, x‑ray of the chest, x‑ray of a knee, and a heart scope.
· 27 January 2012: The various investigations were reviewed. The plaintiff complained of being under stress, and had had a seizure in the last week.
· 3 February 2012: The plaintiff attended for a check-up. His blood pressure was taken, as he was feeling stressed. At that time he was prescribed Panadeine Forte and Dilantin.
· 11 May 2012: The plaintiff attended, complaining of shoulder pain for nine months. An examination showed limited abduction of the shoulder, and it was decided to have a further x‑ray and ultrasound of the shoulder undertaken. Again the plaintiff was prescribed Panadeine Forte and Naprosyn.
· 25 June 2012: The notes of Dr Watapaldeniya record:
“1. suffering from Lt [left] shoulder pain for years. He state[s] since last year this pain is not tolerable and he had 2 injections of steroid inside of shoulder.
2.c/o [complaining of] occasional pain in testes, with some pain in inguinal area, no lumps, last time was yesterday in Rt [right] testis which pain resolved spontaneously
...
3. req for analgesic for Lt [left] shoulder pain
referral for steroid injection provided.
... .”[42]
[42]See page 81 PCB
Panadeine Forte and Naprosyn prescriptions were re‑prescribed.
· 5 August 2012: The plaintiff wished to have a subdeltoid injection done, and an ultrasound was organised. On 1 September 2012, he underwent an injection into the shoulder.
· 8 September 2012: The plaintiff was prescribed Panadeine Forte and Naprosyn.
58 I refer to the consultation on 10 November 2012, which is the day of the subject injury. Dr Watapaldeniya records:
“was lifting at work and shoulder injury got aggaravated (sic)
uss (sic) severe subacromial bursitis and had intraarticular steroid
shoulder restricted abduction
clinically supraspinatus tear? injury.pain relief and asked to come back with work comp.”[43]
On that day, the plaintiff was prescribed (for the first time) Tramadol Sandoz, twice daily.
[43]See page 81 PCB
59 I again refer to the ongoing consultations:
· 12 November 2012: The plaintiff re-attended, seeking referral for imaging, and the doctor notes that most probably an MRI scan is needed for this “ongoing problem”.
· 2 December 2012: The plaintiff was again prescribed Tramadol Sandoz and Naprosyn. On that day, the plaintiff was referred to hydrodilatation as suggested by an ultrasound, and furthermore was referred to an orthopaedic clinic and put on a waiting list.
· 15 December 2012: It was noted that the plaintiff’s hydrodilatation was booked for March 2013.
· 15 December 2012 to 16 February 2013: The plaintiff attended the doctor on several occasions seeking to go on WorkCover because of his left shoulder condition. He was prescribed Tramadol Sandoz on 16 February 2013 and again on 21 February 2013. On 16 February 2013 the plaintiff reported as being “depressed” with the WorkCover claim “not going anywhere”. He was experiencing ongoing pain and was not sleeping well.
· 21 February 2013: The plaintiff reported that a WorkCover certificate had been approved, and he wanted to reduce his hours from 50 to 40 hours. He wanted to do the same work, as there was no light work.
· 24 February 2013: The plaintiff reported that the shoulder was getting worse, and he wanted to have time off. He subsequently had three weeks off work.
· 2 March 2013: The plaintiff underwent hydrodilatation of the left shoulder, which was approved by WorkCover.
· 14 March 2013: The plaintiff was again prescribed Naprosyn and Tramadol. At that time he was still in pain, undergoing physiotherapy, and again had two weeks off work.
· 4 April 2013 to 28 April 2013: The plaintiff was given certificates to be off work and for modified duties.
· 28 April 2013: The plaintiff reported that the shoulder was much improved and he was having ongoing physiotherapy. Further x-rays were sought.
· 12 May 2013: The plaintiff was still complaining of ongoing shoulder pain and cannot work. Abduction was to 30 degrees and flexion of 40 degrees and the plaintiff was given a further certificate for two weeks.
· 24 May 2013: The defendant had still not given him any work plan. The plaintiff was not sleeping well a feeling depressed. At that stage, it was suggested he start anti-depressants.
· 27 May 2013: The plaintiff was doing some work on and off and indeed, on 23 June 2013, it is recorded he was going to work now for three days and only performing office work. The plaintiff indicated that he wanted to work four hours per day for two days only. His depression was better and he was sleeping better. Shoulder abduction was only 30 degrees with impingement. Tramadol continued to be prescribed.
· 7 July 2013: It is recorded that the plaintiff was working four hours per day two times a week and the shoulder was worse that day and he could not work that week and a certificate was given for one week. Norspan patches were prescribed on 14 July 2013. In particular, it was recorded on that date:
“not slept well due to pain
only slept few hours due to pain
meant to work tomorrow
was still awake last night due to apin [scil pain]
thought about harming himself again
mostly pain issues
on tramadol, endep and naproxyn (sic) now
still pain not controlled.
Sev[e]rel[e]y af[f]ected shoulder
mo[v]ement around 20
Impingement plus.
