Phillips v WorkSafe Victoria and L and D Enterprises
[2016] VCC 291
•21 March 2016
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
COMMON LAW DIVISION
SERIOUS INJURY LIST
Case No. CI-15-00110
| LUKE PHILLIPS | Plaintiff |
| v | |
| WORKSAFE VICTORIA | First Defendant |
| and | |
| L & D ENTERPRISES | Second Defendant |
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JUDGE: | HER HONOUR JUDGE HOGAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 - 18 February 2016 | |
DATE OF JUDGMENT: | 21 March 2016 | |
CASE MAY BE CITED AS: | Phillips v WorkSafe Victoria and L & D Enterprises | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 291 | |
REASONS FOR JUDGMENT
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Subject: Application to commence common law proceedings for both pain and suffering damages and for economic loss damages pursuant to s134AB of the Accident Compensation Act 1985 – injury to left wrist/shoulder/arm – concession by defendant/s that plaintiff had suffered an injury with an impairment giving rise to serious pain and suffering consequences – issue as to whether any impairment has given rise to serious economic loss consequences
Catchwords:
Legislation Cited: Accident Compensation Act 1985
Cases Cited:
Judgment:
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Moore QC with Mr P Johnstone | Nowicki Carbone Solicitors |
| For the Defendant | Mr R Middleton QC with Mr E Makowski | Russell Kennedy Solicitors |
HER HONOUR:
1 The plaintiff, Luke Phillips, applies pursuant to s134AB of the Accident Compensation Act 1985 (“the Act”) for leave to commence proceedings to recover damages. He alleges that in the course of, arising out of, or due to the nature of employment with L & D Enterprises (“L & D”), and, in particular, on 23 January 2013, he suffered an injury to his left wrist, which subsequently required surgery and immobilisation and that, as a consequence, he also developed an injury to his left shoulder. The plaintiff states that he has suffered a permanent impairment to his upper left limb which satisfies paragraph (a) of the definition of serious injury in s134AB(37) of the Act. He contends that the impairment has given rise to consequences which are serious in relation to both pain and suffering and, also loss of earning capacity.
Matters not in dispute between the parties
(a)The defendants have conceded that the plaintiff suffered an injury to his left wrist, which has resulted in impairment to his left upper limb with pain and suffering consequences which are serious.
(b)The defendants have conceded that, if the Court is satisfied that the plaintiff’s left shoulder injury is a consequence of his left wrist injury, then this can be taken into account in determining whether the plaintiff’s impairment to his left upper limb has resulted in serious loss of earning capacity consequences. The defendants initially relied upon Lu v Mediterranean Shoes Pty Ltd & Ors[1] in support of a contention that the wrist and shoulder injuries could not be aggregated for the purpose of determining whether the impairment consequences are serious, but, ultimately made the above concession.
Issues between the parties
(a)The defendants contend that the evidence suggests that further improvement will occur, which will result in increased function to the plaintiff’s left upper limb. Thus, the plaintiff has failed to satisfy the Court that any impairment relating to his injury is permanent, and, therefore, that any current work incapacity consequences from such impairment are permanent.
(b)Alternatively, the defendants contend that, even if the Court is satisfied that the plaintiff has established a permanent impairment, then the plaintiff, currently, is fit for suitable employment. In particular, the defendants contend that the plaintiff is fit for any one of three suitable employment jobs, namely, a security-alarm control room and surveillance monitor, a security officer (gatehouse) or a mobile camera operator.[2] Alternatively, the plaintiff is capable of increasing the number of hours that he presently works in his job as a care worker, which involves driving elderly or infirm patients to appointments and activities. Thus, the defendants contend that the plaintiff is unable to satisfy the Court that he has suffered a loss of earning capacity of 40 per cent or more in accordance with s134AB(38)(e)(ii) of the Act.
[1] (2000) 1 VR 511
[2]These three positions were identified as suitable employment for the plaintiff in a report by Ms Bryant, Occupational Therapist with Cowork Pty Ltd dated 15 October 2015, Defendant’s Court Book (“DCB”) 22-65
Background
2 The plaintiff is presently aged forty-one years, having been born on 2 June 1974. The injury is to his non-dominant left upper limb. The plaintiff completed Year 10 at school and left home at a relatively early age to work for various employers. These included store attendant/night-fill work at Macdonald’s, Safeway and Coles, a gaming attendant at a hotel, and short periods of work as a domestic plasterer. In 2006 he worked as a control room officer for Club Links Security, and, in 2007, as a control room operator for Quad Security. From mid-2008 through to 2011, he worked for Assa Abloy in the security guardhouse, and, for part of this time, he also worked as a truck driver for two days per week.
3 In November 2011, the plaintiff commenced employment with L & D as a casual truck driver. By 4 March 2012 he was made full time and was working 50 to 60 hours per week. Prior to working full time, he was permitted to drive only heavy rigid vehicles, but, by the time he was engaged on a full time basis, he had obtained his heavy articulated vehicle licence. His job was to drive a 16 pallet, semi-automatic heavy semitrailer, and included securing the loads on the trailer with ropes and nylon straps and metal fixators and untying them for unloading at each destination.
4 On 23 January 2013, the plaintiff was using a winder to tighten one of the straps over the load. A clip, which generally drops into the teeth to secure the strap, failed to do so and the entire strap released on him, causing him to be flung backwards. He struck his left hand and wrist, with force, on the metal combing bar under the tray of the truck and, as he fell down to the ground, he attempted to cushion his fall by putting both hands out. He landed backwards with his hands on the ground, which he says further aggravated his left hand and wrist injury.[3]
[3]Paragraph 20 plaintiff’s affidavit sworn on 28 August 2014 (“the plaintiff’s first affidavit”), PCB 19 – 20.
5 The plaintiff reported the injury and finished work early so that his wife, Claire Lincoln, could drive him to Casey Hospital Emergency Department. An x‑ray failed to detect a suspected scaphoid fracture. His left arm was immobilised in a plaster cast and he was given Panadeine Forte for the pain which he was experiencing. On 31 January 2013, he attended his general practitioner, who advised that the plaster cast would need to stay on for a further five weeks and he was prescribed Endone, twice daily, to help manage the strong pain which he was experiencing in his left wrist.
6 On 4 March 2013, the plaintiff’s general practitioner removed the plaster cast and referred the plaintiff for physiotherapy. His physiotherapist thought it likely that he had bruising of the metacarpals and prescribed the wearing of a wrist and thumb brace as much as possible, as well as a home-based exercise program.
7 On 19 March 2013, the plaintiff was referred to Mr Tran, orthopaedic surgeon, who could not detect any fractures, but was concerned that the plaintiff’s left hand was not healing as expected. To help the plaintiff manage the pain, he prescribed up to eight Panadol per day, three Voltaren tablets, and Endone tablets as required.
