Popov v Victorian WorkCover Authority
[2014] VCC 474
•16 April 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-13-04430
| SIMEON PETER POPOV | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE JORDAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 to 14 April 2014 | |
DATE OF JUDGMENT: | 16 April 2014 | |
CASE MAY BE CITED AS: | Popov v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 474 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the left shoulder
Legislation Cited: Accident Compensation Act 1985; Civil Procedure Act 2010
Cases Cited:Peak Engineering & AnorvMcKenzie [2014] VSCA 67
Judgment: Leave granted to the plaintiff to bring proceedings for the recovery of pain and suffering damages. Application for leave to bring proceedings for the recovery of pecuniary loss damages dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D Hore-Lacy SC with Mr N Dunstan | Maurice Blackburn |
| For the Defendant | Mr T Ryan | IDP Lawyers |
HIS HONOUR:
1 This application for leave under the Accident Compensation Act 1985 (“the Act”) to bring proceedings for the recovery of damages for pain and suffering and loss of earning capacity relies on a paragraph (a) injury to the left shoulder.
2 The plaintiff has worked as a plasterer most of his life. His skills and experience however range much wider than that.[1] He turns sixty this year.
[1]Exhibit 4
3 While his two affidavits speak of no health conditions other than the subject left shoulder injury and an earlier right shoulder injury, it is clear from the medical evidence that he had a number of other health issues over the years. I will deal with these a little later.
4 He injured his left shoulder on 18 May 2010 when handling a heavy duffle bag. He is right arm dominant. He was working for the defendant’s insured, Quest Apartments, for only a few weeks from 25 March 2010 up to the day of the accident. Save for a very short return to work, he has not worked since.[2]
[2]Plaintiff’s Court Book (“PCB”) 13
5 He was formally terminated by letter on 21 June 2010, when his employer stated: “Your employment was terminated due to poor work performance and therefore your termination was effective immediately”.[3] In cross-examination, the plaintiff did not accept that his work performance was poor.[4] Whatever the reason, his short period of employment came to a sudden end.
[3]Defendant’s Court Book (“DCB”) 84
[4]Transcript (“T”) T215
6 He suffered an earlier injury in a fall on 28 February 2008. His right dominant shoulder was injured and it had put him out of work for several years prior to starting at Quest. A common law claim in relation to that injury was pursued against a public liability insurer. His current solicitors filed a Statement of Claim on his behalf on 19 December 2011,[5] seeking damages for injuries to his right shoulder as well as fractures of his left little finger.[6] This claim was settled a couple of weeks before a hearing date in February 2013.
[5]T44 and T58
[6]T58
7 The plaintiff admitted on a number of occasions that the right shoulder injury effectively meant the end of his plastering days.[7] It was only alternative employment to heavy full-on plastering work that he was looking for following the right shoulder injury. I find he was only fit for alternative lighter work and he is still fit for such work.
[7]T46-47, 60, 93-94, 207
8 The defendant admits a compensable injury was suffered to the left shoulder in this case.[8] Pain and suffering consequences are conceded.[9] The issue for the Court is whether the plaintiff meets the test of a 40 per cent or more permanent loss of earning capacity caused by the left shoulder impairment.[10] This requires the delineation of the left shoulder consequences from the consequences of other conditions, especially the right shoulder.[11]
[8]T11
[9]T20, 231
[10]T12 and T20
[11]Peak Engineering & AnorvMcKenzie [2014] VSCA 67
9 The plaintiff gave evidence before me, as did his general practitioner, Dr K Parbhoo. I did not find the plaintiff a particularly reliable witness. While there is not doubt about the pathology in his left shoulder, the conservative treatment and subsequent surgery to it, the consequences in terms of impact on earning capacity were the proper debate in this case.
10 The plaintiff lodged his serious injury application on 24 April 2013, shortly after settlement of his public liability common law damages claim for the right shoulder injury. On 24 April 2013, his first affidavit was sworn. His second affidavit is very recent and was sworn on 3 April 2014.
11 On any fair reading of those affidavits, the reader would be forgiven for thinking that, apart from the right shoulder injury I have referred to following the fall in 2008, there has been no other health issue of any concern to the plaintiff. Other evidence painted quite a different picture.
12 Extensive clinical notes and records have been tendered in this case and have been the subject of extensive cross-examination.[12] Without going through these notes in any great detail, it is clear that this man has had bilateral elbow symptoms over many years prior to 18 May 2010. These have required multiple injections, specialist treatment, medication and extensive radiological investigation. It is clear also that he has had neck problems over a number of years prior to 2010, together with low back symptoms that required investigation and treatment. His low back pain also involved sciatica which he had endured for many years. In spite of the plaintiff saying in effect there was no impact on his work up until his fall in February 2008; nevertheless the records speak for themselves about ongoing medical conditions that required extensive treatment. He had been taking strong medication prior to May 2010. For a man in a heavy physical trade, I do not accept his evidence that they had no impact at all on his capacity to handle heavy plaster sheets and follow his trade. Prescriptions drugs for pain for these various conditions have ranged from Endep, Tramal to Vioxx, as well as injections.