… .”[44]
[44]See page 76 PCB
· 11 August 2013: Initially referred to Mr Broughton for surgery and on 22 August 2013, a referral letter was sent to the orthopaedic surgeon, Mr Young. At that time, he was also referred to a counsellor for moderate depression.
· Seemingly, the orthopaedic surgeon, Mr Ian Young, consulted with the plaintiff on or about 18 September 2013. In a letter from Dr Young to Dr Watapaldeniya of the same date, Mr Young states, in part:
“Thank you for referring David who is a 60 year old right hand dominant man who works as a courier, who has been complaining of left shoulder pain significantly worse following an injury at work in November 2012. He describes the injury as occurring while lifting a reasonably heavy item that dropped and then a rope got caught around his hand and pulled his arm forcefully. He did have pre-existing left shoulder bursitis and adhesive capsulitis and his previous imaging in May 2012 followed by physiotherapy and a corticosteroid injection in August 2012 to the glenohumeral joint. He subsequently underwent a hydrodilatation on 5th March 2013 with some improvement for a month. He has a past history of epilepsy and depression, but is otherwise in good physical health.
…
David certainly has pre-existing osteoarthritis of the left shoulder. … His exacerbation of his shoulder pain and overall worsening of function following the injury in November 2012 makes me wonder whether the rotator cuff has taken place. He has had no recent imaging looking at the rotator cuff beside from ultrasounds at the time of injections.”[45]
[45]See page 281 PCB
In a further letter to Dr Watapaldeniya dated 16 October 2013, Mr Young states that the x-rays certainly confirm advanced osteoarthritis of the left shoulder and the current ultrasound showed that the (supraspinatus) is intact. The report reads that the ultrasound is intact which I believe to be a misprint and the word should be supraspinatus. In particular, Mr Young states:
“He has persistent pain in the shoulder and that affects his sleep function and ability to lift as well as to perform his duties as a delivery driver. He really needs to consider a total shoulder replacement, which could be a standard configuration. … He has an independent medical examination on 27th November 2013 with a work cover physician and David would be potentially interested in a shoulder replacement only if his pain cannot be controlled.
I have referred him back to you for ongoing analgesia and a pain management program that may help to delay surgery. … .”[46]
[46]See page 282 PCB
In letters addressed to the WorkCover insurer dated 29 January 2014, Mr Young seeks approval for a CT scan of the shoulder and makes the recommendation that there be a total shoulder replacement.
In a letter dated 22 January 2014, Mr Young advises Dr Watapaldeniya that the plaintiff had been reviewed that day in relation to his left shoulder arthritis. Apparently the plaintiff had undergone an independent medical examination and a document had been sent to the plaintiff and Mr Young advising that WorkCover were looking at retraining him to a different job. Mr Young also notes that the plaintiff stated that the shoulder pain is getting worse and he is prepared to undergo a left total shoulder replacement which is recommended by Mr Young. Mr Young was to write to WorkCover to see if they would fund this surgery.
Later, on 26 March 2014, Mr Young advised Dr Watapaldeniya that a recent CT scan does indicate that there was enough bone stock to perform a total shoulder replacement with a glenoid component. At that time, Mr Young was still awaiting approval from WorkCover to perform the replacement.
· 4 September 2013 – 23 March 2015: Over this period, the plaintiff was working on and off with the defendant performing office duties and performing some retraining work. He complained frequently of ongoing left shoulder pain requiring both Tramadol and Norspan patch treatment. The plaintiff was also receiving treatment for depression and was referred to a psychiatrist. Surgery was undertaken on 16 March 2015.
· 23 March 2015: Such consultation occurred two weeks after the surgery and the plaintiff was having ongoing treatment with Tramadol and Norspan patches. At that stage, he was also asked to stop OxyContin and Endone, and advised that his arm would be a sling for six weeks.
· 4 April 2015: The plaintiff had ongoing pain but it was under control, and he was not sleeping well due to the shoulder and strapping around the shoulder. He was prescribed sleeping tablets (Temazepam).
· 4 May 2015: The plaintiff was reported as “doing well” and having physiotherapy and hydrotherapy. He was continuing to take Tramadol at night but was diminishing the use of Norspan patches.
· 2 June 2015: The plaintiff reported that his left shoulder was improving and he was continuing to have physiotherapy and had performed some light swimming. He noted that he has pain at the end of the day and is not using any additional painkillers beyond Endep and Tramadol. At that stage, the left shoulder could abduct to 80 degrees and flex to 80 degrees. It was also noted that he was going to commence a course for warehouse training and forklift driving at Dandenong.
· 9 July 2015: It is noted that training finishes on 29 August 2015 and he hoped to have a forklift license and warehouse experience. The defendant does not want him back at work and he has to find a job with another company. At that stage, he was happy to try and do some forklift driving and warehousing.
· 22 July 2015: There was a discussion about duties and he could not do the forklift training after being shown the safety manual.
· 9 September 2015: When reviewed, the plaintiff no longer wore the sling and had good left shoulder movements with some pain. He was only taking Tramadol at night.
· 15 September 2015: On review, the plaintiff complained of being depressed and Centrelink had put him on a Newstart allowance. The plaintiff considered that he could not work any time soon and was not sleeping and had thoughts of self harm.
