Perdikis v VWA
[2017] VCC 1664
•16 November 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-16-03066
| JOHN PERDIKIS | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | Dyer | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 & 21 July 2017 | |
DATE OF JUDGMENT: | 16 November 2017 | |
CASE MAY BE CITED AS: | Perdikis v VWA | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1664 | |
REASONS FOR JUDGMENT
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Subject: Accident compensation
Catchwords: Serious injury; pain and suffering; causation; consequences
Legislation Cited: Accident Compensation Act 1985
Cases Cited:AG Staff Pty Ltd v Filipowicz [2012] VSCA 60; Haden Engineering
Pty Ltd v McKinnon [2010] VSCA 69
Judgment: Leave granted
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S. Carson | Maurice Blackburn |
| For the Defendant | Mr J. Batten | Lander & Rogers |
HIS HONOUR:
Introduction
1 John Perdikis suffered an injury to his right shoulder in the course of his employment at the premises of OneSteel in Laverton North in 2010. At that time he was employed by a labour hire company and his work involved sorting and inspecting bundles of extruded steel rods. He believes the injury to his shoulder occurred over a period of a few weeks and there was no specific incident relied upon.
2 Mr Perdikis seeks leave to claim damages for pain and suffering only in accordance with the provisions of section 134AB of the Accident Compensation Act 1985 (“the Act”) on the basis that the injury to his right shoulder is a serious injury as defined in section 134AB(37) of the Act.
3 In opening the case Mr Carson, who appeared on behalf of the plaintiff, referred me to medical imaging which described the injury to Mr Perdikis’ shoulder in general terms as a full thickness tear of the supraspinatus with some subacromial bursitis.[1]
[1]Exhibit A, p43
4 Following the injury Mr Perdikis’ employment was terminated and he underwent conservative treatment. He subsequently obtained light machine operator work in November 2011 and continued in that work until sustaining further injuries in a transport accident in April 2012. Mr Perdikis maintained that he suffered a flare-up in his shoulder symptoms at that time and subsequently lost that employment. His pain settled down and he managed to find further work washing cars. He has since taken on the role of carer for his parents. He does not seek leave in respect of any claim for pecuniary loss.
5 Mr Batten, who appeared on behalf of the defendant, conceded that a claim had been made in respect of a shoulder injury in June 2010. The defendant disputed the extent of injury, raising issues of the pre-injury state of Mr Perdikis’ shoulder and also the relevance of the transport accident in 2012. The defendant also submitted that the consequences flowing from the work‑related injury did not reach the level required for the plaintiff to be given leave. There was also an issue concerning the circumstances in which Mr Perdikis’ employment was terminated.
6 Mr Perdikis was the only witness required for cross-examination. The parties otherwise tendered material from their respective court books.
The lay evidence
7 Mr Perdikis had sworn affidavits in support of his application on 2 March 2016 and 26 June 2017.[2] It is appropriate to briefly summarise the content of that affidavit material:
[2]Exhibit A, p6-18
· He was born in August 1969 and educated to the end of Year 11.
· He is dominantly right-handed and worked as a security guard for about 16 years until suffering a knee injury and an injury to both shoulders in an assault.
· He was off work for about 12 months and had knee reconstruction surgery. He believed the shoulders settled down within a few months of the assault.
· He obtained labour hire work with TAD Industries and worked for various host employers.
· In August 2009 he was placed with OneSteel at Laverton North. His job was to sort and inspect bundles of extruded steel rods.
“It was essentially a quality control type job but it did involve a lot of hands on work. I would work a minimum of 8 hours per day and on many occasions worked a 12-hour day. I would almost always work on my own.”[3]
[3]Exhibit A, p8[11]
· The nature of the work involved a crane dropping bundles of steel rods onto an inspection table where Mr Perdikis would have to cut wire ties around each bundle and select from the bundle what were known as “prime rods”, the remainder being scrapped. He would then tie the new bundle with wire using a crimping tool.