[12]Exhibit 1
13 Treatment for a number of these conditions has continued over the last four years or so and yet his affidavits are silent about these matters. The absence of proper information about these matters in the affidavits does not reflect well on his credit. In this case, I have had the opportunity to observe the plaintiff, who was cross-examined over some three days. It was of great assistance observing him as a witness, in both his demeanour and his answers. I found him a selective witness who tended to answer questions that put an emphasis on the left shoulder problems when it was to his advantage and at other times, on the right shoulder. As well as the failure of the affidavits to give a complete story his oral evidence did not meet these deficiencies.
14 He deposed in his most recent affidavit about the difficulties the left shoulder injury has caused with regard to sleep. It is probably a major pain and suffering consequence referred to in that current affidavit.[13] No other medical condition or problem is mentioned in relation to interrupted sleep.
[13]PCB 18b to 18c
15 When the clinical notes are then examined, only some five weeks before the subject injury on 18 May 2010, he attended his doctor on 12 April. He was complaining of neck and shoulder pains on that occasion. He was not sleeping due to his shoulder. The reference to shoulder on that occasion is to the right shoulder. It is hard, if not impossible, to reconcile what he said in his affidavit about sleep and the fact that the very last attendance before his doctor prior to 18 May 2010 related sleeping problems due to the other shoulder. On 12 April 2010, he was given Endep for pain and to assist with sleep on that occasion. At other times it was his back and sciatica affecting sleep.[14] These spinal symptoms have been ongoing off and on for ten years or so. To Mr Kevin King, less than a month before 18 May 2010, when the right shoulder claim was the focus, the plaintiff said the pain in that shoulder disturbed “his sleep every night”.[15] These other conditions affecting sleep did not rate a mention in his affidavit evidence.
[14]Exhibit 1, page 27; T118
[15]Exhibit 7, Mr Kevin King, 21 April 2010, page 3
16 Another example of deficient evidence is with respect to Centrelink. In March 2010, some eight weeks before 18 May 2010, there was a reference in the medical material to an application for Centrelink which reads: “CLink shoulder pain included”.[16] This must be the right shoulder. The plaintiff could not say what other medical conditions were involved in his Centrelink application and no documentation has been presented in that regard. I infer from the fact that shoulder pain has been “included”, some other medical condition or conditions have been principally relied on in terms of a Centrelink application and then shoulder pain has been added. There are other references to Centrelink, such as in November 2009 when “chronic pain left little finger” is mentioned. On another occasion in November 2009, in the context of Centrelink, shoulder injury is mentioned, as well as the left thumb.[17] This is a reference to the right shoulder.
[16]Exhibit 1, page 5
[17]Exhibit 1, page 5
17 It has simply been left up in the air as to what medical condition or conditions the plaintiff was representing to Centrelink in support of his application for benefits of one type or another. Evidence to clarify this would have been readily available. It is necessary in delineating the consequences of the left shoulder injury in regard to work capacity to have a proper understanding of these other medical conditions he is still relying on to receive benefits by way of a disability support pension.
18 Other aspects of the plaintiff’s evidence and his medical history that caused a concern about his reliability were references to bilateral shoulder problems prior to the subject injury on 18 May 2010. An attendance at the Ballarat Base Hospital Emergency Department in 2005 referred, in handwritten notes, to shoulders (in the plural) and neck as the site of problems. This attendance followed plain x-rays of both elbows, both shoulders and cervical spine on 3 December 2005. The CT scanning of the bilateral elbows and cervical spine followed on 19 December 2005. For reasons that are not clear to me, he has then gone from his address in Keilor and attended the Emergency Department of the Ballarat Base Hospital.[18]
[18]Exhibit 3
19 The plaintiff could give no real explanation of why he even attended in Ballarat. The notes refer to the Ballarat Base and also St John of God hospitals in Ballarat.[19] What is clear is that there are problems recorded with respect to both shoulders. It is also recorded by his general practitioner that he was:
[19]Exhibit 1, page11-12
“… not happy with Ballarat.”[20]
His evidence about treatment in Ballarat was unsatisfactory.
[20]Exhibit 1, page 11
20 The clinical notes from his own general practitioner also refer to problems in both shoulders.[21] In these notes, symptoms with both shoulders are recorded in 2005. Again “worse at night” is recorded on 29 November 2005.[22] No mention is made of any of these bilateral shoulder problems in either of his affidavits and they only emerged in cross-examination.
