Priest, Michael John v Qantas Airways Ltd
[2009] VCC 1467
•18 November 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES – COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-09-00188
| MICHAEL JOHN PRIEST | Plaintiff |
| v | |
| QANTAS AIRWAYS LTD | Defendant |
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| JUDGE: | HER HONOUR JUDGE K L BOURKE |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 6, 7 and 8 October 2009 |
| DATE OF JUDGMENT: | 18 November 2009 |
| CASE MAY BE CITED AS: | Priest, Michael John v Qantas Airways Ltd |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 1467 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – right shoulder – pain and suffering – loss of earning capacity - whether consequences to the plaintiff are serious.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R J Stanley QC with | Nowicki Carbone & Co. |
| Mr I Ingram | ||
| For the Defendant | Mr I McDonald | Herbert Geer |
| HER HONOUR: |
1 This is an application for leave to bring proceedings for damages pursuant to Section 134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of his employment with the defendant on 12 October 2004 (“the said date”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity. These discrete heads of damage require the application of different statutory tests as mandated by Section 134AB(37) and (38) of Act.
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s.134AB(37) of the Act. There, “serious” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
4 The impairment of body function relied upon in this case is the right shoulder.
5 The plaintiff relied upon two affidavits and he was cross examined. Mr Moran, orthopaedic surgeon, was required to attend for cross examination. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
Outline of Section 134AB
(i) Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages;
(ii) The impairment of the body function must be permanent;
(iii) The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, subsections (19) and (38)(e) impose specific burdens in relation to a claim for loss of earning capacity;
(iv) By subsection (38)(c) of the Act, the impairment must have consequences in relation to each of pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “at least very considerable” and more than “significant” or “marked”;
(v) I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders;
(vi) Where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of forty per cent or more, both at the date of hearing and permanently thereafter;
(vii) Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured;
(viii) Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the forty per cent loss has been established;
(ix) Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases;
(x) I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 and in Grech v Orica (2006) 14 VR 602 in reaching my conclusions.
The Plaintiff’s Evidence
6 The plaintiff is presently aged forty two, having been born on 20 September 1967. He is married with two children. He is right hand dominant.
7 The plaintiff attended school until the end of Year 9 and then commenced an apprenticeship in pastry cooking in 1983 which he completed in 1987. Shortly thereafter, he worked at a bakery in Mildura for about three years and then worked as a truck driver at Irymple.
8 On 13 September 1993, the plaintiff commenced fulltime employment with the defendant at Melbourne International Airport. He initially worked as a storeman in the tool crib for a year and he was then transferred to ramp services where he worked as an aircraft cleaner for about six months.
9 In March 1995, the plaintiff became a baggage handler, working shiftwork, a job he continued until February 2006. He became a leading hand in about 1999.
10 In or about late 1993 early 1994, the plaintiff injured his back working in the tool crib. He was put on light duties for two weeks and thereafter made a reasonable recovery.
11 In about 1996, the plaintiff injured his right elbow working as a baggage handler. He had some time off work and was put on light duties, and within six weeks or so he returned to normal duties.
12 From time to time the plaintiff experienced flare ups of right elbow pain, in relation to which he attended Dr Horvat. He also had some treatment for elbow pain at the Mildura Base Hospital in January 2008 when his arm was put in a sling and he had to rest it for a day or two before returning to his normal duties.
13 In about 1996, the plaintiff had an onset of right shoulder pain whilst working for the defendant. He received medical treatment, however about four weeks after this injury he made a good recovery and returned to normal duties.
14 The plaintiff was cross examined about this injury and his treatment by orthopaedic surgeon, Mr Elliott. When asked why he had not told various doctors about this shoulder injury the plaintiff said had he been asked he would have told them. He could not see why he would deny having been injured as he had no reason to lie about it and the facts were there.
15 In mid January 1998, the plaintiff strained his back in the course of his work with the defendant. He had physiotherapy treatment and took some medication.
16 In cross examination, the plaintiff said that from the time of that injury until he underwent back surgery in March 2006 he generally had back pain all the time, some days worse than others. He was taking anti inflammatories. He had trouble moving around. His pain finally got to the point that he saw a surgeon, Mr Brazenor, who tried conservative treatment for about a year and then operated.
17 On or about the said date, whilst working at Tullamarine, the plaintiff was unloading cargo and luggage from a Qantas airbus. He was required to manoeuvre containers on a dolly. Each container had four permanent strap fixtures which assisted baggage handlers in rotating the containers. The plaintiff put his right foot on the lever on the dolly and pulled the strap on the container with his left hand. The strap snapped and the plaintiff fell to the ground, landing on his right shoulder and elbow (“the incident”).
18 The plaintiff experienced pain from the impact of the fall. Fellow workers came to his assistance. He reported the incident to his supervisor and was taken to First Aid.
19 The plaintiff continued working until the end of the day and he was referred by the first aid officer to Ramp Physiotherapy, whom attended within the next couple of days.
20 This treatment did not result in any improvement and a week after the incident the plaintiff was referred by his physiotherapist to Dr O’Gorman, a general practitioner, who practiced at the airport.
21 Dr O’Gorman referred the plaintiff for an ultrasound and x-ray of his right shoulder and prescribed Celebrex. He reviewed the investigations and referred the plaintiff to Mr Moran, an orthopaedic surgeon. The plaintiff was advised to work only in a supervisory role.
22 In late October 2004, the plaintiff underwent an MRI scan of his right shoulder and thereafter Mr Moran scheduled him for surgery in late 2004. At that time the plaintiff’s right shoulder pain was quite severe and Mr Moran administered a cortisone injection directly into his right shoulder to help control the pain.
23 Following the incident, the plaintiff continued to work despite persisting symptoms in his right shoulder, elbow and arm. The plaintiff was required to undertake pendulum exercises to maintain the movement in his right shoulder joint and he avoided forceful pushing or pulling or prolonged tight gripping with his right hand and forearm.
24 The plaintiff saw Dr O’Gorman again in early November 2004, at which time he advised the plaintiff to continue modified light duties working in a supervisory and administrative role, which the plaintiff did until late November 2004.
25 The plaintiff underwent surgery at the Avenue Hospital in December 2004 (“the shoulder surgery”).
26 Following the shoulder surgery, the plaintiff was off work for three months. He returned to light duties for a while and then resumed full duties as a baggage handler in about the end of March 2005 when his last certificate expired. However, he continued to experience pain and discomfort in his right shoulder and elbow. He continued working as a leading hand but refrained from heavy lifting with his right arm.