· 10 November 2015: The plaintiff advises that the insurance company had stopped paying for physiotherapy. His shoulder still had limited movement but improving and only taking one Tramadol at night for pain.
· 11 November 2015: Shoulder is feeling better and it is just sore at night when sleeping on it.
· 25 November 2015: The plaintiff reports that pain is okay and shoulder movement good and that the insurance company had agreed to pay an impairment benefit for the shoulder.
· 22 December 2015: The plaintiff continues to take Tramadol during the night for his shoulder pain.
· 10 February 2016: The plaintiff reports that he continues to be on Newstart and Centrelink considers he “can work” but it was difficult to get a full-time job “due to age and pre-existing injury”.
· 22 February 2016: The plaintiff continues to take one Tramadol per day but no other medication and is doing swimming and is “active now”.
60 I refer to the report of Dr Watapaldeniya dated 2 April 2017, wherein he states (on the basis of his records):
“This gentleman first saw me for left shoulder pain after lifting heavy objects as a courier driver at work on 10/11/2012. He recalled lifting [a] heavy box and feeling pain in [the] left shoulder with subsequent USS showing subacromial bursitis with established severe OA of [the] left shoulder. He has been working as a courier driving around 6 years by this time and has been lifting heavy weights during the course of his employment. The original diagnosis was left shoulder bursitis with underlying osteoarthritis of the shoulder and he subsequently underwent a cortisone injections to [the] shoulder and hydrodilatation with minimal benefit. He was seen by Mr Ian Young who also agreed he had [a] combination of shoulder bursitis with associated osteoarthritis of [the] left shoulder and recommended he has shoulder replacement surgery. Despite surgery he still has limited movement of [the] left shoulder and is still taking regular pain killers Tramadol daily. Due to dual nature of pain from Osteoarthritis which could be preexisting but getting aggravated by weight lifting at work plus shoulder bursitis which is from repetitive strain injury it[‘]s very difficult for me to say with certainty that all is work related but on the other hand at least shoulder bursitis and worsening of Osteoarthritis is work induced. This is the same opinion from Mr Ian Young whose (sic) far more experi[e]nced than me has concluded in his reports. Since 2013 up until now David hasn[‘]t been able to work at all due to on going pain and subsequent surgery and recovery. I still see him every monthly (sic) for his pain killers and I Iast saw him on 24/3/17 and he still can’t use his left shoulder to do lifting etc. Apart from pain relief and on going physiotherapy there’s no other treatment palnned [scil planned] for David and I don’t anticipate he will be returning back to work as a courier driver plus lifting at work due to ongoing shoulder pain.”[47]
[47]See exhibit 3, page 45 PCB
61 I also refer to the various radiological studies of the left shoulder:
(a)X-ray of the left shoulder undertaken on 25 May 2005 at the request of Dr R Selvaratnam, at the Burwood Health Clinic. The radiologist reported:
“Osteophytes project from the inferior articular border of the humeral head consistent with degenerative manifestation. No distinct joint space narrowing or other abnormality is observed.”[48]
[48]See exhibit A, page 5 DCB
(b)Left shoulder ultrasound undertaken on 6 June 2005 at the request of Dr R Selvaratnam. The sonographer concluded:
“A small amount of fluid within the biceps sheath is non-specific. No rotator cuff injury is shown.”[49]
[49]See exhibit A, page 6 DCB
(c)Left shoulder x-ray and left shoulder ultrasound undertaken on 7 February 2008 at the request of Mr G Grossbard. The radiologist concluded:
“Moderate osteoarthritic changes involve the gleno-humeral articulation with considerable narrowing of the join[t] space and formation of osteophytes on the glenoid fossa and humeral head articular margins.
Slight subchondral sclerosis is present in the glenoid fossa.
The shoulder appears otherwise normal on x-ray examination, and no abnormality is seen on ultrasound examination.
In particular, no evidence of any tendon tear or tendinopathy seen.
The long head of biceps tendon lies normally in the bicipital groove and … [has] a normal thickness and texture. No fluid is seen around it.
No fluid or thickening is seen in the subdeltoid bursa.
No impingement is seen on abduction.”[50]
[50]See exhibit 2, page 31 PCB
(c)Ultrasound of left shoulder undertaken on 26 May 2010 at the request of Dr J Rajakulendran. The radiologist reports:
“The shoulder appears normal on ultrasound examination.
In particular, no evidence of any tendon tear or tendinopathy is seen.
The long head of biceps tendon lies normally in the bicipital groove and has a normal thickness and texture. No fluid is seen around it.
No fluid or thickening is seen in the subdeltoid bursa.
No impingement is seen on abduction.