[21]Exhibit 1, page 12
[22]Exhibit 1, page 12
21 Clearly, on any reading of his general practitioner’s records since 2003, there have been many forms of treatment administered with respect to bilateral elbow pain over a number of years. Injections have been required.[23] The extent of the treatment for these conditions, including specialist referral and extensive radiology, can hardly have just been a matter the plaintiff did not recall when he swore his two affidavits. As a plasterer, use of his arms must be vital, repetitive and frequent. I do not accept his evidence that his work was not impacted on at all.
[23]Exhibit 1, pages 12, 13 and 16
22 There are other examples in terms of the clinical records where a comparison with what emerged there, compared with the story as told in his two affidavits, were quite at odds. No adequate explanation was given. I conclude that the plaintiff has been selective with respect to what he deposed to and also with respect to the emphasis that he has given in oral evidence, as to what particular injury and at what particular time, he thought was to his advantage.
23 Another troubling matter that was certainly not explained properly was in relation to Certificates of Incapacity that he obtained from his general practitioner. He pursued his rights in relation to his WorkCover injury in the Magistrates’ Court after having gone to a WorkCover conciliation on 23 November 2010. Up until that time, the certificates that he was obtaining in the six months or so from June 2010 to November 2010 were certifying him for alternative or modified duties.[24] After the conciliation had taken place with no resolution of his WorkCover rights being reached, the inevitable Magistrates’ Court proceedings were issued. His Certificates of Incapacity then suddenly changed to “unfit for any duties”. The first such certificate was only six days after the conciliation and was dated 29 November 2010. From then on there is this sudden change in this man’s certified capacity for work. The plaintiff could not explain any sudden deterioration in his condition or why the alteration in his certified capacity took place.
[24]Exhibit 2
24 The plaintiff tendered extensive documentation with respect to a suggestion[25] of 400 to 500 job applications. The plaintiff was cross-examined about whether these were applications for jobs that he considered he could do. In other words, he was asked whether they were genuine attempts to obtain work. The plaintiff indicated repeatedly that he was prepared to try such jobs if he was able to obtain one. He was, in my opinion, rather reticent to agree that he was presenting himself as capable of such work but he was willing to try. They have been relied on as evidence of motivation and to some extent that is a valid submission.
[25]T24, exhibit A
25 On a perusal of some of these job applications, I do not accept that they were all real attempts to obtain work. For example, he was relying on an application for a job with the Sheriff’s Office Recruitment, Department of Justice in February of this year.[26] He was applying for a job in the Department of Culture & Planning as a Superintendent in the Arts in February 2014.[27] In December 2013, the plaintiff was supposedly applying for the position of National Maintenance Manager for Coles.[28]
[26]Exhibit A, page 96
[27]Exhibit A, page 97
[28]Exhibit A, pages 81-82
26 I do not accept that when one compares the plaintiff’s resume, even with his breadth of skills and experience, that he could seriously be presenting himself as having either the qualifications, experience or education for these positions that I have referred to.[29] A number of them read as though they have come up on some website and have been simply included in a list to support motivation in this application.
[29]Exhibit 4
27 Another aspect on which the plaintiff’s credit was not enhanced was his reference to his relationship with his partner which has been under strain since injuring his left shoulder.[30] A reading of that part of the affidavit, with no more information provided, gave a very superficial view of domestic problems that were of far greater significance than just the stress caused by the left shoulder injury. In January 2013, there were very serious issues of violence recorded in the doctor’s notes.[31]
[30]PCB 17
[31]Exhibit 1, page 22
28 There were clearly depression issues that should have been mentioned if one was to give anything like a proper appraisal of what problems he was facing at home. Being out of work due to the right shoulder injury in 2008, I infer, would be one probable factor but it is not certain. These issues continued over quite a number of visits to his general practitioner.[32] Specialist psychiatric referral was required, as well as some advice from his legal representative about seeing a psychologist.[33]
[32]Exhibit 1, pages 22-26
[33]Exhibit 1, pages 24-26
29 The real significance of these problems outside of his left shoulder does not have to be the subject of any final determination. The fact remains that clearly the Court was only being given a very limited and incomplete picture of any domestic issues he was having with his de facto wife. All the affidavit focus pointed to just the left shoulder. This reinforced my view that the evidence given by the plaintiff has been at times selective to the point where I found him unreliable in regard to his medical history and his capacity for work.