· Due to the rods being intertwined or wound up together, Mr Perdikis would have to flick or shake pieces of steel repeatedly. This was done many times during the day.
· Over a period of about six weeks in mid-2010 he began to feel increasing pain and stiffness in the right shoulder made worse while handling the rods. The pain worsened over time and he began to experience pain in the right elbow and the back of the right wrist.
· He reported the injury to his leading heand and was told to take it easy.
· He believes that he attended his general practitioner initially on 11 June 2010 and was given a week off work and prescribed anti-inflammatories and pain killers.
· He was then told by TAD Industries that he was not needed any more as he had failed to properly report an absence from work. Mr Perdikis deposed to having some absent days due to personal issues prior to this time.
· He was referred by his general practitioner, Dr Kyriacopoulos, for imaging of the right shoulder. This was performed on 15 June 2010. He was given a sling to wear and treated with anti-inflammatories (Voltaren) and pain killers (Panadeine Forte).
· He was off work for about a year before obtaining some lighter work with MHG Glass in Geelong, where he worked as a machine operator. This work was not as physically demanding as the work with the defendant:
“There was minimal lifting and, when I did have to lift anything heavy, I was able to lift with a pulley system.”[4]
[4]Exhibit A, p.10[20]
· He continued to work with pain and experienced ongoing right shoulder and arm pain on a daily basis.
· He suffered further injury to his right shoulder and arm in a transport accident in April 2012. He deposed to being shaken up but did not go to hospital, but later saw his general practitioner and was referred to an orthopaedic surgeon, Mr Brown. No surgery was recommended and he was referred for physiotherapy. Due to his absence following this accident, he again lost his employment.
· Mr Perdikis deposed to suffering a flare-up of right shoulder symptoms following the transport accident, but believes this lasted only for a few months:
“… I would describe this pain as having gone back to how it was before the accident. That is to say, I experienced pain and restriction in the shoulder every day, mainly depending upon what I tried to do with the right arm.”[5]
[5]Exhibit A, p11[23]
· Mr Perdikis obtained some further work with Land Rover washing cars. Again this was difficult due to his right shoulder pain and restriction, but he was able to protect the shoulder. He used his left arm and hand as much as he could.
· At the time of his first affidavit he was not in paid employment but caring for his two parents who required his assistance throughout the day. He stated this was not strenuous and he was able to minimise the use of his right arm and shoulder.
· Mr Perdikis described the then current symptoms experienced by him in some detail.[6] In essence he described experiencing pain and stiffness present at all times and varying in degree and frequency each day. He described the principal area of pain as being from the right shoulder and extending into the right arm:
[6]Exhibit A, p12-13[26] to [32]
“Sometimes the pain will go all the way down to my right hand. I occasionally feel some numbness in my right hand. This tends to be at times when the right shoulder pain is worse.”[7]
[7]Exhibit A, p12[27]
· He also described elbow symptoms but stated that these were not as painful as those from the shoulder:
“The elbow pain tends to come and go. It is also flared up by movement and with even minimal strain being placed on the arm. The right wrist also occasionally flares up but, as with the elbow, is nowhere near as painful or as restrictive as the right shoulder.”[8]
· Mr Perdikis also described shoulder symptoms impacting on his ability to get to sleep and waking him up during the night.
· He was not having active medical treatment at the time of his first affidavit and described taking Nurofen three or four times a week and Voltaren three tablets per day:
“I would describe the tablets as taking some of the very worst edge from the pain, but that is all they do.”[9]
[8]Exhibit A, p13[31]
[9]Exhibit A, p14[33]
8 In his second affidavit Mr Perdikis again repeated in some detail the difficulties experienced with his right shoulder.[10] He did refer in that affidavit to the pain worsening with cold weather.[11] He also described ongoing but “significantly lesser” pain in his left shoulder which he stated occurred when trying to take pressure off the right shoulder and arm.[12]
[10]Exhibit A, p16-17[5] to [12]
[11]Exhibit A, p16[8]
[12]Exhibit A, p16-17[9]
9 Once again Mr Perdikis was having little by way of medical treatment stating:
“I prefer to simply put up with pain rather than take medication. … I am very worried about the long-term effects of tablets on my health.”[13]
[13]Exhibit A, p17[14]
10 At the time of his most recent affidavit in June 2017, he was taking Panadol, usually three per day, and Voltaren usually about two per week.