8 In April, the plaintiff ceased physiotherapy and tried chiropractic and acupuncture therapy up until about June 2013, at which time he was referred by his chiropractor/acupuncturist to Mr Maloney, hand surgeon. Upon examination, Mr Maloney noted that the plaintiff had profound sensitivity and hyperalgesia along the radial border of the left wrist, as well as intermittent pins and needles and altered sensation along the line of the radial nerve. He noted tenderness along the first dorsal compartment tendons, with a strongly positive Finklestein’s test. He considered that the plaintiff had De Quervan’s tenosynovitis of high grade, refractory to non-operative treatment. He organised an MRI scan which was taken on 16 April 2013. It demonstrated a focal partial thickness tear/split of the extensor pollicis brevis tendon, at the level of the radial styloid process.[4]
[4]PCB 46-47
9 On 1 May 2013, Mr Maloney conducted an ultrasound-guided cortisone injection into the wrist area. This provided relief for two weeks, but he considered that the plaintiff required operative decompression and release of the first dorsal compartment of the left wrist, which he undertook on 3 June 2013. Upon performing the procedure, Mr Maloney noted that the extensor pollicis brevis tendon was very large and had a separate extensor pollicis brevis compartment, which he decompressed. He took down the APL tendon and its compartment and found significant tenosynovitis, with adherence of the tendons to the surrounding structures.
10 Mr Maloney referred the plaintiff to Bernadette Kelly for hand therapy, but noted on review in August 2013 that he had significant scarring at the surgical site, which was quite unusual and most often seen with immobility of the wrist. He considered, at that stage, that the plaintiff should consider training for a career other than truck driving. In November 2013, some five months after the surgery, Mr Maloney noted that the plaintiff was still exhibiting significant weakness of the wrist and thought he should have ongoing hand therapy to try to improve his function. He noted that hypersensitivity and ongoing pain had prevented a rapid resolution and the plaintiff’s participation in a return to work program, as he had expected. He considered that, although the plaintiff had made significant improvements, pain was still a major issue and, for that reason, he viewed his prognosis as guarded.[5]
[5]Report dated 11 August 2014, PCB 117
11 The plaintiff continued to undergo hand therapy, but also suffered significant depression for which he required treatment. His psychological state has improved considerably since that time.
12 In mid-2013, the plaintiff changed his general practitioner to Dr Naing in Lang Lang, from his former general practitioner, Dr Menzov in Highett.[6] This was because he was staying at his de facto partner’s house and this medical practice was closer to her home. Dr Naing noted that, on 8 May 2014, the plaintiff reported that he had developed left shoulder pain since the wrist injury and it was getting worse recently. Dr Naing considered the clinical presentation and finding on an ultrasound taken on 15 May 2014 suggested subacromial bursitis of the left shoulder. He referred the plaintiff to a physiotherapist, as well as to a pain medicine consultant, Dr Lee, who formed the impression that the plaintiff had developed a complex Regional Pain Syndrome following the left wrist injury.
[6]Report of Dr Naing dated 29 July 2014 PCB 79
13 The plaintiff was prescribed the anti-inflammatory, Proxen, Panadol and, also Nexium (to assist with adverse abdominal symptoms from the medication). In addition, he was prescribed Endep to help manage his neurological pain. To assist his rehabilitation, he continued to consult his hand therapist and to attend gym and hydrotherapy sessions, and, also, undertook a home exercise regime two or three times per day.[7]
[7]Plaintiff’s first affidavit, paragraphs 48 and 49, PCB 24
14 From 2 July 2014, the plaintiff consulted his specialist in rehabilitation and pain medicine, Dr Lee. He recorded that, although the plaintiff had improved dorsiflexion and palmar flexion following the June 2013 surgery, he had ongoing discomfort with lateral movements and pain, typically in the radial side of the hand but, also, in the ulnar side, which was sharp, not too bad at rest, but randomly flared to a pain which was stabbing in nature.
15 Dr Lee noted that the plaintiff was wearing a splint and seeing Bernadette Kelly, a hand therapist, and described him as “a very authentic gentleman” in terms of being responsive to doing training to get back to work. He observed that the plaintiff’s left hand was “cold and splotchy” and that he had a reduced range of motion of about 30 degrees flexion and 45 degrees dorsiflexion. Lateral movements, also, were reduced and he was unable to perform a full grip. He noted the left shoulder pain and considered that, clinically, the plaintiff had signs of supraspinatus tendinosis. An injection into the shoulder caused discomfort but improved the plaintiff’s range of movement, albeit that he had some discomfort at the higher angles.
16 Meanwhile, the plaintiff undertook a retraining program by way of a Certificate III in Aged Care and Home and Community Care at Chisholm TAFE. This had occurred because, apparently, a return to work plan in August 2013, with conditions that the plaintiff drive trucks without gates and not tie down goods, was contrary to Vic Roads requirements. The Certificate III courses took place on Tuesdays, Thursdays and Fridays every week.[8] The plaintiff’s evidence is that the idea to do this course had come from his rehabilitation caseworker, Mr Peiris, who worked with the organisation, Recouvre to which the plaintiff had been referred by WorkCover. The plaintiff completed the certificate course, a dual award in Aged Care and Home and Community Care, over about 4 ½ or five months, by November 2014. However, he was still suffering pain in his wrist and shoulder and required ongoing physiotherapy. He continued to see Dr Lee, and commenced a six week pain management program in February 2015.
[8]Plaintiff’s first affidavit, paragraphs 65 and 66, PCB 28 and Transcript (“T”) 52–53
17 On 15 April 2015, the plaintiff underwent an MRI scan of his left shoulder. The comment of the radiologist on the report of the scan was as follows:
“SLAP labral tear with periosteral stripping central superior labrum involving the anterosuperior, posterosuperior and posteroinferior quadrants with small posterior paralabral cyst. No appreciable involvement the anterioinferior labrum.
Several supraspinatus tendinosis partial thickness tear anterior and mid fibres. Further small infraspinatus tear.
Severe subscapularis tendinosis with partially humeral surface tear the superior associated with mild superior muscle belly atrophy.
Tendinosis of the intra-articular biceps tendon fibres with mild tenosynovitis.