27 In April 2005, the defendant agreed to pay for a three month swimming membership for the plaintiff on the advice of Mr Moran.
28 In cross examination, the plaintiff said that from the time he returned to work in early 2005 after his shoulder surgery, his back was continually sore and “slowly got bad”. He had trouble walking and getting out of a chair. He agreed he was having quite serious back pain radiating down his legs.
29 The plaintiff had time off when his back got so bad that he could not do his duties properly. He had a week or two off here and there to rest, and then he was able to go back to work.
30 The plaintiff thought, from memory, on these returns to work he went back on light duties some days, or maybe undertook supervisory roles, and he then ended up on fulltime duties, which was the position when he stopped working as a baggage handler in February 2006 because he had left the defendant and he was booked in for surgery. The plaintiff explained that as he was going to have major surgery on his back, “it did not seem like a good idea to go back loading aeroplanes – it was the job that hurt his back in the first place”. He was not offered a redundancy, he just resigned to have “fairly major surgery”.
31 When the back surgery was first discussed with him, Mr Brazenor showed the plaintiff the disc that he would be implanting and told the plaintiff that if he had the surgery he could be back loading aeroplanes; back to the job he was doing. Following this advice, the plaintiff, having sustained several injuries, “decided that was it”.
32 He had a combination of injuries and it was a convenient time to leave the defendant’s employ because he was going to have surgery on his back but he intended to then think about getting other employment.
33 In March 2006, Mr Brazenor operated on the plaintiff, inserting an L5-S1 prosthetic disc (“the back surgery”).
34 There was a four month recuperative period after the back surgery and then the plaintiff started looking for a job.
35 The plaintiff agreed he had told Mr Brearley that he had to leave work with the defendant not because of his shoulder pain but because of a serious problem he had with his low back which required surgery.
36 In cross examination, the plaintiff agreed he had a very good result from the back surgery. Prior to surgery it would take him half an hour to get out of bed in the morning but he can now do so and he walks a lot. His back is now ninety nine or one hundred per cent and he rarely has any issues with it.
37 The plaintiff deposed that when he ceased employment with the defendant he was earning approximately $58,000 per annum.
38 When cross examined about his earnings of $70,000 in the 2006 financial year, the plaintiff said this figure probably took into account what he received from the defendant when he resigned.
39 The wages of a comparable employee in the three years following the incident tendered by the defendant set out the following:
Financial Year Employee ‘A’ Employee ‘B’ The Plaintiff
2004-2005 $47,505.00 $47,806.00 $58,821.00 (19.10.04 - (19.10.04 - 30.6.05 only) 30.6.05 only)
Financial Year Employee ‘A’ Employee ‘B’ The Plaintiff
2005-2006 $75,692.00 $72,816.00 $70,507.00 2006-2007 $77,566.00 $67,173.00 $38,299.00 2007-2008 $91,189.00 $68,910.00 $47,558.00
40 The plaintiff commenced work with a family owned business, Preferred Timber Hardware & Garden Supplies (“Preferred”) on 3 July 2006. This job involved truck driving, working in the shop and keeping the yard clean. The plaintiff’s employer at Preferred knew of the plaintiff’s back surgery.
41 The plaintiff was required to drive two small tip trucks and a rigid tray truck and he operated a frontend loader and forklift. He worked in this job fulltime for two years. He was frequently required to lift timber products which would regularly flare up his shoulder pain and he was required to rest his shoulder. He could not frequently use his right arm above chest level. He often used his non dominant hand. He was not capable of performing tasks involving pushing or pulling weights in excess of five kilograms with his right hand. On a weekly basis he was required to take Panadol for his shoulder condition.
42 In cross examination, the plaintiff said that his back was pretty good and he did not have any trouble, but he agreed it was a physical job. He could manage that sort of work with his shoulder, he just had to be careful as to what he did and how he did things.
43 In September 2007, the plaintiff suffered an onset of lower back and right elbow pain whilst lifting flooring at work. He suffered pain in a different part of his back to that which he had previously injured. He received medical treatment from Dr Horvat and had some physiotherapy treatment. He did not believe he had any time off work at that time but he performed restricted duties for a couple of weeks.
44 In cross examination, the plaintiff said that since he left work with the defendant he attended either the Sunbury Family Medical Centre or Gap Road Medical Centre. The plaintiff could not be certain he had any treatment for his right shoulder whilst working for Preferred, however Dr Horvat’s notes indicate three attendances for the right shoulder in February 2007.
45 The plaintiff resigned from Preferred on 5 September 2008 as he was having a lot of shoulder pain and discomfort. He was struggling with the workload – loading and unloading trucks and lifting timber. He sought out truck driving and crane operating which he thought would take pressure off his shoulder. He did not seek any medical advice about changing work.
46 Whilst the plaintiff was working for Preferred between 2006 and 2008, he earned approximately $43,000 gross per annum.
47 On 15 September 2008, the plaintiff commenced employment as a truck driver and crane operator with Moby Dick Transport (“Moby Dick”) in Sunbury. He obtained the job through a friend.
48 The plaintiff had this job lined up before he left Preferred. He knew Dick Allen, the owner of Moby Dick and rang him to get a job. The plaintiff told Mr Allen that his right shoulder had been troubling him in his last job and he would like to try something different.
49 The plaintiff was self employed and engaged as a contractor whilst working for Moby Dick and he registered an ABN. He worked probably forty to fifty hours a week. He drove the truck, delivering timber. He put the straps around the load and loaded and unloaded with a crane.
50 The plaintiff remained in this job until February 2009 when he resigned to start work at Sunbury Bus Services. He did not change jobs as a result of medical advice. The plaintiff got the bus driving work through a friend who said “give bus driving a go, it’s pretty easy on the body”.
51 The plaintiff found it hard to explain whether he was earning more at Sunbury Bus Services than at Moby Dick because he has holidays and other benefits in his present job that he did not have whilst self employed at Moby Dick.
52 The plaintiff had difficulties with the job at Moby Dick getting in and out of the truck. He had to hoist himself in and out of the truck using his right arm above shoulder height twenty to thirty times a day, which caused him shoulder pain.
53 The plaintiff said that the jobs at Preferred and Moby Dick did not place as much stress on his back as you would think. Because he had had a back injury he tried to do things a little bit smarter and not lift as much. He would lift lighter stuff and do it a different way. The job at Moby Dick was better than Preferred because he was not lifting as much.