11 Mr Perdikis was then cross-examined. I noted the following matters which I regarded of particular relevance:
· Mr Perdikis had seen Dr Loo in Geelong on four occasions between 9 December 2011 and 15 March 2012 without mentioning any right shoulder problem.[14]
[14]Transcript (“T”) 22, Line (“L”) 23 to T 23, L 7
· He had initially seen Dr Kyriacopoulos the day after stopping work at OneSteel on 11 June 2010. He last saw this doctor on 29 December 2011.[15]
[15]T 23, L 24-28
· He was sent by another labour hire company to work at MHG Glass in Geelong.[16]
[16]T 23, L 13-20
· He finished that employment after the motor car accident and then received Transport Accident Commission (“TAC”) payments of $28,000 over the next 12 or 18 months.[17]
[17]T 25, L 1-10
· Mr Perdikis had moved down to Geelong before he found work with MHG Glass.
· He had been on a carer’s pension since mid-2017. His mother was in remission from cancer and had problems with her feet. His father had had a stroke and was not able to walk. Mr Perdikis would move him around in a wheelchair.[18]
[18]T 27, L 5-31
· The job he did with Land Rover after the transport accident was casual for six or seven months working roughly a 30 hour week and just involved giving cars a wash and a clean-up, “yeah, a quick squiz.”[19]
[19]T 28, L 7-30
· After the car accident Mr Perdikis moved to Cobram in about September 2012.[20]
[20]T 30, L 19-28
· He agreed he told a doctor examining him for TAC that he had looked for jobs in Cobram at the meatworks. Mr Perdikis stated he was looking for a forklift job and had applied for a few other jobs as a forklift driver.[21]
[21]T 31, L 3-18
· Mr Perdikis agreed that he had injured his shoulder in November 1994 and that he had injured his knee in August 1995 whilst working with Holden in Port Melbourne. As a result of the shoulder injury he was paid compensation for 34 weeks and had to return on modified duties.[22]
[22]T 33, L 6 to T 34, L 8
· After leaving Holden he worked for 16 years in security as a security guard doing crowd control.[23]
[23]T 35, L 16-28
· Mr Perdikis was working for Wilson Parking in November 2005 when he was assaulted and suffered injury to both shoulders and his knee. Following that assault he was off work for more than 12 months.[24]
[24]T 38, L 19 to T 39, L 8
· Following the assault he had a knee reconstruction and was off work for about eight months following that operation. He also had ultrasounds taken of both shoulders.[25]
[25]T 39, L 21-27
· Mr Perdikis agreed that he had had problems with substance abuse, “ice”. The last time he had a health issue in that regard was probably about eight months ago. This had started in about 2006.[26]
[26]T 42, L 9-17
· He agreed he probably had absences from employment in April or May 2010 and that people from his employer had spoken to him about it on 10 June 2010.[27]
[27]T 43, L 2-9
· Mr Perdikis agreed that after being told he was being put off from work he told them that he was going to put in a claim. He then saw Dr Kyriacopoulos.[28]
[28]T 43, L 10-27
· His claim was disputed and about a year later he went to court and settled the claim for 52 weeks of compensation with his claim dismissed.[29]
[29]T 44, L 3-12
· Mr Perdikis put in a claim for compensation against the TAC in relation to the accident in 2012. He claimed injury to his right shoulder and was sent by TAC to Dr Kostos.[30]
[30]T 45, L 12-25
· Mr Perdikis agreed telling Dr Kostos that he took the full force of the impact on his right shoulder which struck the steering wheel.[31]
[31]T 46, L 12-18 and Exhibit 1, p24
· Following the transport accident he was referred to an orthopaedic surgeon, Mr Brown, who he saw on two occasions, the last time being in about July 2012. Since then he had not seen any other orthopaedic surgeons for treatment.[32]
[32]T 47, L 2-13 and Exhibit 1, p25
· Mr Perdikis could not remember Dr Kyriacopoulos referring him to an orthopaedic surgeon, Mr Li, after the incident at OneSteel. He disagreed that the problems with his shoulder had improved so that he did not need to see an orthopaedic surgeon.[33]
· Mr Brown had sent Mr Perdikis for a steroid injection in the shoulder but Mr Perdikis didn’t actually have this injection, “No, no, I’ve just had physio.”[34]
· Mr Perdikis disagreed with the history noted by Dr Brown that Mr Perdikis had undertaken a cortisone injection and physiotherapy.[35]
· Following the car accident Mr Perdikis had three physiotherapy sessions and agreed that he had told a doctor in January 2013 that his right shoulder was, “heaps better.”[36]
