Pullicino v Burden's Plumbing (Victoria) Pty Ltd
[2018] VCC 996
•29 June 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-17-05090
| EMMANUEL GEORGE PULLICINO | Plaintiff |
| v | |
| BURDEN’S PLUMBING (VICTORIA) PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO |
WHERE HELD: | MELBOURNE |
DATE OF HEARING: | 15, 16 and 17 May 2018 |
DATE OF JUDGMENT: | 29 June 2018 |
CASE MAY BE CITED AS: | Pullicino v Burden’s Plumbing (Victoria) Pty Ltd |
MEDIUM NEUTRAL CITATION: | [2018] VCC 996 |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – bilateral shoulder injuries – pre-existing shoulder pathology – aggravation – whether the consequences of the aggravation had ceased – whether the consequences of the aggravation were “serious” – consequences of concurrent medical conditions – admissibility of Medical Panel Reasons for Opinion
Legislation Cited: County Court Civil Procedure Rules 2008 (Vic), rule 44.03; Evidence Act 2008 (Vic), s135
Cases Cited: Woolworths v Warfe [2013] VSCA 22; Philippiadis v Transport Accident Commission [2016] VSCA 1; Petkovski v Galletti [1994] 1 VR 436; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz (2012) 34 VR 309; R J Gilbertsons Pty Ltd v Skorsis (2000) 12 VR 386; Bezzina v Phi [2012] VSCA 161; Peak Engineering & Anor v McKenzie [2014] VSCA 67; Yirga-Denbu v Victorian WorkCover Authority [2018] VSCA 35
Judgment: The plaintiff’s Originating Motion is dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R W McGarvie QC with Mr L Allan | Slater and Gordon |
| For the Defendant | Mr R Kumar | IDP Lawyers |
HIS HONOUR:
Introduction
1 This is an application through which the plaintiff applies for leave to bring a proceeding at common law to recover damages for pain and suffering and loss of earning capacity.
2 The plaintiff is a fifty-six-year-old man who alleges that he suffered bilateral shoulder injuries in the course of his employment with the defendant from 8 October 2014, and in particular, on 7 November 2014.
3 Mr R W McGarvie QC appeared with Mr L Allen of counsel for the plaintiff. Mr R Kumar of counsel appeared for the defendant.
The Plaintiff’s claim
4 In the plaintiff’s first affidavit, he described two causes of the compensable injuries to his shoulders. The first was the nature of the work, and the second was a discrete incident which occurred on 7 November 2014.
5 In relation to the nature of the work, he said the following:
“14.My work for the defendant involved attending building sites to unload plumbing supplies and also to collect supplies from sites to return to the depot. I drove a Ute and at the warehouse of the defendant, plumbing equipment/material would be loaded onto my Ute, but when I got to the destination I was required to offload these materials by myself. These materials included prefab concrete bags weighing at least 10kg and there were times when I had to offload up to ten bags on my own. I was also required to carry concrete slabs, metal grates and crates of plumbing material. I had to do a lot of heavy lifting including lifting above shoulder height.
15.As a result of my work duties I was getting pain in my shoulders, particularly in my right shoulder.”[1]
[1]Plaintiff’s Court Book (“PCB”) 23
6 Next, he described the discrete incident as follows:
“16.On or about 7 November 2014 I was required to collect a pipe from a building site and bring it back to the depot. I was required to walk over the site, which was uneven. I was required to collect a long six metre pipe with a diameter of about 500mm and put it onto the Ute and then return it to the depot. I was being assisted by a contractor, who was carrying the front end of the pipe and I was carrying the back end. The ground I was walking over was uneven and because I was carrying the end of the pipe I could not see where I was going. As I was carrying the pipe I stumbled and felt pain immediately in my shoulders.”[2]
[2]PCB 24
7 Under cross-examination, the plaintiff described the stumble as resulting in a jolting of his arms and shoulders. He said that he did not have any pain in his shoulders before that event occurred.[3]
[3]Transcript 50-51
General observations
8 A central premise in the plaintiff’s case was that even though he had evidence of pre-existing bilateral injuries to his shoulders prior to commencing employment with the defendant, they were relatively insignificant. My review and analysis of the relevant evidence suggests otherwise.
9 The plaintiff’s evidence was unsatisfactory in many respects. There was precious little attention given by the plaintiff to relevant clinical records which demonstrate that he had suffered quite serious tearing to the soft tissues in both shoulders by 2009, and required medical treatment in 2009 and 2014 of some significance. The medical treatment of itself demonstrates that the plaintiff very probably suffered pain and suffering and loss of earning capacity consequences, consequent upon the impairment of function of both shoulders before he commenced employment with the defendant.
10 It is convenient at this point to address the question of the body function which has been impaired. The plaintiff submitted that impairment of bilateral shoulder function is permissible and does not amount to impermissible aggregation.
11 There was no direct evidence adduced by either party relevant to the question of whether injury to shoulders impaired the one body function. It was left to me to determine that. There are a number of decisions of judges of this Court, and relevant observations of the Court of Appeal on the subject, which are broadly helpful. In the end, I consider that shoulders are part of manual function, and therefore, are capable of being considered as a single body function.
The Plaintiff’s evidence - pre-existing shoulder problems
12 The plaintiff briefly referred to his pre-existing shoulder problems in his first affidavit.
13 The plaintiff referred to attending his general practitioner in 2009 and then The Northern Hospital for treatment for his left shoulder. It was through that referral that he came under the care of Mr Westh, orthopaedic surgeon. He was provided with cortisone injections into his shoulders which he said “seemed to help”.[4]
[4]PCB 22
14 The plaintiff referred to suffering gout over many years, and also other relevant comorbid concurrent medical conditions - sleep apnoea, diabetes and high blood pressure. He then focused his attention on the gout condition, and it would appear from the context in which he referred to that condition, that it has some relationship to the development of pain in his right ankle and left knee and, from other evidence, perhaps his shoulders as well.
15 Following the development of the gout and its complications, he saw a medical practitioner at the Epping Plaza Medical & Dental Centre (“Epping Plaza Medical Centre”). He was referred for an MRI scan of his left knee. He was prescribed medication for gout, and for his right ankle and left knee. Subsequently, he was referred to a rheumatologist for “my joint pain”.[5]
[5]PCB 22
16 The plaintiff then referred to seeing his general practitioner in September 2014 “in relation to joint pain” that he was experiencing in his ankles, knees and shoulders. He saw a physiotherapist, who taped up his right shoulder. He was prescribed Endep and Tramadol for “my joint pain”.[6]
[6]PCB 22
17 It is not uncommon that the content of a plaintiff’s affidavits are the subject of criticism by defendants because the content of the affidavits is said to have serious shortcomings. Whether that is so or not is largely dependent upon the subject on which the plaintiff is said to have been unreasonably brief, and whether the sort of granular detail which is the basis for the subject of the criticism is justified.
