Phillips v Bowen and Pomeroy Pty Ltd
[2015] VCC 1869
•17 December 2015
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-13-05706
| MAX PHILLIPS | Plaintiff |
| v | |
| BOWEN & POMEROY PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE HINCHEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 and 7 August, and 3 December 2015 | |
DATE OF JUDGMENT: | 17 December 2015 | |
CASE MAY BE CITED AS: | Phillips v Bowen & Pomeroy Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1869 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – paragraph (a) of the definition of “serious injury” – pain and suffering – loss of earning capacity
Catchwords: Serious injury – paragraphs (a) and (c) of the definition of “serious injury” – pain and suffering and loss of earnings – injury to left shoulder and cervical spine – contribution of subsequent incidents to shoulder consequences - whether substantial organic basis for consequences alleged by plaintiff - whether injury resulted in serious injury consequences – relevant principles
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd (2006) 14 VR 602; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242; Advanced Wire & Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170; Hunter v Transport Accident Commission & Avalanche [2005] VSCA 1
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C Harrison | Maurice Blackburn |
| Ms M Pilipasidis | ||
| For the Defendant | Mr R Kumar | Russell Kennedy |
HER HONOUR:
Introduction
This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of his employment with Bowen & Pomeroy Pty Ltd on 4 October 2010.
The plaintiff seeks leave to bring proceedings for damages in relation both to pain and suffering and loss of earnings.[1]
[1]Transcript (“T”) (25-26)
The application is brought pursuant to clause (a) of the definition of “serious injury” as that term is defined in s134AB(37) of the Act.
The injury was said to be to the left shoulder and cervical spine. The impairment of body function relied upon is the left upper limb.[2]
[2]T1 (17)
The plaintiff swore two affidavits, gave viva voce evidence and was cross-examined. No other witnesses gave viva voce evidence.
In addition, both parties relied upon medical reports and other materials which were contained within Court Books tendered in evidence.[3] I have read all of the tendered material. In this judgment, I will refer only to the relevant parts of the tendered materials.
[3]The plaintiff’s court book was marked Ex P2; the defendant’s further amended court book was marked Ex D1
Relevant legal principles
In considering an application under s134AB of the Act, I am required to and have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Poldak[4] and Grech v Orica Australia Pty Ltd & Anor[5] in reaching my conclusions. I have also taken into account the matters referred to below and which apply to this application.
[4](2005) 14 VR 622
[5](2006) 14 VR 602
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.[6]
[6]Section 134AB(19)(a) of the Act
The plaintiff relies on paragraph (a) of the definition of “serious injury” contained in s134AB(37) of the Act which reads:
“‘Serious injury’ means –
(a)permanent serious impairment or loss of a body function; or …
As referred to above, the part of the body said to be impaired for the purposes of paragraph (a), is the left upper limb.
To establish serious injury, the plaintiff must prove, on the balance of probabilities, that:
(a) “the injury” suffered by him arose out of or due to the nature of his employment with the employer on or after 20 October 1999;[7]
(b) “the injury” and resulting impairment must be “permanent” – that is, permanent in the sense that it is “likely to last for the foreseeable future”;[8]
(c) the “consequences” to the plaintiff of the relevant impairment in relation to each of “pain and suffering” and “loss of earning capacity” are “serious” – that is, those consequences “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”.[9]
[7]Section 134AB(1) of the Act; see also Barwon Spinners Pty Ltd & OrsvPodolak (2005) 14 VR 622
[8]Barwon Spinners Pty Ltd & OrsvPodolak (2005) 14 VR 622 at [33]
[9]Section 134AB(38)(b) and (c) of the Act
The requirement to satisfy these elements is sometimes referred to as the “narrative test”.
The question of whether an injury satisfies the narrative test is largely a question of impression or value judgment.[10]
[10]See Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592 at 628; see also Sabo v George Weston Foods [2009] VSCA 242 at [67]
In determining the “consequences” of the injury, the Court is required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury.
Where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of 40 per cent or more, both at the date of the hearing and permanently thereafter.
Subsections 134AB(38)(e) and (f) recite the formula by which loss of earning capacity is to be measured.
Subsection 134AB(38)(g) requires questions of rehabilitation and retraining to be considered in determining whether the 40 per cent loss has been established.
18If the plaintiff satisfies the test laid down by the Act in relation to loss of earning capacity, then he is entitled to make a claim for damages: that is, for both pain and suffering and loss of earning capacity.[11]
[11]Advanced Wire & Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170 at [63], per Redlich JA and Beach AJA: “A plain reading of s 134AB permits a plaintiff who satisfies the loss of earning capacity requirements of that section to claim damages for both loss of earning capacity and pain and suffering. The history of s 134AB confirms this proposition.”
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 paragraph (c) of the definition of “serious injury”;[12]
[12]Section 134AB(38)(h) of the Act
(b) must assess whether “the injury” is a “serious injury” as at the time the application is heard;[13]
(c) must give reasons that disclose the pathway of reasoning in dealing with the evidence and issues raised by the application.[14]
[13]Section 134AB(38)(j) of the Act
[14]See generally HuntervTransport Accident Commission & Avalanche [2005] VSCA 1 at [23]-[26]
The plaintiff’s background
The plaintiff was born on 14 January 1960 and is 55 years of age. He is single and lives alone.[15]
[15]Ex P2, pge 7, paragraphs 2-3
He grew up in Tasmania and attended school until half way through Year 7, when he left to work on his uncle’s farm, performing general labouring duties. He did this work for approximately 2 years, before leaving to work in the timber industry. The plaintiff worked at a number of sawmills in Tasmania, before moving to Victoria at the age of 17.[16]
[16]Ex P2, pge 8, paragraph 4
Since moving to Victoria, the plaintiff has worked at various sawmills as a mill hand and at timber yards around Victoria, performing a range of labouring duties generally involved with timber.[17]
[17]Ex P2, pge 8, paragraph 5
In the late 1970s, a piece of wire from a fence struck the plaintiff in the left eye and he is now blind in that eye.[18]
[18]Ex P2, pge 8, paragraph 6
The plaintiff is naturally right handed, but said that he does most things, including undertaking manual labour, with his left hand.
In around August 2004, the plaintiff commenced employment with Bowen & Pomeroy Pty Ltd (“the employer”) on a full-time basis as a sawyer. This involved cutting timber for pre-fabricated homes.[19]
[19]Ex P2, pge 8, paragraph 8
As part of his duties, the plaintiff would collect the timber for cutting from the timber yard, which he would either do manually or with the assistance of a forklift. It was often the case that the forklift was not available, so he would regularly be required to carry heavy planks of timber on his shoulder. On average, the planks would vary in length from 2.5 metres to 8 metres. Even if the forklift was available, it was not able to go all the way to the saw in the building shed, so the plaintiff would carry the planks of timber the remaining distance to the saw. He would then cut the planks of timber to the ordered length and trim the ends to make them square. The pieces of timber were then placed on a trolley for the builders to collect.[20]
[20]Ex P2, pge 9, paragraphs 9-10
The work was very heavy and repetitive, and throughout the course of his employment with the employer, the plaintiff suffered a number of minor injuries. After these incidents, he was always able to recover and get back to full-time work.[21]
[21]Ex P2, pge 8, paragraph 8, pge 9, paragraph 11; T75: Plaintiff’s Counsel referred to an incident in 2005 – it is an accepted fact that scan following this did not show tear in shoulder.
Prior to the incident, the plaintiff enjoyed generally good health and was able to engage in full-time, heavy work. At various times he has taken blood pressure and cholesterol tablets.[22]
[22]Ex P2, pge 9, paragraph 12
The incident
In his affidavit sworn 27 June 2013, the plaintiff described the incident at work which occurred on 4 October 2010 (“the incident”) and its immediate aftermath in the following terms:
13. On 4 October 2010, I suffered injury to my left shoulder and neck at work. I was required to collect an 8 metre long piece of timber from the timber yard. There was no forklift available to assist me, so I carried the piece of timber on my left shoulder all the way to the sawing area of the building shed. I then placed one end of the timber on a bench, and in the process of lowering it to the ground I felt a sudden sharp pain in the area of my left shoulder. I dropped the timber to the ground.