· Mr Perdikis was living with his parents in Delahey at present and because he was working as their carer was not looking for work.[37]
· His parent’s property had a front garden and he would use the lawn mower on the front lawn. He would also shower his father as well as lifting him in and out of bed.[38]
· He had been receiving a pension or some type of payment through Centrelink for a while, “many years.”[39]
· His present medication was Nurofen, “when the pain’s not that bad and when the pain’s bad, Voltaren.” He used Panadol as well. When asked about the frequency he stated that when he was in “real bad pain” he would take tablets sometimes every third day or every week.[40]
· Finally in cross-examination he denied going back to seeing Dr Kyriacopoulos because of this legal proceeding, but rather because his other general practitioner was away.[41]
[33]T 47, L 14-28
[34]T 49, L 4-12
[35]T 50, L 4-30 and Exhibit A, p64
[36]T 51, L 4-28 and Exhibit 1, p25
[37]T 56, L 17-24
[38]T 57, L 1-8
[39]T 58, L 25-31
[40]T 60, L 1-5
[41]T 60, L 28 to T 61, L 6
12 Mr Perdikis was re-examined and the following evidence was noted:
· When working for MHG Glass he did not work full-time and worked probably closer to 30 hours per week spread over five days.[42]
· The shoulder was not a particular problem because he did not have to use his shoulders or lift anything.[43]
· When cleaning cars at Land Rover he would use a small spray gun in his left hand. He would use his right hand to hold cleaning bottles.[44]
· When living in Cobram Mr Perdikis had applied for some forklift work at the slaughter yard, but not for other jobs.[45]
· As to the circumstances of the injury and his termination of employment Mr Perdikis maintained that he had reported the injury and then later been told that his job was over.[46]
· He explained the process by which he would assist his father in bathing, stating that he would move the wheelchair and then seat his father on a plastic seat in the bath. His mother would assist in washing. He described his father as being “a small bloke, skinny.”[47]
· He confirmed that he would generally take Panadol or Panamax tablets, two in the morning and two at night. He had not taken Panadeine Forte “for ages.” He explained they were for his knee as well.[48]
[42]T 61, L 16-28
[43]T 61, L 29 to T 62, L 4
[44]T 62, L 13-30
[45]T 62, L 31 to T 63
[46]T 64, L 1-24
[47]T 65, L 2-18
[48]T 66, L 8-29
The medical evidence
13 Mr Perdikis relied upon four medical reports from his general practitioner, Dr Kyriacopoulos dated 27 February 2006, 9 August 2010, 16 March 2011 and 10 July 2017.[49]
[49]Exhibit A, p50-58
14 In the initial report Dr Kyriacopoulos made reference to the injuries sustained in the assault in November 2005. At that time he commented as follows in relation to the right shoulder:
“Mr Perdikis’ right shoulder injury is more severe, with marked restriction of movement due to pain. … My clinical opinion is that Mr Perdikis may have damaged his shoulder cartilage lining of the joint that may require surgical repair or possibly a tendon injury missed by the ultrasound.”[50]
[50]Exhibit A, p51
15 In his second report he made reference to an attendance on 11 June 2010 noting a history of right shoulder pain, two to three weeks duration. He stated:
“Mr Perdikis claimed he was working with bars of steel and when moving them he injured his right shoulder. The pain had been getting steadily worse over the 2-3 weeks, prior to the initial presentation, until he was no longer able to work because of the pain and restricted movement.”[51]
[51]Exhibit A, p52
16 In March 2011 Dr Kyriacopoulos send a further report to the plaintiff’s solicitors and commented as follows:
“On his latest consultations Mr Perdikis continues to have severe pain with significant restriction in his right shoulder movement. Although there was for some time in November and December an improvement in his condition and he was given Work Cover certificates to try light duty work. However his condition deteriorated again and in February he was again declared unfit for work, with severe sharp pains been [sic] experienced around the shoulder joint. Mr Perdikis is using a sling again, is having difficulties sleeping more than ninety minutes at a time at night due to pain waking him up when he moves in bed.”[52]
[52]Exhibit A, p55
17 At that time Dr Kyriacopoulos commented on the delay in Mr Perdikis seeing an orthopaedic surgeon and felt it likely that he would require surgical repair of the shoulder.