18 In the plaintiff’s case, I think the criticism made by the defendant has merit. The survey of the medical evidence relevant to the plaintiff’s pre-existing bilateral shoulder injuries demonstrates that the brevity of what the plaintiff deposed to is misleading to a material degree.
19 That is so, because what the plaintiff deposed to suggests that although he had treatment for his pre-existing bilateral shoulder injuries in 2009, the real cause of his bilateral shoulder injuries was the arduous work he was exposed to when he was employed by the defendant. Otherwise, the plaintiff chose to refer to the treatment he was provided in September 2014 as if it was joint pain associated with generalised gout.
20 I will now summarise the evidence relevant to the plaintiff’s pre-existing bilateral shoulder injuries, and compare what that evidence discloses with what he deposed to in his affidavits.
The evidence of pre-existing bilateral shoulder injuries
21 The first piece of evidence demonstrating that the plaintiff was experiencing some problem with his left shoulder was in 2005. He must have seen a general practitioner because he was referred to have an x-ray of his left shoulder. The radiologist reported that the only apparent abnormality was focal sclerosis of the greater tuberosity of the humerus, which the radiologist considered might be “indicative of rotator cuff disease”.[7]
[7]Defendant’s Court Book (“DCB”) 153
22 One of the characteristics of the plaintiff’s evidence was his lack of recollection of not only what occurred in 2005, but also in later years, when it seems to me to be obvious that he was treated for, among other things, gout, joint and shoulder problems. That was the case when he was cross-examined about the x-ray in 2005 and whether he experienced any persisting problems in that shoulder. He could not remember.[8]
[8]Transcript 41-42
23 An admission form from a hospital dated 3 February 2006 was produced and shown to the plaintiff. One of the questions on the admission form asked the plaintiff to provide details of any past health problems which he had experienced. The particular question that was put to him was whether he had suffered any “Arthritis, aches, pains? Mobility problems?”. What is written adjacent to that question is the following - “GOUT, SHOULDER PAINS”. The plaintiff could not remember the form and whether he suffered shoulder pain in 2006.[9]
[9]Transcript 42
24 The plaintiff’s reference to having shoulder problems in 2009 in his first affidavit does not refer to two significant investigations. An ultrasound was performed on the plaintiff’s right shoulder on 27 March 2009 and on his left shoulder on 22 June 2009. Both ultrasounds demonstrate significant tearing of soft tissues in both shoulders.
25 The ultrasound of the plaintiff’s right shoulder demonstrated the following:
“There is a partial thickness supraspinatus tendon tear arising from the articular surface 18mm from the long biceps tendon just adjacent to the greater tuberosity. The tear has a width and length of 8.8 x 11.5mm. Small amount of subdeltoid bursal fluid is noted compatible with bursitis. No other abnormalities were found.”[10]
[10]DCB 18
26 And the ultrasound of the plaintiff’s left shoulder demonstrated the following:
“There is a full thickness focal tear of the distal supraspinatus anteriorly measuring 16mm in diameter. A small amount of adjacent fluid is noted and there is accompanying impingement with abduction.
In addition, there is a focal full thickness tear of the distal subscapularis superiorly. The rest of the rotator cuff complex in the long head of biceps tendon appear normal.” [11]
[11]DCB 19
27 What certainly emerges from this evidence is that the plaintiff was having sufficiently serious problems with his shoulders that he obtained treatment from a general practitioner, a hospital and an orthopaedic specialist, who referred him to have a number of cortisone injections into his shoulders. He could not remember whether he continued to suffer any problems with his shoulders after 2009.
28 The plaintiff conducted a business which he described as a “garage door business” from about 2004 to 2012. He said little in his first affidavit about the nature of that business and whether the conduct of it had anything to do with the causation of his pre-existing bilateral shoulder injuries. The business collapsed in 2012. The plaintiff was subsequently unemployed until he commenced work with the defendant.[12]
[12]PCB 21
29 By 2014, the plaintiff had been unemployed since 2012. He did not depose to being exposed to any particular activities which placed stress and strain on his shoulders, yet from early 2014, it would appear that his shoulders became actively symptomatic, requiring significant medical treatment.
30 The plaintiff was taken to the clinical notes of the Epping Plaza Medical Centre. Those clinical notes demonstrate that the plaintiff was prescribed Panadeine Forte on 2 April 2014, 14 May 2014, 14 June 2014 and 31 October 2014. At first he said that he had not been prescribed Panadeine Forte before he commenced working for the defendant. However, he then accepted that he had been prescribed that medication. He believed it was prescribed for gout.[13]
[13]Transcript 60-61
31 The clinical notes comprise a schedule of the medication prescribed and the date upon which it was prescribed. It does not state for what medical condition it was prescribed. The corresponding clinical notes commence at 2 September 2014, so there is no corresponding clinical notes marrying up with the dates upon which the plaintiff was prescribed Panadeine Forte which explain the reasons for the prescription of that medication.
32 However, the subsequent clinical notes to 2 September 2014 demonstrate that the plaintiff was suffering from fairly widespread joint pain. For example:
· On 2 September 2014, the plaintiff reported ankle pain and problems with his left knee.
· The next entry appears to be 10 September 2014, but the date is difficult to decipher. The plaintiff had pain in “all joints”. He was prescribed Endep and Tramadol, and referred to a dietician. I will turn to the issue regarding the plaintiff’s weight later in these reasons.
· The next entry is also 10 September 2014. On that occasion, the plaintiff reported “Pains in all joints and getting worse”. He reported sleeping for three or four hours before waking with pain in the “shoulder and knees and ankles”. He was referred to a physiotherapist, who taped up his right shoulder. There is a reference to a dietician, prescription of Cymbalta, a trial of Endep at night and Tramadol. There is also a reference to a rheumatologist to whom the plaintiff was to be referred for treatment, presumably for the joint pains referred to in the earlier clinical notes.
· The next entry is also dated 10 September 2014. It refers to the plaintiff experiencing right lateral shoulder pain, aggravated on elevation and compression, with the plaintiff reporting weakness, presumably in the right shoulder.
· On 31 October 2014, the plaintiff was prescribed Panadeine Forte. The clinical note does not refer to the medical condition for which that medication was prescribed, but I infer that it is a follow on from the previous occasions when the plaintiff reported joint pain, including pain in his right shoulder.
· The next entry is also dated 31 October 2014. The plaintiff complained of right shoulder pain. He was referred to a rheumatologist. There is a reference to Panadeine Forte, Indocid and Panadol. The references are cryptic, but I infer that because he was being treated for right shoulder pain, that prescriptions for those medications relate to treatment for his right shoulder.
· On 9 November 2014, the plaintiff complained of right shoulder pain. It was described as being present for a “few months”, and there is a note that it was worse with the plaintiff’s “new work” which of course was work with the defendant.
· On 13 November 2014, the plaintiff was again complaining of right shoulder pain. By that stage, he had undergone an ultrasound of his right shoulder, which I will refer to later in these reasons. There is a reference to him working with the defendant and performing heavy work.