54 Since February 2009, the plaintiff has been employed by Sunbury Bus Lines as a driver. He is required to work Saturday once every month and earns approximately $48,000 per year.
55 The plaintiff is able to drive the bus by using both hands, however he positions his right arm close to the right side of his body and predominantly uses his left hand to manoeuvre the steering wheel. This position minimises instances where his right arm comes up above shoulder height.
56 The plaintiff is also required to wash the bus daily. He predominantly relies on his left arm to manoeuvre any washing appliances and he keeps his right arm close to his body, holding appliances at waist height to avoid aggravating his right shoulder pain. Despite doing the job in this manner, there are times that he inadvertently raises his right arm above or close to shoulder height and he immediately feels discomfort and pain radiating down his shoulder.
57 Bus driving is an easier job than the job with Moby Dick. It is much easier to get in and out of the bus than the truck and he is not required to operate a crane. The plaintiff presently works nine hours a day – seven and a half of which are spent driving. One week he drives an articulated bus and the next week he drives a rigid bus. Normally two to seven men help to wash the truck and it might only take a couple of minutes. It is not that often that he has to do this job by himself and if so it takes up to half an hour. He has to use his right arm a bit but he tries to keep it tucked in and mainly uses his left arm because if he gets his right arm too high he gets pain in it, like a needle pain.
58 In the witness box the plaintiff demonstrated that he could lift his right arm out to the side to about thirty to forty degrees. He also has pain bringing it forward to the same level. He has discomfort when flexing.
59 The plaintiff thought his present employer knew about his shoulder injury because he had his shoulder strapped up one day at work. He has not taken any time off from his current job or any other job since the shoulder surgery.
60 The plaintiff continues to see Dr Beitner, general practitioner, at the Gap Road Clinic on a regular basis to renew prescriptions.
61 The plaintiff resumed physiotherapy treatment late in 2008. Earlier that year the defendant had refused to pay for this treatment on the basis that the plaintiff was no longer employed by it, he had had surgery and his claim was finished.
62 In these circumstances, the plaintiff went to the Gap Clinic because he was not allowed to go back to Dr Horvat’s clinic until the physiotherapy was paid for.
63 A WorkCover conciliation was held in early 2009 and it was ultimately resolved that the defendant would be responsible for paying for physiotherapy and other treatment which the plaintiff has continued whilst under the care of Dr Beitner.
64 The plaintiff had an ultrasound of his right shoulder in January 2009.
65 In July 2009, Dr Beitner referred the plaintiff to Mr Moran because of the persistence of his symptoms. Mr Moran referred the plaintiff for a further ultrasound and gave him a cortisone injection and advised him to wait a month before reporting back to him.
66 Mr Moran advised the plaintiff that if his shoulder pain persisted, he would require surgery. He told the plaintiff that the consequences of not having further surgery could be grave.
67 The plaintiff’s shoulder is now back to square one – back to where it was prior to the surgery. There has been no lasting improvement from the July injection.
68 The plaintiff, however, is hesitant to commit to surgery immediately as he only recently secured employment as a bus driver and fears any disruption to his ability to work may result in his job being terminated.
69 When asked why he had not gone back to see Mr Moran, the plaintiff said that he had to arrange time off work to do so and that was not always easy. Money was an issue and he was worried about losing his job. He denied he had not returned because his shoulder was not particularly troublesome.
70 Further, the plaintiff is concerned that if he underwent further surgery he would require more time off work and then have to do light duties. If he had to go through that routine again and be off work for three months, he did not think his employer would “cop that” at all and that he would lose his job.
71 The plaintiff is having physiotherapy twice weekly and takes anti inflammatories and painkillers, trying to cope the best way he can. He is a little bit frightened to go and see Mr Moran again because he is afraid he wants to perform surgery. The plaintiff is not the sort of man who goes to the doctor frequently.
72 The plaintiff presently takes Temazepam to help him sleep and he takes the anti inflammatory, Mobic, daily. He takes a painkiller, either Panadeine Forte or four to six Codalgin tablets a day prescribed by Dr Beitner. The plaintiff’s current employer is aware of his medication intake.
73 The plaintiff has trouble sleeping at night. He has difficulty falling asleep and wakes up regularly throughout the night with severe pins and needles in his right shoulder and right hand. Disruption of sleep occurs consistently on a night to night basis.
74 The plaintiff continues to experience right shoulder pain when he lifts his arm above shoulder height. The pain radiates down towards his elbow region and has worsened over the past year. In the last six months or so he has also begun to feel pain radiating down to his neck, causing neck stiffness.
75 The plaintiff continues to struggle with simple personal tasks, such as shaving, brushing his teeth and doing his hair, tasks he naturally does right handed. He even experiences pain when attempting to dress himself, putting on a shirt and tie. In the witness box, the plaintiff demonstrated the problems he has with these movements.
76 The plaintiff’s shoulder pain also affects his mobility around the house and restricts his ability to perform tasks he previously undertook with ease. In particular, he struggles with starting the pull/start lawnmower as the restricted range of movement of his right dominant arm makes it difficult to generate the force required.
77 The plaintiff’s shoulder pain also limits his ability to perform other household chores such as taking out the bins and hanging up the washing. He often has to rely on his children to perform household activities for him but he has to do them himself when that help is not available, but not without experiencing intense pain when he raises his right arm.
78 Prior to the incident the plaintiff rode his motorbike daily, however since that time, riding it has caused pain. The plaintiff has ridden his motorbike four or five times since the back injury and surgery.
79 The plaintiff was forced to sell both his 1987 Mitsubishi non power steering ute and his motorbike in 2009 because his shoulder pain prevented him from operating them without discomfort.
80 The plaintiff had a significant emotional attachment to both vehicles, and being unable to use them is upsetting to him. He has since purchased a car with power steering which minimises the amount of power he needs to generate with his right arm. The plaintiff can drive but he experiences some difficulty. After a drive to Halls Gap his right shoulder felt very sore.
81 The plaintiff is unable to regularly play basketball and football with his thirteen year old son as he cannot lift his right arm above his shoulder to catch or mark the ball without pain and he no longer has a tight grip. Any forceful movement causes pain and discomfort and the fact he can no longer play sport with his son in this manner upsets and frustrates him.
82 The plaintiff is a member of the committee at the football club and cooks the barbecue. He is not able to run the boundary. He has problems running and he cannot throw the ball up.
83 In cross examination, the plaintiff said he did not think he had played football with his son since the back surgery, nor has he played basketball.