AC joint degenerative arthropathy.”[9]
[9]PCB 51-52
18 Dr Lee considered that these changes were atypical in an otherwise healthy, right hand-dominant man, and viewed them as being secondary to his injury to his left arm/wrist.[10]
[10]Report dated 12 August 2015 at PCB 105
19 At about the time of this report of the MRI scan, the plaintiff utilised his certificate III qualification to commence as a casual driver for an organisation known as ‘Simply Helping’. He began by working for five hours on one day per week, with restrictions, and had only one client, who did not require any manual handling. The work involved driving a person, who required care, from his home to a community centre for activities conducted by other carers, and then back home again. It did not involve physically assisting the client. Up to the present time, the plaintiff has gradually increased his hours to up to 15 per week. The maximum number of hours he has worked on 1 day is 6 hours and he is on call, rather than having set hours or set days of work.[11]
[11]T50-53
20 The plaintiff was referred to an orthopaedic surgeon, Mr Raleigh, whom he first saw on 26 May 2015.[12] He commented that, at a review on 9 August 2015, “I found Luke quite apprehensive to examination with stiffness at 100 degrees, but I could get him moving passively with a normal range, just actively I could not do so.” Mr Raleigh diagnosed “some minor impingement of the shoulder with capsulitis.” He stated that “Given I only saw Luke over two years since the injury I cannot get a direct consideration (sic) to the employment contributing to his condition.” He treated the plaintiff with one subacromial injection and one hydrodilation and noted that he was having ongoing physiotherapy. He stated “the prognosis of this condition is usually very good” and suggested that the plaintiff “attend work as much as possible.”[13]
[12]Plaintiff’s affidavit sworn 11 February 2016 (“the plaintiff’s second affidavit”), para 20, PCB 34
[13]PCB 120-121
21 The plaintiff was referred by his general practitioner, Dr Naing, to Mr Owen, orthopaedic surgeon, for a second opinion. In a report dated 13 July 2015, Mr Owen noted that the plaintiff had a very stiff shoulder with only less than half the normal range of external rotation, internal rotation a little better, but abduction limited to 45 degrees, as was forward flexion. Mr Owen was unable to achieve a clear passive range of movement. He considered that the plaintiff had significant rotator cuff pathology which was really part of the Chronic Regional Pain Syndrome affecting the left wrist and, noted that the plaintiff had said that his shoulder had been a little bit sore from the outset of the wrist injury. Mr Owen did not feel inclined to offer the plaintiff surgery but, rather, suggested ongoing conservative treatment by way of strengthening exercises and physiotherapy. He recorded that, to the plaintiff’s credit, he had worked very hard and had taken on a course in aged care and community care.[14]
[14] Report dated 13 July 2015, PCB 119
22 Mr Raleigh reviewed the plaintiff again on 1 October 2015. He had organised for the plaintiff to undergo a hydrodilatation, at Warrigal Hospital on 28 August 2015. He commented that, the plaintiff had mentioned to him, that it was very easy to pass 40 millilitres of fluid into the joint and the radiologist was surprised, meaning that this was not really a true capsulitis. Mr Raleigh was unable to explain why the plaintiff felt better, but did not consider surgery was warranted, whether he had mild capsulitis or not, and considered that he should continue with his pain management strategies.[15]
[15] Report dated 1 October 2015, PCB 123
23 The plaintiff states that, following the hydrodilatation procedure, he had a temporary increase of range of movement but, also, started to experience left trapezius and lower shoulder blade pain, which was a new pain and which has continued. He has required physiotherapy for this and is continuing to undergo hand therapy.[16] Also, he required support for his psychological distress. Most recently, on 6 November 2015, Dr Lee suggested a Ketamine infusion, which would require an admission of seven days at the Victorian Rehabilitation Centre. The plaintiff is still considering whether to take up that option as it would require being away from his daughter, who has Down’s Syndrome and requires considerable care. He continues to have hydrotherapy and to undertake home exercises regularly, he sees his general practitioner every two weeks and each day takes two Naproxen tablets of 500 milligrams and up to 8 Panadol for management of his pain,[17] Cymbalta 90 milligrams, and Nortriptyline 10 milligrams for his depressive symptoms and Pariet 20 milligrams to offset the side-effects of his medication. He sees his physiotherapist once per week and his hand therapist once per week and Dr Lee, his pain management specialist, every two or three months.
[16]Plaintiff’s second affidavit, para 26, PCB 35
[17]T55
24 The plaintiff states that, by reason of his injury, he has trouble using both hands and this affects his capacity to communicate with his daughter, as he and his wife are in the process of teaching her a modified version of hand sign language (Auslan) as a means of communication. He has trouble lifting his daughter and physically safeguarding her from harmful situations. He has limited capacity to cuddle her and requires home help for gardening and home maintenance tasks. Also, he relies upon a number of household aids, for example, a sticky mat-like aid which helps him to open the lids of bottles and jars with one hand; a pillow in the shape of a “7” that helps him to get his left shoulder/arm in a comfortable position in order to sleep; and a specially modified fork to enable him to eat using one hand, namely his uninjured right hand.[18] The plaintiff described the handle of the fork as being the size of the inner cardboard component of a toilet roll. The plaintiff says that he is unable to form a full fist with his left hand, and any sort of movement with the wrist and the thumb causes pain through that area.
[18]T59-60
25 The plaintiff continues his part time employment with ‘Simply Helping’ driving elderly or infirm clients to appointments or activities. He uses his own car, which is automatic, and which has a special device known as a ‘steering ball’ locked onto the steering wheel, as he is unable to use his left hand. That enables him to use his right hand to fully rotate the steering wheel. He states that he would be unable to operate a geared car because the movement and vibration associated with a manual gear shifter would cause pain in his left wrist and shoulder.[19] Whilst driving, the plaintiff does not use his injured upper left arm at all,[20] but rests it on a pillow which he moves from the console of the car onto his leg, as required, for comfort.[21] He states that his work usually involves short periods of driving and requires no manual handling. He states that he is able to manage 14 or 15 hours per week but, beyond that, he finds he is exhausted. He has, on occasions, worked six hours in one shift and has felt considerably disabled for a couple of days thereafter, and has only ever done this on two or three occasions. He considers that he would not be able to work more hours than he currently is working as he is liable to suffer exacerbations of pain in his shoulder and wrist. Effectively, he is working as a one-armed man and he states that remaining in the one position with his injured left arm in a static condition exacerbates the pain. For this reason, he generally has trouble driving for extended periods of time or sitting or standing for extended periods of time.
[19]T52-53
[20]T109-111
[21]T125
Analysis of evidence
26 I am satisfied on the balance of probabilities that, in the incident at work on 23 January 2013, the plaintiff struck his left hand on the underside of the tray of the truck and then landed heavily and awkwardly on his outstretched left arm. This caused a traumatic injury to his left wrist. Ultimately, this was demonstrated on the MRI scan taken on 16 April 2013 to be a focal partial thickness tear/split in the extensor pollicis brevis (“EPB”) tendon at the level of the radial styloid process. This injury necessitated operative decompression and release of the first dorsal compartment of the left wrist on 3 June 2013 by Mr Maloney. I have previously referred to the operative findings of Mr Maloney and the significant scarring and ongoing weakness and sensitivity in the plaintiff’s wrist following surgery.
27 The plaintiff has continued to suffer hypersensitivity and ongoing pain in the wrist area. I am satisfied that, now, over three years since suffering the wrist injury, his pain and restriction of movement in the wrist is ongoing and stable. He has worn a splint on his left wrist/forearm area since the incident in January 2013, undergone an ultra-sound guided cortisone injection into the wrist, decompressive surgery and a host of conservative treatments by way of hand therapy, physiotherapy, hydrotherapy and home exercises. The defendants acknowledged that the plaintiff’s wrist condition had stabilised and had given rise to a permanent impairment by conceding immediately before this trial began, that it is an injury with pain and suffering consequences which are serious.
28 The plaintiff demonstrated in the witness box that he had limitation of flexion, extension, lateral movement of the hand and rotation, and described ongoing pain, which has necessitated the defendants supplying several aids for him to use at home, as well as home maintenance/gardening help and the ‘steering ball’ modification to the steering wheel of his automatic vehicle.
29 I have no hesitation in accepting the plaintiff’s evidence that he continues to suffer from the pain in his wrist area which he described, and for which he has required analgesic and anti-inflammatory medication and multiple physical therapies on a regular basis over the three years to date and on an ongoing basis. I accept that at the time of hearing this application, he is unable to fully make a fist and the injury prevents the fine pincer movement which is necessary in order to do up buttons, shoe laces and zips.