· The next entry is also 14 November 2014. The plaintiff complained of worsening right shoulder pain. He complained of not sleeping. He was taking two Endep and two Panadeine Forte which were not helping him, presumably to get to sleep. There is then a note referring to the plaintiff suffering “uncontrolled gout” and also a reference to “multiple joint pains”. At that stage, he was waiting for an appointment to see a rheumatologist.
· On 23 November 2014, the plaintiff was again complaining that his right shoulder was very sore. There is also a reference to the plaintiff suffering “gouty pain” every two weeks, a reference to his left arm and left shoulder, and also a reference to the plaintiff trying Tramadol at night and ceasing his use of Panadeine Forte.
33 The clinical notes of 13, 14 and 23 November 2014 contain complaints made by the plaintiff of the heavy work he was performing with the defendant.
34 I am very conscious of the caution sounded in Woolworths Ltd v Warfe[14] and Philippiadis vTransport Accident Commission[15] relevant to the purpose of clinical notes and the basis upon which they might be relied upon as an accurate record of medical treatment. It is not uncommon that plaintiffs are cross-examined by defendants on entries in clinical notes which may be at odds with the plaintiff’s evidence on particular issues. Often the clinical notes are treated as if they are an undoubted record of precisely what the plaintiff said to a treating medical practitioner, and then the submission is made that what is in the clinical notes ought to be preferred in the face of a denial by a plaintiff that the clinical note is accurate.
[14][2013] VSCA 22
[15][2016] VSCA 1
35 The difference here is that the plaintiff did not deny the accuracy of the clinical notes. He could not remember much about seeing the relevant medical practitioners who made the entries in the clinical notes nor the treatment he was provided by them. What the clinical notes clearly demonstrate is that the plaintiff was suffering from widespread joint pain with particular mention being made of a very troublesome right shoulder and a gout condition.
36 Dr O’Kane, general practitioner, was one of the medical practitioners at the Epping Plaza Medical Centre who treated the plaintiff. Her colleague, Dr Sudhan, general practitioner, referred the plaintiff to have ultrasounds of both shoulders. The ultrasound of the plaintiff’s right shoulder was performed on 12 November 2014, and the ultrasound of his left shoulder was performed on 26 November 2014.
37 The ultrasound of the plaintiff’s right shoulder demonstrated the following:
“Full-thickness rupture of the supraspinatus tendon. Subscapularis was not clearly identified due to limited external rotation. Moderate subacromial/subdeltoid bursitis and features suggestive of impingement.”[16]
[16]PCB 33c
38 The ultrasound of the plaintiff’s left shoulder demonstrated the following:
“Full-thickness rupture of the supraspinatus tendon and tendinosis and questionable interstitial tear of subscapularis tendon. Subacromial/subdeltoid bursitis.”[17]
[17]PCB 33f
39 Following the ultrasound of the plaintiff’s right shoulder, he was given an ultrasound-guided injection into the right subacromial bursa on 13 November 2014. He was also referred to have an x-ray of his cervical spine, no doubt as a precautionary measure. It did not disclose any abnormality which has been the subject of any comment by any medical practitioner.[18]
[18]PCB 33d
40 When a comparison is made between the 2009 ultrasounds and the 2014 ultrasounds, there appears to be a different appearance in the soft tissues of left shoulder, but not with the right shoulder. The difficulty I have with this is that there is no comment by any treating medical practitioner explaining why the plaintiff was given an ultrasound injection into his right shoulder. I assume the injection was to treat symptoms arising from the pathology evident in the plaintiff’s right shoulder. It appears to be the same pathology which existed in 2009.
41 I should add at this point that the only medical practitioner who actively treated the plaintiff, or so far as I can see, in 2009 and also in 2014 and into 2015, was Mr Westh. He was not asked to make a comparison of the plaintiff’s clinical presentation in 2009 and 2015 and whether there is any difference in the pathology demonstrated on the ultrasounds.
42 I will now turn to the plaintiff’s evidence relevant to his pre-existing bilateral shoulder injuries, and the particular entries in the clinical notes.
The Plaintiff’s evidence – pre-existing bilateral shoulder injuries
43 The medical evidence I have just summarised and analysed is in stark contrast to what the plaintiff deposed to in his first affidavit. There is no doubt that the plaintiff was suffering joint problems, and in particular, in his ankles, knees and shoulders. There is equally no doubt that he was suffering a significant problem with his right shoulder, because it was the substance of significant reference in the clinical notes of 10 September 2014, 31 October 2014, and was worsened by the work the plaintiff was performing with the defendant as noted in the clinical notes of 9, 13, 14 and 23 November 2014. The first specific reference to the plaintiff’s left shoulder is recorded on 23 November 2014.
44 The substance of the plaintiff’s case is that the occurrence of bilateral shoulder pain in 2014 prior to him commencing work with the defendant was treated successfully and he was asymptomatic at the time when he commenced working for the defendant. Therefore, it was an exacerbation or aggravation of the pre-existing bilateral shoulder injuries which is responsible for the impairment consequences claimed by the plaintiff.
45 I have some real trouble with that thesis. Between September and October 2014, the plaintiff was experiencing joint problems, and significant problems with his right shoulder which persisted into the period when he was working with the defendant, as evidenced by the clinical notes of 9, 13, 14 and 23 November 2014. The clinical notes suggest that the contribution by the work the plaintiff was performing with the defendant worsened an already seriously symptomatic condition.
46 What cannot be ignored is that the plaintiff was being prescribed significant pain-relieving medication through September and through to the end of November 2014, namely, Panadeine Forte, Endep, Tramadol and Celebrex. Some of those were prescribed after the plaintiff commenced work with the defendant, but the prescription of them must be seen in the context of persisting joint problems and right shoulder problems from September 2014
The issues
47 It is convenient to pause at this point to summarise the issues raised by the defendant.
48 Firstly, did the plaintiff suffer an aggravation of the pre-existing bilateral shoulder injuries?
49 Secondly, if he did, he must then identify the pre-existing bilateral shoulder injuries.
50 Thirdly, he must then identify the condition of his shoulders in their aggravated state.
51 Fourthly, he must then identify and separate the impairment consequences of the pre-existing bilateral shoulder injuries from the condition in their aggravated state.
52 Fifthly, he must then identify whether the additional impairment caused by the aggravation of the pre-existing bilateral shoulder injuries qualifies as a serious injury.
53 Sixthly, whether the aggravation persists or is now constitutional or is caused by another medical condition.
54 Seventhly, in identifying the additional impairment, he must address the other comorbid concurrent medical conditions. For example gout and generalised joint pain where they concurrently produce pain and suffering consequences for the purpose of findings being made about all of the pain and suffering and loss of earning capacity consequences in order to determine which of those consequences are attributable to which medical condition.
55 There are some subsidiary issues which arise from each of the foregoing, but I consider that my enunciation of the issues so far is adequate to cover the manner in which the defendant chose to challenge the plaintiff’s case.