18 In his final report Dr Kyriacopoulos noted that he had continued to treat Mr Perdikis in relation to the right shoulder during 2013, but noted he had not at that time been seen by an orthopaedic surgeon either privately or at the Williamstown Hospital. He next saw Mr Perdikis in July 2017. He took a history of ongoing constant pain in the right shoulder and noted some restriction of shoulder movements. At that time he diagnosed a subacromial bursitis with possible rotator cuff tear. He further commented:
“It is unlikely Mr Perdikis’s condition will improve without specialist care. I expect surgery would be the most viable option. Without treatment Mr Perdikis’s condition would limit the type of work he will be able to do, i.e. limited to light duty work only.”[53]
[53]Exhibit A, p58
19 Dr Kyriacopoulos did not have any record of the motor vehicle accident in 2012.
20 The plaintiff tendered into evidence a single report from Dr Loo who had seen Mr Perdikis on 14 August 2012, the day following the motor vehicle collision. His report was dated 28 August 2012.[54] Dr Loo had noted the history of injury from 2010 and made reference to an ultrasound taken on the day of his initial consultation showing a right supraspinatus tendon tear. He referred Mr Perdikis to an orthopaedic surgeon in Geelong, Mr Graeme Brown. At the time of Dr Loo’s report Mr Perdikis was undergoing a course of physiotherapy and reference was made to the likelihood of a repeat steroid injection in the shoulder.
[54]Exhibit A, p59-60
21 The plaintiff relied upon three reports from Mr Brown dated 9 July 2012, 7 August 2012 and 29 November 2012. Mr Brown also recorded a history of injury to the right shoulder at work in 2010, but commented:
“He said he had a gradual onset of pain. This settled down over 12 months particularly when he was on light duties. He was involved in a motor vehicle accident in April of this year when he had to brake when a semi‑trailer suddenly cut in front of him.”[55]
[55]Exhibit A, p61
22 At that time he was found to have a very irritable right shoulder on examination. Mr Brown felt that non-operative treatment would be the preferred option.
23 In his second report Mr Brown noted that an MRI had revealed tendonosis of the supraspinatus and infraspinatus tendons but no actual tear.
24 In Mr Brown’s final report in November 2012 he diagnosed right subacromial impingement and noted that his treatment involved a subacromial cortisone injection and physiotherapy, as well as home exercise. Significantly at that time he commented in relation to the causation issue:
“His injury is more consistent with the injury he described at work in 2010 rather than from a direct blow to his shoulder that he suffered in his motor vehicle accident.”[56]
