Pollock v Air Lube and Lift Services Pty Ltd
[2022] VCC 103
•21 February 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-20-04267
| JAMES VICTOR POLLOCK | Plaintiff |
| v | |
| AIR LUBE & LIFT SERVICES PTY LTD (ACN 068 411 478 (deregistered)) | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
---
JUDGE: | HER HONOUR JUDGE ROBERTSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 25 August 2021 | |
DATE OF RULING: | 21 February 2022 | |
CASE MAY BE CITED AS: | Pollock v Air Lube & Lift Services Pty Ltd & Anor | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 103 | |
REASONS FOR JUDGMENT
---
Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – workplace – right shoulder – compensable aggravation injury – causation – impairment consequences
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), s325(1), s325(2)(c); s335(2)(d), s335(5)
Cases Cited:Martin v Bailey (2009) 26 VR 270; Hegedis v Carlton and United Breweries Ltd (2000) 4 VR 296; Carlton and United Breweries v Hegedis [2002] VSCA 61; Kavanagh v The Commonwealth (1960) 103 CLR 547; Popovski v Ericsson Australia Pty Ltd (1998) VSC 61; Zlateska v Consolidated Cleaning Services Pty Ltd & Anor [2006] VSCA 141; Cairns v Trowelcoat Pty Ltd [2014] VSC 129; Heuston v Yore Contractors Pty Ltd (unreported, NSWSC, 9 March 1992); Ansett Australia Ltd v Taylor [2006] VSCA 171; Fokas v Staff Australia Pty Ltd [2013] VSCA 230; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Humphries and Anor v Poljak [1992] 2 VR 129; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242; Petkovski v Galletti [1994] 1 VR 436; De Agostino v Leatch & Anor [2011] VSCA 249; Dean v Crossway Holdings Pty Ltd [2011] VSCA 198; Lu v Mediterranean Shoes Pty Ltd (2000) 1 VR 511; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz (2012) 34 VR 309; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Palmer Tube Mills (Aust) Pty Ltd v Semi [1998] 4 VR 439; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Sejranovic v Berkeley Challenge Pty Ltd (2009) 52 MVR 321; Sabanovic v Atco Controls Pty Ltd [2009] VSCA 143; Dordev v Cowan [2006] VSCA 254; Cakir v Arnott’s Biscuits Pty Ltd [2007] VSCA 104; Franklin v Ubaldi Foods Pty Ltd [2005] VSCA 317; Woolworths Ltd v Warfe [2013] VSCA 22; Philippiadis v Transport Accident Commission [2016] VSCA 1; Mason v Demasi [2009] NSWCA 227; Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320; Cakir v Arnott’s Biscuits Pty Ltd [2007] VSCA 104; Petrovic v Victorian WorkCover Authority [2018] VSCA 243; Pulling v Yarra Ranges Shire Council [2018] VSC 248; Ryan v Bunnings Group Limited [2020] ACTSC 353; Hunter v Transport Accident Commission [2005] VSCA 1; Watts v Rake (1960) 108 CLR - ; Purkess v Crittenden (1965) 114 CLR 164
Judgment: Leave granted to commence a common law proceeding for pain and suffering damages. The application to bring a proceeding for loss of earning capacity damages is dismissed.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P Y Rattray QC with Ms S C Bailey | Ellis Palmos & Co |
| For the Defendants | Ms T Storey | Wisewould Mahoney |
Table of Contents
Background
Legal principles
Evidence and documents
The Plaintiff’s background and medical history
Radiology and medical evidence from treating practitioners and independent medical examiners
The Plaintiff’s medico-legal assessment
Mr Raymond Crowe, orthopaedic surgeon
The Defendants’ medico-legal assessment
Mr Rodney Simm
The issues and parties’ submissions
Mr Pollock’s credit
Did Mr Pollock suffer a compensable aggravation injury?
Identification of relevant injuries
2005 right shoulder strain injury
29 July 2016 right shoulder injury
2 December 2016 right shoulder injury
Separated/displaced fracture of the greater tuberosity
Avulsion fracture of the supraspinatus tendon from its insertion into the footprint of the greater tuberosity
Conclusion on injuries
Causation – did the 2 December 2016 injury arise out of, in the course of, or due to employment?
If the Plaintiff suffered a compensable aggravation injury, is the impairment or loss of body function permanent?
Impairment consequences of injuries
Are the impairment consequences of the aggravation injury sustained during the work accident on 2 December 2016, “serious”?
Conclusion
HER HONOUR:
Background
1By Amended Originating Motion dated 25 August 2021, the plaintiff (“Mr Pollock”), pursuant to s335(2)(d) and s335(5) of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (“the Act”), seeks leave to issue proceedings for damages for pain and suffering. The pre-existing claim for leave to recover damages for loss of earning capacity was not pursued at the hearing.
2Mr Pollock alleges that he suffered a permanent “serious injury” to his right shoulder, within the meaning of the definition of “serious injury” in s325(1)(a) of the Act. The injury is alleged to have occurred in the course of his employment from 22 November 2016 up to and including 2 December 2016. Over that time, Mr Pollock was required to use a heavy angle grinder with a 1-millimetre-thick disc and a 5-inch circumference at different times and for prolonged periods to cut 6-millimetre-thick, stainless-steel plates. This, in turn, caused constant vibration, through his arms and shoulders. On 2 December 2016, as Mr Pollock lowered his right arm after holding a ruler above head height for a colleague, he felt a crack and intense pain in his right shoulder which he alleges precipitated his injury.
3The claimed permanent serious impairment and loss of a body function, although not referred to in the Amended Originating Motion, was identified at the hearing as a serious impairment and loss of a body function to Mr Pollock’s right shoulder.
4The issue in controversy in this application is whether the injury sustained by Mr Pollock on 2 December 2016 was an aggravation of an earlier injury which Mr Pollock sustained to his shoulder on 29 July 2016, and, if so, whether the aggravation injury constitutes in and of itself a “serious injury”.
5Having considered all the evidence, I have formed the view that:
(a) Mr Pollock sustained a right shoulder strain in 2005;
(b) Mr Pollock sustained either an undisplaced or minimally displaced fracture of the greater tuberosity as opposed to a completely displaced fracture on 29 July 2016 (“the 29 July 2016 injury”);
(c) Mr Pollock suffered an aggravation of the undisplaced or minimally displaced fracture of the greater tuberosity on 2 December 2016, being a separated or displaced fracture of the greater tuberosity of the right shoulder, and a partial thickness avulsion tear to the supraspinatus tendon from its insertion into the footprint of the greater tuberosity. This, in turn, led to surgery and the subsequent development of residual fibrocystic changes in the supraspinatus and infraspinatus insertions consistent with enthesopathy, a focal area of ossification in the infraspinatus tendon and ongoing insertional tendinosis in the rotator cuffs (“the aggravation injury”);
(d) The aggravation injury arose out of Mr Pollock’s employment;
(e) The impairment or loss of body function arising out of the aggravation injury is permanent;
(f) The impairment consequences of the aggravation injury are serious, and Mr Pollock has suffered a “serious injury” as defined by the Act.
6Accordingly, I grant leave to Mr Pollock to commence a proceeding to recover pain and suffering damages and I dismiss the claim for leave to commence a proceeding to recover damages for loss of earning capacity.
Legal principles
7To succeed in this application, Mr Pollock must satisfy the Court, on the balance of probabilities, that his injury is compensable, in the sense that it arose out of, or in the course of, or due to the nature of, his employment with the first defendant, Air Lube & Lift Services Pty Ltd (“Air Lube”), as required by s327 of the Act. He must also establish that the injury is permanent and that the consequences of the aggravation injury are “serious”.
8“Injury” is defined in s3 of the Act to mean:
“injury means any physical or mental injury and, without limiting the generality of that definition, includes—
(a) …
…
(c) a recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease [where the worker’s employment was a significant contributing factor to that recurrence, aggravation, acceleration, exacerbation or deterioration].”
9To establish the requisite causal link between the injury and the workplace accident, there must be a temporal relationship between the injury and the employment.[1] Additionally, employment must be a real, effective, or proximate cause of the injury.[2] That does not mean that employment must be either the sole or the dominant factor in causing the injury. An injury may be caused by more than one “significant contributing factor”, and employment may be a significant contributing factor even though other factors are more significant.[3] Proof that employment was a significant contributing factor would generally establish that the injury arose out of employment.[4]
[1]Martin v Bailey (2009) 26 VR 270 at paragraph [19]; Hegedis v Carlton and United Breweries Ltd (2000) 4 VR 296 at paragraph [6]; Kavanagh v The Commonwealth (1960) 103 CLR 547 at 556
[2]Popovski v Ericsson Australia Pty Ltd (1998) VSC 61 (“Popovski”) at paragraph [33]; Zlateska v Consolidated Cleaning Services Pty Ltd & Anor [2006] VSCA 141 at paragraph [72]
[3]Popovski at paragraphs [56]-[57], [60], [77] and [79]
[4]Carlton and United Breweries v Hegedis[2002] VSCA 61 (per Ashley JA)
10An admission that a plaintiff suffered a compensable injury involves an admission that the injury arose out of or in the course of employment.[5] Such an admission should ordinarily be regarded as very significant, but it is not conclusive. It can be rebutted by the defendants calling evidence to explain its previous admission.[6]
[5]Cairns v Trowelcoat Pty Ltd [2014] VSC 129; Heuston v Yore Contractors Pty Ltd (unreported, NSWSC, 9 March 1992)
[6]Ansett Australia Ltd v Taylor [2006] VSCA 171 at paragraphs [41] and [46]; Fokas v Staff Australia Pty Ltd [2013] VSCA 230 at paragraph [32]
11If there is a compensable aggravation injury, it must be established that the aggravation injury and resulting impairment satisfy paragraph (a) of the definition of “serious injury” and are permanent, in the sense that the injury is “likely to last for the foreseeable future”.[7]
[7]Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 (“Barwon Spinners”) at paragraph [11]
12If a permanent compensable injury is established, leave to issue proceedings will only be granted if the aggravation injury is a “serious injury” as defined by s325(1) of the Act.
13Whether an injury is “serious” is to be answered according to the narrative test laid down by the Full Court of the Supreme Court of Victoria in Humphries and Anor v Poljak[8] and now codified in s325(2)(c) of the Act. The assessment task involves bringing to account all factors personal to the plaintiff which emerge on the evidence as relevant to the assessment and making a value judgement in accordance with the principles enunciated in Poljak[9] as to whether the impairment consequences are “serious”. The consequences of the injury to a plaintiff, when judged objectively by comparison with other cases in the range of possible impairments or losses, must “be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’”.[10]
[8][1992] 2 VR 129 at 140 (“Poljak”) (per Crockett and Southwell JJ)
[9]at 140 (per Crockett and Southwell JJ); Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592 at 628; Sabo v George Weston Foods [2009] VSCA 242 at paragraph [67]
[10]Poljak at 140 (per Crockett and Southwell JJ)
14Applying the principles in Petkovski v Galletti,[11] the consequences of the aggravation injury must be assessed. To undertake the required assessment, the plaintiff must establish the pre-existing injury and what injury was caused by the subsequent workplace accident.[12] This requires the Court to separate out the components of the pre-existing injury from the alleged aggravation injury. The Court cannot aggregate the injuries, even if caused to the one body part, across several incidents.[13]
[11] (1994) 1 VR 436 (“Petkovski”) at 443
[12]De Agostino v Leatch & Anor [2011] VSCA 249 (“De Agostino”) at paragraphs [60]-[61]
[13]Dean v Crossway Holdings Pty Ltd [2011] VSCA 198 at paragraph [72]; Lu v Mediterranean Shoes Pty Ltd (2000) 1 VR 511; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz (2012) 34 VR 309 (“Filipowicz”)
15It is then necessary to assess the extent of impairment of a body function before and after the aggravation injury[14] and determine whether the additional long-term consequences of impairment (or loss) of a body function[15] consequent upon the aggravation injury, are “serious”, in the sense that they can be fairly described at least as “very considerable” and certainly more than “significant” or “marked” when judged by comparison with other cases in the range of possible impairments or losses.[16]
[14]Petkovski at 444; Filipowicz at paragraph [34]
[15]Petkovski at 443
[16]Poljak at 140 (per Crockett, McGarvie and Southwell JJ)
16Assessment of the “pain and suffering consequences” of an injury requires the Court to identify the extent to which pain limits the plaintiff’s functioning, performance of ordinary activities and enjoyment of life. It necessitates an assessment of both the plaintiff’s experience of pain as well as the disabling effect of the pain on the plaintiff’s physical capabilities and enjoyment of life. The intensity, frequency and duration of the pain must be assessed. This is done by considering what the plaintiff says about the pain (both in court and to doctors); what the plaintiff does about the pain (for example medication, rest, seeking medical treatment); what the doctors say about the extent and intensity of the plaintiff’s pain, and what the objective evidence shows about the disabling effect of the pain.[17]
[17]Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1 (“Haden”)
17Other matters may also be relevant including the effect of pain on the plaintiff’s –
“•sleep;
•mobility;
•cognitive functioning (whether directly because of the pain or indirectly because of the effects of pain-relieving medication);
•capacity for self-care and self-management;
•performance of household and family duties;
•recreational activities;
•social activities;
•sexual life; and
•enjoyment of life.