56 Before dealing with each of the issues individually, and collectively, I think it is necessary to summarise and analyse the medical evidence.
The treaters
57 Dr O’Kane provided a report dated 9 July 2015.[19] The first medical practitioner at the Epping Plaza Medical Centre to see the plaintiff after 7 November 2014 was Dr Sudhan, to whom I have already referred above. Dr O’Kane did not see the plaintiff until after 13 November 2013.
[19]PCB 48-53
58 There are a number of aspects of Dr O’Kane’s report which do not sit comfortably with the plaintiff’s evidence and the clinical notes which I summarised above. Firstly, she was left with the impression that the plaintiff lost his footing and fell on his arms on 7 November 2014 which is quite obviously wrong. She referred briefly to the treatment provided by Dr Sudhan and to the plaintiff’s pre-existing bilateral shoulder injuries diagnosed in 2009. She did not refer to any of the other clinical notes which I have summarised from early 2014, so it is not clear whether she was aware of the plaintiff’s complaints of widespread joint pain and the medication he had been prescribed.
59 Dr O’Kane’s only reference to the emerging problem with the plaintiff’s right shoulder in September 2014 and any exacerbation or aggravation suffered by the work he performed with the defendant was to say that “[i]t appears worse after the accident”. When she saw him on 23 November 2014, she described the plaintiff’s right shoulder pain as “still severe”, and it was at that time that the plaintiff informed her that he was suffering left shoulder pain. She continued to treat the plaintiff. She saw him on a further sixteen occasions after 23 November 2014. During that time, she also treated the plaintiff for a depressed mood.
60 Dr O’Kane provided the following diagnosis:
“Right shoulder full thickness tear of supraspinatus and infraspinatus with background tendinosis, left shoulder supraspinatus full thickness tear and tendinosis, bilateral subacromial/subdeltoid bursitis.
-Chronic anxiety and depression.”[20]
[20]PCB 52
61 Dr O’Kane appears to have accepted that the plaintiff’s bilateral shoulder injuries were only temporarily incapacitating, because she considered that the plaintiff had a capacity for self-paced modified/suitable duties on a part-time basis. She considered that he could gradually increase his hours and workload to achieve the same level of his pre-injury employment capacity.
62 Dr O’Kane referred the plaintiff back to Mr Westh, who next saw him on 4 February 2015. He provided a report dated 26 May 2017.[21] Mr Westh appears to have been more concerned to treat the plaintiff rather than provide a medico-legal opinion, because he did not refer to the previous occasions when he treated the plaintiff in 2009. He referred him to have a further ultrasound-guided cortisone injection into his right shoulder. He subsequently referred him to have an MRI scan of his right shoulder. He noted that the plaintiff had returned to work, but he added that “his progress had been hampered by a severe gout” for which the plaintiff was being treated by the prescription of prednisolone.
[21]PCB 54-55
63 Despite the appearances on the ultrasounds and the MRI scan, Mr Westh appears to have been optimistic about the plaintiff’s prospects of returning to work. He noted that the plaintiff was being treated by a psychiatrist and a psychologist, was about to see a new physiotherapist, and was being directed to undertake a certificate in aged care by an organisation known as IPAR. He considered that if the plaintiff’s mental state improved, that he could return to work “in a light duty capacity” in the coming weeks.
64 According to the plaintiff, Dr O’Kane told him that she was no longer interested in treating patients who were in receipt of WorkCover. As a consequence, the plaintiff saw Dr Alethan, general practitioner, on 4 September 2015. He has been the plaintiff’s treating general practitioner since.
65 Dr Alethan provided two reports. The last and most comprehensive is dated 24 April 2018.[22] It is obvious that he had an incomplete picture of the history of the plaintiff’s pre-existing bilateral shoulder injuries. It would appear that he accepted that the 2014 ultrasounds and the subsequent MRI scan were a demonstration of the injuries which the plaintiff suffered on 7 November 2014. In addition to the physical injuries which he believes the plaintiff had suffered, he referred to the plaintiff having anxiety, depressed mood, suffering panic attacks and suffering from aggression.
[22]PCB 41-42
66 Dr Alethan certified the plaintiff as fit to return to modified duties until 16 March 2017, after which he certified him as being unfit for any duties. He was pessimistic about the plaintiff’s prospects of improvement, saying that the condition of his shoulders could deteriorate with time.
67 The last relevant treating medical practitioner is Mr Richardson, orthopaedic surgeon, to whom the plaintiff was referred by Dr Alethan. He saw the plaintiff on one occasion on 15 May 2017. He provided a report dated 8 November 2017.[23] The only opinion he expressed was directed to the plaintiff having arthroscopic subacromial decompression and repair of the rotator cuff damage in both shoulders. Of relevance is a history he took from the plaintiff of a number of comorbid concurrent conditions. Namely, diabetes, hypertension, gout, gastroesophageal reflux disease, all of which were treated by prescription of medication, obstructive sleep apnoea, for which he was using a CPAP machine, and depression, for which he was also treated by prescription medication.
[23]PCB 56
The medico-legal assessments
The Plaintiff
68 The plaintiff relies upon the opinions of Mr Miller, orthopaedic surgeon, and Dr Horsley, occupational physician. The purpose of having the plaintiff examined by them was to obtain their opinions of the relationship of the bilateral shoulder injuries to the plaintiff’s work, and the nature and extent of the consequences of the injuries in terms of pain and suffering and loss of earning capacity.
69 Neither Mr Miller nor Dr Horsley were provided with a history of the onset of the plaintiff’s pre-existing bilateral shoulder injuries in 2005, 2006 and 2009, and then through 2014 up until 7 November 2014. That evidence is highly relevant to their opinions of the relationship of the claimed bilateral shoulder injuries to the plaintiff’s work.
70 Mr Miller examined the plaintiff on 4 August 2017, and subsequently provided a report dated 7 August 2017.[24] He examined him again on 20 April 2018, and subsequently provided a report dated 23 April 2018.[25]
[24]PCB
[25]PCB 76a-76f
71 At the time when Mr Miller first examined the plaintiff, he was given to understand that the plaintiff “had some left shoulder symptoms” in 2009, which settled with a steroid injection, and some minor right shoulder symptoms prior to commencing work with the defendant. That history is very seriously short of an accurate history. It is clear that the history was of importance to Mr Miller, because of the opinion he expressed relevant to a question asked of him regarding the relationship of the onset of the bilateral shoulder injuries to the plaintiff’s work:
“This is a complex and multi-factorial issue. It is likely this man had a constitutional pre-disposition to develop this type of shoulder problem. It is also likely that there was pre-existing shoulder pathology. On the information available to me the work event in November 2014 aggravated that disease and caused further superimposed injury. I therefore regard his current clinical status in relation to the left and right shoulders as being substantially related to that work event. I acknowledge the difficulties in making that determination.”[26]
[26]PCB 74
72 After Mr Miller examined the plaintiff on the second occasion, he repeated that very same opinion on work relationship. He did not attribute the cause of the pathology to the incident of 7 November 2014, but rather referred to the plaintiff as having “developed symptoms in both shoulders”. Quite obviously there is a distinction between the onset of symptoms and the production of a pathological process.