30 The extent of the plaintiff’s pain and limitation of movement of his wrist was not seriously challenged under cross-examination by Mr Middleton, of Senior Counsel for the defendants, save for putting to the plaintiff that, in June 2015, Mr Hooper, who examined him on behalf of the defendant, had found that the plaintiff had a full range of passive movement of his fingers and wrist. The plaintiff disagreed that Mr Hooper was correct in this regard. He stated that, since the surgery on his wrist, all the therapy that he had undertaken had enabled him to make “a little step forward” with finger movements, but that his forearm, hand and wrist are “functionally useless”.[22] I here note that I viewed the plaintiff’s hands in the course of the trial, and to my observation the plaintiff’s left hand looked somewhat swollen and of a paler, mottled colour compared to his uninjured right hand – a factor which had been noted by many doctors on examination over several years. Further, Mr Stapleton, specialist hand surgeon, had noted on 19 August 2014 that his left wrist movements were very restricted and that his injury “has had a profound effect on his social, domestic and recreational activities”.[23] I thus, find it likely that Mr Hooper is incorrect in stating that the plaintiff had a full range of passive movement of the fingers/wrist. In this context I note that Mr Hooper found that the skin of the plaintiffs’ left hand was soft and clearly had not been used, and his hand was sweaty. Indeed, he had recorded that the plaintiff had said that “he cannot make a fist, it is painful”.[24] Further, a report of the plaintiff’s treating hand therapist (which is undated but apparently written after 30 July 2014, as that is the date of one of the documents contained in the appendix to the report) had carefully documented reduced forearm and wrist movement, finger and thumb movements and very severely limited grip movements of the left hand compared with the right.[25]
[22]T108–11
[23]PCB 134-135
[24]PCB 172
[25]PCB 62-66
31 I accept the plaintiff’s history given to various doctors and his evidence that, shortly after the injury to his left wrist, he began to experience some pain in his left shoulder, but by May 2014 it had worsened.[26] I am satisfied on the balance of probabilities that the injury to the plaintiff’s left wrist and, in particular, the immobilisation associated with that injury over many months was a cause of pain developing in his left shoulder. Initially, this was diagnosed on ultrasound in May 2014 as bursitis, with bursal impingement,[27] consistent with the development of a Complex Regional Pain Syndrome. Ultimately tears of the rotator cuff and tendinosis were demonstrated on the MRI scan taken on 15 April 2015, which was reported upon on 17 April 2015.[28]
[26]Dr Naing’s report dated 29 July 2014 at PCB 80, Mr Owen PPC 119, Dr Lee PCB 98 and 104; Ms Kelly PCB 65, Dr Baynes DCB 11, Dr Brown DCB 19
[27]PCB 49-50
[28]PCB 51
32 The preponderance of medical opinion supports the nexus between the left wrist injury and the shoulder injury. A somewhat different view is expressed by Dr Baynes, specialist in occupational medicine, who examined the plaintiff on behalf of the defendant. In his report dated 6 November 2014, he stated: “I believe the left shoulder pathology is likely to have been secondary to the claimed left hand and wrist injury. I believe this is likely due to the impaired movement and protection of the left wrist and hand with the long term wearing on a splint.”[29] At that stage, Dr Baynes thought that the plaintiff had development mild symptoms of a complex Regional Pain Syndrome, as well as bursitis with some impingement of the left shoulder. However, after later receiving a copy of the report dated 17 April 2015 of the MRI scan taken on 15 April 2015, he changed his opinion. He stated that, this more extensive pathology was more likely to be related to trauma to the shoulder as a significant event or to repetitive forceful actions across the shoulder joint, especially overhead activities. He suggested a previous shoulder injury.[30] However, he is alone in his opinion suggesting that the only nexus between the wrist and the shoulder is the tendinosis and that there is no association between the left wrist injury and the “ongoing severe tendinosis in association with the SLAP tear.”[31]
[29]DCB 13
[30]DCB 17
[31]Dr Baynes’ report dated 11 June 2015, DCB 17
33 I prefer the many other opinions which support the shoulder condition at large as being a consequence of the pain and restriction of movement of the left wrist, particularly as there is no evidence, at all, of a discrete shoulder injury. Indeed, Dr Baynes noted that the plaintiff’s general practitioner, Dr Naing, had ruled out a past shoulder dislocation. Further, in the course of final submissions, Mr Middleton made no mention of this particular aspect of Dr Baynes’ opinion. Rather, he focussed upon what he submitted were the minimal symptoms and limitations in the plaintiff’s shoulder. Mr Middleton did not submit that there was no evidence upon which the Court could find that the shoulder injury was a consequence of the wrist injury and, in particular the impaired movement and protection of the left wrist and hand following such injury. I am satisfied on the balance of probabilities that the symptoms and limitations of movement in the plaintiff’s left shoulder are direct consequences of the injury to his left wrist and that the impairment consequences of injury which need to be evaluated for the purpose of this application include those to both the wrist and shoulder.
34 As previously mentioned, the essential issues between the parties relate to whether the plaintiff’s injury has stabilised, so that it can be said that he now suffers a permanent impairment and, if so, whether the consequences of that impairment are serious in relation to his loss of earning capacity.
35 The plaintiff’s case is that the plaintiff should be accepted as a witness of credit who has a clear organic basis for the symptoms and restrictions which he describes without exaggeration. Mr Moore, of Senior Counsel for the plaintiff, submitted that the evidence demonstrates that, at all times, the plaintiff has cooperated with advice, recommendations and directions for his medical treatment and rehabilitation but, nevertheless has pain and restriction of movement in his left upper limb which essentially reduce him to being a one-armed man for work purposes. Mr Moore submitted that the plaintiff should be accepted as working to his maximum capacity in his carer’s job and there is no sound basis for expecting that there will be further improvement, now, over three years since the injury. He submitted that this is particularly so in the light of the plaintiff requiring ongoing hand therapy, physiotherapy, hydrotherapy and medication in order to maintain the function of his left upper limb so as to be able to work up to 15 hours per week as he is currently doing.
36 It is agreed between the parties that the plaintiff’s pre-injury earnings were $1,195.50 per week.[32] Sixty per cent of this figure is $717.30 per week. Mr Moore submitted that, given that the plaintiff’s current average earnings are $320 per week, it is fanciful and contrary to the evidence to suggest that in the foreseeable future, the plaintiff will somehow manage to more than double his current earning capacity to achieve earnings of $717.30 per week or more and, thus, not satisfy the test of 40 per cent loss of earning capacity.
[32]T37 L17-24
37 Mr Middleton, on behalf of the defendants, particularly relied upon the opinions of Mr Ireland, Dr Baynes and Dr Brown, all of whom had examined the plaintiff on behalf of the defendant. He submitted that the Court should be satisfied that the plaintiff is likely to improve his work capacity from that which he currently demonstrates, so that the Court cannot be satisfied that any impairment to the plaintiff’s work capacity is permanent. He submitted, also, that the plaintiff should not be accepted as to the nature and extent of his current pain and limitation of movement. In effect, Mr Middleton submitted that the plaintiff was exaggerating the impact of his injuries to some extent,[33] that he could be working more hours in his current job as a carer, and the Court should accept that he has a work capacity for the positions of security control room monitor, gatehouse security and mobile camera operator, as well as his carer’s job. Thus, Mr Middleton submitted that, even if the Court is satisfied that the impairment to the plaintiff’s left upper limb is permanent, he has not satisfied the Court that he currently suffers a loss of earning capacity of 40 per cent or more of his pre-injury earnings.