Whether and to what extent the matters listed are relevant to the court’s task in a particular case will, naturally, depend on the circumstances of the case.”[18]
[18]Haden at 5, paragraph [16]
18Impairment is concerned with what has been lost, but what has been lost may be informed, to an extent, by what is retained.[19]
[19]Haden at 5, paragraph [14]
19The credit of the plaintiff in serious injury applications is often critical.[20] The weight to be attached to the plaintiff’s account of pain will be affected by an assessment of the plaintiff’s credibility.[21] A plaintiff’s credibility is relevant not only to whether his or her evidence should be accepted, but it is also relevant to the reliability of the medical evidence. The opinions of the doctors are essentially dependent on the credibility and reliability of the history given to them by the plaintiff.[22] Medical opinions by experts may be of reduced weight if the plaintiff is shown to be an inaccurate historian.
[20]Palmer Tube Mills (Aust) Pty Ltd v Semi [1998] 4 VR 439 at 448
[21]Haden at 5, paragraph [12], citing Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 at paragraph [8]; Sejranovic v Berkeley Challenge Pty Ltd (2009) 52 MVR 321 (“Sejranovic”) at paragraph [171]; Sabanovic v Atco Controls Pty Ltd [2009] VSCA 143 at paragraphs [142]-[145]
[22]Dordev v Cowan [2006] VSCA 254 at paragraph [14], per Chernov JA (Maxwell P and Neave JA agreeing)
20Even if the Court determines that a plaintiff is not a reliable witness, either in general, or in respect of particular matters, this does not mean that all medical opinions relied upon by a plaintiff should be automatically disregarded.[23] The opinions of doctors depend on credibility, but it is to be expected that there will be variations in accounts given over time to different doctors.[24] Nevertheless, courts need to exercise care in relying on the records of medical practitioners, particularly reports of the histories and symptomatology described by plaintiffs to medical practitioners.[25] As the Court of Appeal observed in Philippiadis v Transport Accident Commission,[26] “Such records usually contain a selective summary in the doctor’s own words of what the patient tells the doctor and cannot be treated as a verbatim transcript of the entire medical attendance”. Apparent inconsistencies must be viewed with some caution before being accepted as significant.[27]
[23]Cakir v Arnott’s Biscuits Pty Ltd [2007] VSCA 104; Sejranovic at paragraph [146]
[24]Franklin v Ubaldi Foods Pty Ltd [2005] VSCA 317 (“Franklin”)
[25]Woolworths Ltd v Warfe [2013] VSCA 22 at [112]
[26](2016) 74 MVR 289 at paragraph [105]
[27]Mason v Demasi [2009] NSWCA 227 at paragraph [2] following Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 at paragraph [8]
21Ultimately the case must be decided on the whole of the evidence, including objective evidence of diagnostic tests which are unaffected by the plaintiff’s credit.[28]
[28]Cakir v Arnott’s Biscuits Pty Ltd [2007] VSCA 104 at paragraph [49]; Petrovic v Victorian WorkCover Authority [2018] VSCA 243 at paragraph [76]; Pulling v Yarra Ranges Shire Council [2018] VSC 248 at paragraph [51]; and Ryan v Bunnings Group Limited [2020] ACTSC 353 at paragraphs [27]-[29]
22In determining the application, the Court must make the assessment of “serious injury” at the time the application is heard[29] and must disclose the path of reasoning in dealing with the evidence and the issues raised by the application.[30]
[29]Section 325(2)(j) of the Act
[30]Hunter v Transport Accident Commission [2005] VSCA 1 at paragraphs [33]-[36]
Evidence and documents
23At the hearing, Mr Pollock relied on an affidavit sworn by him on 20 May 2020 (“Mr Pollock’s first affidavit”),[31] a supplementary affidavit sworn by him on 12 June 2021 (“Mr Pollock’s supplementary affidavit”),[32] as well as an affidavit of Emma Esler, affirmed 12 June 2021.[33] Extracts from the Plaintiff’s Court Book were tendered as Exhibit A including medical reports and other documents, and Mr Pollock was cross-examined.
[31]Exhibit A, PCB pp. 6-18
[32]Exhibit A, PCB pp.19-26
[33]Exhibit A, PCB pp.27-30
24The Authority relied on an affidavit of Mr Jeffrey Oldenhius, technical manager of Allianz Australia Workers’ Compensation (Victoria) Limited, affirmed 16 June 2021. It also tendered the Defendant’s Court Book as Exhibit 1 which contained medical reports and other documents.
25Video surveillance which had been foreshadowed as relevant by the Authority, was neither played nor tendered.
26I have read all the tendered material. I will refer only to the parts of the tendered material as are relevant to the findings I make and to my path of reasoning.
The Plaintiff’s background and medical history
27Mr Pollock was born in Belfast in July 1975. He is currently forty-six years of age.
28He is in a relationship and has two children from a previous marriage.
29He completed the equivalent of Year 11 and then completed a boilermaker apprenticeship at the ship building yards in Belfast.
30He migrated to Australia in 1996.
31In December 2005, Mr Pollock strained his right shoulder. He had an x-ray at Frankston Hospital. He said he could not remember this. His evidence was that after the strain injury in 2005, he had full, unrestricted and pain-free use of his right shoulder. He was able to attend to household tasks including heavier household duties, personal care, leisure, and sporting activities. He could drive a car. He said that he enjoyed playing golf from time to time and coaching soccer. He also retained an ability to play squash.
32On 29 July 2016, Mr Pollock suffered the 29 July 2016 injury: a fracture to the bone at the top of his right shoulder. Mr Pollock said that the 29 July 2016 injury occurred when he was standing on a sofa inside a storage unit placing a box on top of other boxes. He overbalanced, slipped, and fell onto the concrete.
33Between 29 July 2016 and 24 October 2016, Mr Pollock had some x-rays and ultrasound examinations on his right shoulder. He said his right shoulder was painful. Movement was restricted but was gradually improving. Lifting his right arm up, was also mildly restricted.
34By 24 October 2016, Mr Pollock still had some discomfort in his right shoulder and was taking some pain-relieving medications, but he said that his shoulder was getting better. He understood that the fracture was healing. He felt by October 2016, that he could look for work. He said that but for suffering the severe aggravation of his right shoulder on 2 December 2016, he had expected his right shoulder to return to the condition it was before the 29 July 2016 injury.
35Mr Pollock said that at his job interview with Air Lube, he told the interviewers about his right shoulder injury but said that he was able to work. He completed a welding test and was then told that he had the job.
36Mr Pollock commenced employment with Air Lube on 2 November 2016. When he started work, Mr Pollock said he still had some pain in his right shoulder, he had some restriction in movement, but it was improving.
37In his first three weeks with Air Lube, Mr Pollock did a variety of tasks. He marked out work, performed some cutting, some assembling of parts and some welding. He performed those tasks without any problems. He was managing quite well and was pleased to be back in the workforce.
38Between 22 November 2016 and 2 December 2016, Mr Pollock described using a heavy angle grinder at work. He said it caused constant vibration through his arms and shoulders. He felt some pins and needles in his hands and had some discomfort in his right shoulder at the end of each day. He said the symptoms worsened as the days went on.
39On 2 December 2016, a work colleague asked Mr Pollock to hold one end of a ruler just above head height. When Mr Pollock brought his arm down, he felt a crack and intense pain in his right shoulder.
40Mr Pollock claims that the injury he suffered on 2 December 2016 was an aggravation of the original shoulder injury and that such injury was a “serious injury” in and of itself.
Radiology and medical evidence from treating practitioners and independent medical examiners
41On 1 December 2005, an x-ray of Mr Pollock’s right shoulder was taken at Peninsula Health. It revealed that:
“The glenohumeral joint was enlocated.
No bony injury. The AC joint is enlocated.”
42On 29 July 2016, Dr David Lyall, Mr Pollock’s general practitioner, requested an x-ray of Mr Pollock’s right shoulder. That was taken the same day, and the findings were that:
“A lucency is seen across the greater tuberosity indicating an undisplaced fracture. Fracture margins are slightly smoother than one usually sees with an acute injury but having discussed the findings with the patient I understand there was no history of any remote injury and there was marked tenderness and inability to induct or abduct all of which favours a recent fracture.
I endeavoured to explain that there would be conservative management only …
Conclusion: Undisplaced fracture of the greater tuberosity and the patient was informed on this point”
43On 2 August 2016, Mr Pollock underwent a right shoulder ultrasound. The letter from MIA Radiology dated 2 August 2016 noted that:
“Clinical History: Overbalanced. Wrenched right shoulder. Unable to move joint.
… There is a slight cortical step in the greater tuberosity in keeping with known fracture. This indents into the deep surface of the supraspinatus tendon.
No rotator cuff tears identified. The long head of biceps is intact with trace fluid along its sheath. Minimal bursal fluid which is within normal limits. Limited abduction and internal rotation. AC joint is normal.
Conclusion: No rotator cuff tears.”
44On 7 October 2016, Dr David Lyall again requested an x-ray and an ultrasound of Mr Pollock’s right shoulder. The resulting MIA radiology report dated 7 October 2016 recorded a history of restricted movement, persisting fracture of the right humerus upper end and queried steroid injection or hydrodilatation.
45The x-ray report noted:
“… A fracture line proximally into the region of the greater tuberosity of the humerus is noted minimally displaced with a tiny fracture fragment lying superior to this. This may extend to the superomedial corner of the articular surface. Glenohumeral joint enlocated. AC joint satisfactory.”
46With respect to the ultrasound report:
“… Rotator cuff intact, long head of biceps enlocated, no subacromial bursal fluid. Range of movement is good apart from abduction where patient is restricted to 90 degrees with pain but able to assist with the other hand to the 180 degrees mark.”
47The conclusion from the 7 October 2016 x-ray and ultrasound was:
“… Incomplete healing fracture but not complete union of the humerus. Suggest allowing a few more weeks for healing/complete union before considering an injection.”
48A further ultrasound of Mr Pollock’s right shoulder and upper arm and an x-ray of the right side of his shoulder were undertaken on 4 November 2016 at the request of Dr Lyall. The clinical notes referred to restricted movement and a fracture of the upper right humerus. However, the tiny fracture fragment reported in the x‑ray of 7 October 2016 was no longer identified. The report noted:
“Healing fracture of the right greater tuberosity. The fracture line is still faintly visible.
Alignment of the right shoulder is within normal limits.
On ultrasound, there is heterogenous appearance to the right supraspinatus tendon but no discrete tear. No fluid in the subacromial bursa. Remainder of the rotator cuff tendons are intact.
The patient had reduction in shoulder abduction due to pain.
Conclusion:
Healing right greater tuberosity fracture but the fracture line remains visible radiographically.