73 Mr Miller considered that the plaintiff required surgery, and without it he would not obtain any improvement in the function of his shoulders. Mr Miller also noted that the plaintiff had a number of comorbid concurrent conditions. He may well have become aware of those conditions, because he was provided with Mr Richardson’s report in which he referred to them.
74 Dr Horsley did not make an assessment of a work relationship, but rather accepted that there was a work relationship . The purpose of her examination of the plaintiff was primarily directed to the consideration of the plaintiff’s capacity for work. She considered that significant work restrictions needed to be applied to any work which the plaintiff undertook. Despite being of that opinion, she considered that the plaintiff had a considerable disability and had no capacity for work.
The Defendant
75 The defendant relies upon the opinions of a number of medical practitioners. The purpose of having the plaintiff examined by them was to obtain their opinions on the same issues as Mr Miller and Dr Horsley were asked to comment on.
76 None of these medical practitioners were provided with a history of the onset of the plaintiff’s pre-existing bilateral shoulder injuries from 2005 and 2006. They were provided with greater detail concerning the plaintiff’s pre-existing bilateral shoulder injuries, but not the treatment the plaintiff received in the early part of 2014 leading up to September 2014.
77 The first in time was Dr Snyman, occupational and environmental physician, who examined the plaintiff on 19 December 2014. He provided a report dated 19 December 2014.[27] He was provided with the 2009 and 2014 ultrasounds. He was not provided with the clinical notes of the Epping Plaza Medical Centre. There are two critically important questions which he answered which demonstrate that he made a comparison between the 2009 and 2004 ultrasounds.
[27]DCB 1-13
78 The first question asked for his diagnosis. He said:
“My diagnosis here is an exacerbation of severe underlying subacromial impingement syndrome with its associated tendinopathy, subacromial, subdeltoid bursitis and cuff tendinopathy.”[28]
[28]DCB 9
79 The second question was the cause of the injury to the plaintiff’s shoulders caused by his work with the defendant. He said:
“In my opinion, the exacerbation has been caused by the considerable increase in physical activity involving lifting, pushing, pulling and carrying materials used in the plumbing trade.”[29]
[29]DCB 9
80 Dr Snyman was asked to consider whether the contribution by the plaintiff’s work with the defendant was significant. After analysing a number of factors which he considered to be relevant, he added that he could not exclude that the plaintiff had suffered a significant aggravation of the pre-existing bilateral shoulder injuries. He considered that the plaintiff was not fit for his pre-injury work.
81 Mr Doig, orthopaedic surgeon, examined the plaintiff on 15 January 2016, and provided a report bearing the same date.[30] He was provided with the 2009 and 2014 ultrasounds.[31] He was not provided with the clinical notes of the Epping Plaza Medical Centre.
[30]DCB 33-37
[31]He incorrectly referred to the 2014 ultrasounds as being performed in 2015
82 Mr Doig considered that the plaintiff’s employment with the defendant had caused an aggravation of the bilateral rotator cuff tears to both shoulders, with ongoing impingement. He considered that he was unfit for his pre-injury work, but he considered that the plaintiff retained a capacity for work referred to in a report of IPAR dated 28 September 2015[32] so long as the work restrictions he referred to in the body of his report were adhered to.
[32]The only report of IPAR tendered into evidence by the defendant was one dated 16 August 2016 at DCB 80-95
83 Dr Slesenger, occupational physician, examined the plaintiff on 13 September 2016. He provided a principal report dated 19 September 2016,[33] and a supplementary report dated 2 January 2017.[34] He was provided with the clinical notes of the Epping Plaza Medical Centre. He was not provided with the 2009 and 2014 ultrasounds, but it would appear that he was aware that the plaintiff had suffered pre-existing bilateral shoulder injuries as far back as 2009.
[33]DCB 40-49
[34]DCB 50-54
84 Dr Slesenger considered that the plaintiff had suffered an aggravation of a “pre-existing right shoulder impairment”. He was unable to attribute the complaint of injury to the left shoulder to the plaintiff’s employment with the defendant, and if there was any contribution to the plaintiff’s left shoulder, those symptoms had resolved. He analysed the clinical notes of the Epping Plaza Medical Centre, noting that the first mention of left shoulder pain was on 26 November 2014. He also noted that the clinical notes left him with the impression that there was no support for an ongoing impairment on either shoulder beyond 2015. I assume that means he considered that any exacerbation or aggravation had long ceased.
85 Mr Simm, orthopaedic surgeon, examined the plaintiff on 26 October 2017. He provided a principal report dated 26 October 2017[35] and a supplementary report dated 1 November 2017.[36] He was provided with the 2009 and 2014 ultrasounds. He was not provided with the clinical notes of the Epping Plaza Medical Centre.
[35]DCB 66-74
[36]DCB 75-77
86 Mr Simm considered that the plaintiff had suffered bilateral shoulder dysfunction due to advanced degenerative rotator cuff pathology, in particular, bilateral degenerative tears in the supraspinatus tendons, with associated impingement and subacromial bursitis. He made a comparison between the 2009 and 2014 ultrasounds, concluding that there had been a progression of the pathology in the plaintiff’s right shoulder.
87 Mr Simm acknowledged that the plaintiff had longstanding progressive bilateral degenerative rotator cuff pathology since 2009. He considered that the heavy work the plaintiff performed with the defendant had the potential to cause further damage to the tendons. He did not have much doubt that the plaintiff’s employment with the defendant materially contributed to the exacerbation of symptoms of bilateral degenerative rotator cuff pathology.
88 Mr Simm considered that the plaintiff was fit for light work if he used his upper limbs at around waist height, and if he could, then he would be fit for full-time work. He was asked to consider whether the plaintiff could work as a cashier, packer or rental person. He said that he could, so long as there were restrictions on reaching and lifting.
89 The defendant applied to tender the Medical Panel Reasons for Opinion. The plaintiff objected. I allowed the tender. I will explain my reasons for doing so later in these reasons.
90 The Medical Panel had the advantage of significantly more documentary evidence relevant to the plaintiff’s pre-existing bilateral shoulder injuries than any of the other examining medical practitioners. What the Medical Panel was provided is set out in a schedule of attachments to its Reasons for Opinion.[37] Importantly, it was provided with the 2009 and 2014 ultrasounds and other radiology; medical reports and correspondence of Dr O’Kane and Mr Westh; the clinical notes of the Epping Plaza Medical Centre, the reports of Dr Snyman, Mr Doig, Dr Slesenger and Mr Simm, and a reasonably accurate history from the plaintiff.