14. I went and sat down to rest, as I thought the pain would stop. It didn’t and I didn’t do anymore work that day. I don’t have a driver’s license so I stayed until the end of my shift to wait for a lift home with a co-worker.[23]
[23]Ex P2, pge 9, paragraph 13 – pge 10, paragraph 14
The plaintiff’s evidence
The plaintiff swore two affidavits, the first on 27 June 2013 and the second on 5 August 2015. He was cross-examined and was also re-examined. In summary, the relevant evidence given by the plaintiff was as follows:
Plaintiff’s qualifications for work
(a) the plaintiff struggles to read or write. He tries to read the newspaper but can only understand bits and pieces.[24] He has only ever performed manual labouring type work.[25] The plaintiff loved working and has always been known as a hard worker; [26]
[24]Ex P2, pge 8, paragraph 7
[25]Ex P2, pge 8, paragraph 5
[26]Ex P2, pge 12, paragraph 31
Experience of pain
Pain immediately following incident
(b) immediately following the incident, the plaintiff experienced sharp pain in the area of his left shoulder. He rested during that day thinking that the pain would stop, but it did not.[27] The pain continued on in the days after the incident and on 14 October 2010 he attended the Hastings Clinic. He was given a WorkCover certificate and prescribed pain relief and anti-inflammatory medication;[28]
[27]Ex P2, pge 10, paragraps 13-14
[28]Ex P2, pge 10, paragraph 15
(c) in his first affidavit, he said that he “returned to work on restricted duties and continued in this capacity throughout 2011 and into 2012, with various periods of time off work due to flare ups in my condition.”[29] As it transpired, the plaintiff accepted that there were two further incidents, in January 2011 and September 2011, which caused aggravations to the plaintiff’s original left shoulder injury and as a result of which he also injured his left wrist. The significance of these incidents will be dealt with later in this judgment;
[29]Ex P2, pge 10, paragraph 19
Neck pain
(d) few mentions were made by the plaintiff in relation to his neck pain in his affidavits. In his first affidavit, he stated that his eventual resignation from work was “due to the pain and restrictions in my left arm and neck”.[30] In his second affidavit, he said that he continues to “experience ongoing pain in my left shoulder with the pain radiating into my neck”[31] and that “there are days when the pain radiates into my neck and I find it difficult to move my neck freely when the pain is very bad.”[32] Under cross-examination, the plaintiff said by demonstration that the pain radiates up to the left side of his neck from the area of his collarbone, in the area of his left shoulder.[33] He also said that when the incident first happened, “they put me in a neck brace as well;”[34]
[30]Ex P2, pge 11, paragraph 23
[31]Ex P2, pge 16, paragraph 2
[32]Ex P2, pges 16-17, paragraph 7
[33]T60 (6-17)
[34]T60 (9-10)
Left shoulder and left limb generally
(e) the pain in his left shoulder, which radiates into his neck, is constant and varies in intensity from day to day.[35] Under cross-examination, when asked where he presently has pain, he said – “the hands and, you know, the same place,” indicating at the top of his chest, near his left shoulder;[36]
[35]Ex P2, pge 16, paragraph 2
[36]T36 (1-3)
(f) he gets pins and needles in his left hand, and on occasions he experiences spasms in the left arm.[37] Under cross-examination, the plaintiff said he told Mr Weber, on 3 May 2012, that he had intermittent numbness in three ulnar digits and neck pain;[38]
[37]Ex P2, pge 12, paragraph 26; pge 17, paragraph 8
[38]T23 (31); T24 (13-15)
(g) the plaintiff finds that repetitive activities involving his left arm and shoulder aggravate the pain so he avoids doing this if he can.[39] He finds it difficult to lift anything too heavy with his left arm as this tends to aggravate the pain in his left shoulder.[40] He finds it difficult to elevate his arm above shoulder height without experiencing pain;[41]
[39]Ex P2, pge 16, paragraph 2
[40]Ex P2, pge 16, paragraph 2
[41]Ex P2, pge 16, paragraph 2
(h) he continues to experience weakness in his left arm and shoulder. He feels a pulling sensation over his chest wall on the left hand side, particularly if he tries to move his shoulder up and down.[42] He has limited movement in his left arm and has lost the ability to use it to push and pull.[43] Under cross-examination, the plaintiff said it “would’ve been right” that Mr Weber had written that when he saw the plaintiff on 3 May 2012, he had almost full movement of his shoulder;[44]
[42]Ex P2, pge 16, paragraph 5
[43]Ex P2, pge 12, paragraph 27
[44]T24 (4-6); Ex P2, pge 21a
Difficulty sleeping
(i) the pain makes it difficult for the plaintiff to sleep. He wakes up regularly during the night due to the pain if he rolls onto his shoulder. As a result he often feels tired and does not have the same level of energy as he did before his injuries.[45] Under cross-examination, he said “I couldn’t go to bed for six months because of this… I had to sit in a chair and sleep;”[46]
[45]Ex P2, pge 12, paragraph 28
[46]T35 (6-10)
Spasms
(j) the plaintiff described spasms in the left hand.[47] When asked if the spasms occurred in his hand or in his wrist, he replied “in the… arm. Sometimes it’ll shoot sideways and then it jumps and you’ve got to hold it down.”[48] The plaintiff described a sensation where his fingers “froze”, he couldn’t feel them, “they were absolutely freezing”[49] and where it was like they didn’t have any circulation;[50]
[47]T20 (30-31)
[48]T21 (1-3)
[49]T21 (9-10)
[50]T21 (5-13)
(k) he also said “the arm would just go into spasm. It’d shoot from like the shoulder outwards and it would start vibrating.”[51] He added that the “spasms would come from around the wrist” and replied “no” when asked about the rest of his arm.[52] When asked about how he said it used to shoot, the plaintiff said “yeah, it’d shoot. It would just shoot...”. After being asked “is that from your shoulder” he said “yes”;[53]
[51]T21 (23-24)
[52]T21 (26-29)
[53]T21 (31) – T22 (2)
(l) he described an event where his arm “went into spasms and I couldn’t stop. It didn’t matter what I did, I couldn’t stop it.” The plaintiff went to Frankston Hospital. “I thought it had all stopped. It went off again, it took one of the monitors out on their computer. You know, I can’t stop it.” He said that it is involuntary;[54]
[54]T28 (2-12)
(m) the plaintiff said the medication that his GP, Dr Peter Crow, gave him for the spasms helped a bit.[55] He said the spasms “still come on every now and again;”[56]
[55]T20 (22-24)
[56]T20 (27-28)
Treatment
(n) an ultrasound of the plaintiff’s left shoulder was performed on 18 October 2010.[57] He said he was referred to Beleura Health Solutions for physiotherapy, including acupuncture, in November 2010 and attended there for approximately 12 months;[58]
[57]Ex P2, pge 10, paragraph 16
[58]T26 (4-21); Ex P2, pge 11, paragraph 20
(o) in February 2011, the plaintiff was referred to Sports Physician, Dr Greg Harris. Dr Harris arranged for the plaintiff to have a cortisone injection in his left shoulder on 17 May 2011. The injection gave him pain relief in the short term, but his pain and restriction returned to the level it was prior to the injection.[59] Under cross-examination, the plaintiff agreed that he was referred to Dr Harris because of the worsening pain in his shoulder after the timber fell on it in the second incident, which occurred in January 2011.[60] He said the cortisone injection helped for a couple of weeks.[61] He said he did not discuss having another injection at any time, and has not had one because “you’re only allowed to have three a year apparently” and he just lets his GP tell him who to see;[62]
[59]Ex P2, pge 11, paragraph 21
[60]T16 (5-7)
[61]T16 (19-20) – T17 (6)
[62]T17 (7-25)
(p) the plaintiff was referred to an Orthopaedic Surgeon, Mr Andrew Weber in May 2012.[63] This referral post-dated the third incident, in which the plaintiff again injured his left shoulder and also his left wrist. The third incident occurred in September 2011;
[63]Ex P2, pge 11, paragraph 22
(q) he was referred to hand therapist Hayley O’Sullivan in about June 2012, around the time that he stopped working. Ms O’Sullivan was specifically interested in his hand and wrist.[64] He saw her for a good six months before he left for Tasmania;[65]
[64]T27 (3-15)
[65]T28 (16-17)
Current medication
(r) in his first affidavit, the plaintiff said he sees Dr Shadi Hekmat of Newstead Medical Practice in Tasmania on a regular basis and continues with regular medication, including Tramal, Panadeine Forte and Endone;[66]
[66]Ex P2, pge 11, paragraph 24
(s) in his second affidavit, he said he now consults Dr Fuller at the Newstead Medical Practice when his medication runs out.[67] He said that he has been sent to the Launceston General Hospital, for his wrist, his shoulder and his neck, but the treatment is mainly in respect of his wrist;[68]
[67]Ex P2, pge 16, paragraph 16
[68]T64 (6-10)
(t) in his second affidavit he said he currently takes Tramal three times per day with Panadeine Forte as a top-up. He said he avoids taking the Panadeine Forte as they cause stomach problems. He also takes Endone on a daily basis.[69] The plaintiff said that he takes these medications because he experiences pain on a daily basis. He finds that not taking the medication makes the pain worse and he finds it difficult to cope. The medication takes the edge off the pain;[70]
[69]Ex P2, pge 16, paragraph 3
[70]Ex P2, pge 17, paragraph 9
(u) under cross-examination, the plaintiff said he was last prescribed Panadeine Forte about two and a half weeks ago, and before that, every month.[71] He said “there’s five different tablets I take every day”, that he only gets a month’s supply at a time and then he goes back to Newstead Medical Clinic and gets a repeat.[72] He said one of the medications is for blood pressure, while the other four are for his arm.[73] When asked if he knew what the medications for his arm were – other than Panadeine Forte, he said no.[74] When prompted he acknowledged Tramal and Endone, which were mentioned in his affidavit;[75]
[71]T52 (28-30)
[72]T53 (9-17)
[73]T53 (18-21)
[74]T53 (23-24)
[75]T53 (25-28)
(v) under cross-examination, when told that for the two year period between 15 February 2013 to 10 February 2015 the records showed he was only prescribed Panadeine Forte on one occasion, the plaintiff said it did not sound right and the records were wrong.[76] He said he has been known to take five or six Panadeine Forte per day and takes a minimum of one per day.[77] The plaintiff said he takes the Panadeine Forte for the pain in his chest and his wrist, “and for my neck, half the time.” He clarified that by chest he meant the muscle around his collarbone, just under his left shoulder;[78]
[76]T57 (1-27)
[77]T58 (13-19)
[78]T59 (18-23)
(w) when it was suggested that between 15 February 2013 and 10 February 2015, he was prescribed Endep on only one occasion, he said he believed he had been prescribed Endep “probably about three or four times” in that period.[79] He then said “look, I take them every day, that’s all I can say;”[80]
[79]T61 (5-25)
[80]T61 (31) – T62 (1)
(x) when it was suggested to the plaintiff that in the period between 15 February 2013 and 10 February 2015 he had not been prescribed Tramal on any occasion, he disagreed;[81]
[81]T63 (11-14)
(y) he said that Newstead Medical Clinic is where he gets the prescriptions once a month.[82] He later said he is able to collect prescriptions from the clinic without seeing a doctor, but does not know if the nurse writes it.[83] He said he does not go to any other medical clinics, just Newstead.[84] He said he gets repeats and a prescription might cover him for six months.[85] He confirmed he goes to Newstead every month for medication which includes Endep, Panadeine Forte, Tramal and Disprin;[86]
[82]T57 (9-20)
[83]T58 (25-31) – T59 (1)
[84]T63 (8-10)
[85]T62 (8-15)
[86]T62 (24-27)
(z) under re-examination, the plaintiff said that some of his medication “was taken over from Hastings to Newstead.”[87] He said that the Endone and Tramal started in Hastings, while the Panadeine Forte started in Launceston.[88] He said he has been taking most of the medications every day;[89]
[87]T73 (13-16)
[88]T73 (13-31) – T74 (1-3)
[89]T74 (6-8)
Evidence as to co-morbidities
(aa) the plaintiff was cross-examined in relation to a number of co-morbidities that he suffers alongside the relevant, claimed injury to the left shoulder and neck;
Wrists and hands
(bb) in his second affidavit, the plaintiff said in addition to his left shoulder problem, he has experienced problems with his left and right wrists. He had fluid removed from his right wrist last year and he has been told that he may have a ganglion in his right wrist. Both wrists ache and give him discomfort. However, the left shoulder pain is worse than the discomfort that he feels in his left wrist and right wrist;[90]
[90]Ex P2, pge 17, paragraph 10
(cc) he now wears a left wrist brace only at night time. He said that until about three months ago, he was also wearing one during the day.[91] He said he wears the left wrist brace because it helps with the pins and needles, the pain, being able to sleep, and controlling the numbness;[92]
[91]T47 (8-16)
[92]T48 (6-9)
(dd) the plaintiff said the symptoms of loss of feeling in his fingers come and go, at least three times a week.[93] He said for a bit over half the month, he has no sensation in his hand and three fingers on his left hand are continuously freezing cold – “that’s when they’re dead, you know...”;[94]
[93]T49 (6-9)
[94]T49 (12-17)