The plaintiff’s history of constant pain and limited movements raises the possibility of adhesive capsulitis.”[51]
[51]See exhibit 2, page 32 PCB
(d)X-ray of the left shoulder undertaken on 23 June 2010 at the request of Dr J Rajakulendran. The radiologist concluded:
“As suspected clinically, advanced osteoarthritic changes are seen in the glenohumeral joint with complete cartilage loss in one view. A prominent inferior osteophyte is present. No tendon calcification. The AC joint appears normal.”[52]
[52]See exhibit 2, page 33 PCB
(e)Left shoulder injection performed by Mr Grossbard on 4 August 2001, which revealed the shoulder to be “moderately degenerate”;[53]
[53]See exhibit 2, page 34 PCB
(f)Ultrasound and x-ray of left shoulder requested by Dr N Watapaldeniya and performed on 28 May 2012. The radiologist concludes:
“Left Shoulder Ultrasound
No rotator cuff tendon tears were identified, although subscapularis tendon is rather atrophic. No calcifications or abnormal fluid collections were seen and there was no marked thickening of the subdeltoid bursa. However there was marked generalised limitation of movement at the time of examination, suggestive of adhesive capsulitis.
X-ray Left Shoulder
Plain x-rays showed slight narrowing of the glenohumeral joint space and marked osteophyte formation on the inferior margin of the articular surface of the humeral head. There were no soft tissue calcifications.
Subdeltoid bursal injection has been arranged. However if the clinical problem is unresolved, the more complex invasive procedure of shoulder hydrodilatation maybe considered.”[54]
[54]See exhibit 2, page 35 PCB
(g)Although referred to as a right shoulder injection, it is understood that that should read left shoulder injection requested by Dr N Watapaldeniya and undertaken on 31 August 2012;[55]
[55]See exhibit 2, page 36 PCB
(h)X-ray and ultrasound of the left shoulder undertaken on 12 November 2012. The radiologist concludes:
“X-RAY LEFT SHOULDER
Degenerative glenohumeral joint, with marginal osteophytes, the maximum arising from the inferior humeral head. Mildly degenerative AC joint. No rotator cuff calcification. No focal bony lesion.
CONCLUSION
Degenerative glenohumeral joint.
LEFT SHOULDER ULTRASOUND
Normal appearances to the rotator cuff tendons. Mild to moderate effusion in long head of biceps tendon sheath, with tendon-appearing normal.
No free joint fluid. Trace of fluid in subdeltoid bursa. No bursal impingement on abduction.
Dynamic assessment shows limitation of abduction and external rotation, raising the possibility of adhesive capsulitis.
CONCLUSION
Adhesive capsulitis. This condition is amenable to hydrodilatation under x-ray control, performed at Hospital Radiology Departments. Fluid in long head of biceps tendon sheath may have leaked from the shoulder joint, or be secondary to tenosynovitis.”[56]
[56]See exhibit 2, page 37 PCB
(i)Hydrodilatation to left shoulder undertaken on 5 March 2013.[57]
[57]See exhibit 2, page 38 PCB
(j)CT scan of the left shoulder undertaken on 24 July 2014 at the request of Dr N Watapaldeniya undertaken. The radiologist reported:
“Moderate left glenohumeral degenerative arthropathy.”;[58]
[58]See exhibit 2, page 39 PCB
(k)X-ray of left shoulder undertaken on 11 February 2015 (pre-elect total shoulder replacement). The radiologist reported:
“Reference is made to the CT performed [on] 29 July 2014 and plain film the same month. Moderately large osteophytes arising from the inferior humeral head and margin of the glenoid. Joint space narrowing and subchondral bony changes. No erosive or destructive changes. No acute fractures. No change in alignment.”[59]
[59]See exhibit 2, page 41 PCB
(l)Operation report in relation to the left shoulder involving total shoulder replacement undertaken on 16 March 2015;[60]
(iii)That since November 2012, he has been (with some breaks) on Tramadol to assist the pain in the shoulder area. At no time prior to 10 November 2012 had Tramadol been prescribed;
(iv)Furthermore, the process for him to ultimately undergo the replacement shoulder surgery commenced in 2013 and, indeed, in early 2014 approval was sought for the total shoulder replacement, which was not responded to for some time by the insurer of the defendant. The plaintiff also decided after the incident injury on 10 November 2012 that he would undergo the replacement surgery.
134 The plaintiff demonstrated his capacity for work and the pursuit of his passion – recreational ballroom dancing – up to the subject injury. Clearly enough, he had had treatment and difficulties with the left shoulder prior to that time but, as he stated continually during his evidence, he was able to do work which involved both arms up until that date. The injury is a traumatic event which involved the distinct wrenching of the left shoulder, which was reported to his doctor on that day.
135 I do find that the need for surgery to the left shoulder, something which may have occurred absent the injury, was brought forward. I accept that the surgery has caused some improvement to the plaintiff, but he has restriction of movement in the left shoulder and a degree of pain, for which he continues to take Tramadol on a daily basis.
136 I accept that prior to his surgery, the plaintiff did return to work with the defendant in an office-based capacity, working, at most, three days a week, up to six hours a day. Although he was willing to start that work at an earlier time, such work was not available from the defendant, and the plaintiff has also described that although there was some work to do – though not always – he felt he did not really fit in.
137 I also accept that since the surgery the plaintiff, to his credit, underwent a short computer course which gave him the basics for the operation of computers, but he notes that his more extensive knowledge gained at the course has largely been forgotten. Furthermore, he underwent a storeman’s course, which he did pass, but ultimately could not pass the attendant forklift-driving aspect as he had difficulty performing that task, which caused left shoulder pain.