[37]DCB 150-152
91 The Medical Panel comprised Mr Leitl and Mr Bourke, both orthopaedic surgeons, and Dr Gibbons, musculoskeletal physician, who were responsible for the Medical Panel Reasons for Opinion relevant to the plaintiff’s bilateral shoulder injuries. In relation to the questions relevant to my consideration of this application, they said:
“The Panel noted that it is now over three years since the incident of injury and the Plaintiff’s bilateral shoulder symptom presentation has altered significantly over time with infrequent GP consultations for shoulder pain in 2016 and minimal requirement for analgesic medication (Panadeine Forte) during this period. The Panel further considered the constitutional factors have become increasingly dominant over time with the Plaintiff’s presentation now being, notwithstanding inconsistencies on physical examination, consistent with diabetes related mild bilateral rotator cuff disease. The Panel therefore concluded that the incident of injury that occurred in November 2014 led to a temporary exacerbation of pre-existing bilateral shoulder rotator cuff disease that has resolved. The Panel therefore concluded that the worker’s current condition of mild bilateral rotator cuff disease does not result from and is not materially contributed to by the left and/or right shoulder injury suffered in employment with the Defendant. … .”[38]
[38]DCB 145
Interim conclusions about the medical evidence
92 The medical practitioners who were aware of the plaintiff’s pre-existing bilateral shoulder injuries from the 2009 and 2014 ultrasounds concluded that what those ultrasounds demonstrated was quite serious pre-existing pathology.
93 The preponderant view is that the plaintiff suffered either an exacerbation or an aggravation of the pre-existing bilateral injuries to his shoulders. The extent of the increase in the symptoms experienced by the plaintiff denoted by the use of the words exacerbation and/or aggravation is unstated, except in the case of Mr Simm, who considered that a comparison between the 2009 and 2014 ultrasounds of the right shoulder demonstrates that the partial tear had become a full thickness tear. He considered that to be a progression of the pathology, and I assume, attributable to the work the plaintiff performed with the defendant.
94 Again, the preponderant view is that the pre-existing bilateral shoulder injuries were significant. Where there is a divergent view is whether the exacerbation or aggravation has ceased, and now what the plaintiff is troubled by are the constitutional or pre-existing problems with his shoulders or whether the product of the exacerbation or aggravation persist.
95 Of course, there are other divergent views. The Medical Panel would have it that the plaintiff’s diabetic condition is responsible for the persistence of his bilateral shoulder injuries, and not any exacerbation or aggravation. Dr Slesenger would have it that the left shoulder was neither exacerbated or aggravated by the plaintiff’s work with the defendant.
96 This is a very difficult case factually. It would have been helpful if the medical practitioners who examined the plaintiff were given all of the relevant evidence, and at least, the history of the plaintiff’s apparent pre-existing right shoulder problems in 2005, 2006, 2009 and through 2014, and the relevant ultrasounds and other radiology, together with the clinical notes of the Epping Plaza Medical Centre and any reports and correspondence of Mr Westh and Dr O’Kane. My impression is that the medical practitioners who were given at least part of this evidence considered it to be of serious value in answering the questions posed for their consideration, and in particular, the question of whether there had been an exacerbation or an aggravation, and whether, if there had been, it persists.
97 It has not passed my notice that a number of the medical practitioners were actually provided more documentary evidence than I have been provided. It is a curious state of affairs that I am expected to assess the opinions of medical practitioners who base their opinions on documentary evidence which I have not been provided in order to analyse whether the conclusions they reached are justifiable or otherwise.[39]
[39]See for example the documentary evidence provided to Mr Doig at DCB 38; enclosures referred to by Dr Slesenger at DCB 40-41 and DCB 50 and the Medical Panel at DCB 150-152
98 As it is, it is left to me to disentangle the evidence and to reassemble it for the purpose of answering the first relevant question, and that is, was there an exacerbation or aggravation of the plaintiff’s pre-existing bilateral shoulder injuries?
99 I think the preponderant view that there was an exacerbation or aggravation of the pre-existing right shoulder injury is compelling, and one which I accept. Dr Slesenger appears to be the only medical practitioner who questioned that conclusion was open with respect to the left shoulder. On balance, it occurs to me that the plaintiff was undertaking manual work which is likely to have placed stresses and strains on both of his shoulders, and not just his right shoulder. The fact that his right shoulder became symptomatic earlier on does not mean that his left shoulder did not also become symptomatic as a result of the same work processes. Therefore, I accept that the plaintiff’s pre-existing bilateral shoulder injuries were aggravated by the work he performed with the defendant.
100 I think Dr Slesenger and the Medical Panel were provided with documentary evidence superior to all of the other medical practitioners, in the sense that that documentary evidence was explanatory of the nature and extent of the plaintiff’s pre-existing bilateral shoulder injuries. I think that puts them in a better position to comment on the nature and extent of any exacerbation and aggravation when compared with the constitutional nature of the pre-existing bilateral shoulder injuries. It is clear that they concluded that any exacerbation or aggravation had ceased. Inherent in that conclusion is a finding by them that the major cause of the symptoms was the underlying condition which had been influenced by the work performed by the plaintiff for the defendant to a degree to render the underlying condition symptomatic.
101 It is a conclusion which I consider to be a compelling one, and one which I accept. I am fortified in reaching that conclusion, because the other medical practitioners who undertook the relevant analysis appear to me to have concluded that the underlying condition was quite serious.
102 I do not accept that the present condition of the plaintiff’s shoulders is related to diabetes. The evidence relevant to the plaintiff’s apparent diabetic condition is practically non-existent. The Medical Panel has not referred to the evidence of a diabetic condition of a nature and extent likely to be of sufficient magnitude to be the real cause of the plaintiff’s bilateral shoulder injuries. It is surely incumbent upon a medical practitioner to point to the evidence upon which a diagnosis is made. In saying that, I do not underrate the expertise of the members the Medical Panel, but to state an opinion of such importance without anything more is not an opinion which I am prepared to accept.
103 The conclusion that I have reached thus far means the plaintiff fails. However, I am sufficiently troubled by the difficulty inherent in this application to go one step further. I propose to further analyse the evidence on the assumption that the exacerbation or aggravation persists.
The extent of the exacerbation or aggravation
104 Even if it is assumed that the plaintiff did suffer an exacerbation or aggravation of the pre-existing bilateral injuries to his shoulders, I am not satisfied that the additional impairment resulting from the exacerbation or aggravation qualifies as a serious injury. I think the exacerbation or aggravation was probably fairly minor. That being so, it is the pre-existing bilateral shoulder injuries which are the major cause of the plaintiff’s overall impairment consequences.