[33]T226-231
The plaintiff’s credit
38 In cross-examination of the plaintiff, Mr Middleton had put to the plaintiff such findings as that of Mr Hooper about the plaintiff having a full passive range of motion of the fingers and wrist, but being reluctant to put his hands through a full range of motion because of discomfort.[34] However, it was never fairly and squarely put to the plaintiff that he actually was exaggerating his symptoms. This attack came only in Mr Middleton’s final submissions. This is not a case where the defendants produced surveillance material showing that the plaintiff could perform actions with either his left hand or shoulder, or left upper limb generally, which he claimed not to be able to do. Indeed, the defendant has conceded that he has an impairment to his left upper limb with pain and suffering consequences which are serious. Further, Mr Middleton stated in response to a question from me that this concession by the defendants “probably reflects what is in the affidavit when (the plaintiff) talks about consequences”.[35] Notwithstanding this, Mr Middleton submitted that the plaintiff’s evidence about the consequences was not supported by the doctors.
[34]PCB 172
[35]T232
39 Mr Middleton placed significant reliance upon the opinion of Mr Ireland, expressed in his report dated 9 December 2014 that “It is probable that the worker has developed a mild (Mr Middleton’s emphasis) degree of adhesive capsulitis and subacromial bursitis at the left shoulder, following immobilisation caused by the left hand symptoms”.[36] Further, that “It is realistic to expect that eventually Mr Phillips will be able to return to work as a truck driver. I do not imagine that this will occur before 18 months”.[37]
[36]DCB 6
[37]DCB 7
40 Mr Ireland’s opinion is now 14 months old. Obviously he is not aware of the worsening of the plaintiff’s shoulder condition and the substantial organic pathology by way of multiple tears revealed in the ultrasound taken on 15 April 2015 subsequent to his examination of the plaintiff. Nor could he be aware that such worsening has necessitated treatment by way of two further sub-acromial steroid injections,[38] two pain management rehabilitation programs (in February and July 2015) and two hydrodilatation procedures.[39] Thus, Mr Ireland’s opinion that the plaintiff suffered mild capsulitis and bursitis (which relied upon the pathology of the shoulder as demonstrated in the May 2014 ultrasound, presumably confirmed upon examination) is not an up-to-date and informed opinion and, for that reason, I accord it little weight.
[38]These were administered in January 2015 by the plaintiffs treating general practitioner, Dr Naing (PCB 87) and in May 2015 by Mr Raleigh (PCB 121)
[39]These were performed by Mr Raleigh in May 2015 (PCB 121) and at Warrigal Hospital by a radiologist in August 2015 (PCB 123)
41 As far as the wrist is concerned, Mr Ireland had noted increased perspiration in the palm of the hand, which had a mottled, white appearance compared with the right hand, that it was too tender to undertake a Finkelstein’s test, which he suspected would have been positive, and that the plaintiff was not able to oppose the thumb past the right finger due to pain over the dorsal and radial aspect of the wrist.[40] Most importantly, he considered that the plaintiff’s presentation had an organic basis and there was no indication of any significant non-physical component to the plaintiff’s symptom complex.[41]
[40]DCB 4-5
[41]DCB 6-7
42 Mr Ireland’s prognosis was based on “the natural history of Complex Regional Pain Syndrome (which) is spontaneous resolution over a period of time, this may take another 12 to 18 months.” It is not based on the plaintiff’s actual condition, which subsequent to Mr Ireland’s examination, has clearly not followed such “natural history”. At best, Mr Ireland expresses a hope that the plaintiff might return to truck driving work, but he is clearly unaware that, since his examination, Vic Roads have indicated that the plaintiff is precluded from carrying out such work in the modified manner proposed by the defendants. Moreover, Mr Ireland did not address how the plaintiff could be expected to drive a truck, given that he needs a steering knob to be able to manage to drive his own automatic sedan and cannot use a fork with his injured hand, and has difficulty doing up his shoelaces and looking after his 17 month old baby.[42] To submit, as the defendants have done, that Mr Ireland’s opinion is authority for the proposition that the plaintiff’s injury has not stabilised is a flawed submission.
[42]DCB 3-4
43 The defendants also relied heavily on the opinion of Dr Baynes in support of their contentions. It is plain that Dr Baynes’ first report dated 6 November 2014[43] focusses upon the plaintiff’s wrist injury, but not the full extent of his shoulder injury, in the sense that he, too, at that stage was only aware of the ultrasound of May 2014 demonstrating bursitis, but not the subsequent MRI scan examination showing multiple tears and other pathology. Dr Baynes makes only a passing reference to the plaintiff’s complaints relating to his shoulder in a couple of sentences[44] and specifically states that no rotator cuff pathology was seen on the ultrasound. Such pathology was, in fact, later demonstrated on the MRI scan. It is unhelpful to rely upon this report referring to mild (Mr Middleton’s emphasis) symptoms of Complex Regional Pain Syndrome and bursitis with some impingement of the left shoulder when Dr Baynes’ opinion is not based on the full extent of investigations and treatment of the plaintiff’s injuries to date. Dr Baynes thought that there might be ongoing improvement, albeit slow, but his prognosis was still guarded.[45] It is important to note that, as with Mr Ireland, he believed the plaintiff’s pain did have an organic physical basis and there did not appear to be any abnormal illness behaviours or inconsistencies on examination.[46]
[43]DCB 10 and following
[44]DCB 11
[45]DCB 14
[46]DCB 14
44 In these circumstances, Dr Baynes’ opinion concerning the plaintiff’s work capacity of undertaking alternative duties where there is no greater lifting than 10 kilograms and no lifting above shoulder height and no forceful pushing or pulling, such that he “should use the left wrist in a neutral position and there should not be repetitive forceful gripping with the left wrist and is fit for pre-injury hours (that is full time)” albeit not at that stage for work as a truck driver,[47] must be seen as an opinion which is given without being appraised of all of the relevant pathology, symptoms and treatment up to the present time. It is difficult to understand how Dr Baynes expressed that the plaintiff “may well” be able to return to return to employment as a truck driver with an automatic transmission, albeit it that it may be six to 12 months away, when he is aware that, in order to drive his own car, it must have power steering, be automatic and have a special spinner knob attached to the steering wheel.[48]
[47]DCB 15
[48]DCB 12
45 It is of significance that in his subsequent report dated 11 June 2015, by which time Dr Baynes was aware of the MRI scan showing more extensive pathology than on the original ultrasound, he simply expressed the view that the clinical findings would be consistent with the newly reported pathology with a clinical history of ongoing shoulder pain, restriction of movement and, on examination, limited range of movement,[49] but he made no assessment at all of the plaintiff’s work capacity at that time. As stated previously, I do not accept Dr Baynes’ view that there is no association between the plaintiff’s wrist injury and the severe tendinosis and SLAP tear in his shoulder demonstrated on the April 2015 MRI scan.
[49]DCB 17
46 Given that, like Mr Ireland, Dr Baynes states that the clinical findings in terms of pain and restriction of movement of the shoulder are consistent and that there is an organic basis for the plaintiff’s complaints and that he appears highly motivated to return to work in a suitable environment, it is difficult for me to understand how the defendants rely upon these reports to support a contention that the plaintiff is exaggerating his injury.
47 The defendants also relied upon the opinion of Dr Brown, occupational physician. In a report dated 5 January 2016, Dr Brown opined that, as at the date of his examination on 5 January 2016, the plaintiff did not have the capacity to work safely as a truck driver, or to do the full range of tasks in the job described as “security officer-Peninsular”, or to do personal care work or community support work due to the physical aspects involved, particularly working with disabled individuals. However, Dr Brown stated that the plaintiff did have a capacity to work in a security control room on a full time basis and as a maritime security guard[50] and control room operator, as well as the capacity to do gatehouse security work and work as a mobile speed camera operator.