No rotator cuff tendon tear identified.
I have discussed the findings with the patient and a steroid injection or hydodilatation [sic] should not be performed in the setting of a healing fracture.
I have suggested the patient be seen by physiotherapy and a repeat x-ray only (ultrasound not required) in 6-8 weeks to assess for complete osseous fusion. If at that stage there are clinical symptoms of adhesive capsulitis, a hydrodilatation can then be performed.
No sonographic evidence of subacromial bursitis therefore, subacromial bursal steroid injection is not indicated, unless there is strong clinical suspicion.”
49An x-ray of Mr Pollock’s right shoulder taken at Peninsula Health on 2 December 2016 recorded a shoulder injury at work. The x-ray revealed that:
“The right shoulder joint is normally enlocated but there is irregularity along the top of the greater tuberosity as small fracture; a small chip of bone is seen separated and placed between the humerus and the acromion. If there is no history of shoulder dislocation, features would be in keeping with an avulsion fracture. Other bones covered appear intact.”
50On 15 December 2016, a right shoulder x-ray found:
“Progressive sclerosis noted along the top of the greater trochanter in keeping with a healing fracture. No new untoward features noted.”
51On 10 January 2017, Mr Pollock attended the Independent Medical Examiner, Dr Catherine Bones. In Mr Oldenhius’ affidavit, he stated that Dr Bones, in her report dated 11 January 2017, noted that an “original injury to the right arm occurred on 29 July 2016” before employment, and that on commencing employment with the first defendant, Mr Pollock had “some restriction in movement of the right shoulder but that he was practically pain free”. Dr Bones diagnosed an “exacerbation of this healing fracture”.
52On 6 February 2017, MIA Radiology clinical notes accompanying an x-ray of Mr Pollock’s right shoulder recorded that Mr Pollock had a stiff shoulder which was improving with physiotherapy. The x-ray findings were:
“Since the previous examination on 4/11/2016, a small fragment of bone measuring 3.5mm in diameter has become slightly separated from the superior aspect of the fracture involving the greater tuberosity.
Union at the fracture site appears otherwise firm, but a small defect remains where the fragment has been separated from.
The shoulder appears otherwise normal.”
53On 7 June 2017, a further right shoulder x-ray noted:
“Previous fracture through the greater tuberosity noted. The tiny bony fragment superior to the fracture site appears unchanged in position when compared to the previous x-rays.”
54The right shoulder MRI scan of the same day revealed:
“There is a bony oedema with irregularity at the site of the healing greater tuberosity fracture. The 5mm bony fragment is situated between the articular surface of the humeral head and the supraspinatus tendon, approximately 7 mm from the supraspinatus tendon insertion. It is impinging the tendon. There is heterogenous signal within the supraspinatus tendon. There is [a] partial thickness tear through the mid to posterior fibres of the supraspinatus tendon at the posterior aspect of this bony fragment. The tear measures 2mm in maximum dimension.
There is thickening of the subacromial/subdeltoid bursa.
...
There are osteoarthritic changes in the AC joint.
Impression:
The bony fragment is situated between the humeral head and the supraspinatus tendon and is causing impingement of the tendon.
There is supraspinatus tendinopathy with small partial thickness tear in the mid to posterior fibres.”
55On 8 June 2017, a further ultrasound of Mr Pollock’s right shoulder and upper arm was taken. The findings were:
“Findings: Biceps tendon and subscapularis and infraspinatus tendons are normal. Bony ossicle measuring 6 x 5mm is seen in the supraspinatus tendon, the same fragment seen on the x-ray yesterday. The supraspinatus is minimally heterogenous but there is no discrete tear. Bony irregularity is present at the greater tuberosity. The AC joint is normal. The patient has limited abduction to 20 degrees but there is no bursitis or impingement.”
56On 4 July 2017, Mr Pollock consulted Dr Peter Wilkins, occupational physician, for an independent medical examination. The histories provided to Dr Wilkins by Mr Pollock were consistent with those provided to other doctors. Dr Wilkins did not have the December 2016 scans available to him, but he noted that Mr Pollock’s pre-employment injury was said to be “well on the way to healing”. Based on the subsequent scans, including the 6 February 2017 scans, he opined that Mr Pollock had a retained a small fragment of bone displaced from his right humeral head abutting the old fracture line. This had arisen because of workplace activities in which he was engaged on 2 December 2016 and had been troublesome ever since. The fragment was said to have caused impingement on shoulder abduction and flexion, and to have restricted the range of all movements of his right shoulder.
57Mr Pollock underwent a right shoulder arthroscopy and subacromial decompression on 7 December 2017 with Mr Ian Young, orthopaedic surgeon. This revealed that there was a partial thickness articular surface tendon avulsion lesion with a bone fragment in the tendon. Mr Pollock also had subacromial bursitis and extensive scarring. Mr Young described the findings at arthroscopy in his letter to Dr Lyall dated 20 December 2017, notably:
“… findings at arthroscopy which showed only 20% partial thickness articular surface tendon avulsion of his supraspinatus with a small bone fragment that was partially resected. It was decided during surgery not to take down this very small partial thickness tear and subject him to the healing and recovery from a rotator cuff repair. He did however receive a good bursectomy and subacromial decompression …
From a range of motion perspective he can abduct and elevate to 90 degrees, flex to 95 degrees which is similar to his preoperative range with external rotation to 45 degrees and internal rotation to L3.
... .”
58Mr Young did not perform a repair of the supraspinatus tendon.
59A further review of Mr Pollock by Mr Young on 1 August 2018 identified that Mr Pollock still had restricted movement to the shoulder and occasional pain. On examination, he could abduct and elevate to 140 degrees with a painful arc from 90 degrees. It was noted that in the past, Mr Young had been able to get him up to 160 degrees. He could flex to 145 degrees with a painful arc from 95 degrees. In the past, Mr Young noted he was up to 180 degrees. External rotation was 45 degrees and internal rotation was T12. His resisted abduction strength was showing full power. Mr Young concluded that Mr Pollock still had some residual impingement and subacromial bursitis in the right shoulder. He recommended that he have a corticosteroid injection to the right subacromial space, and recommended further review.
60On 7 November 2018, Mr Pollock was seen by Dr Louise Barberis, occupational physician, at the request of CGU Workers’ Compensation on behalf of the Authority. Dr Barberis conducted an independent medical examination. She took a history that over four days prior to 2 December 2016, Mr Pollock was using a vibrating angle grinder with some force and at the end of each day, he noticed discomfort around the top of his dominant right shoulder. Then, on 2 December 2016, he was measuring the top of a high tank with his right arm overhead and when he lowered his extended arm, he heard a crack in the shoulder and felt acute severe pain. X-rays revealed a defect on the greater tuberosity.
61Dr Barberis noted a corresponding sequestrated bone fragment. She did not state when this was noticed, however, she said it was probable that the use of vibrating tools dislodged the sequestered ossicle, causing it to enter the subacromial space, causing impingement and the need for subacromial decompression surgery. Certainly, by 8 June 2018 (which may have been intended to be a reference to 8 June 2017), an ultrasound had identified a bony ossicle measuring 6 x 5 millimetres in the supraspinatus tendon, without discrete tear and with bony irregularity at the greater tuberosity. Dr Barberis was of the view that the lodgement of the bone fragment in the supraspinatus tendon following the vibration and activity at work was, in effect, a new injury.
62Dr Barberis also noted that on 7 December 2017, Mr Pollock proceeded to arthroscopic surgery with Mr Young, orthopaedic surgeon. Dr Barberis observed that the rotator cuff was intact with a 20 per cent PASTA (partial articular supraspinatus tendon avulsion) lesion with bone fragment in tendon and subacromial bursitis and extensive scarring/fibrosis. A subacromial decompression was undertaken but the bone chip was not removed.
63Mr Pollock underwent a subsequent right shoulder ultrasound on 23 July 2020, which revealed:
“Indications:
Past fracture. Rotator cuff symptoms.
Findings.
No prior images available.
No rotator cuff tears detected.
There is calcification at the infraspinatus insertion, up to 7mm maximum length. No other soft tissue calcifications. Other tendons showed normal texture.
There is slight capsular swelling over the acromioclavicular joint, but no abnormal fluid.
The subdeltoid bursa shows moderate thickening, with pain and bunching on abduction.”
64An independent medical assessment was undertaken by Dr Michael Baynes, occupational physician, on 12 August 2020 and a report of the same date was prepared. Dr Baynes recorded Mr Pollock’s view that by early November 2016, he was 90 per cent recovered and was able to start work with Air Lube. The history of the injury provided by Mr Pollock to Dr Baynes was that he spent around six days using an angle grinder cutting out metal shapes with a lot of vibration to his right shoulder. On 2 December 2016, he was helping a co-worker by holding a ruler above head height when he felt a cracking sound in his right shoulder with sudden pain. He stopped work and his partner took him to the Frankston Hospital where he had x-rays, was prescribed Targin and tramadol and began physiotherapy.
65Dr Baynes noted the findings of the various x-rays and ultrasounds performed. In relation to the 2 December 2016 x-ray, Dr Baynes identified a small fracture irregularity along the top of the greater tuberosity. He said that –
“… a small chip of bone is seen separated and placed between the humerus and the acromion. If there is no history of shoulder dislocation, features would be in keeping with an avulsion fracture. …”
66On the 6 February 2017 x-ray, he noted the small bone fragment measuring 3.5 millimetres in diameter which had become slightly separated from the superior aspect of the fracture involving the greater tuberosity.
67From the right shoulder MRI scan performed on 7 June 2017, Dr Baynes noted the bony fragment seen situated between the humeral head and the supraspinatus tendon which was causing impingement of the tendon. There was supraspinatus tendinopathy with a small partial thickness tear in the mid to posterior fibres.
68Next, Dr Baynes referred to the ultrasound of the right shoulder undertaken on 8 June 2017 which reported a bony ossicle measuring 6 x 5 millimetres in the mid-supraspinatus tendon which was said to be the same fragment seen on an x-ray taken the previous day. A discrete tear in the supraspinatus was also noted.
69A further ultrasound of the right shoulder was taken on 5 March 2021. Moderate thickening of the subacromial bursa with no definite impingement was noted during abduction. The appearance was in keeping with ongoing bursitis. The conclusion reached was that there was significant bony irregularity of the underlying humeral head and greater tuberosity.
70On 9 March 2021, Mr Pollock had a cortisone injection in his right shoulder.
71On 23 March 2021, Dr Baynes re-examined Mr Pollock for a further independent medical assessment. In his opinion, in July 2016, Mr Pollock sustained an undisplaced fracture of the greater tuberosity of the humerus with a subsequent loose body impacting in the rotator cuff, when he suffered a fall onto his outstretched arm while working for a previous employer. He opined that Mr Pollock sustained a further aggravation of his earlier injury on 2 December 2016, ultimately resulting in Mr Pollock undergoing arthroscopy and decompression surgery with limited improvement.
72On 21 April 2021, Mr Pollock was examined by Dr Theo Partsalis, orthopaedic surgeon, at the request of Dr Taylor. Dr Partsalis noted Mr Pollock’s previous history of injury to his right shoulder in 2016. His description of the injuries sustained by Mr Pollock was that “he sustained a greater tuberosity fracture in that year, and he further injured it while at work in December of that year”. He noted that Mr Pollock underwent surgery with Mr Young in December 2017 and has had continuing problems with his shoulder since the injury including a constant low-grade ache in his right shoulder with a sharp pain with certain activities and movements. Mr Pollock’s shoulder movement was restricted, and he was affected from a functional day-to-day perspective. He had been unable to work since the incident.
73Dr Partsalis referred to a consultation which Mr Pollock had with Mr Crowe, an orthopaedic surgeon who he had seen for the purposes of this litigation. Mr Crowe had suggested to him that further surgery might be able to help Mr Pollock. Dr Partsalis noted the discrepancy between Mr Pollock’s active and passive movement, especially in flexion and abduction, and his weak supraspinatus tendon. He also referred to irregularity around the greater tuberosity which Mr Pollock had previously fractured, and the x-ray and MRI in 2017 showing a small fragment of bone, either within the joint or imbedded in the tendon.