Wage Details
84 The plaintiff grossed $17,881 working for Sunbury Bus Lines in the nineteen week period from 16 February 2009, a weekly gross figure of $941.00.
The Plaintiff’s Medical Evidence
85 The plaintiff was seen by Mr Elliott, orthopaedic surgeon, on 25 November 1997. The plaintiff reported having suffered a painful right shoulder whilst climbing off a ladder at work. It was noted the plaintiff initially had had some time off work, he returned to work for a week and then had further time off.
86 On examination, there was no localised tenderness to the right shoulder. There was pain on abduction and there was full external rotation but pain on that movement. There was full internal rotation, full flexion, with flexion being uncomfortable.
87 Mr Elliott felt the plaintiff had a mild rotator cuff injury which should be treated conservatively and he arranged for physiotherapy. He did not think at that stage there was any indication for surgery or further investigation. He noted right shoulder x-rays were normal.
88 The plaintiff attended Dr O’Gorman at the Airport Medical Clinic on 19 October 2004. Dr O’Gorman felt the plaintiff had a significant AC joint injury and referred him for investigations and prescribed Celebrex.
89 Dr O’Gorman next saw the plaintiff on 21 October 2004 after the x-rays were available. In view of the findings, he referred the plaintiff to Mr Moran and advised the plaintiff to work only in a supervisory role.
90 Dr O’Gorman last saw the plaintiff on 5 November 2004 and continued him on supervisory administrative duties to the end of that month. He noted the plaintiff had achieved considerable improvement in his shoulder from the injection administered by Mr Moran but remained tender on deep palpation and on arc abduction movements. At that stage Dr O’Gorman suspected there was a high likelihood of the plaintiff requiring orthopaedic treatment to his shoulder.
91 Dr O’Gorman diagnosed right shoulder rotator cuff impingement, AC joint inflammation on a background of degenerative change and a Grade II SLAP lesion following the incident. At that stage he thought the plaintiff had a temporary partial incapacity for work.
92 The plaintiff was referred by Dr O’Gorman to Mr Moran in October 2004. Mr Moran thought the plaintiff had significant subacromial impingement with a partial thickness tear of the rotator cuff tendons leading to significant subacromial bursitis. The plaintiff also had a small SLAP lesion in association with a shoulder joint effusion and symptomatic degenerative change in the right AC joint.
93 Mr Moran requested WorkCover accept liability for the arthroscopic surgery, including subacromial decompression.
94 Mr Moran operated on 15 December 2004. In the surgery, the bursal was debrided and an acromioplasty was performed and the CA ligament excised. Mr Moran also removed osteophytes from the AC joint.
95 Mr Moran confirmed significant subacromial bursitis and anterior impingement in association with the Type B acromion. There was also impingement evident from osteophytes arising from the inferior border of the AC joint. He noted that the rotator cuff mechanism was essentially stable and intact.
96 On review post operatively, Mr Moran noted the plaintiff had no evidence of stiffness but he did have persistent discomfort for which he was referred to a physiotherapist. He advised the plaintiff to undergo a follow up ultrasound in six to twelve months to make sure the lesion was not progressive.
97 When reviewed two months later, the plaintiff said he was feeling somewhat better but he complained of the high painful arc of abduction in the left shoulder consistent with degenerative change in the AC joint.
98 On recent review in July 2009, the plaintiff complained of ongoing right shoulder pain and had clinical evidence of subacromial impingement with some soft tissue crepitus.
99 Mr Moran noted the ultrasound of 13 January 2009 confirmed that the rotator cuff mechanism was intact but there was evidence of bursal impingement.
100 The plaintiff was scheduled for an ultrasound guided injection of the subacromial bursa on the day of the examination but Mr Moran indicated that if it did not offer clinical improvement the plaintiff should return for further review.
101 Mr Moran noted, despite a satisfactory clinical outcome, the plaintiff remained at risk of further problems as a result of degenerative change in the AC joint and in the rotator cuff mechanism.
102 In examination in chief, Mr Moran explained the procedure involved in the shoulder surgery. He also described a painful arc as being the classical sign of rotator cuff tendonitis impingement pain.
103 When he re-examined the plaintiff in 2009, Mr Moran said that the plaintiff still had a chronically inflamed tendon consistent with the nature of rotator cuff pathology.
104 In terms of the future course of the plaintiff’s shoulder, Mr Moran thought the major end stage risk for him was that he would get a spontaneous rupture of the supraspinatus tendon which was not an uncommon problem in seventy year olds, but in a younger person it would become an extremely debilitating condition if not rectified by surgical repair and that this was the end stage of chronic supraspinatus tendonitis.
105 Mr Moran concluded, as a natural progression of the damaged tendon there was a risk of late rupture and that is why he suggested the plaintiff would require a follow up ultrasound. He explained when someone is at risk like the plaintiff, he would want to keep an eye on them, and if that rupture occurred, the plaintiff would require definitive surgical repair. There was only a limited window of opportunity in which to carry out such a procedure because over six to twelve months, the tendon would continue to retract and it would shrivel up and there would be nothing to then repair and interposition grafts and other synthetic grafts just do not work in that type of pathology. Therefore, it was a matter of being warned, and early diagnosis.
106 In cross examination, Mr Moran confirmed a rupture had not recently occurred.
107 When asked about the plaintiff’s previous attendances on Mr Elliott in 1997, Mr Moran confirmed it did not cause him any concern in relation to his opinion.
108 Mr Moran confirmed that, as of 23 February 2005 post operatively, the surgery had allowed the plaintiff to raise his arm without impingement and to use his arm with reasonable surety. There was no stiffness and the tendonitis, the inflammatory component of the pathology, was subsiding so Mr Moran would say that he had achieved what he aimed to do.
109 Mr Moran confirmed, as of February 2005, the plaintiff was in a position to return to work and that at that stage he would have recommended there be a follow up ultrasound.
110 When Mr Moran next saw the plaintiff on 29 July 2009 he found the plaintiff had evidence of subacromial impingement with some soft tissue crepitus on raising the arm. Mr Moran noted the January 2009 ultrasound had suggested the cuff was intact but that was demonstrating signs of impingement. This finding was demonstrated by a classical low painful arc.
111 Mr Moran explained the point of the epidural injection was to reduce the inflammatory reaction in the bursa which will shrink it down. Some of the cortisone would diffuse down onto the surface of the tendon. The aim of the injection was to dehydrate the tissues and get to the point where they are no longer “bashing up against the acromion”. The procedure, if successful, removes the inflammatory reaction, not the existing damage to the tendon.