(ee) he said he gets swelling in his right hand – “it’s still swollen up. It’s never any good. You know, it’s – I can’t wear [a] watch because I can’t get it over my arm.”[95] He goes to the hospital about six monthly and they drain some fluid from his right wrist. He last went about four months ago – “it lets the pressure off everything”.[96] He said it affects his ability to do work around the house and he has reduced grip strength, but is not getting any hand therapy now and has not had any since moving to Tasmania.[97] He said “the right wrist is a problem but it’s not a problem all the time you know. You can bear it… it’s only when it gets all pressurised and that’s when it’s got to be lanced;”[98]
[95]T48 (14-16)
[96]T48 (17-27)
[97]T48 (31) – T49 (2-5)
[98]T60 (1-5)
Lower back pain
(ff) under cross-examination, the plaintiff said he gets lower back pain “but not all the time, either”.[99] When the problem is there, he can get some pain into his left thigh.[100] He agreed he cannot stand up for long periods “without leaning on things” and acknowledged the vocational assessor Leonie Schneider’s report that the lower back problem prevents him from bending and twisting.[101] He said if he stands up without support the pain gets worse.[102] The pain also gets worse if he walks too much and his back pain becomes severe if he walks for around 15 or 20 minutes.[103] He said he first had the problem with his lower back before he did his shoulder and that the problems would come and go.[104] He said the back problem has returned and it came back “a fair while back,” before he stopped working;[105]
[99]T49 (23-28)
[100]T49 (29-31)
[101]T50 (8-11)
[102]T50 (12-13)
[103]T50 (14); T51 (11-13)
[104]T51 (22-27)
[105]T51 (28-31)
(gg) the plaintiff said that for his back, he has “just been taking [anti-inflammatory] tablets, which has been fixing it”.[106] He agreed he was also prescribed Panadeine Forte for his lower back in August 2012, shortly after he stopped working;[107]
[106]T52 (4-6)
[107]T52 (7-11)
(hh) he said he no longer takes Panadeine Forte for his lower back – “I take it for my arm now.”[108] He said, “my back’s pretty good. It’s been pretty good, you know, for a while.”[109] However, he then confirmed Ms Schneider’s report that his back pain can get to seven out of ten, after walking for only 15 to 20 minutes or standing for a few minutes. He agreed that this is the situation as it is now, but repeated that he does not take the Panadeine Forte for his back;[110]
[108]T52 (12-13)
[109]T52 (15-16)
[110]T52 (17-27)
Respiratory and general fitness
(ii) the plaintiff said he suffers from “I suppose you could call it asthma” and said he has a chronic obstructive airways disease, but does not think he has a bad heart;[111]
[111]T67 (23-29)
(jj) he agreed he can become quite breathless and exhausted when he exerts himself physically. He said his asthma and lung problems became worse when he stopped working – “probably two or three months after work” because he had “gone to a stage where I’ve just stopped… because I haven’t been doing anything.”[112] He said he thinks the problems got worse because he stopped doing physical activity.[113] He agreed that because he has become quite sedentary, he has lost a lot of fitness;[114]
[112]T68 (10-25)
[113]T68 (26-27)
[114]T69 (13-15)
(kk) the plaintiff said if he got his fitness back again “there is going to be problems” with his shoulder, arm and neck.[115] He said he does not really get tired and the problem is more that he “just can’t do things… Like hold things and just different things that… you used to be able to do that you can’t do today;”[116]
[115]T69 (18-24)
[116]T70 (18-25)
Activities of daily living and social life
Living arrangements
(ll) under cross-examination, the plaintiff said he moved out of his caravan in Victoria because he could not cope with doing up a zip, his fly or his belt. He said he also could not do “just different things like doing dishes… and putting clothes on.” He said this was because of the numbness in his fingers;[117]
[117]T35 (22-31)
(mm) he agreed he was able to keep his caravan pretty clean before he left it, but ended up getting a lady to come in and help him clean.[118] He said he mostly got take-away food.[119] He was able to look after the garden as it “was only just spraying with water” and he could cope with watering with the hose.[120] He said he was proud of his garden – “people used to stop and take photos of it all the time” – and he was sad to lose it.[121] When he left, he said he could not get the caravan off site “because I just couldn’t cope with it anymore.”[122] He said he would have stayed at the caravan, but he was finding it hard to cope because of his injuries;[123]
[118]T36 (6-13)
[119]T36 (16)
[120]T36 (27-30)
[121]T37 (8-9)
[122]T36 (19-26)
[123]T37 (10-15)
(nn) the plaintiff moved to Tasmania in November 2012.[124] He now lives in a caravan at the back of his brother’s property and his cousin lives next door.[125] He agrees he is quite happy to be living in the bush and in the caravan;[126]
[124]Ex P2, pge 11, paragraph 24
[125]T66 (11-12)
[126]T66 (16-17)
Domestic duties
(oo) the plaintiff now struggles with basic tasks like tying up shoelaces and cutting his toenails. The limited movement in his left arm and pain makes these tasks too difficult to perform;
(pp) the plaintiff is right handed but said “I do everything left-handed… I’d write with my right hand but I used to stack everything with my left hand…”.[127] He said for work purposes he used his left hand more than his right hand.[128] He said that he is now almost entirely reliant on the use of his right hand and arm;[129]
[127]T19 (19-24)
[128]T19 (27-31)
[129]Ex P2, pge 13, paragraph 34
(qq) the plaintiff is able to do most of his household duties but slowly, and frequently he has to take rests between doing chores. He struggles with basic tasks around the home, like pegging clothes on the line and simple gardening. He finds activities such as mopping and sweeping can aggravate the pain in his left shoulder.[130] His inability to do simple tasks upsets him, as he has always been someone who is self-sufficient and gets things done;[131]
[130]Ex P2, pge 16, paragraph 6
[131]Ex P2, pge 13, paragraph 33
(rr) under cross-examination, he said his brother and sister help with domestic things – “they’re very good”, but he said he does some things – “the dishes and different things like that”.[132] He does some of the housework, including vacuuming – but “the bed’s no good so that doesn’t get made very often” and anything to do with lifting or flicking things he “just can’t do it”.[133] He has not tried to do any gardening in Tasmania because he lives more or less on a farm;[134]
[132]T37 (27-31)
[133]T38 (1-5)
[134]T38 (6-11)
Social life
(ss) the pain and his physical limitations also affect the plaintiff’s mood. He can hardly socialise anymore because of his mood and because he cannot afford to.[135] The plaintiff does not get the same enjoyment out of life;[136]
[135]Ex P2, pge 12, paragraph 29
[136]Ex P2, pge 12, paragraph 30
Return to the workforce
(tt) following the incident, the plaintiff returned to work on restricted duties, and continued in this capacity throughout 2011 and into 2012, with various periods of time off work due to flare-ups in his condition;[137]
[137]Ex P2, pge 10, paragraph 19
(uu) under cross-examination, the plaintiff agreed that after the incident he had a period off work, but then returned to work on modified duties.[138] He said initially he was on reduced hours, then within a couple of months he was doing 38 hours per week;[139]
[138] The modified duties were described in this manner by the plaintiff’s manager:
[139]T14 (22-25)
(vv) he agreed that a certificate from Dr John Giannakakis on 2 February 2012 said he would be okay to do some overtime, but not weekly – but said he “wasn’t allowed to do it” and “the boss” would not let him.[140] He said this was because it would have involved heavy work;[141]
[140]T22 (22-28); (30)
[141]T23 (10-11)
Subsequent injuries to left shoulder and left wrist
(ww) under cross-examination, the plaintiff confirmed that two subsequent events occurred after the incident, in which his left shoulder had been injured. He said he did not mention either of the two subsequent events in his affidavits because he “just thought it was all – you know, all in one…;”[142]
[142]T19 (10-14)
Second incident
(xx) the plaintiff confirmed the history which he had given to neurosurgeon Mr Geoffrey Klug in relation to the second incident viz, that in January 2011, “while undertaking some trenching duties, some pieces of timber fell and struck him in the region of his injured shoulder”[143] (“the second incident”);
[143]T15 (1-11), PCB pge 70
(yy) the plaintiff confirmed that the second incident aggravated and worsened the pain in his left shoulder.[144] He also agreed that around this time he was referred to Dr Greg Harris, a sports physician, because of the worsening pain in his shoulder after the timber fell on it;[145]
[144]T15 (22-25)
[145]T15 (30-31), T16 (1-7)
(zz) the plaintiff said the second incident affected his shoulder and his wrist on the left side.[146] He said that he hurt his wrist as well during this event – “cause I stuck my arm up to stop all the timber coming down on top of me ….”[147] He confirmed Mr Klug’s report that at this stage he started to notice some numbness in his hand.[148] He said that “the wrist still isn’t the same.” He said he got back to work after the January 2011 event;[149]
[146]T16 (12-13)
[147]T16 (7-11)
[148]T16 (14-16)
[149]T17 (26-28)
(aaa) under re-examination, the plaintiff said that after the second incident, the aggravation to his left shoulder “lasted for a fair while” which was “probably two, three weeks”;[150]
[150]T71 (2-5)
Third incident
(bbb) under cross-examination, the plaintiff confirmed there was an incident in August or September of 2011 when he tripped over a trolley[151] (“the third incident”). He confirmed the history he gave to Dr Albert Kaplan, psychiatrist, that he stumbled and fell forward onto a timber pack, and then stepped on a roller and tried to break the fall with his left hand.[152] He agreed that he had aggravated his left shoulder and left wrist in this incident;[153]
[151]T17 (26-29)
[152]T18 (6-11)
[153]T18 (12-14)
(ccc) the plaintiff said he did not have problems with his wrist before the third incident and agreed that this was what really set off the wrist for him.[154] He acknowledged that he was referred to a hand therapist, had an x-ray and had a fracture of a bone in his wrist;[155]
[154]T18 (15-16)
[155]T18 (17-20)
(ddd) he said that at this time he was living in his caravan in a caravan park and that then he was unable to care for himself.[156] Until the fall over the trolley, he said that he had been coping:[157] “I wasn’t coping okay but I was coping”;[158]
[156]T18 (25-28)
[157]T19 (1)
[158]T18 (29-31)
(eee) the plaintiff said that after the third incident, “… I was on and off [work] for a long time,”[159] but then he did return to work. When it was suggested that by around the beginning of 2012 he was back to doing 38 hours a week, he said “… I was only just – more or less only just coming back to work but my hand used to go into spasms and I couldn’t hold things and they- even the office people, they was monitoring me because I went and asked them that I wanted to leave because I couldn’t do my job. It’s not that I couldn’t do it, it’s just that I couldn’t hold things, you know. They’d just fall. I’ve got it in my hand and then it wouldn’t be there;”[160]
[159]T20 (1-6)
[160]T20 (7-17)
(fff) under re-examination, the plaintiff described the third incident as “God, m’mm. Terrible” and said the aggravation lasted “a long time... Still plays on my mind today.”[161] When asked by counsel to answer not what he was thinking about the event, but rather how long the aggravation to his left shoulder lasted, the plaintiff said “the aggravation’s still there…”;[162]
[161]T71 (7-10)
[162]T71 (11-13)
Resignation
(ggg) in June 2012, the plaintiff resigned from his employment with Bowen & Pomeroy Pt. Ltd. In his first affidavit, he said he simply got to the stage where he was no longer able to continue performing restricted duties due to the pain and restriction in his left arm and neck;[163]
[163]Ex P2, pge 11, paragraph 23
(hhh) the plaintiff agreed that it was at this time, in around the middle of 2012 that the symptoms in his hand and wrist were getting worse.[164] He said that at this time he was on modified duties for 38 hours a week and he didn’t think he would be able to continue;[165]
[164]T30 (5-7)
[165]T30 (17-18)
(iii) the plaintiff said that around the time he stopped working, in June 2012, he was referred to Ms O’Sullivan.[166] He said his physiotherapist and hand specialist said he was unfit for any type of work because of “the numbness and the spasms” in his hand: “there was just no feeling there. I just couldn’t feel anything.”[167] He described having problems with the light duties at work: “…when I’d go to pick the – all the noggins up to put them on a table… I had no – I couldn’t hold anything with this hand.”[168] He said that “some days it was good, and some days it was – but at the end of the day, it was terrible.”[169] Instead of lifting multiple noggins, he would pick up one at a time “and then I was getting too far behind…”;[170]
[166]T27 (9-15)
[167]T32 (4-6)
[168]T31 (28-29) – T32 (1-3)
[169]T32 (14-15)
[170]T33 (13-14)
(jjj) he said that when he was finding that his hand was numb, “that’s when I went and asked the boss… I went and explained to him what was going on and he said he’d been monitoring… me;”[171]
[171]T32 (17-22), Under re-examination at T73 (1-7) the plaintiff confirmed that he had been speaking with Angelo Lauricella.