[50]The defendants did not rely upon the job of maritime guard as constituting “suitable employment”.
48 Although I do not doubt that Dr Brown endeavoured to do his best to assess the plaintiff’s work capacity, his report reveals that he had very limited documentation available to him, namely, the vocational assessment report by Ms Bryan dated 15 October 2015,[51] and a work site assessment report dated 1 May 2015.[52] In particular, it appears that Dr Brown was not provided with any reports from the plaintiff’s treating doctors. Thus, he opines that he cannot understand why the plaintiff has ongoing symptomatology in his left wrist, when it is apparent that all his treating doctors consider that, following the organic injury he has developed a Chronic Pain Syndrome. Moreover, Dr Brown seems to have relied upon an ultrasound of the left wrist taken on 26 November 2013 as having been reported as normal, whereas an MRI scan of the wrist reported on 16 April 2013 did show a focal partial thickness tear/split of the extensor pollicis brevis tendon, at the level of the radial styloid process.[53] Dr Brown also relied upon the plaintiff advising that he thought that radiology of the left shoulder showed bursitis and possibly a rotator cuff tear. However, it is obvious that Dr Brown did not have the MRI scan of the shoulder taken on 15 April 2015 which revealed extensive pathology by way of multiple tears in the rotator cuff.
[51]DCB 22-65
[52]The identity and contents of this document have not been made clear to the court. Although some documents which form part of section 4 of Ms Bryant’s report bear the words “Worksite Assessment” on their heading, no assessment report dated 1 May 2015 is evident.
[53]PCB 47
49 Further, on page 2 of his report,[54] Dr Brown listed the plaintiff’s physical limitations. These included difficulty doing up shoelaces, trouble with buttons, inability to reach up and wash his hair, inability to make a full fist or grip items with the left hand and inability to drive his car other than by wearing his left wrist brace (Dr Brown was unaware of the special steering knob which enabled the plaintiff to drive without using his left hand at all) and inability to eat using the left hand. Having noted such limitations, Dr Brown did not engage in any analysis as to how such limitations would impact upon the plaintiffs capacity to successfully work full time in a security control room, or as a gatehouse security guard, or as the operator of a mobile speed camera. He simply makes one-line assertions that the plaintiff is able to do these tasks, without any explanatory reasoning and, as I have commented, without being aware of the current status of the plaintiff’s shoulder injury. It is noteworthy that he does say that the prognosis appears to be quite guarded, with little prospect for significant improvement in his functional capacity in the near future. This prognosis is at odds with the defendants’ assertion that the plaintiff’s condition has not stabilised.[55] Indeed, Dr Brown had earlier commented in his report, “His situation appears reasonably stable at present although he does get some short term benefit from hand therapy.”[56] Further, although Dr Brown noted that the plaintiff was having weekly hand therapy and that he was taking medication by way of Naprosyn and paracetamol, as well as Nortriptyline at night and the anti-depressant, Cymbalta, he does not seem to be aware of the full extent of the medication taken. In particular, it is not evident that he knows that the plaintiff regularly takes the maximum advised dosage of 8 Panadol per day (and never less than 6 per day), as well as 1,000 mg of the anti-inflammatory Naprosyn, as well as requiring further medication, Nexium, each day to combat the adverse effects of the anti-inflammatory medication.[57]
[54]DCB 19
[55]DCB 20
[56]DCB 19
[57]T63-64
50 Dr Brown commented that the plaintiff had made significant efforts to retrain and obtain new work.[58] These comments accord with the comments of both Mr Ireland[59] and Dr Baynes[60] that the plaintiff is well motivated. The comment of Dr Brown that the plaintiff’s personal situation of having to care for his young daughter may be (my emphasis) affecting his motivation for full time employment, in my view, is gratuitous and without any basis. The plaintiff’s evidence is clear that, although he shares the care of his young daughter who has Down’s Syndrome, his wife is her principal carer. Indeed, in his affidavits, histories given to doctors and his oral evidence, the plaintiff elaborated upon the difficulties which he has in such things as lifting his daughter or, more recently, performing Auslan sign language to assist her in communicating, to which I have previously referred.
[58]DCB 21
[59]DCB 8. Indeed, Mr Ireland noted that as at December 2014, the plaintiff had completed his TAFE course in aged care, even though, at that stage, he did not have the physical capacity to undertake that form of work.
[60]DCB 15
51 In short, I do not regard Dr Brown’s opinion as a foundation for the arguments advanced by the defendant and, in particular, it does not support the submission of Mr Middleton that the plaintiff is exaggerating his symptoms. Dr Brown documented that, on examination, the range of movement of the thumb, metacarpophalangeal joint was markedly reduced on both and active and passive movement. He also documented restrictions on extension, flexion, abduction and external rotation of the left shoulder and noted that supraspinatus testing caused left shoulder pain.[61]
[61]DCB 19-20
Conclusions
52 The vocational assessment report by Ms Bryant, relied upon by the defendants in support of the contention that the plaintiff is fit for suitable employment is some 42 pages in length. It purports to analyse in some depth the plaintiff’s qualifications, work experience, limitations resulting from his injuries and explore his suitability for the positions which the defendants submit constitute suitable employment for the plaintiff, quite apart from his current carer’s position.
53 I must say that I find the tone of Ms Bryant’s report somewhat adversarial, rather than being a measured independent assessment. For example, the author states:
“I am confident that he has a capacity to work longer hours, within his restrictions. His reluctance to increase his current hours seems to be related to his multiple commitments arising from treatment of his injuries and pursuing his claims.
His parenting responsibilities, particularly in relation to his young daughter, may also have some impact on his hours of availability for full time work. His interest in applying for the disability support pension, possibly suggests a diminished interest in full time work.”[62]
[62]DCB 33
54 These comments are gratuitous and without foundation. Further, in expressing her confidence that the plaintiff has a capacity to work longer hours within his restrictions, she does not address the restrictions in any meaningful way, save for stating, for example:
“I have personally observed and interviewed a Control Room Monitor and can categorically confirm that the physical demands of this job are sedentary and comply in full with the medical restrictions provided in the medical opinion, including that of Mr Phillips’ treating GP, Dr Naing.”[63]
[63]DCB 35
55 The report of Dr Naing which most recently preceded Ms Bryant’s report dated 15 October 2015, is that authored by Dr Naing on 2 July 2015, in which he states as follows:
“Current work capacity
He is currently able to work with the modified duties as follows:
- light duties
- no driving trucks
- no lifting more than 5 kg
- rest break as needed
- medical review is worse
- fit for retraining and attending courses, attending interviews.”
56 Dr Naing went on to note that the plaintiff was currently working as a part time/casual patient transport driver and, although he thought it very unlikely that the plaintiff would be able to return to pre-injury truck driving duties, he thought that his work capacity would improve if he received ongoing hand therapy and pain management and appropriate review and treatment for his left shoulder pain.[64]
[64]Plaintiff’s Court Book (“PCB”) 90
57 Ms Bryant does not address the issue of whether the plaintiff could take rest breaks as needed if he were to be employed as a Control Room Monitor. She obviously has no material from any doctors subsequent to the date of her report, 15 October 2015. Only four days after Ms Bryant’s report, Dr Naing wrote to WorkCover on 19 October 2015 stating:
“Due to ongoing pain and dysfunction of the left arm, he has not been able to do lawn mowing at home. It will be beneficial for him to be provided help for this purpose.