112 Mr Moran pointed out that in addition to the painful arc, patients often volunteer that they keep waking up during the night when they roll onto the shoulder or when they have unguarded sudden movement, usually involving activities close to the body. Mr Moran confirmed it would be difficult to play football with this problem. Further, it would also make it very difficult to comb your hair and brush your teeth.
113 Mr Moran would only advise surgery if the plaintiff had a full thickness tear, and it would be more complex surgery than the plaintiff previously had. He would be happy if the plaintiff had a reasonable response to the injection to repeat that procedure once or twice and that would settle down the immediate symptoms in the majority of patients. It, however, did not give the plaintiff a normal shoulder and it remained vulnerable because it did not repair structural damage.
114 When it was put to Mr Moran that the plaintiff had left the defendant’s employ because of his back, he said it made sense because that was the “thing that obviously nailed him”. He would certainly not recommend, as an orthopaedic surgeon, that the plaintiff return to his old job following back surgery.
115 Mr Moran thought leaving this job was very good for the plaintiff from the perspective of his shoulder because his work with the defendant was inappropriate.
116 Mr Moran explained that baggage handling was a “recipe for physical disaster” once there was demonstrated shoulder pathology of a significant degree. He would be worried if the plaintiff returned to work throwing twenty five kilogram cases on a plane. It made sense to him that the plaintiff should be a bus driver.
117 In re-examination, when asked about the plaintiff’s employment capacity, Mr Moran was quite in admiration of the plaintiff. In his view, the plaintiff “had had two strikes and he was still working and he was not your average bludger”. He thought the plaintiff was a quality person who was now in more appropriate employment.
118 In terms of the recuperation period after further surgery, Mr Moran said that it is twelve months before the repair matures and he normally requests people not drive for three months, as in case of an emergency, the shoulder “is just not going to be there for you”. He thought the plaintiff would be fit to return to driving after three months because most buses have very, very efficient power steering.
119 The plaintiff attended the Sunbury Physiotherapy Clinic in January and February 2005 for rehabilitation and physiotherapy treatment to his right shoulder following surgery. The plaintiff had previously received treatment for his right shoulder at that practice on six occasions in November 1997, after which he was discharged with a close to full pain free range of movement.
120 Mr Ian Jones, orthopaedic surgeon, examined the plaintiff on behalf of the defendant on 18 December 2008.
121 On examination, there was a restriction of right shoulder movements. Mr Jones had available the MRI scan of the right shoulder taken in October 2004 and noted the degree of arthritis was assessed as being moderate and that the rotator cuff appeared to be normal save for some tendonosis affecting the biceps tendon.
122 Mr Jones thought the incident appeared to have caused or aggravated a soft tissue injury to the plaintiff’s right shoulder in the form of a subacromial bursitis and partial tendon tear and a labral detachment within the shoulder joint itself.
123 He considered the plaintiff’s prognosis in both the short and long term was one of persisting pain and stiffness. Mr Jones did not believe further specific treatment was likely to benefit the plaintiff.
124 Dr Beitner from the Gap Road Medical Centre in Sunbury reported that his clinic had had minimal involvement in the management of the plaintiff in relation to his shoulder injury since he was first seen on 20 December 2008.
125 The plaintiff advised Dr Beitner of the incident and that he had recovered following surgery and eventually resumed work. At the time of the examination, the plaintiff was driving trucks but the pain in his right shoulder had recurred over the past two days.
126 Dr Beitner referred the plaintiff for an ultrasound which was performed on 14 January 2009. The plaintiff was next seen on 11 February 2009 when he requested a prescription for analgesics and a muscle relaxant.
127 The plaintiff then presented on 15 April 2009 when he stated he was better but his shoulder pain kept him awake at night. The plaintiff told Dr Beitner that he had contacted a lawyer who was reactivating his WorkCover claim.
128 The plaintiff requested a referral to an orthopaedic surgeon, Mr Hayden Morris, but Dr Beitner did hear back from him. On 22 June 2009, the plaintiff requested a referral to Mr Moran, and by letter dated 3 August 2009, Mr Moran advised he was intending to send the plaintiff to have a steroid injection into the bursa of his right shoulder. Since that time Dr Beitner has only seen the plaintiff for repeat analgesic prescriptions.
129 Mr Kenneth Brearley, orthopaedic surgeon, examined the plaintiff for medico- legal purposes on 20 May 2009. The plaintiff told him of the incident and subsequent surgery.
130 The plaintiff told Mr Brearley that he had to leave the defendant’s employ, not because of his shoulder but because of a serious problem with his lower back that ended up in surgery, from which he had had a good result.
131 The plaintiff told Mr Brearley that in his present job as a bus driver he can do well as there is no heavy lifting and he is able to get in and out of the bus relatively easily.
132 On examination, the plaintiff complained of constant right shoulder discomfort and pain made worse by the use of his right arm. He had pain on all movements above his shoulder and he had difficulty sleeping.
133 The plaintiff told Mr Brearley he takes four to six Panadeine tablets a day and also takes Mobic, Antenex and Temaz. The plaintiff is unable to do any manual work. He has difficulty mowing and with house maintenance. He cannot be goalkeeper for his son’s football team or run the boundary and he cannot play football or basketball with his son. He has trouble with personal hygiene tasks and getting dressed, and he is unable to ride his motorbike.
134 On examination, there was no deformity or obvious wasting of the right shoulder. There was quite marked painful limitation of movement in all directions.
135 Mr Brearley noted the x-ray of the right shoulder taken on 13 January 2009 showed no significant abnormality. An ultrasound of that date was reported as showing some features suggestive of supraspinatus tendonosis but no definite tear. There was bursal wall thickening at the subdeltoid subacromial bursa associated with impingement on shoulder abduction and forward flexion suggestive of bursitis.
136 In Mr Brearley’s view, the plaintiff suffered a tear of the supraspinatus portion of the rotator cuff in the incident. He considered, after an initial good response to surgery, the plaintiff’s shoulder had gradually deteriorated again and he was now having a great deal of pain and painful limitation of movement. Mr Brearley thought this was the result of the development of chronic subacromial bursitis and presumably ongoing injury to the glenoid labrum which had been demonstrated on recent ultrasound.
137 Mr Brearley considered the plaintiff’s pain and suffering was entirely organic and that he needed further treatment.
138 He noted the plaintiff needed to see Mr Moran, whom he thought may well recommend subacromial steroid injection or possibly re operation, namely subacromial decompression and probably labral repair if the need for that was indicated on investigation.