(kkk) while the plaintiff initially gave the impression that the trouble he was having at work was to do with the numbness in his left hand,[172] under cross-examination he said that the left hand was not the only problem, and that there was also what “just felt like a muscle out of joint or something… Tightened up.”[173]When describing this, the plaintiff pointed to the top of his chest, just under his left shoulder. The plaintiff agreed it was the two problems – “the wrist and the… tear [in the shoulder]” that caused him to stop working.[174] During re-examination the plaintiff referred to a statutory declaration he signed on 17 September 2012, in which it states that he “left work at Bowens timber because of shoulder and wrist because [I] couldn’t do my job.”[175] He said he had completed this because of a Centrelink issue;[176]
[172]T34 (14-15)
[173]T34 (16-19)
[174]T35 (17)
[175]T318, DCB pge 318
[176]T72 (17-20)
(lll) under cross-examination, the plaintiff said that in mid-2012, his employer closed the Hastings site. He said that he was told that he could either be relocated to Dandenong and keep doing the same modified duties he had been doing or stay at Hastings but his duties would be different.[177] He said that Dandenong would involve “the same thing I was already doing,”[178] but that staying at Hastings would mean going back to heavier work – “it was – was too heavy [a] job”;[179]
[177]T29 (4-25)
[178]T34 (10-11)
[179]T45 (8)
(mmm) the plaintiff said that a week before he was told about the closure at Hastings, “I said that I wanted to leave because I couldn’t do the job.… I really enjoyed my job, I really liked it… But I just couldn’t do the job, at the time;”[180]
[180]T29 (31) – T30 (1-4)
(nnn) he said he made the complaints about his inability to do that job “probably about three weeks before they closed the business down.”[181] He said he found out about the Hastings site closing a week after he complained – and that he knew in advance “before half the bosses did,”[182] because he was the union rep and the union man rang him.[183] However, he also said he had the discussion with his employer about his difficulties with performing his work, before he spoke to the union – “about three weeks before;”[184]
[181]T39 (9-10)
[182]T33 (19-20)
[183]T39 (12-13)
[184]T39 (21-25)
(ooo) the plaintiff said that he did not ask for lighter work at Bowen at that time, “they just told me…I don’t ask them what I’ve got to do, they tell me.”[185] He said that he never told them he would like to stay but do something lighter;[186]
[185]T45 (20-22)
[186]T45 (23-25)
Present capacity for work
(ppp) in his first affidavit, the plaintiff said he has been unable to return to any form of employment since leaving the employer.[187] He agreed under cross-examination that he had not looked for any work or undertaken any re-training since moving to Tasmania at the end of 2012;[188]
[187]Ex P2, pge 11, paragraph 23
[188]T66 (24-26).
(qqq) he said that in his present state, there is no way he could perform any work that requires manual handling, which is the only type of work he has ever performed.[189] Under cross-examination, he said “if I could work, I would be working… since all this happened the body’s just got worse every day more or less…”;[190]
[189]Ex P2, pge 13, paragraph 35
[190]T70 (9-12)
(rrr) he used to get a lot of enjoyment from being active and doing a hard day’s work. He greatly misses the sense of achievement and the feeling you get from being able to support yourself.[191] The plaintiff is very worried about his future and his ability to support himself;[192]
[191]Ex P2, pge 12, paragraph 31
[192]Ex P2, pge 13, paragraph 35
(sss) the plaintiff agreed he told Ms Leonie Schneider, vocational assessor, that “his arms, hands and his body stop him from working,” and that this was his position.[193] He said when he was talking about his body, he was talking about all of his medical problems, including his back, right wrist, left arm, and neck.[194] He then confirmed that it was “all of it” and all the parts put to him, including his back, arms, hands and neck;[195]
[193]T66 (27-31); Ex P2 pge 66
[194]T67 (1-6)
[195]T67 (9-15)
Income from personal exertion
(ttt) Counsel for the plaintiff provided a summary of gross earnings for financial years dating from 2005 to 2015.[196] The accuracy of this table was not disputed by counsel for the defendant.
[196]Ex P2, pge 85
Financial Year Total taxable income 2007-2008 $45, 896 2008-2009 $44, 526 2009-2010 $48. 993 2010-2011 $46, 557 2011-2012 $41, 536
Medical evidence
The Plaintiff’s Treating Doctors
The plaintiff has been treated by General Practitioners Dr Alessandra Briglia and Dr Peter Crow from the Hastings Medical Clinic, an unnamed Physiotherapist at Beleura Health Solutions, Mr Andrew Weber, Orthopaedic Surgeon, Dr Jason Harvey, Orthopaedic Surgeon, Dr Greg Harris, Sports Physician, the Orthopaedic Outpatient Department at Launceston General Hospital, Ms Hayley O’Sullivan, Occupational and Hand Therapist, and Dr Jane Fuller, General Practitioner, at Newstead Medical Clinic in Tasmania.
In a referral to Dr Greg Harris dated 2 February 2011, Dr Briglia described the plaintiff’s injury in the following manner:
“He injured his L shoulder at work last year probably sustaining a partial supraspinatus tendon tear. He works in a timber yard and noticed a sudden pain while pulling / lifting timber and since then he has had ongoing pain with movement in most planes and limited ROM. He has been attending [a physio], has been on restrictions at work to minimise use of his L arm and after much discussion agreed to try an intra-articular steroid injection which has given him partial relief. It is still slow to progress however and both his physio and myself think he may benefit from your review and further management as you suggest… currently he is on 2-3 days a week night duty with strict limitations on his L arm.”[197]
[197]Ex P2, pge 18
A report dated 29 April 2015 from Dr Crow stated:[198]
[198]Ex P2, pge 19A
“Thank you for asking me to prepare a report concerning the state of play with this chap as per my last consultation. I saw him last on 15.10.12.
At the time he had ongoing intrusive neck, shoulder and wrist pain. An EMG showed compression of the nerve at both wrist and elbow. He was to see a specialist for opinion re this.
I felt he had no capacity to work and completed a Work Cover capacity form stating this.
I do not know the circumstances of him ceasing work.”
A report dated 21 September 2012, from Mr Rhys Enticott, contained details from clinical notes regarding the plaintiff’s physiotherapy treatment at Beleura Health Solutions:[199]
[199]Mr Enticott did not treat the plaintiff and the consulting physiotherapist had left the practice
“Mr Max Phillips presented to the practice on 26th November 2010 for management of a left shoulder injury sustained on the 4th October 2010… Max reported the onset of instant pain into the shoulder and upper arm following lifting a heavy piece of timber off his shoulder…
On initial physical assessment it was reported Max had left sided restriction with shoulder abduction and flexion limited to 90 degrees by pain, Internal Rotation at 50% and External Rotation at 50-75% of full range of movement. The thoracic and cervical spines presented with 75% range of movement to the left….
With treatment it was reported range of movement and pain had improved significantly within the first 3 days and continued for the month following. Following wood handling at work prior to the 21st of December 2010 pain developed into the cervical spine and shoulder movements of abduction and extension were again limited as a result. Night pain and difficulty controlling hand movements were also reported following this event. This prompted review by Sports Physician Greg Harris who diagnosed Acromio-clavicular joint involvement. With continuing treatment including the addition of a Philadelphia cervical collar symptoms again settled.
Work duties gradually increased during March and were tolerated well with only occasional episodes of pain. During April, as work had increased to 5 days, pain levels again rose with associated decline in function. Over the following months function would improve with the intermittent flare ups of pain and numbness which would resolve with a few days. Max last attended physiotherapy on 25 October 2011. [200]
[200]Ex P2, pge 20
In his report dated 8 October 2012, Mr Andrew Weber, Orthopaedic Surgeon recounted seeing the plaintiff on 3 May 2012:
“…I first met Mr Max Phillips…on the 3rd of May 2012 after referral from Dr Bradley Frew of Hastings Clinic…[he] described 18 months of left shoulder pain. Mr Phillips gave a story of carrying some timber on his shoulder. He did not describe anything specific happening, but he developed some sudden pain in the left shoulder…he felt like he “pulled a muscle”. I understand he attended Dr Frew the next day and a subsequent ultrasound revealed a partial tear.… He related intermittent numbness in the ulnar three digits and neck pain. He described difficulty reaching overhead, reaching behind his back and sleeping on his side…
On examination on that day there was no obvious wasting in the context of his body habitus. He was not tender around the bony prominences. He was tender up the trapezius and the cervical spine, spinous processes. He had an almost full range of movement of the shoulder with a little bit of discomfort at the extremes.
There was no gross impingement. I found examination of power to reveal a little bit of weakness with abduction, and also with elbow flexion. He had no altered sensation distally on that day. There was no weakness in his hand. He was not tender around the medial epicondyle and his ulnar nerve appeared stable. A brachial plexus stress test irritated his trapezius as did neck rotation and lateral flexion to the right.