30 A further matter of unreliability appears when Mr J O’Brien’s report recorded that the plaintiff was unable to afford any further treatment following an injection by Mr B Lynch and thus did not return to him.[34] This is at odds with the clinical notes from the general practitioner that said that the plaintiff “refuses to see B Lynch”.[35] In cross-examination, the plaintiff’s explanation about not returning to Mr Lynch was unsatisfactory and he seemed to have a complaint about either how Mr Lynch spoke to him or somehow inappropriately dealt with him.[36] In any event, the plaintiff did not readily volunteer that he was unhappy with Mr Lynch. I find that was probably the reason behind him not returning to that surgeon. A patient is entitled to seek other medical assistance but the plaintiff’s evidence about this matter was in my opinion evasive.
[34]PCB 50
[35]Exhibit 1, page 28
[36]T115-117
31 I accept that the plaintiff’s chosen trade as a plasterer has come to an end. That was caused in 2008 by the injury to his dominant right shoulder. When the subject injury to the left occurred two years later, he had already reached a point where alternative, light suitable employment was the only option. On all the evidence, I find that option is still open to him.
32 His resume sets out a number of duties and responsibilities from his years of work experience that range far and wide beyond being on the tools as a plasterer. I will not repeat these in any detail but they include many non-physical duties and responsibilities such as quoting new jobs, ordering materials, general bookkeeping and office administration, as well as a number of other skills and experiences.[37]
[37]Exhibit 4
33 While I have already commented on a number of very unrealistic job applications, it is clear from the applications for positions such as a supervisor, quality control and management positions, that the plaintiff himself has probably recognised a residual capacity for employment having lost his trade as a plasterer. He was reluctant to admit that and just said he would “give it a try”. Whatever this residual capacity is, it has not been properly established on the evidence that is any less than what it was when he started at Quest.
34 Clearly being a new worker and then suffering an injury to his left shoulder that put him off work for some two weeks, could be a factor that might well influence an employer not keeping on a probationary worker. However, it is not really obvious from any evidence before me as to why this job at Quest finished. It may have been because his performance at work was poor or it may have been because he sustained the injury, but there is nothing in any of the material that could lead to any positive conclusion one way or the other. The plaintiff did not offer any explanation in his affidavit or any oral evidence, other than to say that he was struggling with some of the tasks on his return to work and was really just told to go. [38]
[38]PCB 13, T215
35 There were other aspects of his evidence that caused reservation about his consistency and accuracy. He said in oral evidence he told his accountant to stop registration of the business.[39] That had been stopped he said. The ABN search does not seem consistent with this.[40] However, it may be different documentation he was referring to but he did not adequately explain the true position.
[39]T109 and T186
[40]Exhibit 5
36 The plaintiff has recently purchased a cabin/utility he agreed was of the type used by tradesmen. The tendered DVD’s show him in early 2011 driving an old white utility with a heavy overhead roof rack frame. Then, by late 2011, it is clear he has the new vehicle which is larger, a more modern make and on any view of the film, a trade-type vehicle in better condition. He is still driving it in 2013 and 2014.[41]
[41]Exhibit 6
37 When pressed in cross-examination about this, he said he hoped to recover from the left shoulder operation.[42] However, he has on a number of occasions said the right shoulder injury had ended his plastering days anyway.[43] He issued common law proceedings on 6 December 2011 claiming loss of earning capacity. This was subsequently amended on 19 December 2012 to a claim for pain and suffering damages only. Nevertheless, the new work vehicle was procured in late 2011 with the right shoulder problem unchanged since 2008 and after he was saddled with the extra May 2010 left shoulder problem. The purchase is consistent with a residual capacity and expectation of obtaining work in his mind.
[42]T188, T192 and T196
[43]T46-47, T60, T93-94 and T207
38 There are a number of examples where the plaintiff has been selective in what he says about his various medical conditions and the resultant incapacities. The plaintiff called on the defendant to produce what reports it had on the right shoulder injury. The defendant then called for Maurice Blackburn Pty Ltd’s file in the 2008 right shoulder claim late in this case.[44] Pursuant to the Civil Procedure Act 2010, I made orders in regard to these matters that had been complied with by the fourth day.[45] These additional documents also do not reflect favourably on the plaintiff’s credit and reliability.
[44]T166-167
[45]T180
39 Mr Kevin King, orthopaedic surgeon, had been engaged by the plaintiff’s solicitors in regard to the 2008 right shoulder common law claim that settled around February 2013. Mr King was not engaged in this left shoulder claim. When the plaintiff saw Mr King for the right shoulder on 21 April 2010, only about four weeks after the left shoulder incident on 18 May 2010, he described the job at Quest:
“He has been working on a very part time light duty basis over the last month and can manage with difficulty”.[46]
[46]Exhibit 7, 21 April 2010, page 3
40 This is hardly accurate. It is not “very part time” at all. The plaintiff’s own WorkCover claim form showed the job involved full time work, eight hours per day, that he had been in since 25 March 2010.[47] He gave the answer “No” in that left shoulder claim form to a question asking if he had previously had another injury/condition or personal injury claim that related to this injury/condition.[48] Clearly the records indicate previous investigations and attendances on his doctor for “shoulders”.[49] The plaintiff could not remember this and perhaps it is too far back to be too critical of him in that regard but it is clear in this case he provided inadequate histories to a number of doctors.