This is to support his application to arrange law (sic) mowing and home help.”[65]
[65]PCB 93
58 Subsequent to that request, Dr Naing provided his most recent report dated 25 January 2016. In that report, Dr Naing noted that the plaintiff maintained his willingness to work and was currently performing 14 hours per week as a personal carer/driver for “Simply Helping”. However, the plaintiff’s endurance, concentration and motivation was being greatly affected by his complex chronic pain, even though he had been trying hard to overcome his symptoms in order to maintain his current hours of work. He considered that the plaintiff’s improvement in pain and stiffness had seemed to reach a plateau, despite multidisciplinary treatment. He stated:
“There can be more improvement in the future but not in the short to medium term. The long term prognosis is also guarded. I believe he will continue to struggle physically and mentally due to his chronic pain and depression.”
59 He repeated the opinion he had expressed in his previous report of 2 July 2015 concerning the plaintiff’s partial capacity for modified light duties and noted that there could be a gradual increase in hours “as tolerated in long term”. He considered that the plaintiff had reached the maximum of his work capacity in terms of hours “for short to medium term of next 12 months”. He looked at the four positions which had been identified in Ms Bryant’s report, namely control room monitor (security), security guard (gatehouse patrol office), home care worker and mobile safety camera operator. He went on to state that, as the general practitioner of Mr Phillips, he had concerns that the two occupations in the security sector may require complex hand function to use multiple pieces of equipment and physical demands dealing with a wide range of unpredictable physical confrontational situations where his left arm injury may be a prohibiting factor and, also mental demands, where stress and pressure can be unpredictable. He was uncertain that Mr Phillips had the physical and mental capacity to deal with unpredictable, sometimes heated, situations.[66] Although it would appear that Dr Naing may have incorrectly assumed that there was a greater potential for physical confrontation in the security jobs than is the case, I consider, after hearing the plaintiff’s concerns about potential for confrontation in the mobile camera operator’s job, that that is a legitimate concern. I also consider that Dr Naing was justified in his concerns about the extent to which the plaintiff would need to use both hands in each of the security jobs and the camera operator job. I make it plain that I find that the plaintiff’s physical restrictions are what creates the difficulty for the plaintiff in successfully performing these tasks.
[66]PCB 93b – 93c
60 Under cross-examination, the plaintiff was taken in detail to each of the proposed suitable employment jobs. Currently he works up to 15 hours per week and does a maximum of six hours on any one day. His work is usually spread over three days, but the days on which he is required to work vary. In the past he had worked three days in a row and found that, when he had worked four or five hours on one day, then he had reduced capacity on the two following days. The most that he had ever managed on consecutive days was 2 ½ hours. He stated that he would like to increase his hours but has constant pain in both his shoulder and wrist, regardless of whether he is sitting or standing, and he needs to try and move around to alleviate some of the pain and he gets so sore daily that he cannot use his left upper limb. In my view, the criticism made by Mr Middleton of the plaintiff’s claim that he needs to move around because his arm pain is exacerbated by a static position is unwarranted. There is a very common theme in the medical reports that the plaintiff needs to be encouraged to move his arm. Indeed WorkCover continues to fund remedial hand therapy, hydrotherapy, physiotherapy and a gym program for him. It seems to me that the regular nature of this therapy is fundamental to preserving what function the plaintiff does have in his left upper limb. Even Mr Hooper does not suggest that these therapies are inappropriate, although he considers that the plaintiff should not continue to use his wrist splint.
61 The plaintiff stated that, although he was trained for work in control rooms, his work experience was limited to being a camera operator and taking inbound out outbound calls. He was never smart enough to be able to manage the multitasking that was involved in other roles in the control room. His role as a camera operator involved monitoring camera footage, making sure cameras were operational and checking why a certain alarm may have gone off. However, the other control room job, which was that suggested in Ms Bryant’s report, would require a control room operator to be seated there and not walk around or take breaks, and he could not manage to have his left arm in a static position for any period of time because this increased his pain. The plaintiff went into some detail about the control room workstation depicted in Ms Bryant’s report and noted that he would not be able to do that job because it involved using both hands. He stated that, in that job, the operator had to watch screens, respond to alarms, be in contact with police or ambulance, in contact with patrol guards to send them where alarms had gone off and enter client data into computers or manually record same. He stated that the operator could be on the phone using one hand, whilst having to write down details with the other hand.
62 As far as the gatehouse security work was concerned, the plaintiff believed that he could not now perform that work because, it too, involved using two hands for various tasks, as had been the case when he worked for ASSA Abloy. For example, he would have to be holding a torch while opening a lock with a key, or carrying a clipboard as well as using a two-way radio.
63 As far as the mobile camera operator job was concerned, the plaintiff considered that he would not be able to perform such a role as he would require two hands in order to set up the equipment before commencing to operate it. Further, he would not be able to take a break for 15 minutes in order to walk or stretch if he was in pain and, typically, he would need to do this about five or six times per day. Further, if a driver whom he had captured on a mobile speed camera were to approach him in an angry or upset manner, he would not be able to jump from the passenger seat of the vehicle (where he would have been operating the camera) into the driver’s seat in order to escape from a potentially confrontational situation.
64 I found the plaintiff to be an honest witness. I accept the reasons he gave for not being able to perform the various jobs suggested as suitable employment or to increase his hours in his current job as being genuine and realistic. He has cooperated fully with treatment and rehabilitation offered to him and there are many references in the medical reports to him being well motivated to work. There is a sound organic basis for both his wrist and shoulder pain and, three years after the injury, the plaintiff is still heavily reliant on analgesic and anti-inflammatory medication and physiotherapy and hand therapy. My overwhelming impression from the medical evidence is that the plaintiff is effectively reduced to working as a one-handed person. A human being, by nature, is two-handed. The plaintiff is a person who, by virtue of his qualifications and experience, is reliant upon his manual skills to earn a living. For him to have effectively lost the use of one upper limb is a very major impediment. He has had surgery to the left wrist and has been shown to have developed an intractable Chronic Pain Syndrome which has been resistant to a variety of treatment modalities, including several corticosteroid injections and two hydro-dilatation procedures. Ms Bryant in her vocational assessment report seems to not really appreciate the full extent of the plaintiff’s limitations in work which requires the use of both hands and, hence, how those limitations would impact upon his capacity to do the tasks that she has recommended as suitable employment. She does not even appear to have asked the plaintiff how he thought he would manage any of the positions.
65 Passages in medical reports relied upon by the defendants in support of the contention that the plaintiff’s work capacity has not stabilised, in my view, amount, at most, to a hope (my emphasis) that at some point in the future there will be improvement, rather than pointing to any progress which the plaintiff has made to date (either in achieving reduced symptoms or increased function of his wrist or shoulder) which might provide basis for optimism in the future:
· I have already referred to the evidence of the plaintiff’s treating general practitioner, Dr Naing, and the defendant’s medico-legal experts, Mr Ireland, Dr Baynes and Dr Brown.
· His hand therapist, Ms Kelly (or one of her fellow hand-therapists), in a report which is undated (and may well be as old as just after 30 July 2014), notes that the plaintiff is then undertaking his home and community care course and expresses the view that he would be able to manage the duties required for employment in this industry. There is no suggestion that Ms Kelly, or whoever has authored the report, that this should be full time work, and she notes that the plaintiff would struggle to perform any tasks that require heavy lifting or repetitive gripping or pulling.[67] This opinion is out of date in that the plaintiff has since undergone the April 2015 MRI scan, which shows extensive pathology in the shoulder and, also, undergone a steroid injection in or about July 2015 and a hydro-dilatation procedure on the left shoulder on 28 August 2015. Further, he has been working in his part time carer’s job since April 2015 and, nearly one year later, despite good motivation, has not managed to increase his hours beyond an average of 14 or 15 hours per week.