74Dr Partsalis said he explained to Mr Pollock that he was not entirely convinced that the small fragment of bone and the irregularity around the greater tuberosity was causing his pain and restriction of movement and he therefore concluded that he was not sure that further surgery would help Mr Pollock. Dr Partsalis left any conclusion in this regard to be considered if Mr Pollock failed to show any improvement over time and cautioned that “we should hasten slowly”.
75The final x-ray and MRI scan requested by Dr Partsalis on 3 May 2021 found that:
“X-ray:
Gleno-humeral joint is enlocated. Sclerosis of the greater tuberosity is consistent with the site of prior fracture. Some subtle soft tissue calcification was seen just inferior to the acromion. The AC joint was within normal limits.
MRI:
Slight capsular thickening at the AC joint. No bone oedema. Small increase in fluid in the subacromial-subdeltoid bursa.
The supraspinatus and infraspinatus tendons were intact. … There is one fragment of bone adjacent to the posterior margin of the prior injury. This is in the infraspinatus tendon. It is 4mm in diameter and about 7mm in length. …
…
Comment: Findings consistent with previous fracture of the greater tuberosity. This has healed. …
One focal area of ossification is present in the infraspinatus tendon measuring 7 x 4mm. No other calcification identified.”
The Plaintiff’s medico-legal assessment
Mr Raymond Crowe, orthopaedic surgeon
76Mr Crowe prepared two reports. The first report dated 22 February 2021 and the second dated 10 August 2021.
77In his first report, Mr Crowe detailed the history of Mr Pollock’s pre-existing shoulder injuries as well as the aggravation injury. He noted that the mechanism of the 29 July 2016 injury appeared to be one of hyper-abduction, together with traction. Mr Pollock felt immediate pain and an x-ray was taken. Mr Crowe reported that there was a minimally displaced, or undisplaced, fracture of the greater tuberosity in the right shoulder.
78Mr Crowe recorded Mr Pollock’s injury history, which was consistent with that detailed above by Dr Barberis and Dr Baynes.
79On review of the arthroscopic decompression surgery performed by Mr Ian Young on 7 December 2017, Mr Crowe opined that the bony fragment that was seen in the rotator cuff was –
“… probably an avulsion fracture which occurred at the time of the injury on … the second of December 2016.”
80He concluded that on 29 July 2016, Mr Pollock suffered an injury:
“… to the greater tuberosity of his right shoulder which of course is the area of insertion of the supraspinatus tendon.”
81Mr Crowe noted that the 29 July 2016 injury was an undisplaced or minimally displaced fracture of the greater tuberosity. It was healing up satisfactorily as attested to by serial imaging:
“… until it was subjected to severe repetitive strain-type injury with the vibrations that occurred in his workplace and then it obviously produced the avulsion fracture on the second [of] December 2016. There is no doubt that the repetitive, prolonged and vigorous strains on the 10 days prior to the second of December contributed to this injury in a significant and major way.”
82On 2 December 2016, Mr Crowe observed that:
“Unfortunately, he suffered a further injury to his right shoulder whilst working in the employment in question and on the second of December 2016 he felt another major injury with what would appear to be an avulsion of the supraspinatus tendon.
This has persisted, imaging has identified an avulsion fracture of part of the insertion of the supraspinatus tendon - from the footprint of the supraspinatus tendon into the greater tuberosity.”
83He concluded that Mr Pollock:
“… suffered a significant avulsion type fracture of the supraspinatus tendon from its insertion into the footprint of the greater tuberosity, at work … .”
84The essence of Mr Crowe’s opinion was that if Mr Pollock had not been subjected to the stressors from the prolonged repetitive and vigorous strains placed on his right shoulder, which caused weakness of the insertion of the supraspinatus into the greater tuberosity and the avulsion on 2 December 2016 of part of the supraspinatus tendon from its insertion into the greater tuberosity, his greater tuberosity would have continued to heal. In doing so, the insertion of the supraspinatus tendon would have been intact.
85In his second report dated 10 August 2021, Mr Crowe re-considered the imaging of Mr Pollock’s right shoulder. He noted the presence of an undisplaced, or minimally displaced, fracture in the greater tuberosity on the x-ray taken on 29 July 2016.
86Subsequently, the 7 October 2016, x-ray identified the presence of a small bony fragment on the greater tuberosity fracture line perhaps going into the joint structure. Mr Crowe noted that Mr Pollock could only actively abduct to around 90 degrees. This indicated dysfunction of the supraspinatus tendon insertion in keeping with damage to the enthesis of the supraspinatus where the fracture of the greater tuberosity with the small fragment of bone present had occurred.
87Mr Rodney Simm, orthopaedic surgeon, engaged by the defendants to provide a medico-legal assessment of Mr Pollock, in his second report dated 5 August 2021, discussed below, suggested that Mr Crowe had not been aware of the small fragment of bone when he compiled his previous report, but Mr Crowe stated in his 10 August 2021 report that he had been fully aware of it, and he strongly refuted Mr Simm’s assertion.
88A further x-ray taken on 4 November 2016 did not mention the small fracture fragment, however, the fracture line was still visible. An ultrasound suggested heterogenous change in the supraspinatus tendon insertion. Mr Crowe again noted that this confirmed damage to the insertional footprint or enthesis of the supraspinatus tendon.
89Further x-rays were taken on 2 December 2016. The irregularity of the greater tuberosity and the small fracture fragment were evident. Again, Mr Crowe’s opinion was that this indicated significant injury to the insertional foot place of the supraspinatus tendon. Whether or not there was dislodgement of the fragment from the greater tuberosity was not relevant to the pathology.
90Mr Crowe next referred to the MRI scan taken on 7 June 2017 which he said was definitive. There was a small bony fragment at the site of the supraspinatus partial thickness tear which was said to be impinging the tendon. Mr Crowe’s ultimate view was that the insertion of the supraspinatus with the partial-thickness tear was the major pathological finding.
91He then explained how the lowering of Mr Pollock’s elevated arm could cause a physical injury and how that was consistent with the symptoms described by Mr Pollock. In his view, the intense grinding placed a great deal of stress on Mr Pollock’s right shoulder in the days leading up to the acute episode and then on 2 December 2016, there was a further injury to the insertion to the supraspinatus tendon which was demonstrated on the MRI of 7 June 2017. This led to the surgery performed by Mr Young which unfortunately did not address the damage to the partial avulsion fracture of the supraspinatus tendon insertion adequately.
92Mr Crowe strongly refuted Mr Simm’s view that Mr Pollock had chronic pain and said that the diagnosis was “difficult to understand”. He said that there was a significant injury to the insertion of the supraspinatus tendon into the greater tuberosity which had been demonstrated on at least two occasions by an MRI scan, the latest being in May 2021. The greater tuberosity had healed, however, there were residual fibrocystic changes in the supraspinatus and infraspinatus insertions consistent with enthesopathy. There was also a focal area of ossification in the infraspinatus tendon. This indicated ongoing insertional tendinosis in those two rotator cuff tendons and accounted for Mr Pollock’s symptomatology.
The Defendants’ medico-legal assessment
Mr Rodney Simm
93Mr Simm prepared two reports dated respectively 28 July 2020 and 5 August 2021.
94In his first report, Mr Simm noted that Mr Pollock was straightforward and co-operative.
95After taking a history of the 29 July 2016 injury, Mr Simm recorded that the x-rays and ultrasound taken following that injury revealed a minimally displaced fracture of the greater tuberosity.
96He then considered the aggravation injury.
97Mr Simm noted that Mr Pollock told him that he was cleared to go back to work in about October 2016 and that he informed his prospective employer that he had injured his shoulder but was given employment. He told Mr Simm that when he started work his shoulder was more than 75 per cent recovered.
98Mr Pollock then described his injury on 2 December 2016. He said it occurred while he was holding a metal ruler with his right arm elevated above his head. As he lowered his arm, there was a cracking sound from his right shoulder, and he suffered acute severe pain and “went to ground”.
99In the first report, Mr Simm did not refer to any history of use of an angle grinder by Mr Pollock.
100Mr Simm noted that Mr Pollock attended his regular doctor on 19 December 2016 and reported that the second injury had caused further problems. He underwent another x-ray and ultrasound. The x-ray and ultrasound reported that the fracture was uniting.
101In the months that followed, Mr Simm observed that Mr Pollock was prescribed strong opioid medication and physiotherapy. His symptoms persisted.
102Mr Simm recorded that Mr Pollock underwent an MRI scan (although he did not refer to the date of the scan) which reported a 5-millimetre bony fragment between the humeral head and the supraspinatus tendon. Mr Simm said that this suggested it was possibly attached to the tendon. There was impingement of the tendon and a partial-thickness tear through the tendon. Surgical treatment was recommended.
103At operation, a 20 per cent partial articular supraspinatus tendon avulsion was noted with a bone fragment in the tendon. There was subacromial bursitis. The operation involved a subacromial decompression and only a partial removal of the ossicle within the supraspinatus tendon. Mr Pollock reported that he was told that a full removal would have caused damage to the tendon. The operation was only partially successful and Mr Pollock’s shoulder has remained painful.
104In his first report, Mr Simm opined that the 29 July 2016 incident was responsible for causing a minor fracture of the right greater tuberosity with a small associated avulsion fracture in the region of the insertion of the supraspinatus tendon. The injury sustained at work on 2 December 2016, he said, was a minor incident. The only explanation for the severe pain was that the lowering of Mr Pollock’s arm caused pain from the pathology caused by the injury which occurred on 29 July 2016. He did not consider that minor incident would have had long-term effects. Mr Simm did not detect evidence of a functional component or adverse psychological reaction, but at the same time, said that it was quite possible that there was a psychological component which needed to be determined and evaluated by a psychiatrist.
105Mr Simm examined Mr Pollock again on 5 August 2021 via Zoom and subsequently prepared a second report dated the same day. He noted that Mr Pollock’s presentation “seemed genuine”.
106During this consultation, Mr Simm took a further history of Mr Pollock’s use of an angle grinder for several days which was physically demanding. He said that the pain Mr Pollock experienced while doing the grinding was an exacerbation, not an aggravation of any pathology.
107He referred to the MRI and x-ray of Mr Pollock’s right shoulder undertaken on 3 May 2021 and noted the residual fibrocystic changes in the supraspinatus and infraspinatus insertions, consistent with enthesopathy as well as one focal area of ossification present in the infraspinatus tendon measuring 7 x 4 millimetres.
108Mr Simm remained of the opinion that Mr Pollock’s original injury of 29 July 2016 had not resolved prior to his claimed aggravation injury and that the painful dysfunction in his right shoulder was due to the 29 July 2016 injury: although he was unable to fully explain the precise cause of Mr Pollock’s chronic right shoulder pain and limitation of movement given that the acute and severe pain occurred with the simple action of Mr Pollock lowering his elevated arm.
109Mr Simm referred to Mr Crowe’s diagnosis that lowering the arm on 2 December 2016 caused an avulsion fracture of the greater tuberosity and suggested that when Mr Crowe made that diagnosis, he was not aware that the bone fragment adjacent to the greater tuberosity was present on x-rays taken prior to Mr Pollock commencing employment with Air Lube and therefore, Mr Crowe’s diagnosis was not correct. Mr Simm considered that Mr Crowe’s report was based on an incorrect assumption that the ossicle in the rotator cuff tendon was a recent finding, when in fact, in his view, the small bone fragment had been reported on x-rays before commencement of employment.
The issues and parties’ submissions
110At the hearing of the application, Mr Pollock submitted that the primary issue in dispute was causation. Specifically, that the use of the angle grinder by Mr Pollock prior to 2 December 2016 was a cause of his injury. It was submitted that the injury was permanent and that the impairment consequences were “serious” when compared with other cases in the range of impairments or losses.