105 That conclusion is consonant with the reasoning of the Full Court in Petkovski v Galletti[40] which I think has direct relevance to the plaintiff’s case:
“The matter may be tested in this way: let it be assumed that the claimant was at the time of the relevant accident already suffering from a ‘serious injury’; and that the accident aggravated his condition to a minor extent. If the reasoning of the learned trial judge were to be applied, the claimant must be given leave to pursue the claim for that minor aggravation. We cannot accept that as correct. The clear intention of the parliament in passing the act was to prevent such minor claims.”[41]
[40][1994] 1 VR 436, and AG Staff Pty Ltd v Filipowicz (2012) 34 VR 309 at paragraphs [31]-[33]; R J Gilbertsons Pty Ltd v Skorsis (2000) 12 VR 386 at paragraph [40] and Bezzina v Phi [2012] VSCA 161 at paragraph [23]
[41]at 444
The claimed pain and suffering consequences
106 The plaintiff says that following the exacerbation or aggravation of his pre-existing bilateral shoulder injuries, he has suffered the following impairment consequences:
· Constant daily pain in both shoulders which fluctuates depending on his level of activity.[42]
[42]PCB 27 and 32
· The need for medication – Panadeine Forte, Panadol Osteo and Celebrex.[43]
[43]PCB 31
· Sleep disturbance most nights needing Panadeine Forte to help him sleep.[44]
[44]PCB 27 and 32
· An inability to undertake ordinary household chores, garden, play bocce, go fishing and otherwise engage in social activities.[45]
· Significant weight gain.
[45]PCB 27-28 and 33a
107 Against what the plaintiff says is the following analysis which points to what the plaintiff says as being unsustainable.
108 Firstly, the preponderance of the medical evidence is that the major cause of the impairment consequences claimed by the plaintiff is due to the nature and extent of his pre-existing bilateral shoulder injuries. About that there can be little doubt given the comparison between the 2009 and 2014 ultrasounds and the fact that through 2014, and certainly by September to October 2014, he was troubled by an actively symptomatic right shoulder which required treatment by his general practitioner, physiotherapist, referral to a rheumatologist and by prescription of significant painkilling medication.
109 I think the plaintiff’s evidence of his medical treatment leading up to when he was employed by the defendant is seriously deficient, creating the impression that he was faring reasonably until the exacerbation or aggravation of the pre-existing bilateral shoulder injuries occurred. I think it is likely that the plaintiff was experiencing a real degree of pain in his right shoulder throughout the period from September through to late November 2014 which is evident on a plain reading of the clinical notes of the Epping Plaza Medical Centre.
110 Next, the plaintiff’s need for medication was not entirely due to the exacerbation or aggravation of the pre-existing bilateral injuries to his shoulders. Through the early part of 2014, and again through September through to late November 2014, he was prescribed medication for the treatment of a number of troubling conditions including his shoulders.
111 Next, the plaintiff has experienced problems with his sleep pattern for years before he commenced employment with the defendant. The clinical notes of the Epping Plaza Medical Centre demonstrate that in September 2014, he was complaining of interference with his sleep because of pain in his shoulders, knees and ankles. At that time, his sleep had been reduced to three or four hours a night. He also has used a CPAP machine to treat his sleep apnoea which had troubled him for some years.
112 Next, the plaintiff has a low maintenance garden. His friends mow his lawns. He was unable to remember when he last mowed his lawns.[46] So the gardening the plaintiff undertook before the exacerbation or aggravation of the pre-existing bilateral shoulder injuries does not appear to have been significant.
[46]Transcript 72
113 Next, the plaintiff recommenced playing bocce about a year to a year and a half after the exacerbation or aggravation of the pre-existing bilateral shoulder injuries.[47]
[47]Transcript 26-28
114 Next, the plaintiff recommenced fishing in 2017. He has made fishing trips to Portarlington on two or three occasions in 2018, going there with a friend for a few hours. He was unable to remember whether he had gone fishing more often during 2018.[48]
[48]Transcript 30
115 Next, the plaintiff believed that he weighed 95 kilograms at the time he commenced employment with the defendant and that his weight increased to 115 kilograms as a secondary consequence of the exacerbation or aggravation of the pre-existing bilateral shoulder injuries, but that does not appear to be the case. He was taken to the medical records of the Epping Plaza Medical Centre which demonstrate that at the beginning of 2014, he was 112 kilograms; on 25 April 2014, he was 96 kilograms and by 8 October of the same year, he was 106 kilograms.
116 Next, the plaintiff has been able to travel overseas since he suffered the exacerbation or aggravation of the pre-existing bilateral shoulder injuries. He has travelled to Malta for four weeks, Phuket for about ten days, Vietnam for ten days or so, and three cruises through the South Pacific, the last one of which was in 2018.[49] He also attends Crown Casino with his wife.
[49]Transcript 67-69
117 After undertaking this analysis of the plaintiff’s evidence, it is my overall impression that the exacerbation or aggravation of the pre-existing bilateral shoulder injuries has produced impairment consequences, but when the comparison is made consistently with Petkovski, I am not persuaded that those impairment consequences of the exacerbation or aggravation are serious.
118 In addition to the foregoing, the plaintiff has not discharged the onus referred to in Peak Engineering & Anor v McKenzie.[50]Here, the Court of Appeal observed that where there are two different medical conditions which concurrently produce pain and suffering consequences, it will ordinarily be necessary to make findings about all the pain and suffering consequences which are operative at the day of trial. Furthermore, that such a step would be essential to the task of deciding which of the pain and suffering consequences are attributable to which medical condition.
[50][2014] VSCA 67 at paragraph [24]
119 So far, I have summarised a body of evidence which demonstrates that the plaintiff has complained of joint pain, and in particular, knees and ankles; other medical conditions described as gout and arthritis; diabetes; gastroesophageal reflux disease; sleep apnoea and lower back pain with sciatic pain.[51] The impression that I am left with is that the plaintiff had widespread joint problems before he commenced employment with the defendant which caused him pain requiring medical treatment and the prescription of medication.
[51]the lower back pain is referred to as Transcript 37 and the other conditions are referred to in the report of Mr Richardson at PCB 56
120 For example it would appear that the plaintiff has suffered a gout condition for some time. He uses Indocid to treat it, and it was my impression that he also thought he used Panadeine Forte to treat it as well.[52] He suffers arthritis in his ankles which have become more of a problem for him in recent days.[53] He uses Panadol Osteo to treat the arthritis.[54] He uses Celebrex to treat both arthritis and his bilateral shoulder injuries.[55] The problems he has with his ankles would prevent him from working as a crossing supervisor, and I assume because of the amount of walking and standing that is involved in that job,[56] and the combination of all of these other co-morbid concurrent conditions, probably result in varying degrees of pain and interference with the plaintiff’s capacity to engage in a wide range of physical activities including a capacity to work in suitable employment.
[52]Transcript 45 and 60-61
[53]Transcript 57
[54]Transcript 60
[55]Transcript 60
[56]Transcript 102
121 For these reasons, I am not satisfied that the impairment consequences are serious because the plaintiff is not able to establish what he must, given what was said in Petkovski, and he has not undertaken the task referred to in Peak Engineering relevant to the comorbid concurrent conditions.