[47]PCB 68-70
[48]T67
[49]Exhibit 1, pages 12 and 16
41 He gave the impression to Mr King, insofar as the right shoulder was concerned, that he could only do very limited part-time work. The right shoulder pain at this stage, over two years since the fall, disturbed “his sleep every night”.[50] Mr King thought he was permanently disabled to quite a severe degree by pain and stiffness in the right shoulder.[51]
[50]Exhibit 7, Mr Kevin King, 21 April 2010, page 3
[51]Exhibit 7, Mr Kevin King, 21 April 2010, page 6
42 An email from his then solicitors, Slater & Gordon, indicated a client keen to alter the history of his 2008 fall as recorded by Mr King.[52] I infer the alternative would advance that claim on liability. The plaintiff did not evidently pass on instructions to correct the history about only working “very part time”. Mr King accepted the amended history in a short letter to Slater & Gordon on 27 May 2010. It went further. There was a follow-up telephone conversation from that firm regarding history changes.[53] There was still no change to the “very part time” history.
[52]Exhibit 7, email dated 27 May 2010
[53]Exhibit 7, Mr Kevin King, dated 22 June 2010
43 Mr King then saw the plaintiff again in 2012 for the right shoulder claim. Mr King obtained a history of the 2010 left shoulder duffle bag injury and thought the pain and stiffness in both shoulders were of equal severity. The job with the defendant was a handyman doing minor repairs and changing light bulbs but would occasionally require carrying guests’ luggage.[54]
[54]Exhibit 7, Mr Kevin King, dated 31 May 2012, page 2
44 This is quite a different picture to that in the plaintiff’s first affidavit in April 2013 when his duties with the defendant are set out for the purposes of this left shoulder application. The impression then given was of a much wider range he could manage. It was now described as a general maintenance position that included some gardening, collecting rubbish, pool maintenance and general repairs. It was full-time work.[55] While it was generally light on occasions, some jobs were heavy, such as manoeuvring and hanging a door on his own.[56] Mr King has been given a very selective version of what the right shoulder injury allowed the plaintiff to do at Quest. Mr King thought the right shoulder, as an isolated entity, represented a severe impairment of function and, by itself, would prevent the plaintiff from ever going back to heavy manual work involving lifting, straining and bending. The plaintiff minimised the duties required of him with the defendant in 2010 when the focus was on the right shoulder and its effect on loss of earning capacity. Those duties expanded when the consequences of the left shoulder injury are the focus and the loss of earning capacity it caused.
[55]PCB 12, paragraph 10
[56]PCB 12, paragraph 11
45 Mr K Elsner, orthopaedic surgeon, saw the plaintiff in July 2011 for the public liability defendant in the 2008 right shoulder claim. The past medical history given to him is not complete. The extent of the low back/sciatica, as well as pre 2008 shoulder symptoms referred to in the clinical notes, are examples of this.[57]
[57]Exhibit 1
46 The video evidence in this case includes footage of the plaintiff before his surgery in April 2012 and is, to that extent, of limited use. The last two DVD’s were in 2013 and 2014. There was no heavy repetitive or overhead use of the plaintiff’s arms. It nevertheless remains that, in terms of general mobility, driving, attending shops and carrying shopping bags, there was nothing to support an argument that this man is totally and permanently incapacitated for all employment. His movements were normal.
47 Overall I found the plaintiff an unsatisfactory witness. I do not accept he is incapable of alternative light work. The plaintiff has not established just what his residual capacity for work was since the 2008 injury. There was clearly a capacity prior to the left shoulder injury, but to be able to say what it was and, more importantly, whether 40 per cent of it was lost, cannot be concluded on the evidence in this case. The onus, of course, is on the plaintiff to establish this permanent loss.