111The defendants submitted that Mr Pollock did not suffer a compensable aggravation injury and took issue with the suggestion that the duties performed by him caused or contributed to an injury of his right shoulder. The defendants submitted that Mr Pollock had an underlying shoulder injury which had not resolved, and which was productive of the symptoms the plaintiff experienced while performing his work duties. Therefore, any consequences of a shoulder injury in the course of his employment, were not the result of a compensable injury.
112The defendants also submitted that on the question of causation, the plaintiff bore the onus of proof. It was submitted first, that there was a complete absence of contemporaneous treating material and opinion as to whether any injury was sustained on 2 December 2016 and, if so, its probable cause. Further, it was submitted that the Court should exercise caution before accepting Mr Pollock’s evidence, because he tended to exaggerate and lie.
Mr Pollock’s credit
113The defendants pointed to three matters as adversely impacting Mr Pollock’s credit. First, it attacked as implausible, the suggestion by Mr Pollock in his evidence, that Dr Lyall had advised Mr Pollock to return to work around mid-October 2016 with no mention of limitations where such a return to work was not recorded in Dr Lyall’s clinical records. Second, the defendants suggested that Mr Pollock was not credible, because he initially denied ever saying to Dr Lyall that he had no movement in his arm following the 29 July 2016 injury, but then agreed in cross-examination that he had been unable to move his joint. Third, the defendants relied on what it submitted were inconsistent medical histories provided by Mr Pollock to various doctors including references to him being 75 per cent recovered and around 90 per cent recovered.
114With respect to the advice Mr Pollock received from Dr Lyall, Mr Pollock was cross-examined and firmly maintained the position put forward in his affidavit that Dr Lyall did recommend a return to work. Counsel for the defendants questioned the contents of the conversation as recorded below:
Q:When did he say that? ---
A:I can’t remember what date; it was around about October because – mid to late October I applied for about six to eight jobs.
…
Q:Can you recall what he said to you during that conversation? ---
A:That I could go and look for work and I just had to take it easy and do nothing stupid or dumb.
Q:Sorry, I just missed the end of that answer? ---
A:He told me to take it easy, not be stupid with what I done [sic] with myself, not to be pushing myself.
…
Q:Did he give you any advice as to what type of work that you should be looking for at that time? ---
A:No.
Q:Did he put any limitations on the type of work that you should bear in mind? ---
A:No.
Q:Nothing at all? ---
A:No.
Q:Did he say to you for example, you should try and find some light duty work? ---
A:No he didn’t.
Q:Did he tell you, for example, that you should avoid using your right arm? ---
A:No.
Q:Did he say something to the effect of look, work every second day and have a day’s break in between and see how you go? ---
A:No.
Q:Did he tell you to avoid lifting any heavy objects? ---
A:No.
Q:Did he tell you to avoid using heavy machinery? ---
A:No.”[34]
[34] Transcript (“T”) 57, Line/s (“L”) 12 – T58, L9
115And further on:
Q:Did you mention to him, for example, that you were thinking about going back to boiler making work? ---
A:I might of, I can’t recall but that is my trade so it was the only work I was looking for.”[35]
[35] T58, L25-28
116Mr Pollock was then taken to the clinical notes of Dr Lyall:
Q:… He prescribed you more Endone at that meeting, he refers you for further ultrasound, further x-rays and he notes ‘restricted movement persisting fracture of right humerus upper end. Steroid injection or hydrodilatation? Right shoulder x-ray if deemed necessary for progress with healing.’ There is no mention about return to work there? ---
A:Okay.
Q:And what I’m suggesting to you is that the reason there is no mention of return to work is because it wasn’t mentioned at that consultation? ---
A:Well I’m telling you – it mightn’t have been mentioned at that consultation. I’m not sure which consultation it was mentioned at, but it was in October and I got the okay from my doctor.”
117The defendants submitted, that notwithstanding Mr Pollock’s evidence in cross-examination, the clinical records of Dr Lyall which were tendered did not refer to any advice about a return to work and consequently, Mr Pollock’s evidence should not be accepted. The defendants pointed to the fact that at the time Mr Pollock said Dr Lyall was recommending a return to work, Dr Lyall had ordered further x‑rays which revealed a worsening of the fracture (from undisplaced to minimally displaced) and had identified a bony fragment in the shoulder. Dr Lyall had advised Mr Pollock that the healing was not complete, had postponed the hydrodilatation procedure, had advised against any steroid injections at that time, had advised him to continue to rest and had continued to prescribe Endone and Targin. Those matters, it was said, were contrary to the position that Dr Lyall was advising a return to work.
118The defendants also submitted that Dr Lyall was Mr Pollock’s treating general practitioner. He had prepared a report for the purposes of the proceeding, but the report had not been tendered and Dr Lyall was not called to give evidence. Consequently, I should not accept Mr Pollock’s evidence.
119Mr Rattray QC, on behalf of Mr Pollock, submitted that what a doctor records in three lines in a report following a 20-minute visit is hardly indicative of their whole position. I accept that the clinical records do not record any advice from Dr Lyall to Mr Pollock about a return to work. However, I also accept that clinical records are not a verbatim record of a medical consultation, and that caution needs to be exercised in drawing inferences from clinical records which may only provide a partial picture of discussions.[36] It is possible that because advice about a return to work is not a clinical matter, that it may not have been included in Dr Lyall’s notes. It is also possible that at the time Dr Lyall’s report was being prepared, being some time after the consultation, that Dr Lyall did not necessarily recall discussing a return to work with Mr Pollock, or, if he did, did not consider reference to a return to work to be a relevant matter for inclusion in his report. In circumstances where I had the advantage of watching Mr Pollock give evidence and observed what I perceived to be his genuinely held view that Dr Lyall had approved his return to work, I do not consider that simply because the return to work was not referred to in Dr Lyall’s consultation notes, that this should impugn Mr Pollock’s credit.
[36] Philippiadis vTransport Accident Commission(supra) at paragraph [105]
120Second, the defendants suggested that Mr Pollock initially denied ever saying to Dr Lyall that he had no movement in his arm but then agreed in cross-examination that he had been unable to move his joint and that this discrepancy in his evidence affected his credit. When cross-examined, Mr Pollock was asked:
Q:“When you arrived you saw Dr Lyall and you told him what had happened? ---
A:I told him what had happened, yes.
Q:And at that moment when you’re in the consultation with Dr Lyall, you were effectively unable to move your right arm? ---
A:No, that’s not correct, I was able to move it to a certain degree, yes.
Q:So you were able to move it to a certain degree, I’m talking about your shoulder joint specifically? ---
A:At no point did I have no movement.”[37]
[37]T39, L12-20
121Mr Pollock was then taken to the consultation notes and the following matters were put to him:
Q:“There are consultation notes which have been provided for this case by Dr Lyall, and what he records in his consultation notes is ‘Right shoulder injury’, this is on that day, ‘Right shoulder injury, over balanced, has wrenched right shoulder. Unable to move joint.’ So what I’m suggesting to you is that he was taking a record of what you were telling him and what he was observing at that moment in time? ---
A:Yes.
Q:Do you accept that? ---
A:Yes.
Q:So what he’s recorded is that you were unable to move the shoulder joint? ---
A:Yes
Q:But you agree that’s likely the state of affairs on the day of the injury when you presented to Dr Lyall? ---
A:Yes
Q:And at that moment again, at the consultation, you were in significant pain, is that fair to say? ---
A:Yes, I think so. I really can’t remember, it was a long time ago.”[38]
[38]T39, L21 – T40, L5
122I accept that there are differences between Mr Pollock’s evidence in cross-examination and what is recorded in the consultation notes. However, that does not necessarily mean that Mr Pollock was not telling the truth. The consultation note was prepared by Dr Lyall, not Mr Pollock. It records Dr Lyall’s recollection of what was said. It is possible Mr Pollock’s memory was that he had some ability to move his right arm to a certain degree, even if he could not move the joint. Alternatively, he may simply have been more optimistic about his ability to move his shoulder after the fall he sustained on 29 July 2016 than was the case. I am required to consider Mr Pollock’s evidence overall. I am not persuaded that the difference between Mr Pollock’s recollection in cross-examination and what was recorded in the consultation notes means Mr Pollock was a dishonest witness or that he generally exaggerated his evidence. Overall, my impression was that he frankly answered the questions he was asked and was prepared to give answers which did not assist his case.
123Third, the defendants relied on what they submitted were inconsistent medical histories provided by Mr Pollock to various doctors. Specifically, that he had told Mr Simm when examined via Zoom on 28 July 2020, that he was 75 per cent recovered when he started work, whereas he had told Mr Baynes on 12 August 2020 that he was 90 per cent recovered. The defendants suggested that Mr Pollock was trying to assist his case by conveying greater recovery prior to commencing employment with Air Lube, than was the case. Given the timing of the different consultations, it is possible that Mr Pollock’s injury did improve. However, I also accept that there were differences in some matters recounted by Mr Pollock to different medical practitioners. In my view, given the number of medical practitioners that Mr Pollock saw, as the Court of Appeal observed in Franklin,[39] it would be unusual if there were not discrepancies in the histories provided. In my view, nothing turns on this submission.
[39] Supra
124In considering the issue of Mr Pollock’s credit overall, in addition to the above matters, I have considered the totality of the evidence he gave in his affidavits and the position he adopted during cross-examination. On balance, I am not persuaded that Mr Pollock was a dishonest witness. I am not prepared to make an adverse credit finding.
Did Mr Pollock suffer a compensable aggravation injury?
Identification of relevant injuries
125There are three potentially relevant injuries. First, the injury to Mr Pollock’s right shoulder which was diagnosed in 2005. Second, the injury Mr Pollock sustained during the fall in the storage shed on 29 July 2016. Third, the employment injury sustained throughout the period 22 November 2016 to 2 December 2016 and specifically on 2 December 2016.
2005 right shoulder strain injury
126The 2005 shoulder strain injury, with which Mr Pollock was diagnosed, is of limited relevance. The unchallenged evidence from Mr Pollock was that he had no memory of that injury. There is no evidence that it was causing Mr Pollock any functional limitations immediately prior to 29 July 2016. The evidence was that after the strain injury in 2005, Mr Pollock had full, unrestricted, and pain-free use of his right shoulder. He was not restricted in attending to household tasks including heavier household duties, personal care, leisure, or sporting activities. He could drive a car. He enjoyed playing golf from time to time and coaching soccer. In addition, although he had not played squash to any particular extent, he had an ability to do so. I therefore find that to the degree there had been a shoulder strain in 2005, it was fully healed, or not productive of any pain and suffering symptoms, by 29 July 2016.
29 July 2016 right shoulder injury
127Mr Pollock alleges that the injury he sustained on 2 December 2016 was a compensable aggravation injury of the pre-existing 29 July 2016 injury. Consequently, it is necessary that I identify what injury was sustained on 29 July 2016.
128Having considered the medical evidence in some detail above, in my opinion, during the fall on 29 July 2016, Mr Pollock sustained an undisplaced fracture of the greater tuberosity, rather than a minimally or completely displaced fracture. He also sustained a level of dysfunction of the supraspinatus tendon insertion in keeping with damage to the enthesis of the supraspinatus where the fracture of the greater tuberosity with the small fragment of bone present had occurred. I have reached this view for the following reasons.
129First, an undisplaced fracture of the greater tuberosity is consistent with the radiological evidence. The x-ray taken on 29 July 2016 noted the presence of a lucency across the greater tuberosity. This was reported as being indicative of an undisplaced fracture. The 2 August 2016 ultrasound showed evidence of a slight cortical step in the greater tuberosity in keeping with a known fracture that indented into the deep surface of the supraspinatus tendon. The 7 October 2016 x-ray referred to a fracture line proximally into the region of the greater tuberosity of the humerus which was said to be “minimally displaced with a tiny fracture fragment lying superior to this”. This indicated dysfunction of the supraspinatus tendon insertion in keeping with damage to the enthesis of the supraspinatus where the fracture of the greater tuberosity with the small fragment of bone present had occurred.