[67]PCB 71
· Mr Maloney’s opinion is also out of date (2014) and is unhelpful in that it simply speaks about the plaintiff having a capacity to work in a different role from his pre-injury duties, without descending to any detail about the nature of such work or what hours might be possible.
· Mr Raleigh, in his report dated 17 August 2015, simply suggested that the plaintiff “attend work as much as possible”, which is a very unclear statement in that it does not say what sort of work he should undertake and what is meant by “as possible”. Presumably, he meant to the extent of the plaintiffs tolerance short of aggravating her injury.
· Mr Ireland expressed no opinion about work capacity, except that the plaintiff appeared to be motivated.
· Mr Stapleton, whose report is also outdated (2014), advocated aggressive exercise, but simply stated that the plaintiff was a long way from being able to return to truck driving, and that an aged care facility would be ideal for him if he could have his hand splinted. This, of course, takes no account of the plaintiff’s shoulder injury.
· Mr Blomberry “hoped” (my emphasis) that there will be some improvement with pain management and that “that he could undertake suitable employment with only limited use of the left arm on reduced hours in some alternative area” (my emphasis). Dr Blomberry’s opinion is also outdated (2014).
· The medico‑legal opinion from Mr Kossmann, dated 25 June 2015, does not assist very much, in that he states that the plaintiff’s prognosis is guarded in that he currently suffers from a Chronic Regional Pain Syndrome and the course is variable. He states: “It is possible (my emphasis) that he will recover over the next year or two or potentially his pain syndrome could worsen. It is unclear which of these outcomes will occur.” He went on to state that the casual capacity in which the plaintiff now works in aged care seemed to be a suitable type of employment and concluded by saying:
“It is possible that with recovery he will regain the ability to perform some of the activities which he is currently restricted from, however this is by no means certain. It is possible that his current restrictions will last for the foreseeable future.”[68]
[68]PCB 149 – 150
· Dr Kennedy, in January 2016, opined that the plaintiff was fit to engage in his 15 hours of work as an aged carer and community carer. He noted that he had significant restrictions with respect to the functioning of his left upper extremities and “may” (my emphasis) be able to increase his work hours as a carer depending upon the nature of the work activities. He noted that it would be necessary for the plaintiff to avoid strenuous and repetitive use of his left upper extremity and any return to work program had to be rigorously adhered to and coordinated by his general practitioner, pain management specialist and orthopaedic specialist. He considered he would have great difficulty working full time as a control room monitor, home care worker, security guard (gatehouse/patrol officer) and mobile safety camera operator.[69]
· Mr Hooper, in June 2015, thought the prognosis for the plaintiff’s shoulder was uncertain, that it was commendable that he was doing limited work of 15 hours per week in aged care and that he should be encouraged to use his left arm/shoulder as much as he could while doing this type of work, but did not make any comment about increasing his number of hours.
[69]PCB 157 – 158
66 The plaintiff’s physiotherapist, Mr Elton, gives the most optimistic prognosis.. In a report dated 11 August 2015, he stated: “Luke’s shoulder prognosis is currently unknown due to the severity of his presenting symptoms. A current goal (my emphasis) for Luke is to be able to return to pre-injury work hours and duties in nine to 12 months.” He goes on to refer to suggested treatment and states: “This will help progress Luke’s functional work capacity and progress him towards a return to full work duties and hours.” He then goes on to list restrictions in the plaintiff’s use of his shoulder and wrist, which are similar to those placed upon the plaintiff’s work by his treating general practitioner. However, his more recent report, dated 12 February 2016, although continuing to speak about progressing the plaintiff towards a return to full work duties and hours, does not repeat the timeframe of nine to 12 months mentioned in his earlier report.[70] Again, this seems to me to be a hope, rather than based on evidence of any improvement by the plaintiff and Mr Elton does not specify the nature of any suitable employment. Given the plaintiff’s current complaints as detailed in the plaintiff’s second affidavit (which were not challenged in cross examination) and, also, as listed in the recent report of Dr Kennedy dated 18 January 2016,[71] it is not at all clear to me how Mr Elton envisages the plaintiff increasing his capacity to full-time work duties and hours. His hope is not premised on any factual basis and no reasons for such hope are provided.
[70]PCB 113 – 114 and 114b
[71]PCB 155
67 As the plaintiff is a well-motived person, he may manage to increase the hours that he is able to work beyond the 14 to 15 hours that he currently works. However, at best this is a “maybe” and any increase is likely to be minimal, in my view. I am satisfied that the plaintiff has tried very hard to get back into the workforce, that he is prone to flare-ups of pain and that his work history (with diminution of capacity when has tried to work consecutive days), demonstrates that he is likely to be an unreliable employee in that he could not consistently turn up to work as expected.
68 At the present time, the plaintiff manages to pace himself whilst waiting around for his disabled clients to finish their appointment or the activity to which he has driven them. It is my considered conclusion that, in order for the plaintiff achieve a work capacity which represents 60 per cent or more of his pre-injury capacity, he would need to find an extraordinarily sympathetic employer who is prepared to be tolerant of the plaintiff not being able to turn up at times when he is required, or not being able to work for as long as he is required on any one day. Such an employer, also, would need to be tolerant of the plaintiff working at his own pace when he did turn up to work and taking rest breaks as required. I find that the plaintiff is unlikely in the foreseeable future to be able to increase his work capacity to anywhere near 60 per cent of a full time workload. This would require him to be able to work consistently for at least, double the number of hours that he currently manages following three years of intensive treatment and rehabilitation and laudable persistence and motivation. In my view, the evidence falls a long way short of justifying that as a likely scenario.
69 The preponderance of evidence from the plaintiff’s treating medical practitioners paints a picture of a guarded prognosis which, at its highest, seems to amount to a possibility that he might gradually increase his hours subject to tolerance. I have formed the view that, the length of his enduring symptoms to date and the lack of evidence about any improvement of great substance despite very significant and multiple treatments, means that the plaintiff is really a one-armed worker whose capacity to work is stymied by pain, the need to change position of his arm and very obvious physical restrictions in such basis human functions as gripping and lifting.
70 In my assessment it is appropriate to regard his condition as having stabilised, given the very substantial amount of treatment that he has had and the fact that his improvement, appears to have plateaued. Thus, while it is possible that the plaintiff may, in time, manage to work a few extra hours per week beyond the 14 or 15 hours which he averages at present, I find that it is highly unlikely that at any stage in the foreseeable future he will manage to cope with working consistently to achieve 60 per cent or more of his pre-injury work capacity.
71 Accordingly, I am satisfied that the plaintiff does have a permanent impairment of his work capacity by reason of his wrist injury and the directly consequential shoulder injury and that that permanent impairment has led to a loss of earning capacity of 40 per cent or more pursuant to the provisions of s134AB(38)(e)(ii).
72 By reason of the foregoing, the plaintiff has succeeded in his application and leave is granted for him to bring proceedings to recover damages for loss of earning capacity relating to the injury to his left upper limb.
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