138 I came to the view that bearing in mind the work record of the plaintiff and his desire to return to work after surgery, he is in no way “shy” of trying to obtain employment – although he considers that he is incapable of returning to his work either as a plumber or, indeed, a courier.
139 Accordingly, when one compares the impairment of the plaintiff as a result of his left shoulder prior to the injury, and the impairment of the plaintiff after the occurrence of the injury on 10 November 2012, I am satisfied that the aggravation of that injury does give rise to consequences involving employability, recreational pursuits and added pain, all of which are the basis for a finding that the plaintiff had suffered a “serious injury”.
140 In particular, I do not accept that the plaintiff, absent the injury on 10 November 2012, would have come to reconstructive surgery at or around that time in any event. Such submission is made by the defendant based on the evidence of the rheumatologist, Professor Littlejohn. As I have already recorded, Professor Littlejohn gave an opinion contained in a report dated 28 November 2016 based on seemingly the medical records of the plaintiff supplied to him by those acting for the defendant. At that time, he had not examined the plaintiff but later examined the plaintiff on 14 December 2016 and rendered a report on 15 December 2016.
141 In relation to the causation issue, Professor Littlejohn opined:
“Mr Doig expressed the view that the worker’s need for a shoulder replacement had been accelerated by the work incident described by him. The incident described indicated increased pain and dysfunction following the incident. There was already pre-existing shoulder pathology which would have required shoulder replacement at some time. The incident at work exacerbated symptoms making the problem more significant and not manageable with conservative measures. Hence I agree with the view of Mr Doig that the worker’s need for shoulder replacement had been accelerated by the incident. From my reading of the information, I gained the impression that a left shoulder joint replacement was imminent and the acceleration by the work incident likely brought the time forward by several months to a number of years.
I don’t think there would have been much time difference between the natural need for a left shoulder replacement from the time identified in November 2012 and the time the actual operation occurred in 2015. I think these times would be likely very similar whether the incident had occurred or not. … .”[106]
(My emphasis).
[106]See exhibit “B” at page 12 DCB
142 The reference to Mr Doig refers to the two medico-legal examinations of the plaintiff (arranged by the solicitors for the plaintiff) on 8 September 2015 and later, on 26 April 2017.
143 When seen by Mr Doig, it is not clear as to what documents Mr Doig had at the time of such examination, although there is a reference to x-rays dated 12 November 2012 and 6 October 2014; however, of course, he had the advantage of an examination of the plaintiff. As I have already recorded, Mr Doig was of the opinion that if the injury on 10 November 2012 had not occurred, it was “certainly possible” that his pre-existing left shoulder injury would have resulted in him requiring a left shoulder replacement. “… although he may have required a shoulder replacement in the future I consider it is probably that the need for the shoulder replacement was brought significantly forward by the injury that he had suffered.”[107]
[107]See exhibit 3 at page 61 PCB
144 I also refer again to the opinion of Mr Grossbard, who saw the plaintiff a number of times (initially in 2005 on approximately four occasions, 2006 on approximately two occasions, 2008 on one occasion and finally, on 26 July 2011).
145 Mr Grossbard proffered an opinion on the causation issue in a report dated 2 May 2017.[108] Such opinion was in part produced by Mr Grossbard being asked to assume certain facts and in this respect. I refer to exhibit “F”, which is a letter from Shine Lawyers and various attachments explaining that process. Ultimately, Mr Grossbard stated:
“Whilst I believe surgery was probably going to be required at some stage in the future in any case, at the time of injury this man was coping reasonably well and was able to continue working. For this reason it must be stated the need for surgery has been brought forward by the incident described. I am unable to comment on how much this acceleration of requirement for surgery has occurred as a result of the injury. The natural progression of osteoarthritis is to gradually get worse, but without further incident, this may still have been some time off before requiring intervention. Clearly an accurate time is impossible to offer.
You have asked me about the requirement for revision surgery. Total shoulder replacement is difficult to predict with respect to requirement for revision surgery. There are very many variables and as yet there is very little in the way of registry information on which to rely regarding long-term outcomes of total shoulder replacement. Longevity is probably best predicted on the initial early outcome and absence of post-operative complications.
… .”
[108]See exhibit 3 at pages 47-48 PCB
146 It is for the defendant to discharge its onus to the balance of probabilities that absent the injury on 10 November 2012, the plaintiff would have come to shoulder surgery in any event at or in around the time of his injury.[109] Although accepting the consensus of medical evidence that it was likely that at some time the plaintiff may have come to corrective surgery, I am not satisfied that absent the injury on 10 November 2012, such would have occurred by now in any event.
[109]See RJ Gilbertsons Pty Ltd v Skorsis (2000) 12 VR 386; Petkovski v Galletti (op cit), and in general Watts v Rake (1960) 108 CLR 158 and Purkess v Crittenden (1965) 114 CLR 164
147 It is convenient to determine whether the serious injury suffered by the worker entitles him to claim pecuniary loss damages.