130Pausing there, the 7 October 2016 x-ray is the first mention of a minimally displaced fracture. It is unclear how the tiny fracture fragment lying superior to the greater tuberosity occurred. It may have been present at the time of the 29 July 2016 x-ray but not identified, or a fracture fragment of bone may have dislodged from the existing fracture site between 29 July 2016 and 7 October 2016. What is clear though, is that by 7 October 2016, there was a minimally displaced fracture fragment lying superior to the greater tuberosity.
131The 4 November 2017 x-ray noted that there was a healing fracture of the right greater tuberosity, but with the fracture line identified as being “still faintly visible”.
132None of the x-rays or ultrasounds taken before 2 December 2016 found that the fracture fragment was completely separated or displaced. Nor did the x-ray reports refer to the insertion of the supraspinatus having a partial-thickness tear.
133In contrast, for the first time on 2 December 2016, the 2 December 2016 x-ray provided evidence of a separation of a bone fragment from the greater tuberosity of Mr Pollock’s right shoulder. In that x-ray, Mr Pollock’s right shoulder joint was observed to be normally enlocated but there was irregularity along the top of the greater tuberosity in the form of a small fracture. A small chip of bone was seen separated and placed between the humerus and the acromion. It was no longer simply sitting superior to the greater tuberosity. This was consistent with an avulsion fracture.
134The presence of the displaced fracture fragment was confirmed on the 6 February 2017 x-ray which reported that since the previous examination on 4 November 2016, a small fragment of bone measuring 3.5 millimetres in diameter had become slightly separated from the superior aspect of the fracture involving the greater tuberosity. Union at the fracture site appeared otherwise firm, but a small defect remained where the fragment had been separated.
135Second, the conclusion that Mr Pollock sustained either a minimally displaced, or an undisplaced, fracture of the greater tuberosity, as opposed to a completely displaced fracture in the fall on 29 July 2016 is also in accordance with the independent medico-legal opinion of Mr Crowe. Mr Crowe concluded that on 29 July 2016, Mr Pollock suffered an injury to the greater tuberosity of his right shoulder which is the area of insertion of the supraspinatus tendon. He described this in his first report as an undisplaced or minimally displaced fracture. In his second report, he reported that the presence of a small bony fragment on the greater tuberosity fracture line perhaps going into the joint structure also indicated dysfunction of the supraspinatus tendon insertion in keeping with damage to the enthesis of the supraspinatus where the fracture of the greater tuberosity with the small fragment of bone present had occurred.
136His opinion was that the 29 July 2016 injury was healing well until it was subjected to severe repetitive strain-type injury because of the vibrations that occurred during Mr Pollock’s angle grinding work. Mr Crowe said it obviously then produced the avulsion of the supraspinatus tendon on 2 December 2016.
137Mr Simm, on the other hand, concluded that the 29 July 2016 incident was responsible for causing a minor fracture of the right greater tuberosity with a small associated avulsion fracture in the region of the insertion of the supraspinatus tendon. He suggested that Mr Crowe’s findings were based on “the incorrect assumption that the ossicle in the rotator cuff tendon was a recent finding”. He said further that “the small bone fragment was reported on x-rays prior to the commencement of employment, and possibly related to the original fracture of the greater tuberosity”. Having considered Mr Crowe’s opinion above, the observations made by Mr Simm are incorrect. Mr Crowe described the 29 July 2016 injury as an “undisplaced or minimally displaced” fracture in contrast to Mr Simm who referred to it as an avulsion or completely displaced fracture.
138Third, a finding that the 29 July 2016 incident caused a minimally displaced or undisplaced fracture of the greater tuberosity in the right shoulder, is consistent with what Mr Pollock told Mr Crowe that the fracture was considered to have been healing but was taking some time. Mr Pollock’s evidence was that by 24 October 2016, three months after the 29 July 2016 injury, he still had some discomfort in his right shoulder and was still taking some pain-relieving medications. The movement of his right shoulder, particularly lifting his right arm, remained restricted but, in his view, his right shoulder was “gradually improving”. Had the avulsion fracture in the region of the insertion of the supraspinatus tendon been completely displaced, as Mr Simm suggested and as contended for by the Authority, it is unlikely that the fracture would have been described in the report of the 4 November 2016 x-ray as a “healing right greater tuberosity fracture”. Further, if an avulsion in the region of the insertion of the supraspinatus tendon had also been present since 29 July 2016, it is likely that this would have been noted on the ultrasound.
139Fourth, an undisplaced fracture having occurred on 29 July 2016 is consistent with Mr Pollock’s evidence that he was told by Dr Lyall that he had an undisplaced fracture of the greater tuberosity[40] and that “a chip of bone” was never mentioned to him until after December 2016.[41] It is also consistent with his evidence about performing heavy angle grinding work in the days leading up to 2 December 2016 resulting in vibrations up his arm and into his shoulder, sharp and intense pain, and a “cracking sound” on 2 December 2016. That evidence is consistent with complete displacement of the bone fragment occurring on 2 December 2016, as opposed to earlier. It also lends supports to the conclusion that the injury sustained on 29 July 2016 was either an undisplaced, or a minimally displaced, fracture with some dysfunction of the supraspinatus tendon insertion in keeping with damage to the enthesis of the supraspinatus where the fracture of the greater tuberosity had occurred.
[40]T41, L4-7
[41]T59, L23-29
140For each of the above reasons, I find that because of the fall on 29 July 2016, Mr Pollock sustained either a minimally displaced, or an undisplaced, fracture of the greater tuberosity, rather than a completely displaced fracture, and also some dysfunction of the supraspinatus tendon insertion in keeping with damage to the enthesis of the supraspinatus where the fracture of the greater tuberosity had occurred.
2 December 2016 right shoulder injury
Separated/displaced fracture of the greater tuberosity
141In Mr Pollock’s first affidavit, Mr Pollock said that following the original shoulder injury, between 29 July 2016 and 24 October 2016, he had some x-rays and ultrasound examinations on his right shoulder. He said his right shoulder was painful. The movement of his right shoulder was restricted but was gradually improving. Lifting his right arm up, was mildly restricted.
142By 24 October 2016, Mr Pollock said he still had some discomfort in his right shoulder and was continuing to take some pain-relieving medications, but his shoulder was getting better. He said that he understood that the fracture was healing. He felt by October 2016, that he could look for work. He also said this was the advice he received from Dr Lyall. He said that he fully expected his right shoulder to return to its pre-July 2016 condition had he not suffered the aggravation of his right shoulder injury on 2 December 2016.
143Mr Pollock said that he started work with the first defendant on 2 November 2016. During the first three weeks he did a variety of work and was managing quite well. Then he was required to use a heavy angle grinder with a 1-millimetre-thick disc and 5-inch circumference to cut 6-millimetre-thick stainless-steel plates for prolonged periods. Mr Pollock said, that the “vibrations associated with this work over the last 7 to 10 days, on and up to 2 December 2016, caused me increased pain, culminating in severe injury”.
144In my view, on 2 December 2016, Mr Pollock sustained a separated or displaced fracture of the greater tuberosity.
145This conclusion is supported by the radiology reports. There is no evidence of complete separation or displacement of the greater tuberosity fracture on any radiology reports before 2 December 2016, whereas by 2 December 2016, the x‑ray reveals an irregularity along the top of the greater tuberosity, being a small fracture. A small chip of bone is seen separated and placed between the humerus and the acromion. In the x-ray taken 6 February 2017, there is further evidence of a small fragment of bone measuring 3.5-millimetres in diameter, noted to have become slightly separated from the superior aspect of the fracture involving the greater tuberosity since the earlier x-ray of 4 November 2016. Bone fragments are then also reported as having been seen on subsequent radiology reports.
146Second, that outcome is also supported by Mr Crowe’s opinion that the avulsion of the supraspinatus tendon occurred on 2 December 2016 and was consequent upon the angle grinding work which had been undertaken by Mr Pollock. If the angle grinding work was considered by Mr Simm – and it is not clear that it was – he did not adequately explain why it was not relevant to an assessment of when the avulsion of the supraspinatus tendon occurred. Additionally, Mr Simm did not provide any adequate explanation for the intense pain experienced by Mr Pollock on 2 December 2016.
147Third, the conclusion I have reached is consistent with Mr Pollock’s evidence that he understood that a piece of bone had become separated at the top of his shoulder when he had an x-ray on 6 February 2017 and he understood that his right shoulder “continued to show that a piece of bone had become separated from the bone at the top his shoulder”.
148The defendants submitted that Mr Pollock could not establish that the injury was caused by the employment because there was a “complete absence of contemporaneous treating material and opinions from relevant treaters as to whether an injury was sustained in December 2016 and, if so, its probable cause”. While I accept that there is a scarcity of contemporaneous evidence from treating medical practitioners, the radiological material was available. It provides contemporaneous evidence which is capable of supporting the conclusion I have reached that, on 2 December 2016, Mr Pollock suffered a separated or displaced fracture of the greater tuberosity.
149Finally, a separated or displaced fracture of the greater tuberosity is consistent with Mr Pollock’s account of pain on 2 December 2016 and his evidence that he heard a “cracking sound”, which he described to Mr Wilkins, Mr Simm and Mr Baynes and reported to the hospital.
Avulsion fracture of the supraspinatus tendon from its insertion into the footprint of the greater tuberosity
150For similar reasons, the avulsion fracture of the supraspinatus tendon from its insertion into the footprint of the greater tuberosity being a partial tear of the supraspinatus tendon also likely occurred following the aggravation injury on 2 December 2016. This in turn led to the surgery performed by Mr Young and the subsequent development of residual fibrocystic changes in the supraspinatus and infraspinatus insertions consistent with enthesopathy, a focal area of ossification in the infraspinatus tendon and ongoing insertional tendinosis in the two rotator cuff tendons.
151This conclusion is consistent with the radiology reports prior to 2 December 2016. For instance, on the 4 November 2016 ultrasound there was a heterogenous appearance of the right supraspinatus tendon but no discrete tear. There was no fluid in the subacromial bursa, and the remainder of the rotator cuff tendons were intact. There is also no reference to the presence of an avulsion fracture of the supraspinatus tendon on 29 July 2016.
152Second, the 2 December 2016 x-ray shows a small chip of bone which had become separated and placed between the humerus and the acromion and which was reported as being in keeping with an avulsion fracture.
153Third, the subsequent scans after 2 December 2016 support the position that an avulsion fracture of the supraspinatus tendon occurred on 2 December 2016. The 7 June 2017 MRI of Mr Pollock’s right shoulder, for instance, notes the presence of a 5-millimetre bony fragment situated between the articular surface of the humeral head and the supraspinatus tendon, approximately 7 millimetres from the supraspinatus tendon insertion. It was identified as impinging the tendon. There was a partial-thickness tear through the mid to posterior fibres of the supraspinatus tendon at the posterior aspect of that bony fragment measuring 2 millimetres in maximum dimension. Similarly, the 8 June 2017 ultrasound of Mr Pollock’s right shoulder and upper arm noted the presence of a bony ossicle measuring 6 x 5 millimetres in the supraspinatus tendon. It was said to be the same fragment seen on the x-ray the previous day. The presence of the bony ossicle seen in the supraspinatus tendon suggests that the displaced fracture was impinging the supraspinatus tendon.
154Fourth, the presence of a partial-thickness articular surface tendon avulsion lesion with a bone fragment in the tendon when Mr Young performed the right shoulder arthroscopy and subacromial decompression on 7 December 2017, provides further support for the occurrence of the avulsion on 2 December 2016.
155Fifth, the opinions of various independent medical examiners support a conclusion that there was an avulsion fracture of the supraspinatus tendon on 2 December 2016.
156Dr Barberis for instance, opined that there had been lodgement of the bone fragment in the supraspinatus tendon because of vibration and activity at work and it was, in effect, a new injury.