48 Putting the plaintiff’s credit to one side, what the doctors say about the plaintiff’s physical capacity for suitable employment has to be examined. Before dealing with the medical evidence in detail, it is worth making some general comments. The plaintiff has been operated on by two orthopaedic surgeons – Mr B Lynch and Mr R Miller. I have to judge the consequences in April 2014. No orthopaedic surgeon has reported on behalf of the plaintiff since Mr Miller’s last review in August 2012.[58] Mr Miller suggested a report from Mr Lynch in relation to the right shoulder would be appropriate. The last document tendered from Mr Lynch is a letter of October 2011[59] but he last saw the plaintiff in August 2010.[60] There is no material that indicates he ever saw the plaintiff beyond that date. Apart from Dr Parbhoo, the only up to date medical opinion the plaintiff tendered was Dr A Sillcock who is not a surgeon. She gives her qualifications as an occupational physician. It could reasonably be said that these injuries fit squarely in the field of orthopaedic surgery. No explanation was given why an up to date report from Mr Miller was not obtained.
[58]PCB 145
[59]PCB 37
[60]PCB 37
49 The general practitioner, Dr K Parbhoo, gave oral evidence which did not really move away from the position in his medical reports that the plaintiff has a residual capacity for alternative work. He stated, in a report in November 2010, some six months or so after the injury, that the plaintiff’s work capacity was as follows:
“He remains fit for alternative duties. Avoid repetitive heavy lifting above shoulders. Avoid excessive shoulder rotations, abduction and adduction. He remains fit for light alternative duties.”[61]
[61]PCB 30
50 In a further report in May 2011, he stated that the plaintiff will have to seek alternative work in the future. In 2012, he thought the prognosis was uncertain and his treatment was continuing.[62]
[62]PCB 32
51 In his final report of February 2014, he stated quite unequivocally:
“2 Capacity for employment
Yes, Mr Simeon Popov has a capacity for employment.
3 Suitable employment
(a)This should involve minimum use of both shoulders especially the left. No lifting involving his shoulders. Gradual introduction to office type work: four hours per day.”[63]
[63]PCB 34
52 Well before the 2010 left shoulder injury, this description effectively described the reduced capacity that the plaintiff had because of his right shoulder injury in 2008 with the limitations it put on him. He is still so limited but remains with a capacity for alternative employment outside the heavy lifting and use of the shoulders incumbent in the work of a plasterer.
53 In spite of the “unfit for any duties” certificates Dr Parhboo has been issuing, I accept his evidence, tested in cross-examination, that the plaintiff still has a capacity for some alternative duties avoiding repetitive heavy lifting. He thought the plaintiff was significantly restricted in using both shoulders but he seemed to think the only work he had ever done was plastering.[64] His skills and experience were much wider.[65] This doctor did not support a finding of a permanent 40 per cent or more loss of earning capacity due to the left shoulder impairment.
[64]T145-146
[65]Exhibit 2, T95-97
54 Mr B Lynch, orthopaedic surgeon, who saw the plaintiff back in 2006 for bilateral elbow pains, increasing neck pain and headaches, was also engaged in 2008 to perform right shoulder surgery and right elbow surgery.[66]
[66]PCB 36
55 He described in detail the treatment with respect to the right elbow through 2006 and into 2008. He last saw the plaintiff on 16 August 2010 when the referral was with respect to the left shoulder injury suffered in May 2010. He described an examination and radiological findings and he diagnosed, on that occasion, bilateral elbow osteoarthritis, right shoulder large rotator cuff tear and left shoulder small rotator cuff tear. He did not recommend that the plaintiff return to his plastering duties because they would aggravate his pre-existing problems of arthritis in the elbows, the right shoulder and the left shoulder injuries in that order. This treating surgeon’s views are inconsistent with the plaintiff’s evidence that no other earlier conditions impacted on work except the right shoulder.
56 A couple of brief letters followed in 2011 from Mr Lynch that do not appear to have followed any further examination. The brief letters that I have referred to, written without the benefit of a further consultation, stated that the plaintiff, with all his injuries listed above, still had a residual capacity but he needed to avoid lifting weights over 20 kilograms, repetitive above shoulder and forward reaching activities and with elbows tucked in by the side.[67] He wrote again in October 2011 and thought the plaintiff suitable for lighter duties in maintenance with the listed restrictions. It reads as really the same work capacity he had after 18 May 2010 as the capacity that he had when he started at Quest.[68]
[67]PCB 38
[68]PCB 39
57 The plaintiff was referred to Mr Miller and saw him in January 2012. Mr Miller set out the treatment that led up to a left shoulder operation on 25 April 2012. For some reason, the last report of Mr Miller is in 2012 following the operation. There is nothing more up to date from him. In relation to capacity for work, he said that the plaintiff had had a moderate response to surgery to the left shoulder and would have ongoing symptoms. He further reported:
“He will have difficulty with work that involves repetitive arm actions, use of the arms in the above shoulder position or lifting of weights more than 2kg and specifically returning to work as a plasterer will be problematic in this case due to work-related injury in the left shoulder.”[69]
[69]PCB 45
58 Reading Mr Miller’s report, it is clear that he supported the end of the plaintiff’s plastering career but also supported a capacity for work within the limitations that have been described. He, along with the general practitioner and Mr Lynch, are the relevant treaters in this case. I find, on the evidence of those three doctors, that the plaintiff retained a residual capacity for alternative light employment following his left shoulder injury. He still has such capacity. The true extent of it has not been established by the plaintiff, let alone that he has suffered a 40 per cent or more permanent loss.