[56]Exhibit A, p64
25 Mr Brown expressed a rather optimistic prognosis in relation to the shoulder at that time.
26 The plaintiff also tendered into evidence a report from Mr James Nelson, physiotherapist, dated 14 September 2012.[57] Mr Nelson had administered five physiotherapy treatments following the car accident and stated that Mr Perdikis:
“… has shown some improvement in terms of his ability to actively lift his arm, but not much change in his pain levels.”[58]
[57]Exhibit A, p66-68
[58]Exhibit A, p67
27 He also commented in relation to causation stating:
“Mr Perdikis’ injuries are consistent with those that can be sustained in the workplace by performing strenuous manual activity and/or highly repetitive manual activity. They are also injuries that could be aggravated as a result of a motor vehicle accident such as that on 12/04/2012.”[59]
[59]Exhibit A, p68
28 Mr Nelson also expressed a somewhat guarded prognosis stating:
“If he struggles to show signs of steady improvement I would encourage him to have a cortisone injection. If this didn’t facilitate an improved recovery I would suggest another specialist review with an eye towards shoulder surgery.”[60]
[60]Exhibit A, p68
29 Mr Russell Miller, orthopaedic surgeon, examined Mr Perdikis on 27 March 2017 and his report of the same date was tendered into evidence. He noted what I regarded as an accurate history and commented in relation to the shoulder as follows:
“This is his major problem. There is ache, discomfort and pain in the right shoulder, which radiates down the right arm with feelings of numbness and tingling in the hand. The right arm feels weak. His symptoms are worse with repetitive and overhead activities, and cause him difficulty with activities of daily living, such as brushing his teeth and washing his hair. They are worse in the colder weather. There is sleep disturbance.”[61]
[61]Exhibit A, p71
30 Mr Miller stated in relation to a diagnosis:
“He has suffered an injury to the right shoulder with the development of impingement and associated rotator cuff dysfunction. He has had only a moderate response to conservative treatment, and at this stage there are no plans for surgery. Prognosis is only fair.”[62]
[62]Exhibit A, p74
31 Mr Miller believed there was an ongoing work-related component to the right shoulder symptoms and also a significant contribution to those symptoms from the motor vehicle accident.
32 Mr Miller provided a further supplementary report dated 3 July 2017 noting the receipt of further radiological reports.[63] He further commented in relation to the apportionment of the causative factors relevant to the right shoulder. He stated:
“In relation to apportionment, it is my opinion that the problems with the right shoulder reflect: approximately one third due to pre-existing disease and constitutional pre-disposition to develop this problem, one third due to work related issues in 2010 and one third effects of the effects of the motor vehicle accident in 2012. I acknowledge the difficulties in making that determination.”[64]
[63]Exhibit A, p77-78
[64]Exhibit A, p78
33 Mr Miller believed that Mr Perdikis would experience significant restrictions in relation to his right shoulder injury and only minor restrictions in relation to the left shoulder condition.
34 The plaintiff tendered into evidence three reports from Mr Peter Scott, general surgeon, who had examined the plaintiff on behalf of the defendant’s insurer initially on 8 July 2010. Mr Scott’s three reports dated 8 July 2010, 18 August 2010 and 23 May 2011 formed part of Exhibit A.[65]
[65]Exhibit A, p79-94
35 Following his initial examination of the plaintiff Mr Scott described the injury as follows:
“The claimant suffers from a work-related right shoulder rotator cuff lesion of significant proportions causing a great deal of pain and discomfort which has received minimal treatment to this date, together with a work‑induced right lateral traumatic epicondylitis (tennis elbow) which has received no treatment, and pain on the dorsum of the right wrist probably due to repetition strain possibly associated with some mild extensor tendinitis and a dorsal ganglion.”[66]
[66]Exhibit A, p82
36 He regarded Mr Perdikis as totally unfit for work at that time.
37 Mr Scott was provided with some further information specifically concerning the bilateral shoulder problems in 2005 and noted in his second report that the information received concerning the 2005 incident was contrary to the history he had received from Mr Perdikis to the effect that he had had no previous similar problems.