Mr Phillips was yet to have a shoulder X-ray, so I requested this on that day. An ultrasound in the early stages revealed a small partial tear. Since then Mr Phillips had had a CT scan of his cervical spine showing narrowing of the C3/4 disc space and osteophyte formation. He had also had an MRI which he did not enjoy because of the claustrophobia, but it did reveal multi-level foraminal stenosis and with possible relevance, this was moderate on the left at C3/4.
I noted a letter from Dr Greg Harris, Sports Physician, noting some acromio-clavicular (AC) joint tenderness and a good response to injection. He was not that tender in that area of the AC joint on this day, and it appeared his cervical spine symptoms predominated.
… on that day I suggested that Mr Phillips’ pain was probably multifactorial. He did appear to have a contribution from his cervical spine and I suggested the muscle balance that this could create can irritate the shoulder. I also pointed out that his body habitus was also straining his shoulder and neck. His weight and heavy smoking also posed significant anaesthetic challenges. I suggested at that time that Mr Phillips was not going to be helped with shoulder surgery. While I did not consider his shoulder to be totally innocent, I suggested exploring the neurological side of things as a first step…
… I do not profess to have subspecialisation in spinal surgery, but from the examination on the 3rd May 2012, his symptoms, to me, suggested more a cervical spine problem than a shoulder problem.”[201]
[201]Ex P2, pges 21a-21b
In a letter dated 15 February 2011, Dr Greg Harris, Sports Physician, provided the following opinion in relation to the plaintiff’s injuries:
“As you know, he had an acute onset of shoulder pain while working at Bowen’s Timber late last year. He was carrying a load of timber on his shoulder, and while shifting the load off his shoulder felt sudden pain in the anterior shoulder and radiating into his neck. He felt weak in the arm and over the next ten days had swelling in the arm. He has had ongoing pain with abduction and overhead, and cannot lie on the left side…
Massage and dry needling helps his neck and shoulder pain temporarily. He has been performing some shoulder flexion and extension exercises… A subacromial injection from yourself seems not to have altered his pain much.
He denies any previous shoulder problems.
… His left shoulder has a full passive range of movement, but he has pain at full abduction or flexion. His scapular control is poor. O’Brien’s test is painful, with him indicating the anterior shoulder as being painful. Adduction test is painful and his AC joint is tender. His rotator cuff strength is good. The shoulder is stable.
His ultrasound shows a partial tear of the supraspinatus tendon and some mild bursitis.
Clinically his pain appears to be primarily from the AC joint. He has some secondary scapular dyskinesia which will contribute to his symptoms, and some periscapular trigger points…”[202]
[202]Ex P2, pge 22
In a subsequent letter, dated 11 October 2012, Dr Harris additionally described the plaintiff’s symptoms in the following manner:
[on 12 February 2011][203] “… cervical spine movement was within normal limits… My assessment was that Mr Phillips presented with pain from AC joint degenerative pathology and secondary scapular dyskinesia, suprascapular and periscapular trigger points…”
[203]Dr Harris’ report dated 11 October 2012 had at least three typographical errors regarding dates – the first was the date of his first attendance on Mr Phillips, which was said to be on 17 February 2012. In fact and as recorded in his report dated 15 February 2011, the first attendance was in February 2011. The second typographical error related to the history of first onset of left shoulder pain, which Dr Harris recorded in this report as having occurred toward the end of 2011. In fact, this date ought to have been 2010. The third typographical error related to the date of the ultra-sound guided injection into Mr Phillips’ left shoulder, which was said to have taken place on 17 May 2012. This should have been 2011. It was noted by Dr Harris and accepted by the parties that these dates were wrongly recorded by Dr Harris in this report.
I proceeded with an ultrasound-guided injection of local anaesthetic and corticosteroid to the left AC joint, performed on 17 May [2011]… Immediately after the injection there was an improvement in his pain with movement at the shoulder. This improvement was maintained at a review two weeks later, at which time he reported almost complete resolution of his shoulder pain. He expected to return to working at a reduced volume.
I was asked to review Mr Phillips on 4 July [2011]… Mr Phillips again reported that his shoulder pain remained significantly better than pre-injection. He had been back at work on modified duties, which seemed reasonable. He had had a few episodes of quite odd left arm ‘shaking’ and flinching and he had occasional numbness in the ulnar three fingers of the left hand. His physiotherapist had treated some very active trigger points in his neck, causing a headache for 24 hours but subsequently settling.
At that appointment I found the left shoulder to have almost full flexion and external rotation, and abduction of about 160°. O’Brien’s test was negative, and the AC joint was not tender. Rotator cuff strength remained good and a neurological examination was again intact, with normal reflexes, strength and sensation throughout both arms. I found active trigger points and tenderness at the neck and periscapular region, but no tenderness at the bracial plexus…
Diagnosis: The diagnosis is of multi-factorial shoulder girdle pain. Mr Phillips initially presented with AC joint arthropathy and pain, with secondary periscapular muscle trigger points and poor scapular control…
Results of scans and other relevant tests: I understand that his GP had arranged investigations of his cervical spine that revealed moderate degenerative changes at a number of spinal levels…”[204]
[204]Ex P2, pge 22a-22b
A report from Dr Zac Scollard, undated, of Launceston General Hospital[205] concerned only Mr Phillips’ painful left wrist, for which Mr Phillips was seen at the Orthopaedic Outpatients department of that hospital on 29 April 2013. On that occasion examination also revealed “decreased abduction in his left shoulder…secondary to a previous rotator cuff injury. This was not further evaluated…”[206]
[205]Ex P2, pge 25
[206]See also report dated 29 April 2013 from Dr Lasanka De Silva, Launceston General Hospital
Dr Fuller of Newstead Medical clinic provided two reports, the first dated 14 January 2015,[207] in which she stated that the plaintiff first presented in 2013 with a sore wrist and she thought he had a ganglion, which would probably be unrelated to any injury. She saw him subsequently in relation to other matters such as providing prescriptions, ordering of blood tests to monitor cholesterol, skin infection, obesity and hypertension. She noted that all of these matters were unrelated to any injury. In the second report dated 10 February 2015,[208] she noted that Mr Phillips has a past history of a work related shoulder injury which was “assessed and treated before he became a patient of the practice. I have not been involved in the management of this injury as there is no ongoing treatment which would be beneficial.”
[207]Ex P2, pge 26
[208]Ex P2, pge 27
By letter dated 6 August 2015, Dr Toby Gardner of Newstead Medical Clinic provided the plaintiff’s current medication list.[209] Those medications are as follows:
[209]Dr Gardner’s letter was marked Ex D2
(a) Chloromycetin Eye drops – 1 drop q.i.d. for 5 days, prescribed on 28 January 2015;
(b) Colgout tablet – 2 stat then 1 every 6 hours until relief is obtained, prescribed on 26 June 2015;
(c) Coversyl tablet (Blood pressure) – 1 daily, prescribed on 23 January 2015;
(d) Pulmicort turbuhaler – 1 puff b.d., prescribed 23 January 2015;
(e) Salbutamol inhaler – prescription without consultation 26 June 2015;
(f) Salbutamol Sandoz nebuliser – 1 q. 6 hr p.r.n, prescribed 19 February 2014;
(g) Simvastatin tablet – for cholesterol, 1 daily, prescribed 23 January 2015;
(h) Slow K potassium chloride – 1 daily, prescribed 23 January 2015;
(i) Spiriva Capsule (respiratory issues) – 1 daily, prescribed 23 January 2015.
In his letter, Dr Gardner also confirmed that the plaintiff had been prescribed Endep 10mg on 19 February 2013 (the quantity and number of repeats were not specified).
In addition to the letter from Dr Gardner, a bundle of prescriptions was produced by plaintiff’s counsel to the Court following the conclusion of oral evidence.[210] Those documents demonstrated inter alia, that on 26 August 2015, the plaintiff had been prescribed 50 tablets of Endep 10mg, with 2 repeats. The bundle also contained two prescriptions for Panadeine Forte, the first for 20 tablets, no repeats, dated 4 May 2012, the second for 100 tablets, 5 repeats, dated 17 August 2012. Lastly, the plaintiff’s medical records, an extract of which was contained within the defendant’s amended court book,[211] disclosed that Panadeine Forte was last prescribed by an unidentified doctor at Newstead Medical Clinic on 28 March 2014. Neither the quantity of tablets nor whether the prescription provided for any repeats is noted in that record.
[210]Ex P4
[211]Ex D1, pge 340
Mr Jason Harvey, orthopaedic surgeon wrote in a report dated 2 August 2012:
He is a 52 year old male who had a fall some ten or eleven months ago when he slipped on a trolley and landed on his left wrist. He has complained of ongoing pain in the wrist and also decreased sensation proximal at the ulna nerve distribution of the hand. On examination today he does have ulna sided swelling. He is maximally tender over the distal radioulnar joint and less so over the TFCC. He has altered sensation in the ulna nerve distribution but also on the median nerve distribution of that left hand…[212]
[212]Ex D1, pge 319
On 20 September 2012, Ms O’Sullivan, Hand Therapist wrote:[213]
“At this stage we are unclear as to the cause of his ongoing pain, pins needles and numbness to his wrist.”
[213]Ex D1, pge 321
Investigations
The ultrasound of the plaintiff’s left shoulder conducted on 18 October 2010 revealed the following:
“A tear is present through the mid and anterior parts of the supraspinatus tendon. The tear is not full thickness.
Fluid is present in the sub-acromial bursa over this region.
The shoulder appears otherwise normal but all movements of the shoulder are noted to be painful.”
A CT scan of the plaintiff’s cervical spine was conducted on 4 May 2011. The report of the same date noted the following matters:
“Detail is reduced by the patient’s short neck and high shoulders, and the patient was somewhat claustrophobic and moved during the examination.
The C3/4 disc space is slightly narrowed with marginal osteophyte formation consistent with disc degeneration.
Osteoarthritic changes involve the mid-cervical lateral articulations on each side.
The spine appears otherwise normal.
In particular, the cervical vertebral canal is not narrowed and no disc protrusion is seen.
The invertebral foramina are not narrowed.”
An MRI scan of the plaintiff’s cervical spine was conducted on 24 August 2011. That report noted:
“…Mid left convex cervical scoliosis….Mild reduction height of the C3/4 and C6/7 discs. Minimal dorsal disc bulging at these levels and at the C2/3 level.
No focal disc protrusion, no canal stenosis.
Moderately severe facetal arthoropathy bilaterally. There is associated multilevel foraminal stenosis…more marked on the right side and this appears moderate to severe on the right at C2/3, moderate on the left at C3/4, moderate on the right at C4/5 and bilateral moderate at C5/6.
Cervical cord appear normal….”
An X-ray of the left shoulder was conducted on 3 May 2012. The report of the same date notes:
“The glenohumeral and AC joints show no significant degeneration.