139 Mr Brearley considered the plaintiff’s injury was not stable and his employment with the defendant was certainly a contributing factor to it. He hoped there would be some improvement with further treatment, otherwise he considered the injury would be permanent.
140 Mr Brearley thought the plaintiff was able to do suitable light work such as bus driving. The plaintiff was certainly unable to do any manual labour and he could not do jobs which required heavy or repetitive lifting or repetitive tasks involving his right arm.
141 Mr Brearley thought the plaintiff’s prognosis was not good. In his view, the plaintiff needed further investigation and treatment and there was a possibility that with such treatment there may be some improvement. He thought the plaintiff required further assessment in six to twelve months.
142 Mr Brearley provided a supplementary report, having seen the right shoulder MRI scan taken in October 2004.
143 In Mr Brearley’s view, there was certainly pathology demonstrated that was likely to be of clinical significance. He noted it was presumed, of course, that it was this pathology which was responsible for all the plaintiff’s symptoms.
144 Mr Brearley thought the pathology demonstrated was in keeping with his examination findings on 20 May 2009. He considered the radiological and physical findings indicated the plaintiff had significant damage to the rotator cuff and chronic subacromial bursitis which was ongoing.
145 Mr Brearley considered, incidentally, that the main cause for the plaintiff’s ongoing symptoms was in regard to the pathology of the rotator cuff and his chronic subacromial bursitis.
146 Dr Clayton Thomas, consultant in rehabilitation and pain management, examined the plaintiff on 5 August 2009. At that stage the plaintiff complained of right shoulder pain and that lifting his right arm was problematic. He reported pain at the tip of his shoulder and that any lifting of objects was painful, and his sleep was badly affected.
147 On examination, there was reduction of flexion and abduction, secondary to pain and weakness, and there was some wasting of the right shoulder girdle.
148 Dr Thomas noted the plaintiff had undergone an ultrasound guided steroid injection of the right shoulder on 29 July 2009 without immediate complications. He also noted the 2004 MRI scan and the right shoulder ultrasound of October 2004.
149 Dr Thomas thought the genesis of the plaintiff’s chronic painful, weak and stiff right shoulder occurred in the incident and that it was certainly an organic injury.
150 In Dr Thomas’s view, the precise underlying problem was not determined and required an MRI scan which would be likely to pick up a SLAP lesion.
151 In the plaintiff’s current condition, Dr Thomas thought his right shoulder function was severely compromised. He noted that the plaintiff’s shoulder problem precluded his hand from being placed where it needed to be.
152 Dr Thomas considered, in his current condition, the plaintiff certainly would not be able to return to his old job or work as a truck driver.
153 Mr Khan, orthopaedic surgeon, examined the plaintiff on 6 July 2009. The plaintiff told him that his back had improved considerably following the back surgery, however, he continued to have pain in the region of his right shoulder and had to rely on painkilling medication.
154 On physical examination, Mr Khan noted there was local tenderness over the anterior aspect of the shoulder as well as in the region of acromioclavicular joint. There was restriction of right shoulder movement.
155 As a result of the incident, Mr Khan considered the plaintiff had developed a more severe injury to the right shoulder than suffered in 1996 with severe damage to the rotator cuff tendon, resulting in tendinopathy, fraying of the tendon, subacromial decompression, flare up of pre existing acromioclavicular joint, degenerative arthritis and some damage to the shoulder joint itself which was manifested by the SLAP lesion, and persistent bursitis in the shoulder even after the surgery.
156 Mr Khan considered the plaintiff had made an incomplete recovery from his shoulder injury - a significant injury which had resulted from the incident.
157 Mr Khan considered the plaintiff’s injury was substantially permanent. He thought the plaintiff had a partial work capacity and that he could not do any work requiring repetitive elevation of his right arm above chest level.
158 Mr Khan thought the plaintiff’s long term prognosis was not favourable in the presence of his chronic pain and limitation of movement.
Investigations
159 An MRI scan of the plaintiff’s right shoulder was carried out at Mr Moran’s request on 26 October 2004. It showed AC joint degeneration with small auxiliary spurs, subacromial spurring and bursitis, bursal surface fraying of the infraspinatus and supraspinatus tendons and a Type II SLAP lesion.
160 An x-ray and ultrasound of the right shoulder was organised by Dr Beitner on 14 January 2009. It was concluded there were sonographic features suggestive of supraspinatus tendonosis but no definite tear was present. There was bursal wall thickening at the subdeltoid subacromial bursa associated with impingement on shoulder abduction and forward flexion suggestive of bursitis in the appropriate clinical setting. It was noted, if indicated, sonographic guided injection with steroid and local anaesthetic may be of therapeutic benefit.
161 An x-ray of the lumbar spine taken 19 March 2007 showed L5 disc replacement surgery had been performed. There was normal alignment and no evidence of instability on flexion or extension. Moderate to severe disc degenerative changes were noted at L1-L2.
The Defendant’s Medical Evidence
162 Dr Chris Baker, occupational physician, examined the plaintiff on behalf of the defendant on 2 December 2004 prior to the shoulder surgery.
163 Dr Baker considered at that stage the plaintiff had a partial thickness tear of the rotator cuff tendon with impingement and subacromial bursitis, and also a SLAP lesion and degenerative changes in the acromioclavicular joint. He considered employment was a significant contributing factor and that at that time the plaintiff was not capable of undertaking his pre injury employment.
164 The defendant tendered the records of the Sunbury Clinic, which the plaintiff commenced attending in July 2000. The plaintiff attended with back complaints from that time. After the incident he complained of back pain on one occasion in February 2005 and in January and February 2006.
165 In late February and early March 2007, the plaintiff reported problems with his right neck and shoulder after lifting steel at work.
166 In October 2007, the plaintiff complained of the right elbow and lower back pain on seven visits. The plaintiff attended with similar complaints for several months into 2008 when in July and August he reported flare ups of right left low back pain. It was noted that his current work at Preferred was going well.
167 Dr O’Gorman provided Certificates of Capacity provided from January to March 2005. During this period Dr O’Gorman certified the plaintiff fit for restricted duties following shoulder surgery. He certified the plaintiff fit for normal duties on 27 March 2005.
Video Surveillance
168 Fifteen minutes of surveillance film was taken of the plaintiff on 25 September 2009. The plaintiff was shown putting petrol into his car and lifting the bonnet and closing it using both hands. He then appeared to put air in the tyres of his vehicle.