59 Completing the treaters, the plaintiff attended St Vincent’s for pain management this year.[70] However, no material has been tendered from that source.
[70]PCB 186, T213
60 Two doctors have seen the plaintiff for medico-legal reasons. The first of those is Mr J O’Brien, orthopaedic surgeon, who saw the plaintiff in October 2011. He seemed a little quizzical that the plaintiff had not told him about elbow pain or that the right shoulder pain was ongoing.[71] This is consistent with the plaintiff being a somewhat selective witness when questioned by other doctors. He was not always inclined to tell the full story in circumstances where he thought somewhat edited evidence would advance his cause. I found him the same in court.
[71]PCB 51
61 Mr O’Brien saw the plaintiff prior to his surgery on 25 April 2012. Not surprisingly, at that stage he thought the condition was not stable. He considered surgery was required and until that took place the plaintiff was totally incapacitated while the current clinical situation remained. He was not sent back to Mr O’Brien after the operation so the report does not assist in judging any loss of earning capacity in April 2014.
62 The last of the reports for the plaintiff was Dr A Sillcock, occupational physician, who saw him in September 2013. She thought he was totally and permanently incapacitated for work at that stage.[72] She is on her own in that view. She looked at several job selections from IPAR and commented on them. Save for a security officer working in a guard house, these job suggestions were not suitable for the plaintiff. This is because they may have required lifting and stretching beyond his capacity.[73]
[72]PCB 59
[73]PCB 60
63 This doctor had nothing like a full history of the plaintiff’s right shoulder condition. She simply noted that:
“He said that he has had a good result from the surgery but he can feel his shoulder pulling if he lifts anything heavy. It has been worse since he injured the left shoulder as he has been using it more.”[74]
[74]PCB 58
64 That history is not a full or fair reflection of the evidence. Even on the last visit to Dr Parbhoo before the May 2010 left shoulder injury, the problems with the right shoulder loomed much larger than the plaintiff had relayed to Dr Sillcock. On 12 April 2010, the notes indicate neck and shoulder pains, pain around the right shoulder and into the shoulder blades and headaches. It is also reported that the plaintiff was not sleeping because of his shoulder problems and he was put on Endep tablets for both pain and to assist with sleep. This goes well beyond what was recorded by Dr Sillcock.
65 Dr Sillcock is also labouring, in my view, under a misapprehension about what the plaintiff can do and not do with respect to his shoulder. She reported the plaintiff telling her about difficulty washing his hair, trouble putting on shirts and jackets, doing occasional shopping only and an inability to mow lawns, which are not consistent with the evidence in this application.[75] After viewing the DVDs, in my opinion, these statements are an exaggeration by the plaintiff of his incapacity.
[75]PCB 56
66 I find it difficult to follow Dr Sillcock’s reasoning in some respects. Apart from his inability to carry out plastering work, which I accept has been the position since 2008, she did not explain how she considered the plaintiff was totally and permanently incapacitated for work.[76] She does not seem to have any real appreciation of any of his skills and experience outside plastering.[77] She then goes on to deal with four jobs suggested by IPAR in a report of August 2012. She commented, with respect to those, that the plaintiff may be suited to a security officer in a gatehouse position but she did not believe the other jobs were physically suitable as they all may require lifting and stretching that is beyond his capacity.[78] Her comments about these jobs are not easy to follow in view of her finding that he is totally and permanently incapacitated for work. In effect, she wrote the plaintiff off for any form of alternative duties and yet her comments on the IPAR suggestions seem to leave the door at least partly open to some alternative occupations.
[76]PCB 59
[77]PCB 54-55, exhibit 2, T95-97
[78]PCB 60
67 Dr Sillcock then commented further in a letter of 6 March 2014. This did not appear to have followed any further examination of the plaintiff. She qualified her view about the security guard at a gatehouse position to some extent, although again, any reading of that letter appears to leave open certain occupations where he could avoid exerting his shoulder. She commented about his age and the employment market being generally unfavourable but it is the physical capacity for suitable employment that I must evaluate. She thought, on balance, that he did not have a current work capacity and yet seemed to be equivocal about it in the sense that she said:
“Other barriers to him obtaining suitable work apart from finding a job that was ideal physically are the fact that he has been out of the workforce for over three years and that he will shortly be turning sixty.”[79]
[79]PCB 64
68 A letter from Flexi Personnel of 20 March 2014 reported on the availability of suitable work for a gatehouse security guard in relation to the plaintiff’s residence in the Shire of Melton. This pointed out some of the practical difficulties about a security guard position, both from the point of view of his physical restrictions, as well as his place of residence. The conclusion I have reached, based on the medical evidence, is that he has a physical capacity for suitable employment that extends well beyond purely security guard work.