148 The primary submission of those acting for the plaintiff is that the plaintiff is incapable of performing his pre-injury employment and, more particularly, is not fit for any “suitable employment” as defined in s5(1) of the Act and incorporated into s134AB(38)(f) and s134AB(38)(g) of the Act. Reference was made to the decision of Aluthgamage v Select Care Personnel Pty Ltd,[110] wherein the Court of Appeal (consisting of Redlich and Osborn JJA and Cavanough AJA) stated, at paragraph [47]:
“By virtue of the definition of ‘suitable employment’ found in s 5(1) of the Act, regard is required to be had to ‘the nature of the worker’s pre-injury employment’ and ‘the worker’s age, education, skills and work experience’. As at the date of trial, the appellant was 69 years of age. She had worked as a qualified nurse in a number of countries for more than 40 years. She was plainly qualified to continue working in that capacity but, equally, faced difficulties in obtaining employment in other areas of work. Her evidence at trial was that she could not return to the type of light administrative nursing work envisaged by Mr Dooley because she did not have computer skills. I accept that having regard to her pre-injury employment, her age, education, skills and work experience, the appellant had no practical capacity for suitable employment after her attempts to return to nursing. Her age effectively precluded successful retraining. No submissions were made to the contrary on behalf of the respondent.” 35 VR 494
149 Leading Counsel for the plaintiff submitted that the plaintiff had no “realistic retained earning capacity”. In particular, it was highlighted that the “nature of the worker’s incapacity” was a left shoulder injury to a manual worker who has now required a substantial surgical procedure. Again, it was highlighted that the “nature of the worker’s pre-injury employment” is that of a manual type which the plaintiff is no longer able to freely pursue. When account is taken of the plaintiff’s “age, education, skills and work experience”, it is now a case of a sixty-four-year-old manual worker who has been out of the workforce for a number of years and would be attempting to re-enter the workforce subject to a debilitating condition which has been the subject of surgery. It was submitted that the plaintiff “has attempted rehabilitation through his attempts to work and also through his participation in voluntary activities”, but it is submitted that “such voluntary activities are far removed from the challenges to be faced in the open employment environment”.[111]
[111]Contained in written submissions of the Plaintiff
150 As a fall-back position, the plaintiff submits that the “without injury” earnings within the meaning of s134AB of the Act amount to $900 per week. This sum was nominated on the basis of exhibit 6, which consists of:
(a)A letter from the insurer of the defendant to the plaintiff dated 10 September 2013 advising him that his pre-injury average weekly earnings in relation to the injury suffered by him on 10 November 2012 were $899 per week;
(b)Two agreements entered into by the plaintiff with the defendant, each headed “Contractor Weekly Minimum Earnings Agreement”, with the first nominated effective start being 4 May 2012 and the second nominated effective start from 6 July 2012. Such agreement nominated that the “agreed minimum guarantee amount” calculated each week from Monday to Friday would be $900;
(c)However, it is to be noted that clause 16 of such agreement states that the guarantee would not apply for the following periods: the last week before Christmas Day and any working days immediately preceding Christmas Day, but in the same week, the period from 25 December to 31 January inclusive, and in the week that Easter Monday falls, any working days following that day, but in the in same week.
151 Counsel for the defendant submitted that the appropriate amount for “without injury” weekly earnings is $41,585, that is, $799.71 per week. That amount is calculated based on exhibit 7 and, in particular, the taxation return of the plaintiff for the year ended 30 June 2012. In that year, the plaintiff had gross earnings of $41,585 from which was deducted various expenses amounting to $18,036.
152 Consistent with the Court of Appeal case of Nicholson v Victorian WorkCover Authority,[112] the expression “income from personal exertion” found in s6(2) of the Transport Accident Act 1986 and imported into s134AB(38), established that “without injury” earnings effectively is the gross amount before the deductions of allowance or work-related expenses.
[112][2016] VSCA 146
153 Sixty per cent of the “without injury” earnings nominated by the plaintiff is $540 per week (that is, 60 per cent of $900 per week), whereas 60 per cent of the amount nominated for “without injury” earnings by the defendant is $480 per week (being 60 per cent of $799.71 – say $800 per week).
154 Those acting for the defendant then rely on the plaintiff being capable of working as a customer service officer – enquiry clerk (transport/plumbing industry) – as set out in the NES Vocational Assessment Report dated 24 February 2015.[113] The report nominates an expected wage to be $960 per week, which translates to $25.26 based on a thirty-eight hour week.
[113]See exhibit “C” at page 41 DCB and, in particular, at page 45 DCB
155 Of course, the Act requires that the assessment of the serious injury provisions be done at the date of hearing. As I have already recorded, the various doctors who have examined the plaintiff after the surgery have opined as follows:
(a)Professor Littlejohn, on examination of the plaintiff on 14 December 2016, opined that the plaintiff had some restriction of active range of motion in his left shoulder but there was no particular tenderness. Although the plaintiff complained of pain, particularly in the colder weather, giving rise to some nagging discomfort, Professor Littlejohn was of the opinion that such pain was hard to assess given there were some features of what he referred to as pain sensitisations.