38 Mr Scott conducted a further examination of Mr Perdikis on 23 May 2011 and at that time concluded that the problem was one of “unresolved right shoulder rotator cuff lesion”. He concluded that the condition was related “to injury sustained in November 2005 and over a period of a few weeks to June 2010.”[67]
[67]Exhibit A, p91-92
39 At that time Mr Scott felt the condition had not yet stabilised and recommended a further review. It would appear that did not take place.
40 The defendant tendered into evidence brief correspondence from Dr Darren Loo dated 10 April 2012. This was a letter referring Mr Perdikis for physiotherapy treatment on his right shoulder following the 2012 car accident.[68]
[68]Exhibit 1, p23
41 The defendant also tendered a report from Dr Tony Kostos, rheumatologist, dated 14 January 2013. This report had been obtained by the TAC and was prepared following an examination of Mr Perdikis on 9 January 2013.[69]
[69]Exhibit 1, p24-26
42 Dr Kostos formed the opinion that Mr Perdikis had a pre-existing history of right shoulder problems but these had subsequently resolved. The opinion expressed in the report notes further problems with the right shoulder in 2012 prior to the motor vehicle accident. He went on to note that the right shoulder was now better than it was prior to the motor vehicle accident and stated:
“Therefore at the present time all I can suggest is that the motor vehicle accident did cause some right shoulder problems but whether they were an aggravation of his pre-existing problems or some other problem can now not be determined.”[70]
[70]Exhibit 1, p26
43 For completeness I should point out that Dr Kostos opined that Mr Perdikis was not then incapacitated for work and his prognosis appeared favourable.
44 The remainder of medical material relied upon by the defendant was contained in extracts from clinical notes, largely from Dr Kyriacopoulos.[71] The contents of these notes, where relevant, was subject of matters put to the plaintiff in cross‑examination.
[71]Exhibit 1, p27-49
Analysis
45 I am satisfied that Mr Perdikis did suffer injury to his dominant right shoulder in the course of his employment in or about June 2010. I am further satisfied that the nature of the injury suffered by Mr Perdikis involved a full thickness and possibly complete tear of the supraspinatus tendon together with subacromial bursitis and impingement consistent with the ultrasound imaging performed on 15 June 2010.
46 Whilst it is clear that the condition produced consequences of considerable disability for Mr Perdikis during the latter part of 2010, I am satisfied that the functionality of the right shoulder improved sufficiently to enable the plaintiff to return to light duties in late 2010. I further find that the condition varied in severity during 2011 and was further aggravated by the motor vehicle accident in which Mr Perdikis was involved in April 2012.
47 In reaching these conclusions I am reliant particularly on the opinions of Dr Kyriacopoulos, the principal treating general practitioner and Mr Brown, the orthopaedic surgeon, who examined Mr Perdikis shortly following the car accident in 2012. I further accept the opinion of Mr Brown as set out in his report to the plaintiff’s solicitors of 29 November 2012 when he described the injury as:
“… more consistent with the injury he described at work in 2010 rather than from a direct blow to his shoulder that he suffered in his motor vehicle accident.”[72]
[72]Exhibit A, p64
48 I note that Mr Brown had the results of an MRI scan performed on 17 June 2012 which did not show a complete tear of the supraspinatus tendon at the time he formed his opinion.
49 I am also assisted by the opinions of Mr Miller and Mr Scott in concluding that the overall causative factors relevant to the current condition of the plaintiff’s right shoulder are multifactorial involving some degree of degenerative change probably dating from around 1994, some ongoing contribution from the assault in 2005, further contributions from the work performed for the employer in 2010 and a further contribution resulting from the transport accident in 2012.
50 Insofar as the transport accident is concerned I note the history given to Dr Kostos in January 2013 to the effect that the plaintiff’s right shoulder was:
“… ‘heaps better’ than it was before and is even better now than it was prior to the accident.”[73]
[73]Exhibit 1, p25
51 Given that Mr Kostos was conducting a medico-legal examination on behalf of the TAC I have no reason to doubt the accuracy of the history given by the plaintiff at that time.