169 The plaintiff explained that if he raised his arm it hurt and he felt discomfort. He denied he worked on the car. He agreed he put his arm out to about ninety degrees to get something out of the mailbox.
170 The plaintiff disagreed this was a fairly typical day as he normally did not go out down the street.
Findings
171 I am satisfied that the plaintiff suffered an injury to his right shoulder on the said date.
172 The injury has been diagnosed as a tear of the supraspinatus portion of the rotator cuff and a subacromial bursitis detachment within the shoulder joint.
173 In this case, where there is a pre existing right shoulder condition, I must consider what the evidence discloses as to the prior condition of the plaintiff and determine whether the additional impairment resulting from the 2004 incident is serious and permanent.
174 In Petkovski v Galletti [1994] 1 VR 436, the Full Court of the Victorian Supreme Court accepted the proposition that –
“A comparison must be made of the condition of the applicant immediately before the accident with his condition thereafter and an assessment made of the extent of that additional impairment and if that additional impairment was not serious so it was said then leave must be refused. …”
175 In both Angelatos v Museum of Victoria [1999] 3 VR 157, at 162-163 and at 168, and in RJ Gilbertsons Pty Ltd v Skorsis (2000) 12 VR 386, per Chernov JA at para 40, the Court of Appeal accepted that the principles in Petkovski v Galletti (supra) applied equally to serious injury applications under the Act.
176 In accordance with the principles in Grech v Orica Australia Pty Ltd and Anor (supra), provided the plaintiff establishes that the subject compensable injury in 2004 materially contributes to his impairment and its consequences, and will continue to do so permanently, the role of other injuries does not preclude a court concluding that there is the appropriate causal link between the compensable injury and the consequences relied upon.
177 Whichever approach is followed, the plaintiff, to reach the threshold of serious injury, is required to establish the aggravation from the 2004 incident is permanent at the time of the hearing in its effects on the right shoulder and the effects of the aggravation must be serious: Barwon Spinners Pty Ltd v
Podolak (supra.)
178 Whilst the plaintiff previously injured his right shoulder in 1996 and attended Mr Elliott for treatment, I accept that any shoulder problem resolved by the end of 1997. The plaintiff underwent only six physiotherapy treatments and was discharged in November 1997 with close to full pain free movement. He was then able to work full time in heavy work for years without difficulty until the incident.
179 The issue is therefore one of range – namely, whether the consequences to the plaintiff of the impairment to his right shoulder when judged by comparison with other cases in the range of possible impairments or losses of body function may be fairly described as being more than “significant” or “marked” and as being “at least very considerable” – s.134AB(38)(c).
180 The term “serious” requires the impairment and its consequences to be viewed objectively and also judged on an external comparative basis against other possible impairments not necessarily in the same category: see Humphries v Poljak (1992) 2 VR 129, at 170, accepted by the Court of Appeal in Barlow v Hollis [2000] VSCA 26: see in particular Chernov JA, at para 29.
181 The impairment must be permanent, in the sense that it is likely to last into the foreseeable future.
182 I accept the plaintiff is a credible, reliable witness who has continued to work full time since the incident despite ongoing right shoulder pain.
183 As Nettle JA commented in Dwyer v Calco Timbers Pty Ltd No 2 [2008] VSCA 260, at paragraph 4, that he suspected:
“… but for the way the appellant has been prepared to put up with his pain and suffering and get on with his business as best he can, the respondent may well have not disputed his claim … But it would be unfortunate and in my view wrongheaded if in future such an applicant were treated less favourably than another who, being of less strength of character, simply resigned himself to his injury.”
184 Whilst the plaintiff finally left the defendant’s employ to undergo back surgery, he was continuing to have right shoulder pain, and I accept that it was a reason for his change of job.
185 Although he was then able to undertake relatively physical work with Preferred and Moby Dick, he continued to have shoulder pain with lifting and getting in and out of the truck he was required to drive. He is restricted in his ability to do any work requiring repetitive elevation of his right arm above chest level.
186 His present job as a bus driver is a lighter one with no lifting but he still experiences difficulty with certain tasks such as washing the bus.
187 I accept that the plaintiff made a good recovery from back surgery and that there is no evidence that any back condition is such that it would preclude him from performing a wide range of duties as evidenced by his work at Preferred and Moby Dick.
188 The plaintiff has had ongoing pain and restriction of movement in his right shoulder since the incident. The limited video surveillance shown did not, in my view, show a level of movement inconsistent with the nature of his complaints and there was no further evidence challenging the plaintiff in this regard.
189 Further, there is no medical evidence that there is any functional component to the plaintiff’s complaints, nor that he is any way exaggerating his level of pain or disability.
190 The plaintiff is now pretty much back to where he was before the operation. He is now back to square one. He has pain during the night and cannot go to sleep – a consequence which I accept is serious.
191 The plaintiff continues to require medication and of recent times, with liability for the treatment being accepted, he has recommenced physiotherapy treatment.
192 The plaintiff’s right shoulder movement is restricted with the presence of a painful arc, interfering with overhead activities and those requiring the use of his right hand in the usual way as described by Dr Thomas. In particular, he has problems daily with dressing and matters of personal care such as brushing his hair and teeth.
193 In Dr Thomas and Mr Khan’s view, the plaintiff has suffered a significant shoulder injury which severely compromises its function. As Mr Moran explained, the plaintiff is at risk of further rupture in the presence of the already damaged tendon that has not been surgically repaired.
194 The plaintiff is restricted in his ability to play with his young teenage son with any overhead activities such as marking a football being very painful. The plaintiff is also unable to enjoy his own recreational pursuits including riding a motorbike because of shoulder pain. He is unable to do the jobs around the house he previously undertook.
195 I do not accept the submission by counsel for the defendant that the plaintiff has not returned to see Mr Moran because his shoulder is not a problem. I accept that the plaintiff has not done so because he is afraid of undergoing further surgery which would naturally be followed by an extended absence from his new job – a situation which he fears may result in a loss of that job.
196 I accept that the plaintiff’s impairment is permanent, in the sense that it is likely to continue into the foreseeable future whether he comes to surgery or not.
197 Taking into account all of the evidence, I am satisfied that the plaintiff has a serious injury in relation to his right shoulder and that his impairment, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being more than “significant” or “marked”.
198 Accordingly, I grant leave to the plaintiff to bring proceedings for pain and suffering damages.
Loss of Earning Capacity
199 I have considered the employment consequences of the plaintiff’s condition in general terms when dealing with pain and suffering.
200 I am also required to consider these consequences for the purposes of the loss of earning capacity claim within the statutory framework of subsections 38(e) and (f) of the Act.