Professor Littlejohn considered that the plaintiff was capable of returning to “suitable employment” and, in particular considered the plaintiff could work “full time in the opportunity shop”. He does note that “obviously” the plaintiff cannot do work that would be forceful on the left shoulder or have a lot of repeated activities of the left shoulder, but can do office-type activities which would involve the right hand. Furthermore, he notes that disregarding the osteoarthritis suffered by the plaintiff in his knees, and other non-work-related conditions which will limit his ability to go back to work, he believes the plaintiff could return to pre-injury duties;
(b)The plaintiff was examined by Mr Doig on two occasions – 8 September 2015 and 26 April 2017. On both occasions, Mr Doig considered the plaintiff had no capacity to perform his pre-injury duties as a courier, as this would involve lifting and carrying of parcels, which he is unable to do into the foreseeable future. Furthermore, he considers that the injury to the left shoulder will cause a restriction in doing prolonged driving, although that may improve. Furthermore, Mr Doig notes that the left shoulder injury will “… markedly restrict him in lifting an excess of 5 or 10kg on a repetitive basis for the left arm”.[114] In particular, Mr Doig thought that into the foreseeable future he would be limited to lifting no more than 5 or 10 kilograms.
When last seen, Mr Doig did note there appeared to be some slight wasting around the supraspinatus on the left side;
(c)Dr Clayton Thomas examined the plaintiff on 6 March 2017. Dr Thomas accepted that the plaintiff has ongoing stiffness and weakness in the left shoulder, both of which “remain problematic and profound for him”.[115]
Dr Thomas opined that he does have a work capacity, but not for pre-injury duties. Such capacity would be for light, sedentary-type employment. In particular, Dr Thomas was of the opinion that in no way could the plaintiff work as a plumber or as a courier.
In particular, his work would be limited to jobs which do not involve performing awkward lifts, forward lifts beyond 30 degrees from his body and, likewise, beyond 30 degrees of abduction. He would be able to work in a position that lifts between waist and chest height of 5 kilograms;
(d)Dr Watapaldeniya opines as at 2 April 2017,[116] in part, that the plaintiff is seen every month for painkillers, and when last seen on 24 March 2017, he could not use his left shoulder to do lifting, and apart from pain relief and ongoing physical therapy, there was no other treatment planned. In particular, Dr Watapaldeniya anticipated that the plaintiff would not return to work as a courier driver, or work involving lifting at work, due to ongoing shoulder pain.
I do find that the plaintiff presently suffers, and is likely to suffer into the foreseeable future, restriction of movement of his left shoulder, restriction in the type of activities he can do – that is to say, lifting weights or continually using the left arm in a work activity. Furthermore, I do accept that the plaintiff does suffer pain, as clearly evidenced by the ongoing prescription of the narcotic, Tramadol, to assist him with pain relief.
[114]PCB 60
[115]PCB 66
[116]See exhibit 3, page 45 PCB
156 I am not overly assisted by the plaintiff demonstrating some capacity for employment with the defendant prior to his surgery. Although he demonstrated that he could work up to eighteen hours a week, such duties were light and selected by the defendant, seemingly on an intermittent basis. Although I accept that what he did was meaningful work, it was not undertaken in circumstances where he was expected to do certain things in certain times and under the general supervision of his employer. In so saying, I do accept that the plaintiff thought he could do such work, although he did state that he had been working for his previous employer, not someone out in the open labour market. I also note that the job relied on by the defendant set out the NES Vocational Assessment Report dated 24 February 2015[117] does require an AQF Certificate II or III, or at least one year’s relevant experience in this type of work. It was not clear from anything advanced by the defendant what this prerequisite involved or, indeed, how the plaintiff was to obtain one year’s relevant experience in this type of area.
[117]See exhibit “C” and, in particular, at page 45 DCB
157 I also note the plaintiff gave evidence that in his present work at the opportunity shop which, of course, was voluntary, there was no requirement that he performs a certain number of tasks each day within a specified timetable. Furthermore, such employment permitted him to make sure that his left arm and shoulder were not used in any repetitive way, or involved in any heavy lifting.
158 I have come to the view, after consideration of all the evidence, that the plaintiff probably does have some limited retained capacity for employment. I expressly reject the opinion of Professor Littlejohn that the plaintiff is capable of working full time at the opportunity shop and, more particularly, his assertion that if taken in isolation, the left shoulder injury would not prevent him performing full-time courier duties. As has already been detailed, part of those duties requires extensive driving and, more particularly, the manual handling of various articles from things which were very light, up to things which were heavy – such as the jack which was being manhandled at the time of injury on 10 November 2012.
159 However, I consider that a realistic assessment of the capacity for this sixty-four-year-old man who hitherto has only been involved in manual employment, would be that he is capable of working up to, say, no more than eighteen hours a week, that is, three days a week at six hours per day as some type of enquiry clerk.
160 Without deciding which is the correct approach for “without injury” earnings, I assume, for the purposes of this exercise, that the “without injury” earnings nominated by the defendant – that is, $800 per week – is correct, and that sixty per cent of that sum is $481 per week. If one allowed eighteen hours at the hourly rate of $25.26 per hour – that is the sum to be paid to an enquiry clerk – such earnings would amount to $454.68 per week, which is less than the amount nominated to be the sixty per cent figure by the defendant. Of course, it is substantially less if one utilises the figures nominated by the plaintiff.