52 The fact that the plaintiff managed to return to some employment by November 2010 fortifies me in reaching a conclusion that there was some significant improvement in the right shoulder following the cessation of the duties which had been performed with the employer. Nevertheless the overwhelming medical opinion is that the plaintiff continues to suffer ongoing pain and restriction of use of his dominant right shoulder some seven years later, and the employment in 2010 remains a relevant and, in my view most significant cause.
53 The plaintiff also managed to return to some employment following the car accident in 2012 and I find it difficult to accept that obtaining employment washing cars would be a suitable employment for a person suffering a significant right shoulder injury at that time. I am also mindful of the history recorded by Dr Kostos in January 2013 to which I have referred. I also note his examination findings at that time to the effect that both shoulders showed a full range of pain-free movement.
54 It is also significant in my view that the medical records from Dr Kyriacopoulos’ practice in Taylors Hill record Mr Perdikis’ last complaint of shoulder pain on 19 August 2013, notwithstanding that there were some 21 further consultations at that clinic where histories were recorded up to the last recorded attendance on 19 June 2017.[74] The entries on the clinical notes do not sit comfortably with Dr Kyriacopoulos’ opinion expressed in June of this year to the effect that Mr Perdikis continues to suffer constant pain with recorded restrictions of movement. Nevertheless Dr Kyriacopoulos has been involved in the long-term management of Mr Perdikis and his opinion cannot be discarded lightly.
[74]Exhibit 1, p36-44
55 I have taken into account the authority of AG Staff Pty Ltd v Filipowicz[75] which requires the plaintiff to establish that the consequences which are said to be serious are those properly referrable to an aggravation type injury (in this case the employment involving repetitive manual handling of steel bars at the OneSteel premises). I have previously explained my reasoning for concluding that the plaintiff has satisfied me in relation to the causation issue on the basis first of his initial ability to perform that type of work prior to being injured, which suggests a reasonable recovery from the injuries in 2005. Secondly, the opinions of Mr Brown and Dr Kostos satisfy me that any further aggravation received in the transport accident was of a temporary nature.
[75][2012] VSCA 60
56 The final issue for determination is whether the consequences of Mr Perdikis’ ongoing right shoulder injury can fairly be characterised as serious in terms of their pain and suffering consequences.
57 In such an assessment I take into account the matters set out particularly in Haden Engineering Pty Ltd v McKinnon.[76]
[76][2010] VSCA 69 (especially at [9] to [17]
58 In final address Mr Carson submitted that Mr Perdikis had not been seriously challenged in cross-examination on the pain and suffering consequences described in his affidavits.[77] Mr Carson conceded the absence of any significant medical treatment in recent times but suggested that the recent right shoulder ultrasound and x-ray ordered by Dr Kyriacopoulos in July 2017 was supportive of a very significant ongoing shoulder condition.
[77]T 78-80
59 When making a comparison with a range of other or possible impairments I take into account Mr Perdikis’ relative youth and his personal situation of being the carer responsible for his two elderly parents. I am satisfied that the ongoing consequences of that injury result in frequent episodes of significant pain and frequent, although not constant, interference with his enjoyment of life.
60 Taking into account the matters set out in his affidavits, which were not challenged in cross-examination, I am satisfied on balance that the consequences resulting from the accepted right shoulder injury can fairly be described as at least very considerable and more than significant or marked when the appropriate comparison is made.
61 Although I am satisfied that the course of severity of the plaintiff’s right shoulder condition has varied since 2010 and has been aggravated, at least temporarily, by the motor vehicle accident in 2012, I am also persuaded on the basis of Dr Kyriacopoulos’ opinion that the condition impacting the plaintiff’s shoulder can be regarded as permanent in that it is likely to persist through the foreseeable future.
Conclusion
62 I am satisfied on balance that Mr Perdikis suffers from consequences relevantly caused by the work-related injury to his right shoulder that can fairly be described as permanent and at least very considerable. I propose to grant leave in accordance with the provisions of section 134AB(16)(b) for the plaintiff to claim damages for pain and suffering only.
63 I will hear the parties in respect of formal orders sought and on the question of costs.
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