Prominent subacromial spur.
No rotator cuff calcification.”
The plaintiff’s medico-legal evidence
The plaintiff relied on medico-legal reports from Mr Russell Miller, Orthopaedic Surgeon, Mr Geoffrey Klug, Neurosurgeon and Dr Robyn Horsley, Occupational Physician.
In his report dated 1 December 2014,[214] Mr Miller stated:
[214]Ex P2, pges 36-43
“The first incident occurred on approximately the 04/10/2010. He stated the forklifts were being serviced and he was lifting the beam manually when he developed pain in his neck and left shoulder…
He returned to work on restricted duties… His restrictions included cutting of timber, but only in short lengths and he was not required to perform repetitive bending or lifting…
There was a further incident …[in] September 2011… He developed problems with his left wrist and aggravated his neck and left shoulder problem. He was off work for approximately 2 months. He returned to work he thinks for approximately 1 day. This was not successful and he subsequently had not returned to work.
Neck: He has neck pain and discomfort. It radiates into the shoulder and further down the arms. It causes him significant sleep disturbance.
Left shoulder: He has left shoulder pain and discomfort, worse with repetitive activities and overhead activities and aggravated by physical activities.
Left wrist: He has ache, discomfort and pain in the left wrist. He has difficulties with repetitive activities, physical activities and difficulties with activities of daily living.
Right wrist: He has some problems with the right wrist with ache, discomfort and pain in the right wrist. These have occurred subsequently to the problems with the left wrist. He has difficulties with activities of daily living….
Diagnosis and prognosis
Cervical spine:
It is likely that Mr Phillips has suffered a musculo-ligamentous strain to the cervical spine and aggravation of degenerative disease in the cervical spine. There is no evidence of radiculopathy or neurological deficit. Prognosis for this is only fair.
Relationship to accident: This man had pre-existing, but asymptomatic disease in the cervical spine. The symptoms were precipitated in relation to the first incident (04/10/2010), but aggravated in the second incident September 2011. That effect persists.
Left shoulder:
He suffered an injury to the left shoulder with probable development of rotator cuff pathology and probable aggravation of degenerative disease in the acromio-clavicular joint. He has significant ongoing symptoms. The prognosis for this is only fair.
Relationship to accident: This man had pre-existing, but asymptomatic disease in the left shoulder. The symptoms were precipitated in relation to the first incident (04/10/2010), but aggravated in the second incident September 2011. That effect persists.
Left wrist:
I believe he developed problems in the left wrist probably in the form of tenosynovitis. Prognosis for the left wrist is probably good.
Relationship to accident: The left injury relates to second event September 2011.
Right wrist:
I believe he developed problems in the right wrist probably in the form of tenosynovitis. Prognosis for the left (sic) wrist is probably good.
Relationship to accident: The right wrist injury is not directly work related.…[215]
[215]Ex P2, pge 38-42
In a report dated 26 November 2014,[216] Mr Klug stated:
[216]Ex P2, pges 68-76
HISTORY OF INJURY…
… He told me that he suffered an injury on [4 October 2010] when he was carrying a large plank which he estimated was 8.7m in length…he suddenly developed acute pain in the region of his upper chest wall on the left-hand side spreading towards the shoulder…he told me he was off work for a period but could not define the exact length. During that time he [had a cortisone injection and] also had some physiotherapy treatment.
With the passage of time there was some improvement in his pain but this did not fully resolve.
His duties at work were somewhat restricted. He was still employed with cutting wood but smaller pieces. He told me that he was not undertaking any heavy lifting.
He described further incidents. While undertaking some trenching duties some pieces of timber fell and struck him in the region of his injured shoulder. This aggravated his pain. He consulted his general practitioner in regard to this matter and further investigation was undertaken… He believes he remained away from work for some three months after this event and during this time he had some physiotherapy and he also saw a hand therapist. I asked him why he saw the hand therapist and he told me at this stage he was noticing some numbness in his left hand.
He returned to work undertaking restricted duties.
He suffered a further injury when in a darkened room he stood on a trolley which moved away. He fell landing on his left arm and hand. He told me he suffered an injury to his left wrist which he thought was a fracture. He told [me] he was subsequently reviewed by a general practitioner and x-rays were taken and he was told there was no fracture.
He believes he was off work again for a lengthy period of uncertain duration. During this time he had further physiotherapy and took medication…
He told me that he again returned to work undertaking restricted duties. This involved some saw cutting but he did not have to undertake any excess physical activity. He noted during this time he had great difficulty lifting his left arm. He tended to perform all tasks with his right arm because of persisting symptoms on the left-hand side.
He told me that he was unhappy with his ability to undertake his required duties. Because of his persisting pain and his inability, he stopped work with this organisation some time in 2012…
CURRENT CLINICAL STATUS
He described the following ongoing complaints:
· He told me that he has impaired function of his left upper limb. He is not able to lift his arm above shoulder height. He feels there is some generalised weakness in that limb.
· He told me that he notes what he describes as a pulling sensation with discomfort felt over the upper anterior chest wall on the left-hand side. This is aggravated by any attempted movements of his left upper limb, particularly the shoulder.
· He told me that as far as the right upper limb is concerned he notes swelling in the region of his right wrist. He told me that at some stage this lesion has been needled and some fluid has been removed. He was not certain of the nature of this disorder…
….
SPECIFIC ISSUES
… I note that there are some variable opinions provided but that the majority of practitioners who have seen him believe that he most likely does have a disorder involving his left shoulder joint which accounts for his pain. It has been suggested, however, that the symptoms could relate to some dysfunction of the cervical spine…
(a) Diagnosis of our client’s physical injury:
As regards this person’s cervical spine, I note on examination that there was a generally good range of movement of the cervical spine which did not appear to be associated with any significant pain. I was unable to elicit any objective evidence of impaired neurologic function that I could relate to a cervical spine disorder. There was no evidence that he was suffering from a radiculopathy. The report of an MRI scan of his cervical spine did reveal multilevel changes which would not be surprising in a person of his age and with his past work background. There was no clear evidence of neural compression in the reported study and I do not believe that the findings would suggest that his symptoms originated as a result of a neck injury.
Overall I believe that this person did sustain in all probability an injury in the region of his left shoulder as a result of the specific incident and there was possibly some further aggravation subsequently. I do not believe the evidence would suggest that he sustained as a result of the incident an injury to the cervical region of his spine.
(b) Confirmation that the diagnosed injury is organic in nature:
I do not believe there is any strong evidence to suggest he suffered an injury to his neck as a result of his employment. I would see no reason to doubt the opinion of others who have examined him and that he did sustain an injury in the region of his left shoulder and such, in my opinion, would be consistent with the mechanism of the injury described.
…
(d) Details of what restrictions are imposed upon our client by reason of the diagnosed neck injury…
…It would appear to me that the ongoing symptoms related to his left shoulder together with other symptoms referrable to each upper limb would have a very adverse effect in regard to his ability to undertake types of employment… which he was previously able to undertake…[217]
[217]Ex P2, pge 74
In the report dated 26 November 2014,[218] Dr Robyn Horsley, Occupational Physician recorded the following matters:
[218]Ex P2, pges 77-84
Current Symptoms:
…Mr Phillips has ongoing neck and left shoulder girdle pain that is chronic in nature and varies on the visual analogue scale from 5 to 7 out of 10. He described the discomfort as “chronically annoying”. He can now lie on his side at night, but only for short periods. He finds that the symptoms are better in the cold weather and worse in the hot weather. He avoids activities such as repetitive over reaching, pushing, pulling and above shoulder activities, and repetitive activities involving the neck and left shoulder.
He has chronic disability related to his bilateral wrists. He wears braces on both sides. He suffers from chronic swelling in the left wrist and reduced range of motion. He states his fingers can freeze at different times. He minimises the use of his left hand…there is parasthesiae in to the lateral three fingers….
Diagnoses:
· Mr Phillips, on history, has aggravated the underlying pre-existing constitutional degenerative change in the cervical spine.
· He also has sustained a left AC joint injury. He has ongoing disability in the cervical spine and left shoulder girdle.
· I understand that there was a further incident in mid 2011 which resulted in left wrist disability. Objective assessment is difficult. Correspondence from the Launceston General Hospital would be of value and any radiology. He has ongoing disability.
· Mr Phillips presents in an unsophisticated manner….He presents with no realistic capacity for work.
Prognosis:
Given the length of time since the injury and the ongoing nature of the symptoms, I believe that the symptoms are likely to persist…[219]
[219]Ex P2, pges 81-83
The defendant’s medico-legal evidence
The defendant relied upon reports from three medico-legal experts, Mr Clive Jones, Orthopaedic Surgeon, Dr Susanne Homolka, Occupational Physician and Mr Michael Dooley, Orthopaedic Surgeon.
In a report dated 23 July 2011, Mr Jones, who from the history, was told only of the one incident involving the shoulder on 4 October 2010, recorded the following opinion:
The symptoms are somewhat unusual. He describes episodic muscle spasms affecting the left shoulder and the whole of the left arm, even as far down as the ring and little fingers at times. He is able to sleep on his left side quite comfortably, and is not conscious of major restriction.
… There was some tenderness in the left trapezius muscle, but a virtually full range of cervical movement. Elevating the left arm however, did cause him some pain, although he was able to achieve a full movement range at the shoulder joint. Both arms are neurologically normal.
… OPINION:
Mr Phillips continues to report ongoing pain in the left shoulder and to a lesser extent his cervical spine area. This followed lifting a piece of timber on to his saw bench. Clinical and x-ray evaluation suggests the problem lies in the shoulder rather than in the cervical spine, where the appearances are those of age related degenerative change. Response to standard treatment thus far has been poor and only a part-time return to work on limited duties has been achieved thus far.
… The current clinical indications are of shoulder tendon pathology in the left side.
… The shoulder was said to have been perfectly normal prior to the relied upon event, with no work difficulties at all due to shoulder pain.[220]
[220]Ex D1, pge 244
In a report dated 15 August 2012 Dr Homolka wrote:
He said that his left shoulder remained painful, and he described how he also developed radiation of pain into the left side of his neck, into his left posterior shoulder girdle and left upper back, as far as the shoulder blade, and into his left upper arm, midway to the elbow. He said that his left arm started to “spasm”, and he advised that he also experienced intermittent numbness in his left little, ring and middle fingers. He described the “spasms” as involuntary, uncontrollable jerking movements of his entire left upper limb.
Mr Phillips stated that on 5 January 2011 he sustained a second injury… he advised that thereafter his pre-existing left shoulder pain increased in severity for some time before settling to its original levels.