69 Apart from the general practitioner, who thought the plaintiff should have a gradual introduction to office work of four hours per day, no other doctors put any part-time or reduced hours qualification on capacity for alternative light work.[80] I infer from the absence of restriction on hours, very often given in this jurisdiction, that the other doctors felt the capacity for alternative light work was on a full-time basis but it remains that I have not heard from them in court.
[80]PCB 34
70 Associate Professor M Wallin, consultant in occupational health, safety and legal medicine, reported on 21 May 2009 with respect to the right arm injury. That injury was not stable at that stage and the plaintiff was suitable only for light duty work because of the right shoulder problem.[81] This report is out of date and of no real assistance in gauging the consequences of the left shoulder in terms of loss of earning capacity now.
[81]DCB 9-10
71 Mr Jonathon Hooper, orthopaedic surgeon, saw the plaintiff in July 2012. He thought he was suitable for lighter work or work not using the arms above shoulder level. He felt plastering was not feasible but other light work was open. Both shoulders precluded the plaintiff from doing heavy work.[82]
[82]DCB 13
72 In a further letter of 22 August 2012, regarding some suggested alternative jobs, Mr Hooper thought the courier suggestion would be difficult for the plaintiff but felt he was capable of the other five suggested jobs.[83] Reading his report, his conclusion seems to be that work that did not aggravate his shoulders was the only qualification on any alternative employment for the plaintiff. Save for that qualification, Mr Hooper appeared to be of the view that alternative employment was certainly within the plaintiff’s capacity.
[83]DCB 15
73 Mr M Dooley, orthopaedic surgeon, saw the plaintiff in February 2014 for the defendant. He has recorded a very inadequate history of medical conditions generally. For example, the bilateral elbow problems, low back pain, sciatica, depression and the finger fractures that have all required medical attention over the years are not recorded. A patently inadequate history of treatment has been given to Mr Dooley when one compares his report with the clinical records and cross-examination of the plaintiff.[84] He recorded the plaintiff as saying he had a good result from the right shoulder surgery.[85] This is hard to reconcile with him being in at his local clinic only five weeks before the left shoulder injury with the complaints I have already referred to on 12 April 2010 regarding the right shoulder, neck and headaches.
[84]Exhibit 1
[85]DCB 18
74 In relation to work, Mr Dooley agreed plastering or regular maintenance work were beyond the plaintiff’s capacity, as was work requiring a lot of actions above shoulder level. Notwithstanding the inadequate medical history, he thought the plaintiff had a capacity for light physical work and clerical duties.[86] The plaintiff’s résumé points to experience and responsibilities in the past in that type of work.[87]
[86]DCB 20
[87]Exhibit 4
75 NES vocational assessment documentation was also tendered on behalf of the defendant.[88] The report of 5 March 2012 predated the surgery and is of little use.[89] The report of 3 August 2012 saw a number of jobs suggested and the plaintiff was asked to comment on them.[90] The vocational assessor based a view at that stage that the plaintiff had no capacity for work on the strength of a WorkCover certificate from Dr Parbhoo dated 18 July 2012. However, further medical assessment was required.[91] This view was not surprising seeing it was still early days following the surgery in April 2012.
[88]DCB 25-63
[89]DCB 25
[90]DCB 47
[91]DCB 56
76 A further brief report of 10 August 2012 explored re-education possibilities that IPAR recommended for the plaintiff. However, it was noted that the plaintiff did not feel these were “suitable for him at this point”.[92] Again, these were fairly early days following his surgery, so the NES material is of limited use in judging any loss of earning capacity in April 2014.
[92]DCB 62
77 As with the plaintiff’s treaters, the doctors engaged by the defendant do not support the plaintiff proving any permanent loss of earning capacity of 40 per cent or more.
78 The plaintiff’s case has not sufficiently disentangled any consequences of the left shoulder impairment from his other medical conditions as regards earning capacity. On the plaintiff’s own evidence he has not discharged the onus of proving the requisite permanent loss of earning capacity. Similarly, the doctors’ opinions taken overall do not prove the necessary loss. I find as a probability the plaintiff still has a capacity for a wide range of suitable alternative employment.
79 I grant leave in light of the defendant’s concession to bring proceedings for the recovery of pain and suffering damages. I dismiss the application in regard to pecuniary loss damages.
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