The claimed loss of earning capacity consequences
122 The plaintiff’s case is that he is totally and permanently incapacitated and cannot even undertake a light menial task for an hour or more. That is in contrast to the preponderance of medical evidence which points to the plaintiff having a retained capacity for employment. That is adequately demonstrated in the opinion of Mr Simm, who believes the plaintiff has a capacity to undertake a number of forms of suitable employment subject to certain limitations.
123 The plaintiff relies on the opinions of Mr Miller, in particular, Dr Horsley. I have summarised their opinions in some depth, and in doing so I have pointed to the deficiencies in the histories they were given which must reduce the reliability of their opinions relevant to whether the plaintiff has retained a capacity for suitable employment, and if he has not, then what is the cause of that incapacity? Additionally, they have not dealt with the comorbid concurrent conditions adequately. I am not satisfied that the plaintiff has discharged the onus he bears to establish that he has suffered the requisite degree of impairment of earning capacity.
Conclusion
124 For the reasons set out above, I am not satisfied that the plaintiff has discharged the onus he bears to establish that the exacerbation or aggravation of the pre-existing bilateral shoulder injuries is serious.
The Medical Panel Reasons for Opinion
125 I will lastly deal with the question of the admission of the Medical Panel Reasons for Opinion into evidence.
126 A magistrate referred a number of questions to the Medical Panel. The Medical Panel received the referral on 15 December 2017. It comprised two orthopaedic surgeons, a musculoskeletal physician and two psychiatrists.
127 The Medical Panel provided its Certificate of Opinion dated 7 April 2018, answering five questions.[57] Accompanying the Certificate of Opinion are reasons for that Opinion dated 7 April 2018.[58]
[57]DCB 137-138
[58]DCB 139-149, and an accompanying schedule of documents provided to the Medical Panel at DCB 150-152
128 On my enquiry, I was informed by counsel for the defendant that both parties received the Certificate of Opinion and the Reasons for Opinion. The defendant included the Reasons for Opinion in its court book which it served on the plaintiff the day before the proceeding commenced before me.
129 Counsel for the plaintiff informed me at the commencement of counsel’s opening that the Reasons for Opinion had been added to the defendant’s court book the day before. I was informed that counsel foreshadowed that the plaintiff would object to the Reasons for Opinion being tendered. The objection was not taken as a preliminary issue. Counsel informed me that the objection would be made “before the case concluded”.[59]
[59]Transcript 1
130 At the conclusion of counsel for the plaintiff’s opening, I invited counsel for the defendant to inform me of the issues which the defendant would raise. It was clear from part of counsel’s submissions that there would be heavy reliance on the conclusions reached by the Medical Panel Reasons for Opinion.[60]
[60]Transcript 22
131 Counsel for the defendant cross-examined the plaintiff at some length, some of which was objected to by counsel for the plaintiff, where it was based upon the history recorded by the Medical Panel. I permitted the cross-examination pending the time when the plaintiff intended making its objection to the Reasons for Opinion being tendered. I did so on the proviso that if I ruled on that objection favourably to the plaintiff, that I was quite capable of excising from all consideration all aspects of the Medical Panel Reasons for Opinion.[61]
[61]Transcript 70
132 The plaintiff was the only witness required for cross-examination. At the end of his cross-examination, counsel applied to tender documents from their respective Court Books. It was at that stage that submissions were made relevant to whether the reasons for opinion could be tendered into evidence.
133 After hearing counsels’ submissions, I considered their submissions overnight. On the following morning, I ruled that the Reasons for Opinion were admissible. I informed counsel that I proposed to give reasons later.
134 The decision of Yirga-Denbu v Victorian WorkCover Authority[62] directly deals with the very same issue of admissibility of Medical Panel reasons for opinion. The relevant observations of the Court of Appeal are as follows:
[62][2018] VSCA 35
“59. In our view, there is force in the proposition that, to the extent that the Panel Reasons contained admissible opinion evidence about a fact in issue, the reasons were capable of being admitted in accordance with ss 55 and 79 of the Evidence Act 2008. While that was not the basis upon which the Panel Reasons were admitted by the primary judge, we see no injustice in permitting the respondent to rely on those reasons, so far as they are otherwise admissible, for the purpose of determining the extent (if any) to which the applicant suffers from a permanent incapacity to perform work as a hand packer or process worker.
60.While ss 272(1) and (3) of the WIRC Act provide that members of medical panels are competent to give evidence in proceedings as to matters in a certificate, and in proceedings as to reasons for an opinion under div 3 of pt 6, given by the medical panel of which they are a member, such members cannot be compelled to give such evidence. In some cases, the fact that members of a medical panel cannot be compelled to give evidence about their reasons might tell against the admission of those reasons. It might be submitted that, in such a case, the reasons should be excluded under s 135 of the Evidence Act 2008, because they are incapable of being tested by cross-examination, and thus the probative value of them is substantially outweighed by the danger of unfair prejudice.
61.There was no cross-examination of any medical witness before the primary judge. Both parties appeared to be content for there to be no testing of any of the medical evidence by cross-examination. It was thus not submitted by counsel for the applicant that the Panel Reasons should be excluded under s 135 of the Evidence Act 2008.
62.That said, for completeness we should say that the Panel Reasons were admissible because they contained admissible evidence, the probative value of which was not outweighed by the danger that the evidence might be unfairly prejudicial to the applicant, or misleading or confusing, or cause or result in some undue waste of time.”[63]
[63]paragraphs [59]-[61]
135 This proceeding bears a strong similarity to the circumstances of the point dealt with by the Court of Appeal. Firstly, the reasons for opinion contained admissible evidence. Secondly, although the members of the Medical Panel cannot be compelled to give evidence, their reasons for opinion stand to be considered with the same weight as any other medical report. Thirdly, like the point dealt with by the Court of Appeal, there was no requirement by the parties for the attendance of any medical witness of the cross-examination.
136 In the circumstances, I do not see that there is a compelling reason to exercise the undoubted discretion under s135 of the Evidence Act 2008 to exclude the Reasons for Opinion.
137 I am, however, concerned that there are features of the Medical Panel Reasons for Opinion which distinguish it from a medical report prepared in the conventional way and served in a proceeding. Firstly, the makers of the Reasons for Opinion are not compellable. I think it highly unlikely that if they were asked to attend for cross-examination, that they would agree to do so, and if they did, which of the three physical treating doctors would attend, or would it be all of them? Secondly, the defendant is not bound by Rule 44.03 of the County Court Civil Procedure Rules 2008 (“the Rules”) to provide the makers of the Reasons for Opinion with a copy of the Expert Witness Code of Conduct found in Form 44A of the Rules.[64]
[64]Rule 44.03(1)(a) of the Rules
138 Despite what differences there are, whether real or apparent, between a Medical Panel reasons for opinion or a medical report prepared and served in the conventional way, I propose to take a simple approach by treating the Reasons for Opinion as if it were just another medical report to be weighed into account in the process of taking to account all of the evidence.
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