161 In coming to such a view, I only take into account the restrictions and limitations brought about by the left shoulder injury and, in particular, I refer to the evidence of the plaintiff,[118] wherein he describes how the pain can come on at any time, and when he is active he suffers the next day, and he does not believe that he has the capacity to work consecutive days.
[118]Set out at T67, L30 –T68, L22
162 Accordingly, I have come to the view that the plaintiff has satisfied the pecuniary loss aspects of the Act. I should also add, as I have commented earlier in these Reasons, that the plaintiff was not “shy” of performing work, as his work record shows, and also by his attempts at retraining with a relatively short computer course and a warehouse course where he failed the forklift driving aspect.
163 Applying the principles enunciated in Advanced Wire & Cable Pty Ltd & Anor v Abdulle,[119] a plaintiff who satisfies the loss of earning capacity requirements of s134AB of the Act is entitled, as a “matter of statutory construction,” to have leave to bring proceedings for “pain and suffering damages” and “pecuniary loss damages”.
[119]Op cit
164 Accordingly, I grant leave for the plaintiff to bring such proceedings in relation to the left shoulder injury suffered by him on or about 10 November 2012 during the course of his employment with the defendant.
165 I will hear the parties on the question of costs.
- - -
ANNEXURE “A”
1 The plaintiff tendered the following material:
Exhibit 1
·Affidavit of the plaintiff sworn 25 July 2016 and a supplementary affidavit sworn 5 May 2017.
(Such documents are found at pages 15–30 of the Plaintiff’s Court Book (“PCB”)).
Exhibit 2:
·Left shoulder x‑ray and ultrasound, dated 7 February 2008
·Ultrasound of left shoulder, dated 26 May 2010
·X‑ray of left shoulder, dated 24 June 2010
·Left shoulder injection, dated 4 August 2011
·Ultrasound and x‑ray of left shoulder, dated 28 May 2012
·Fluoro shoulder joint injection right (left), dated 31 August 2012
·X‑ray and ultrasound, left shoulder, dated 12 November 2012
·Hydrodilatation of left shoulder, dated 5 March 2013
·CT scan of left shoulder, dated 29 July 2014
·Left shoulder x‑ray, dated 11 February 2015
·Operation report, left shoulder, total shoulder replacement, dated 16 March 2015
·Left shoulder x‑ray, dated 12 May 2015
·Left shoulder x‑ray, dated 23 June 2015.
(All such documents are found at pages 31–44 PCB).
·X‑ray of the left shoulder, dated 21 July 2017.
Exhibit 3:
·Medical report from the treating general practitioner Dr N Watapaldeniya, dated 2 April 2017
·Report of the orthopaedic surgeon Mr G Grossbard, dated 2 May 2017
·Reports of the treating orthopaedic surgeon, Mr R Large, dated 29 July 2014 and 9 May 2016.
(All such reports are found at pages 45–51 PCB.)
Exhibit 4:
·Medico-legal reports of the orthopaedic surgeon Mr S Doig dated 8 September 2015 and 26 April 2017
·Report of the consultant in rehabilitation and pain medicine Dr Clayton Thomas dated 15 March 2017.
(All such reports are found at pages 59–67 PCB).
Exhibit 5:
·Clinical notes from Burwood Health Care
·Clinical notes from Tower Hill Medical Centre
·Clinical notes from Young Street Medical Centre
·Clinical notes from Mr Garry Grossbard
·Clinical notes of Mr Ian Young.
(All such material is found at pages 76–287 PCB).
Exhibit 6:
·Letter dated 10 September 2013 addressed to the plaintiff from Allianz, and a document headed “Contractor weekly minimum earnings agreement” executed on 30 April 2012.
Exhibit 7:
·Taxation returns for the plaintiff for the financial years ending 30 June 2011 and 30 June 2012.
2 The defendant tendered the following material:
Exhibit A
·X‑ray of the left shoulder dated 24 May 2005
·Left shoulder ultrasound dated 6 June 2005.
(Such reports found at pages 5–6 of the Defendant’s Court Book (“DCB”)).
Exhibit B
·Medico-legal reports of the rheumatologist Professor G Littlejohn dated 28 November 2016 and 15 December 2016.
(Such reports found at pages 7–22 DCB).
Exhibit C
·NES vocational assessment report dated 18 December 2013
·Further NES vocational assessment report dated 24 February 2015.
(Such documents found at pages 30–50 DCB).
Exhibit D
·Clinical notes of Frankston Medical Centre (extracts)
·Clinical notes of Botany Park Medical Centre
·Clinical notes of Young Street Medical Centre.
(Such material found at pages 51–134 DCB).
Exhibit E
·Medical records of the Primary Health Clinic, Frankston (consisting of twelve pages).
Exhibit F
·Letter from Shine Lawyers (the plaintiff’s solicitors) to Mr Grossbard dated 2 May 2017
·A further letter from Shine Lawyers to those acting for the defendant, Russell Kennedy, dated 3 May 2017.
0
17
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