157Dr Baynes, in his report dated 12 August 2020, noted the bony fragment seen on the 7 June 2017 x-ray between the humeral head and the supraspinatus tendon and referred to it as causing impingement of the tendon. He also observed supraspinatus tendinopathy with a small partial-thickness tear in the mid to posterior fibres. On the ultrasound of the right shoulder undertaken on 8 June 2017, he noted the presence of a bony ossicle measuring 6 x 5 millimetres in the mid-supraspinatus tendon which was said to be the same fragment seen on x-ray the previous day. A discrete tear in the supraspinatus was noted.
158Dr Partsalis, in her report dated 21 April 2021, noted the discrepancy between Mr Pollock’s active and passive movement, especially in flexion and abduction, and his weak supraspinatus tendon. He also referred to irregularity around the greater tuberosity which Mr Pollock had previously fractured and the x-ray and MRI scan in 2017 showing a small fragment of bone, either within the joint or imbedded in the tendon. An MRI scan dated 3 May 2021, undertaken at Dr Partsalis’ request, revealed that the supraspinatus and infraspinatus tendons were intact. There was one fragment of bone adjacent to the posterior margin of the prior injury in the infraspinatus tendon. It was 4 millimetres in diameter and about 7 millimetres in length and was consistent with a previous fracture of the greater tuberosity which had healed. There was one focal area of ossification present in the infraspinatus tendon measuring 7 x 4 millimetres.
159Sixth, Mr Crowe’s opinion took account of Mr Pollock’s complete work history. He reached the conclusion that on 2 December 2016, whilst working, Mr Pollock suffered a further avulsion injury to his right shoulder of part of the insertion of the supraspinatus tendon from the footprint of the supraspinatus tendon into the greater tuberosity. If Mr Pollock had not been subjected to the stressors from the prolonged repetitive and vigorous strains placed on his right shoulder whilst at work, his greater tuberosity would have continued to heal and, in doing so, the insertion of the supraspinatus tendon would have remained intact. While the greater tuberosity had healed, there were residual fibrocystic changes in the supraspinatus and infraspinatus insertions consistent with enthesopathy. There was also a focal area of ossification in the infraspinatus tendon. This indicated ongoing insertional tendinosis in those two rotator cuff tendons and accounted for Mr Pollock’s symptomatology.
160Seventh, Mr Simm’s opinion that the 29 July 2016 incident was responsible for causing a minor fracture of the right greater tuberosity with a small associated avulsion fracture in the region of the insertion of the supraspinatus tendon was, in my view, less plausible than Mr Crowe’s opinion. In his first report, Mr Simm did not explain how he arrived at this conclusion; he did not address Mr Pollock’s history of undertaking heavy angle grinding work in the days leading up to 2 December 2016 and he did not identify his path of reasoning. Even when Mr Simm later took a history from Mr Pollock of his angle grinding work for the purposes of preparation of his second report, he was still unable to sensibly explain why Mr Pollock experienced severe pain when he lowered his arm on 2 December 2016. Further, it is unclear what Mr Simm meant by his suggestion that the pain Mr Pollock experienced while doing the grinding was an exacerbation not an aggravation of any pathology. The statement was not explained. The words to my mind are synonymous, interchangeable and demonstrate an exercise in semantics.
161Eighth, an avulsion fracture having occurred on 2 December 2016 is consistent with the plaintiff’s evidence of what his work process involved and what he was doing in the days leading up to 2 December 2016. Although the defendants challenged Mr Pollock’s credit, it did not challenge the evidence that he had undertaken heavy angle grinding work. Although I have not made an adverse credit finding against Mr Pollock, even if I had found that Mr Pollock’s recollection of his consultations with Dr Lyall was exaggerated, the heavy angle grinding work undertaken when considered in conjunction with the radiological evidence provides an objective basis for a finding that the avulsion fracture occurred on 2 December 2016.
162Ninth, a finding that an avulsion fracture occurred on 2 December 2016 is consistent with Mr Pollock’s affidavit evidence and the evidence he gave in cross-examination about the onset and the occurrence of his symptoms and the deterioration in his physical condition whilst undertaking the angle grinding work.
Conclusion on injuries
163Having reviewed the evidence, I find that:
(a) in 2005, Mr Pollock sustained a right shoulder strain;
(b) on 29 July 2016, Mr Pollock sustained either an undisplaced, or a minimally displaced, fracture of the greater tuberosity (rather than a completely displaced fracture); and
(c) on 2 December 2016, Mr Pollock sustained an aggravation of the undisplaced or minimally displaced fracture of the greater tuberosity, being a separated or displaced fracture of the greater tuberosity of his right shoulder and a partial-thickness avulsion tear to the supraspinatus tendon from its insertion into the footprint of the greater tuberosity. That in turn led to the surgery performed by Mr Young and the subsequent development of residual fibrocystic changes in the supraspinatus and infraspinatus insertions consistent with enthesopathy, a focal area of ossification in the infraspinatus tendon, and ongoing insertional tendinosis in the two rotator cuffs.
Causation – did the 2 December 2016 injury arise out of, in the course of, or due to employment?
164Mr Pollock alleges that the injury he sustained on 2 December 2016 was an aggravation of a pre-existing impairment. He must therefore show that the aggravation injury is the result of the relevant incident. This inevitably involves a question of causation.
165Mr Pollock submitted that the Authority had admitted that he had suffered a compensable injury and that the admission made involved an admission that the injury arose out of or in the course of employment.[42] It was submitted that although not conclusive as to the existence of a compensable injury, and it could be rebutted by the defendants calling contrary evidence, such an admission should ordinarily be regarded as very significant.
[42]Cairns v Trowelcoat Pty Ltd (supra); Heuston v Yore Contractors Pty Ltd (supra)
166On 16 January 2017, CGU Workers Compensation (Vic) Limited (“CGU”) on behalf of the Authority, accepted liability for Mr Pollock’s claimed right shoulder injury.
167Subsequently, on 9 May 2019, Mr Pollock submitted an impairment benefits claim. Mr Pollock attended an impairment assessment examination with Dr Graeme Doig, orthopaedic surgeon, on 20 June 2019. Dr Doig prepared a report dated 3 July 2019 noting that the injury sustained outside employment on 29 July 2016 had “healed satisfactorily” before Mr Pollock commenced work.
168Following that impairment assessment, by letter dated 5 July 2019, CGU, on behalf of the Authority, accepted liability for Mr Pollock’s impairment benefits claim. While not conclusive evidence, I accept that it is significant evidence that Mr Pollock suffered a compensable injury which arose out of, or in the course of, or due to the nature of employment. Whether it ultimately means that a finding is made that Mr Pollock suffered a compensable injury, however, depends on all the circumstances and the totality of the evidence.
169Having considered all the evidence, in my opinion, the aggravation injury of 2 December 2016 did arise out of employment and is therefore a compensable injury. It occurred at Mr Pollock’s workplace. Mr Pollock was engaged in work at the time of the injury. There is therefore a temporal relationship between the injury and the employment. Further, Mr Pollock’s evidence that he was required to undertake angle grinding in the days leading up to 2 December 2016 was unchallenged. “But for” the requirement of his employment to undertake heavy angle grinding, he would not have engaged in that activity and would not have experienced the resulting stress on his right shoulder that Mr Crowe and Dr Barberis considered was relevant to the injury that then followed on 2 December 2016. In that sense, his work is a significant contributing factor to the cause of the injury.
170I therefore find that the aggravation injury of 2 December 2016 is a compensable injury.
If the Plaintiff suffered a compensable aggravation injury, is the impairment or loss of body function permanent?
171Dr Wilkins saw Mr Pollock on 4 July 2017. At that time, he said that he anticipated the likely requirement for surgical excision of the bone fragment in Mr Pollock’s shoulder before he could proceed to recovery.
172On 7 December 2017, Mr Young operated on Mr Pollock’s shoulder and performed a right shoulder arthroscopy and subacromial decompression. He reported in his letter to Dr Lyall dated 20 December 2017 that –
“… findings at arthroscopy which showed only 20% partial thickness articular surface tendon avulsion of his supraspinatus with a small bone fragment that was partially resected. It was decided during surgery not to take down this very small partial thickness tear and subject him to the healing and recovery from a rotator cuff repair.”
173In Mr Pollock’s first affidavit, Mr Pollock said that Mr Young told him that he had shaved a projecting piece of bone in his rotator cuff, so as to make it flush with the rotator cuff, but he could not fully remove the piece of bone as attempting to do so could have done more harm than good.
174In his later letter dated 1 August 2018, Mr Young noted that Mr Pollock’s right shoulder recovery had “plateaued”, and he still had restricted movement and occasional pain in the shoulder.
175Mr Simm opined in his most recent report that Mr Pollock had “an entrenched pattern of symptoms, which will persist”. He otherwise did not address the question of permanency of Mr Pollock’s right shoulder aggravation injury.
176Mr Crowe on the other hand, in his report dated 22 February 2021, opined that the only way forward for Mr Pollock was to undergo further surgery involving “takedown of the supraspinatus tendon insertion, removal of the bony fragment and then reattachment of the supraspinatus tendon to the greater tuberosity”. Mr Pollock had suffered a significant avulsion of the supraspinatus tendon from its insertion into the footprint of the greater tuberosity at work on 2 December 2016. Once the footprint insertion of the supraspinatus tendon was injured, it gave rise to enthesopathy which caused ongoing pain and lack of strength, particularly in arm abduction and elevation. Because his supraspinatus tendon was dysfunctional, Mr Crowe considered that Mr Pollock might benefit from excision of the damaged portion of the supraspinatus tendon and a repair of the debrided tendon into the greater tuberosity with removal of the bony fragment trying to achieve a healthy enthesis. Although it would involve a significant period of rehabilitation and healing, because Mr Pollock was still quite young, he believed that “this would definitely be worthwhile, although a guarantee that this would be 100% successful is not possible”.
177Dr Partsalis saw Mr Pollock at the request of Dr Taylor at the Frankston Healthcare Clinic, who had been Mr Pollock’s general practitioner since June 2020. Dr Partsalis noted that on the MRI and x-ray of 3 May 2021, there were some residual fibrocystic changes in the supraspinatus and infraspinatus insertions consistent with enthesopathy. His view was that surgery was unlikely to help Mr Pollock and the small bone fragment in the rotator cuff tendon may not be relevant to his pain. He said:
“… I am not sure that further surgery will help him but it is a subject to consider in the absence of him showing any improvement over this period of time. Surgery would involve finding this fragment of bone, detaching the tendon from the greater tuberosity, debriding the malunion at the greater tuberosity and then reattaching the tendon. … there is a risk of infection, stiffness and prolonged rehabilitation. Surgery may help his symptoms, it may not improve him at all and possibly make him worse. Therefore I think we should hasten slowly.”
178To determine whether a state of affairs is permanent, as the Court of Appeal observed in Cardoso v Staff Australia Payroll Services Pty Ltd,[43] “involves an element of prediction into the future”. The task is “to determine how far, if at all, the alleged impairment is permanent, in the sense of likely to last for the foreseeable future”.[44]
[43] [2019] VSCA 139, paragraphs [55]-[61]
[44] Barwon Spinners (supra) at paragraph [34]
179The defendants submitted that Mr Pollock’s orthopaedic expert, Mr Crowe, considered that his shoulder condition is likely to improve further with surgical treatment. Consequently, the injury cannot be said to be permanent. In Mr Pollock’s second affidavit Mr Pollock said that he was advised by Dr Partsalis that further treatment was not likely to provide significant improvement in the current condition of his right shoulder. He said he accepted that advice. Mr Pollock’s evidence was not challenged in cross-examination.
180In all the circumstances, in my view Mr Pollock’s right shoulder injury is permanent in the sense considered in Barwon Spinners.[45] The injury has plateaued, as Dr Young observed. It has remained in its current state for approximately five years and has not significantly improved. Although there has been a suggestion that further surgery might assist, none of the treating doctors considered that to be a definite outcome. Even Mr Crowe, whose first report said surgery would “definitely be worthwhile”, ultimately modified his opinion and accepted that the result of performing an excision of the damaged portion of the supraspinatus tendon and a repair of the debrided tendon into the greater tuberosity with removal of the bony fragment to try to achieve a healthy enthesis, was not always going to be “100% successful”. For each of these reasons, in my view, Mr Pollock’s right shoulder aggravation injury is permanent, in the sense that is likely to last for the foreseeable future.