201 Having satisfied the narrative requirements to obtain leave in relation to loss of earning capacity, the plaintiff must also establish that –
(a) at the date of the hearing he has a loss of earning capacity of forty per cent or more – S.134AB(38)(e)(i); and also (b) after the date of hearing the relevant loss of earning capacity will continue permanently – s.134AB(38)(e)(ii). 202 The measurement of loss of earning capacity is set out in paragraph (f) which requires a comparison between:
(i) “without injury” earnings; and (ii) “after injury” earnings. 203 The former must be calculated by reference to the six year period specified in s 134AB(38)(f).
204 “Without injury” earnings consist of the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion had the injury not occurred.
205 It is to be calculated by reference to that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity.
206 The plaintiff carries the onus of proof in relation to economic loss and particularly in establishing satisfaction of the criteria in paragraphs (e), (f) and (g) therein.
207 In Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at para 70, the Court pointed out that:
“It must be remembered that under subs (38) the onus is squarely on the plaintiff to establish the loss of earnings and to the requisite threshold. That onus was not discharged by the rejection of the defendants’ calculations or even of their witnesses altogether on this topic, which serves to emphasise how important it was for the judge to determine first just what was the physiological impairment of the plaintiff and whether and to what extent, if any, that impairment would probably be permanent. True it is that the degree of any permanent impairment may well be reflected in a consequent capacity to earn or not, as the case may be, but one way or the other there must be a fairly precise identification of the relevant disability, both physiological and economic, and the onus is on the plaintiff in that regard. …”
208 I am therefore required to determine a “without injury” earnings figure, and submissions were made by counsel in this respect.
209 Counsel for the defendant submitted that I do not need to consider these matters as the plaintiff left work with the defendant because of his back injury and surgery not because of his shoulder condition.
210 It was submitted that, following shoulder surgery, the plaintiff ultimately returned to work on normal duties and he had no difficulty doing this work nor did he require time off because of his shoulder condition.
211 Further, it was submitted that the plaintiff went back to reasonably physical manual work at Preferred, which he undertook between June 2006 and September 2008. During that period any ongoing problems seemed to relate to his right elbow and back, he was not getting treatment for his shoulder and there was no medical advice supporting a change of jobs.
212 Counsel for the plaintiff submitted that the plaintiff was a highly motivated man – evidenced by his continuing work after the initial back injury in 1998. He was a man desperate to have a job to look after his family. Whilst his departure from his well paid job with the defendant was precipitated by the need for back surgery, this was not the only reason he ceased this job.
213 When Mr Brazenor advised the plaintiff that after back surgery he could return to his old job as a baggage handler, the plaintiff, having had injuries to his right shoulder and back, decided that “that was it” and that he would think about other employment following surgery.
214 I accept that this was the case.
215 Further, there was no evidence that the plaintiff had problems with his job at Preferred or Moby Dick because of his back, and it was his evidence that it was his shoulder that caused him difficulty performing certain tasks.
216 As Ashley JA in Grech v Orica Australia Pty Ltd (supra) stated, at paragraph 58:
“A consequence may have a multiplicity of causes, including a multiplicity
of compensable injuries.”
217 Provided that the plaintiff establishes that the subject compensable injury in 2004 materially contributed to the impairment and its consequences, and would continue to do so permanently, then the role of other injuries, in this case the back injury, does not preclude a court concluding that there was an appropriate causal link between the compensable injury on the one hand, and consequences relied upon on the other.
218 In this case, I find the shoulder injury materially contributes to the plaintiff’s incapacity for unrestricted manual work.
219 Having made this finding, I am required to consider subsections (e) and (f) of Section 134AB(38).
220 There is little evidence as to the plaintiff’s earnings whilst employed by the defendant. The plaintiff deposed that at the time of ceasing work with the defendant in early 2006, he was earning $58,000 gross per annum.
221 The typewritten summary of the wages of comparable employees ’A’ and ‘B’ tendered by the defendant set out in paragraph 39 herein, also included details of the plaintiff’s earnings. Again, the figure of $58,000 appears.
222 In cross examination, the plaintiff explained that the $70,507 earned in the 2005-06 financial year, the plaintiff having ceased work in February 2006, probably took into account money he received when he retired from the defendant’s employ.
223 Reliance was essentially placed on the wages of comparable employees of the defendant. Counsel for the plaintiff submitted that Employee B was not really a comparable employee because it was clear from more detailed figures that he was on WorkCover for significant periods. These more detailed figures relating to employee B were not tendered.
224 There was no real dispute that the earnings of comparable employees A and B in the 2005-06 financial year of between $72,000 and $75,000 could be taken into account when considering the plaintiff’s “without injury” earnings figure.
225 However, in the financial year 2006-07, counsel for the plaintiff submitted that comparable employee A had in fact earned $82,583 rather than $77,566, the figure relied upon by the defendant as being gross earnings together with relevant allowances and overtime.
226 Having examined the wage details tendered relating to comparable employee A, I have calculated the earnings of comparable employee A at $79,321, taking into account base pay of approximately $765 per week, together with varying amounts of overtime, shift allowances, laundry, transport, tea and other allowances.
227 Counsel for the plaintiff also relied on comparable employee A’s earnings of $91,000 or $1,767 per week in the 2007-08 financial year. Further, it was submitted that a weekly figure of $1,900 could be reached when the ten or eleven items that comprised the whole salary package in a week were added.
228 I do not accept the $91,000 earned by employee A in the 2007-08 financial year should be taken into account as it extends into a period beyond the six year window provided by the Act: see Hayhill Pty Ltd v Hodge [2006] VSCA 194. Further, there is no evidence as to why there was a significant increase in the earnings of employee A over those of the previous year.
229 Given the paucity of evidence as to the plaintiff’s actual earnings when he ceased work and the lack of explanation as to whether the employees relied upon in fact were in fact comparable, in my view, the figure of $75,000 most fairly reflects the plaintiff’s earning capacity.
230 Sixty per cent of that figure is $45,000, or $865 per week.
231 It was agreed that the plaintiff’s “after injury” earnings with the bus company were correct and annualised presently at $48,932, or $941.00 a week.
232 On these figures the plaintiff has not suffered the requisite loss of forty per cent loss of earning capacity as at the date of the hearing or on a permanent basis.
233 Accordingly, the plaintiff’s claim in relation to loss of earning capacity is dismissed and I grant leave to the plaintiff leave to bring proceedings for damages for pain and suffering only.
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