… he advised that a second cortisone injection was performed by [Dr Greg Harris]... He said that the second injection helped for about two days…
… He described a third injury which he sustained in the course of his occupational duties on 8 September 2011… He did not describe any specific injury to his left shoulder as a result of this third work-related incident, but again reported a temporary increase in his left shoulder pain, which later settled back to its original levels….
CURRENT STATUS
Mr Phillips currently complains of constant pain affecting the anterolateral aspect of his left shoulder and left upper chest, the left side of his neck, the left posterior shoulder girdle and upper back, as far as the shoulder blade, and the left upper arm, as far as the elbow. He described intermittent “pins and needles” and numbness affecting the three ulnar fingers of his left hand, and he said that his whole left arm feels weak and as though “it’s not attached to my body.”
He said the “spasms” in his left arm stopped after he started taking some “brain tablets” prescribed by his general practitioner. He could not recall the name of this medication, however from the information in the referral material I understand it to be the anti-psychotic agent Haloperidol.
Mr Phillips stated that due to the pain in his shoulder he is unable to lie on his left side for more than a few minutes, and he advised that his sleep [is] regularly disturbed by nocturnal pain. He described significant, pain-related limitation in the range of movement of his left shoulder and he said that he often drops things with his left hand.
He said that any use of his left hand increases the pain in his shoulder, and he advised that since the incident on 8 September 2011 he has also suffered from constant, severe pain in his left wrist.
SUMMARY AND OPINION
…In my opinion, based on the above history, clinical examination findings, and available radiological evidence, Mr Phillips currently suffers from a residual dysfunction of the left shoulder following a rotator cuff injury, relevant to the accepted left shoulder injury that occurred on 4 October 2010. In my opinion his condition has stabilised…and is permanent…
APPORTIONMENT
… Based on his description of the mechanism of injury involved in each of the two [additional] incidents I am of the opinion that neither resulted in any further injury to his left shoulder, and I note that there is no objective, verifiable medical evidence to suggest otherwise.
In my opinion therefore there is no evidence of any pre-existing or subsequent impairment of the left shoulder spine attributable to any pre-existing or subsequent injury which ought to be disregarded….[221]
[221]Ex D1, pges 250-253
In a report dated 23 January 2015, Mr Dooley reported:
PHYSICAL EXAMINATION
Left shoulder: There is tenderness generally of the shoulder girdle and upper chest areas. Active abduction and forward flexion are to one hundred and twenty degrees. External rotation is to fifty degrees and internal rotation is to forty-five degrees. Adduction and extension are to twenty degrees. The range of motion of the right shoulder is similar….
Cervical spine: Flexion is to forty degrees and extension is to thirty degrees. Lateral flexion to the left and to the right is to twenty-five degrees. Rotation to the left and to the right is to seventy degrees. Mr Phillips notes some neck pain with these movements. There is a general reduction in power in the left upper limb. Reflexes are symmetrically reduced.
Wrists: Mr Phillips is wearing a polypropylene splint on the left wrist and a Velcro type splint on his right wrist. There is generalised tenderness of both wrists. Dorsiflexion is to fifty degrees and palmar flexion is to forty degrees. Pronation and supination are full. There is altered sensation over the ulnar three fingers and a generalised alteration in sensation throughout his left upper limb.
DIAGNOSIS, CLINICAL IMPRESSION AND OPINION
Mr Phillips describes the onset of pain in the region of his left shoulder girdle and chest areas after lifting and manoeuvring a heavy beam during the course of his work in October of 2010. I believe that in this episode Mr Phillips sustained a soft tissue injury to his left shoulder that most likely involved some aggravation of naturally occurring underlying degenerative rotator cuff disease. He has reported persisting pain that has not improved with physiotherapy, cortisone injections etc. Clinical examination reveals mild to moderate restriction of left shoulder motion. It is now over four years since the work related episode. From an orthopaedic point of view, one would expect a patient to note some ongoing intermittent shoulder girdle pain. They would note difficulty with a lot of heavy physical activity and difficulty with a lot of activity at and above shoulder level. One however would expect a patient to be able to engage in a range of light physical activity and clerical type duties….
Mr Phillips describes some intermittent neck pain. He has mild restriction of cervical spine motion. He has naturally occurring and age related degenerative disc disease of the cervical spine. I do not believe that Mr Phillips sustained a specific injury to his cervical spine in the work related episode. In my view Mr Phillips has had a psychological reaction to his situation and this reaction influences his ongoing symptoms. …”
…Mr Phillips has some numbness of the fingers towards the ulnar side of the hand. This may well relate to irritation of the ulnar nerve behind the medial epicondyle. This is not a uncommon condition in middle age. I do not believe that it relates to the specific episode of October 2010…
Mr Phillips’ pain does have an organic basis. As outlined above however, I believe that he has had a psychological reaction to his situation and that much of his ongoing symptomatology relates to this reaction.
From an orthopaedic point of view, there would be mild loss of left shoulder function. This will persist for the foreseeable future…
Mr Phillips would have difficulty carrying out regular heavy physical work and work that involves a lot of activity at and above shoulder level. From an orthopaedic point of view he would have a physical capacity to carry out light physical work and clerical type work.
... I have not gone into discussion about Mr Phillips’ left wrist condition. In terms of looking at his left shoulder condition only, then Mr Phillips would have a physical capacity to undertake suitable employment…
The exact nature of the injury to Mr Phillips’ left wrist is unclear… Given the described mechanism of injury, Mr Phillips could have sustained a soft tissue injury to his left wrist. It would be my view that in relation to his ongoing symptoms in this regard, again his psychological condition is playing a major part.[222]
The issues
Compensable injury
[222]Ex D1, pges 259-262
Left shoulder
The defendant accepted that the plaintiff had suffered an injury to his left shoulder in the incident which occurred on 4 October 2010. To that extent, there was no real argument that the consequences of that left shoulder injury have a substantial organic basis.
Similarly, having regard to the totality of the evidence, I am satisfied that the plaintiff is likely to continue to suffer from some symptoms as a result of the injury to his left shoulder in the incident for the foreseeable future. Thus, I find that the injury sustained by the plaintiff to his left shoulder in the incident is permanent for the purpose of the Act.
The key question in relation to the injury to the left shoulder therefore, is whether the consequences of the injury that occurred on 4 October 2010 satisfy the narrative test.
Cervical spine
The defendant did not accept that the plaintiff suffered an injury to his cervical spine in the incident on 4 October 2010. The defendant’s principle argument is that the plaintiff made no report of neck symptoms at the time of the incident.
The plaintiff’s Physiotherapist, one of the only treaters to have made a record of what pain and restriction the plaintiff suffered immediately following the incident, noted (in addition to pain in the left shoulder) restriction in the plaintiff’s thoracic and cervical spines upon examination following the incident on 4 October 2010. However there was no report of pain in the region of the cervical spine and there is no further discussion of what might have been the cause of the noted restriction in the cervical spine.
Later in the report it was recorded that “following wood handling at work prior to the 21st of December 2010 pain developed into the cervical spine and shoulder movements of abduction and extension were again limited as a result. Night pain and difficulty controlling hand movements were also reported following this event. This prompted review by Sports Physician Greg Harris who diagnosed Acromio-clavicular joint involvement….”[223] (emphasis added)
[223]Despite the discrepancy in dates, it is clear from the description of what followed this event, that it is a reference to the second incident.
The plaintiff’s evidence in the context of the occurrence of the injury to his neck was that when the incident first happened, “they put me in a neck brace as well.”[224] Having regard to the medical reports, it seems clear that the addition of a Philadelphia cervical collar was in fact made following the second incident.[225]
[224]T60 (9-10)
[225]Ex P2, pge 20
Based on the evidence before the Court, I am satisfied and find that the plaintiff did not injure his cervical spine in the incident which occurred on 4 October 2010. I am further satisfied and find that the aggravation to the plaintiff’s previously asymptomatic cervical spine degeneration occurred in the context of the second incident, whether that occurred in December 2010 (as recorded by the physiotherapist who treated the plaintiff) or in January 2011 (as recounted by the plaintiff).
On that basis, I find that the plaintiff has suffered no compensable injury to his cervical spine.
Are the consequences of the left shoulder injury suffered in the incident on 4 October 2010, serious for the purposes of the Act?
It is clear from the initial assessment and investigations of the plaintiff’s left shoulder following the incident, including the results of a left shoulder ultrasound conducted on 18 October 2010, that it is likely that he suffered a partial tear of the supraspinatus tendon in the left shoulder in the incident. The Physiotherapist at Beleura Health Solutions noted that with treatment following the incident on 4 October 2010, “it was reported range of movement and pain had improved significantly within the first 3 days and continued for the month following…”.[226] On 9 November 2010, the plaintiff returned to working 38 hours per week, on modified duties. The modified duties were described in this manner:[227]
“His modified duties initially included stacking offcut timber on either side of the trencher of the pre-cut saw. This task only required use of the right hand. There was to be no lifting of lintels as this would be undertaken by another staff member and…he was not to handle timber greater than 5 metres in length.”
[226]Ex P2, pge 20
[227]Ex D1, pge 18, paragraph 4
The notes from the Physiotherapist at Beleura Health Solutions record that it was following the second incident that “pain developed into the cervical spine…”.[228] Dr Harris noted on examination that the plaintiff’s rotator cuff strength was “good”.[229] He was of the view that clinically, the plaintiff’s pain in the left shoulder resulting from the second incident “appears to be primarily from his AC joint.” [230] He also recorded that following the second incident, “investigations of [the plaintiff’s] cervical spine…revealed moderate degenerative changes at a number of spinal levels.” [231]
[228]Ex P2, pge 20
[229]Ex P2, pge 22
[230]Ex P2, pge 22
[231]Ex P2, pge 22b
On 17 May 2011, Dr Harris administered an ultrasound guided injection of local anaesthetic and corticosteroid to the plaintiff’s left AC joint, which was noted at that time to be “tender to pressure from the probe.” [232] Dr Harris records that “immediately after the injection there was an improvement in his pain with movement at the shoulder. This improvement was maintained at a review two weeks later, at which time he reported almost complete resolution of his shoulder pain…”.[233]
[232]Ex P2, pge 22b
[233]Ex P2, pge 22b
None of the plaintiff’s treaters record any specific examination or treatment of the plaintiff as a result of the third incident. With the exception of Mr Jones for the defendant, each of the medico-legal experts assessed the plaintiff’s condition after the third incident had occurred. The plaintiff gave evidence about the consequences of the third incident, viz:
(a) he aggravated his left shoulder and left wrist in the third incident;[234]
[234]T18 (12-14)
(b) he did not have problems with his left wrist before the third incident and that this was what really set off the wrist for him;[235]
[235]T18 (15-16)
(c) he was referred to a Hand Therapist, had an x-ray and a fracture of a bone in his wrist was discovered;[236]
[236]T18 (17-20)
(d) at this time he was living by himself in his caravan in a caravan park, but after the third incident, he was unable to care for himself.[237] Until the third incident, he had been coping, albeit that he was not “ok”;[238]
[237]T18 (25-28)
[238]T18 (29-31)-19 (1)
(e) after the third incident, he was on and off work for a long time,”[239] but eventually he did return to work. By around the beginning of 2012 he was back to doing 38 hours but he told management that he wanted to leave because he could not do his job. “…it’s just that I couldn’t hold things, you know. They’d just fall. I’ve got it in my hand and then it wouldn’t be there;”[240]
(f) he had been “coping better” prior to the third incident;[241]
(g) the third incident was “terrible” and the aggravation to his left shoulder is still there.[242]
[239]T20 (1-6)
[240]T20 (7-17)
[241]T19 (1)
[242]T71 (11-13)
The only medico-legal expert who was asked to comment on the relative contributions of the three incidents to the plaintiff’s current presentation was Dr Homolka. Her opinion was that “based on [the plaintiff’s] description of the mechanism of injury involved in each of the two incidents…neither resulted in any further injury to his left shoulder.” In her report, specifically in relation to the third incident, Dr Homolka recorded that the plaintiff had told her that “as a result of this third work-related incident [there was]…a temporary increase in his left shoulder pain, which later settled back to its original levels.” This opinion is at odds with the sworn evidence given by the plaintiff to the Court about this matter, which is that the aggravation to his left shoulder persists to this day.