[45] Supra
Impairment consequences of injuries
181In his affidavits and evidence, Mr Pollock claimed that the injury sustained to his right shoulder on 2 December 2016 was a “serious injury”. He pointed to a range of pain and suffering consequences to substantiate his claim.
182Before Mr Pollock suffered his July 2016 injury, he said that he was not restricted in terms of activities of daily living, personal care, leisure or sporting activities. He played golf from time-to-time, and he enjoyed coaching soccer. This was confirmed by his partner, Emma Esler, in her affidavit. She said that Mr Pollock was active with sport and appeared very fit.
183After the fall on 29 July 2016, Mr Pollock said that he had some physical restrictions. He did not detail in his affidavit what the physical restrictions were but described having discomfort in his right shoulder and taking pain-relieving medication. Mr Pollock’s first affidavit described that by 24 October 2016, his shoulder was improving, and the fracture was healing. Mr Pollock said that he was able to work and had been advised that he could look for work. At that time, he stated that he fully expected to be able to return to all his pre-July 2016 injury activities had he not suffered the injury at work on 2 December 2016.
184At the same time as Mr Pollock was considering a return to work, his treating doctor, Dr Lyall, was recording ongoing symptoms in Mr Pollock’s shoulder. At the consultation on 3 October 2016, Dr Lyall noted that Mr Pollock had “shoulder pain” and that the “restriction in movements persist”. He queried in the clinical notes whether “an U/s +/- a steroid injection might help free up shoulder”. Dr Lyall prescribed Endone tablets, Targin, and referred Mr Pollock for a right shoulder ultrasound and right shoulder x-ray.
185At the consultation on 12 October 2016, Dr Lyall considered Mr Pollock’s right shoulder and noted that the healing was “still not been complete. Suggested hydrodilatation needs to be postponed.” He again prescribed Endone and referred Mr Pollock for an ultrasound and an x-ray of his right shoulder because of the restricted movement and a persistent fracture of the right humerus upper end. He queried “steroid injection or hydrodilatation? R) shoulder x-ray if deemed necessary for progress with healing”.
186Mr Pollock’s partner, Emma Esler, described that Mr Pollock “had a lot of pain from this injury for the first couple of months after it occurred and during those months, he was rather grumpy as a consequence but then his shoulder seemed to gradually improve, and he became less grumpy”.
187Mr Pollock commenced employment on 2 November 2016. At the time he started work, Mr Pollock said he still had some pain in his right shoulder. He had some restriction in movement. This was confirmed by Ms Esler. Lifting his right arm up was still mildly restricted, but he said it was improving.
188Mr Pollock did a variety of tasks in the first three weeks of work. He marked out work, did some cutting, some assembling of parts and some welding. He had done these tasks without any problem. He said he was managing quite well and was pleased to be back in the workforce. Ms Esler also recounted that she did not recall Mr Pollock making any complaints about the work in those first few weeks.
189Between 22 November 2016 and 2 December 2016, Mr Pollock described using a heavy angle grinder which caused constant vibration through his arms and shoulders. He said he felt some pins and needles in his hands and had some discomfort in his right shoulder at the end of each day. He said the symptoms worsened as the days went on. Ms Esler said that a few nights before his accident Mr Pollock sat on the couch and held his right shoulder and said it felt as if it was vibrating, like the work he had been doing during the day.
190During cross-examination, in addition to the matters set out above, Mr Pollock accepted that before the work accident on 2 December 2016, he was taking Endone and Targin on a daily basis for shoulder pain,[46] he had limitation of movement in his right arm which was persisting;[47] he struggled at times to lift up his arm without pain;[48] he did not even try to lift heavy items;[49] his sleep could be affected by his right shoulder pain;[50] he could not lift his arm above his shoulder;[51] and reaching forward to put on shoes and socks was painful and difficult but he was getting used to it.[52] He also could not put on a t-shirt or jumper by himself;[53] he had to be very careful with what he did with the right shoulder so as not to make it worse;[54] he definitely could not swing a golf club;[55] or throw a soccer ball,[56] and there was “no chance” he could play squash.[57]
[46]T50, L11
[47]T50, L19
[48]T50, L22
[49]T51, L03
[50]T52, L27
[51]T53, L21
[52]T53, L28
[53]T54, L07
[54]T54, L13
[55]T54, L16
[56]T54, L18
[57]T54, L20
191After the accident on 2 December 2016, Mr Pollock described having immediate intense pain and having felt a crack in his right shoulder. Ms Esler described picking Mr Pollock up from work. She said, “he was in a lot of pain, on the verge of crying, and holding his right arm by his side”. She said she took him to Frankston Hospital. At the hospital, Mr Pollock’s arm was placed in a sling, and he was prescribed painkilling medications, Tramal and Endone, by his general practitioner, Dr Lyall. He had physiotherapy treatment but continued to suffer a lot of ongoing pain in his right shoulder. At times, he had a feeling of pins and needles and numbness in his right hand.
192Ultimately, he had surgery on his right shoulder in late 2017, but he continued to experience pain following the surgery.
193Ms Esler said that Mr Pollock:
“… continued to be in a lot of pain during the first 12 months after the accident, leading up to his operation in December 2017. The loss of work and the pain and restricted use of his right arm had an awful effect on his mood.”
194In 2018, he continued to have restricted movement and a sensation of locking and giving way in his shoulder.
195He was prescribed Temaze, which he said helped him to sleep.
196Mr Pollock’s pain and suffering prior to the work accident on 2 December 2016 is to be contrasted with the position after. Currently, Mr Pollock said he has a piece of bone in his right rotator cuff that “restricts my shoulder movements and causes pain”. Any significant lifting or any activity puts significant strain on his shoulder and tends to cause him pain. He cannot lift his arm above shoulder height, and it hurts to attempt to lift it that far. Lifting can also cause a “locking sensation”.
197Mr Pollock said that the intensity of the pain is sometimes sharp and severe – “a piercing type pain” - which is brought on by some of the movements of his arm. At other times, the pain is a constant dull ache in the centre of his right shoulder. He finds if he repetitively uses his right arm to do something, it sets off a sharp reaction and can cause a severe onset of pain. He gave the example of catching something falling from a table. Similarly, if he holds his arm in a fixed position for some time, this tends to also cause increased pain.
198He said in cross-examination that the pain he is experiencing now is not as bad as it was in October and November 2016.[58] Ms Esler also said that she believes Mr Pollock is in a “little less pain than he had in 2017 but certainly more than he had, at the time when he commenced employment with the First Defendant”. His shoulder is sore “most days” whereas previously he had said it was sore every day.[59]
[58]T78, L16
[59]T78, L10
199In terms of the severity of the pain, Mr Pollock described that sometimes the pain lasts for only a few minutes. At other times it lasts for several hours. His pain has “significantly reduced in severity”.[60]
[60]T78, L21
200He occasionally gets a feeling of pins and needles in his right hand.
201He is now only taking Panadol most days and occasional Ibuprofen for the relief of the pain in his right shoulder. He occasionally uses a wheat bag as well. Previously he was taking Endone and Targin, prescription medications.[61]
[61]T78, L19
202He said that his shoulder pain sometimes disturbs his sleep. Ms Esler said Mr Pollock complained of sleep disturbance because of his right shoulder pain.
203He has trouble with many aspects of personal care including putting socks, jumpers or a jacket on, and attending to himself at the toilet.
204Ms Esler said that when they go grocery shopping, he carries less bags than she does and cannot reach items on high shelves. Ms Esler did not state how many bags Mr Pollock is able to carry, but she described him asking her to lift heavier items like a bag of potatoes out of the shopping trolley.
205Ms Esler said that Mr Pollock can do some light cleaning and can wash dishes but avoids heavier cleaning duties or banging dust off rugs.
206She says that he has trouble cuddling her for long and that his injury has had an adverse effect on their intimate life.
207Mr Pollock has not been able to return to playing golf. He cannot throw soccer balls over his head and fears bumps from a ball; although he said he probably would not have been coaching soccer after 2017 anyway because his children did not continue at the club.
208He does not currently have a garden but would be restricted in gardening and pruning activities which placed a significant strain on his shoulder.
Are the impairment consequences of the aggravation injury sustained during the work accident on 2 December 2016, “serious”?
209I have found that on 2 December 2016, Mr Pollock sustained a separated or displaced fracture of the greater tuberosity of his right shoulder and a partial thickness avulsion tear to the supraspinatus tendon from its insertion into the footprint of the supraspinatus tendon into the greater tuberosity. That, in turn, led to the surgery performed by Mr Young and the subsequent development of residual fibrocystic changes in the supraspinatus and infraspinatus insertions consistent with enthesopathy, a focal area of ossification in the infraspinatus tendon, and ongoing insertional tendinosis in the two rotator cuffs.
210Mr Pollock contended that at the time of the work accident, he was recovering from the shoulder injury he sustained on 29 July 2016. Had the 2 December 2016 injury not occurred, he would have made a full recovery.
211The defendants contended that the aggravation injury was not a “serious injury”. They therefore bore the evidential burden of showing what the probable course of the pre-existing condition would have been.[62] The defendants contended, in essence, that there was no new injury on 2 December 2016. They therefore did not seek to identify what the probable course of Mr Pollock’s injury sustained on 29 July 2016 would have been, had the aggravation injury not occurred. Having considered all the evidence, in my opinion, while the injury was recovering slowly, the balance of the evidence supports the conclusion that it was healing. I find that it would probably ultimately have healed.
[62]Watts v Rake (1960) 108 CLR 158; Purkess v Crittenden (1965) 114 CLR 164
212Having regard to all the evidence, I therefore find that as a result of the injury consequent upon the work accident on 2 December 2016 alone, Mr Pollock suffers from the following consequences:
(a) pain in his right shoulder which is sometimes sharp and severe – “a piercing type pain” which is brought on by some of the movements of his arm – and at other times it is a constant dull ache in the centre of his right shoulder. The pain lasts from minutes to several hours;
(b) an inability to lift his arm above shoulder height, and pain if he attempts to lift his right arm that far;
(c) occasional pins and needles in his right hand;
(d) a “locking sensation” in his right shoulder;
(e) the need to take Panadol on most days for the relief of the pain in his right shoulder and sometimes ibuprofen as well;
(f) the need to occasionally use a wheat bag on his right shoulder;
(g) disturbed sleep;
(h) difficulties with many aspects of personal care including putting on socks, putting on jumpers or a jacket, and attending to himself at the toilet;
(i) reduced ability to do grocery shopping;
(j) reduced ability to clean, particularly heavier cleaning duties;
(k) inability to play golf and throw soccer balls. He cannot coach soccer, but I do not find that he would have been doing this anyway after 2017 because his children did not continue at the club;
(l) inability to garden or prune plants.
213In assessing the seriousness of the consequences to Mr Pollock, I have considered his experience of pain, as well as the disabling effect of the pain on his physical capabilities, capacity for work and enjoyment of life. I have considered the intensity of his pain as well as its frequency and duration. I have accepted that the plaintiff is a truthful witness and consequently I see no reason to reject his account of his pain.
214In the end I am required to make a value judgment as to whether the impairment consequences are serious, when judged objectively in comparison with other cases in the range of possible impairments or losses. Taking into account all the evidence, I am satisfied that the pain and suffering consequences of the aggravation injury to Mr Pollock’s right shoulder are at least “very considerable” and certainly more than “significant” or “marked”. They meet the threshold test for a serious injury in the Act.
Conclusion
215Accordingly, leave is granted to Mr Pollock to commence a proceeding to recover damages for pain and suffering. I dismiss Mr Pollock’s application for leave to recover loss of earning capacity damages.
216I shall hear the parties with respect to costs.
- - -
34
0