Further, the evidence indicates that by December 2011, although the plaintiff had been able to return to working 38 hours per week, he was on lighter duties than he had been back in 2010.[243] Difficulties arose with his job when he was required to lift pieces of timber, as he found that he was having to stabilise the pieces of wood with his right hand.[244] This was because his left hand was numb: “there was just no feeling there”.[245]
[243]T30 (30-31), T 31 (1-18)
[244]T31 (20-31), T32 (1-11)
[245]T32 (4-6)
The evidence tendered to the Court included a statutory declaration signed by the plaintiff following his resignation, stating that he “left work at Bowen’s timber because of shoulder and wrist because I couldn’t do my job”. He also gave evidence under cross-examination that it was both his left wrist and his left shoulder problems that caused him to resign. However, the detail of the plaintiff’s evidence as to the reasons why he eventually decided that he was no longer able to perform his duties at work, relate mainly to the presence of issues with his lower left arm and hand, especially with his ability to hold things, viz:
(a) “…It’s not that I couldn’t do [the job], it’s just that I couldn’t hold things, you know. They’d just fall. I’ve got it in my hand and then it wouldn’t be there;”[246]
[246]T20 (7-17)
(b) around the time he stopped working, in June 2012, the symptoms in his hand and wrist were getting worse;[247] He was referred to a Hand Therapist, Hayley O’Sullivan.[248] He said his Physiotherapist and Hand Specialist said he was unfit for any type of work because of “the numbness and the spasms” in his hand: “there was just no feeling there. I just couldn’t feel anything;”[249]
(c) he described the problems he was having with the light duties at work in the following way: “…when I’d go to pick…all the noggins up to put them on a table… I couldn’t hold anything with this hand.”[250] He said that “some days it was good…but at the end of the day, it was terrible.”[251] Instead of lifting multiple noggins, he would pick up one at a time “and then I was getting too far behind…”;[252]
(d) he said that when he was finding that his hand was numb, “that’s when I went and asked the boss… I went and explained to him what was going on and he said he’d been monitoring… me.”[253]
[247]T30 (5-7)
[248]T27 (9-15)
[249]T32 (4-6)
[250]T31 (28-29) – T32 (1-3)
[251]T32 (14-15)
[252]T33 (13-14)
[253]T32 (17-22), under re-examination at T73 (1-7) the plaintiff confirmed that he had been speaking with Angelo Lauricella.
The plaintiff’s evidence as to his present pain and restrictions due to injury in his left shoulder is as follows:
(a) repetitive activities involving his left arm and shoulder aggravate the pain so he avoids doing this if he can;[254]
[254]Ex P2, pge 16, paragraph 2
(b) it is difficult to lift anything too heavy with his left arm, as this tends to aggravate the pain in his left shoulder;[255]
[255]Ex P2, pge 16, paragraph 2
(c) it is difficult to elevate his arm above shoulder height without experiencing pain;[256]
[256]Ex P2, pge 16, paragraph 2
(d) he experiences weakness in his left arm and shoulder. He feels a pulling sensation over his chest wall on the left hand side particularly if he tries to move his shoulder up and down;[257]
[257]Ex P2, pge 16, paragraph 5
(e) he has limited movement in his left arm and has lost the ability to use it to push and pull;[258]
[258]Ex P2, pge 12, paragraph 27
(f) he continues to experience ongoing pain in his left shoulder with the pain radiating into his neck;[259]
[259]Ex P2, pge 16, paragraph 2
(g) he wakes up regularly during the night due to the pain if he rolls onto his left shoulder. As a result he often feels tired and does not have the same level of energy as he did before his injuries;[260]
(h) he is able to do most of his household duties albeit slowly, but “the bed’s no good so that doesn’t get made very often” and anything to do with lifting or flicking things he “just can’t do it”.[261] He finds activities such as mopping and sweeping can aggravate the pain in his left shoulder;[262]
(i) he struggles with basic tasks around the home, like pegging clothes on the line. His inability to do simple tasks upsets him, as he has always been someone who is self-sufficient and gets things done.[263]
[260]Ex P2, pge 12, paragraph 28
[261]T38 (1-5)
[262]Ex P2, pge 16, paragraph 6
[263]Ex P2, pge 13, paragraph 33
Having regard to the totality of the evidence, I find that the left shoulder injury which the plaintiff sustained in the incident on 4 October 2010 makes little if any contribution to the plaintiff’s present shoulder restrictions. I further find that the plaintiff’s incapacity for work relates mainly to the presence of incapacity in his lower left arm and hand, especially with his inability to feel and hold things.
In reaching this conclusion, I have had particular regard to the history of treatment and the plaintiff’s progress and recovery following that incident, together with the fact that by 9 November 2010, the plaintiff had returned to 38 hours of modified duties, which on any view of things, were properly to be characterised as moderately heavy manual labour.
An examination of the chronology and the evidence about the consequences from which the plaintiff suffered at different points in time demonstrates that it was only after the second incident that he experienced persisting, serious restriction in his left shoulder and cervical spine. I find that this arose as a consequence of the injuries which he suffered in the second incident. These consequences, coupled with the further aggravation to his left shoulder and the injury to his left forearm and wrist which were both sustained in the third incident, saw the plaintiff experience insurmountable difficulties with even light duties at work. The consequences of the third incident also caused him to have to move out of his caravan to live in Tasmania, so that he could be close to family for assistance when required, with his activities of daily living.
On that basis, the plaintiff fails to satisfy the narrative test in respect of the injury to his left shoulder in the incident which occurred on 4 October 2010.
Substantial organic basis for the plaintiff’s presentation
During the course of the hearing, there was argument as to whether there is a substantial organic basis for the consequences of the plaintiff’s left shoulder injury.
In circumstances where I have found that the left shoulder injury which the plaintiff sustained in the incident on 4 October 2010 makes little if any contribution to the plaintiff’s present shoulder restrictions, the issue of whether there is a substantive organic basis for those restrictions, does not arise.
Economic loss
In order to obtain leave in relation to loss of earning capacity, in addition to addressing the narrative test, the plaintiff must also establish that –
(a) at the date of the hearing, he has a loss of earning capacity of 40 per cent or more;[264] and
(b) after the date of the hearing, the relevant loss of earning capacity will continue permanently.[265]
[264]s134AB(38)(e)(i)
[265]s134AB(38)(e)(ii)
The measurement of loss of earning capacity is set out in s134AB(f) of the Act, which requires a comparison between:
(a) “without injury” earnings; and
(b) “after injury” earnings.
The former must be calculated by reference to the six-year period specified in s134AB(38)(f) of the Act.
Without injury earnings consist of the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion had the injury not occurred.
Loss of earning capacity is to be calculated by reference to that part of the period within the three years before and three years after the injury as most fairly reflects the worker’s earning capacity.
The plaintiff bears the onus of proof in relation to this matter, particularly in establishing satisfaction of the criteria in ss134AB(38)(e), (f) and (g) of the Act. In order to consider the claim for economic loss, I am therefore required to determine a “without injury” earnings figure.[266]
[266]Barwon Spinners, supra, at [70]
In the financial years 2007-2010, the plaintiff’s average annual income was $46,471.00. I adopt this as the “without injury” earnings figure for the purposes of this application.
Sixty percent of this figure is $27,882.00, or $536.00 per week.
In the medical opinions relied upon by the plaintiff there is a range of views as to the plaintiff’s work capacity, ranging from no capacity for suitable employment[267], to a capacity for light work with specific restrictions.[268]
[267]See Dr Crow, report dated 29 April 2015, Ex P2, pge 19A, Mr Russell Miller, reported dated 1 December 2014, Ex P2, pge 42 and Leonie Schneider, report dated 24 November 2014, Ex P2, pge 45
[268]See Dr Horsley, report dated 26 November 2014, Ex P2, pges 83-84; Dr Harris, report dated 11 October 2012, Ex D1, pge 233, Mr Dooley, report dated 23 January 2015, Ex d1, pges 260-262
To the extent that the experts opine that the plaintiff has some capacity for suitable employment, the assessment is made considering the restrictions imposed by reason only of the plaintiff’s left shoulder incapacity. For example, Mr Dooley stated:
“…In terms of looking at his left shoulder condition only, then Mr Phillips would have a physical capacity to undertake suitable employment.”[269]
[269]Ex D1, pge 262
To the extent that a global view has been taken of the plaintiff’s myriad of ailments, the opinion is that having regard to the plaintiff’s age, education, skills and work experience, the plaintiff has no residual capacity for suitable employment.
While I accept the medical and vocational opinions that indicate that the plaintiff is presently totally incapacitated for suitable employment, I find that this lack of capacity does not relate to the occurrence of the incident on 4 October 2010. Rather, it is clear from the evidence that the plaintiff’s incapacity for suitable employment arose following the injuries suffered in the second and third incidents. Those injuries include particularly, the extremely debilitating symptoms which the plaintiff developed in his left wrist and hand and from which he continues to suffer.
In those circumstances, the plaintiff’s claim for loss of earning capacity must also fail.
Conclusion
Accordingly, the plaintiff’s application to bring proceedings for damages for both loss of earning capacity and pain and suffering is dismissed.
I will hear the parties on the issue of costs.
“His modified duties initially included stacking offcut timber on either side of the trencher of the pre-cut saw. This task only required use of the right hand. There was to be no lifting of lintels as this would be undertaken by another staff member and…he was not to handle timber greater than 5 metres in length.”
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