Randall v Victorian WorkCover Authority
[2016] VCC 1067
•29 July 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-15-02856
| JUSTIN DALE RANDALL | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE BROOKES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 and 12 May 2016 | |
DATE OF JUDGMENT: | 29 July 2016 | |
CASE MAY BE CITED AS: | Randall v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1067 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious Injury – injury to the left shoulder – pain and suffering – identity of injury
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Petkovski v Galletti [1994] 1 VR 436; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260
Judgment: Application to bring proceedings for pain and suffering damages dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Ingram | Arnold Thomas & Becker |
| For the Defendant | Ms B Myers | Russell Kennedy |
HIS HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of his employment with his employer, Frank Cardamone (“the employer) on 11 July 2011 (“the injury”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only. He brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act, to wit:
“(a) A permanent serious impairment or loss of a body function.”
3 The body function relied upon in this application is the left shoulder.
4 The plaintiff relied on two affidavits and gave viva voce evidence. He was cross-examined. 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
5 The impairment of the body function must be permanent, in the sense that it is likely to continue into the foreseeable future.
6 The plaintiff bears an overall burden of proof upon the balance of probabilities.
7 By ss(38)(c) of the Act, the impairment must have consequences in relation to pain and suffering 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 more than “significant” or “marked” and as being “at least very considerable”.
8 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.
9 Sub-section (38)(h) provides consequences which are psychologically-based are to be wholly disregarded in paragraph (a) cases.
10 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[1] in reaching my conclusions.
[1](2005) 14 VR 622
11 The defendant concedes that it accepted liability for an organic injury suffered in the course of his employment on 11 July 2011 but does not concede that such injury meets the requirements of sub-paragraph (a) of the definition of “serious injury” referred to above.
12 Perhaps the most significant area of dispute between the parties, apart from the threshold requirements, is whether the principles laid down in Petkovski v Galletti[2] apply in this case. The plaintiff’s counsel submits that the impairment of the left shoulder prior to July 2011 was virtually zero, and had been so since approximately 2007. He concedes that the plaintiff had suffered a number of dislocations prior to this date, but any residual impairment resulting therefrom was minimal as at July 2011, in that the plaintiff had engaged in full-time physical employment since 2007 and had enjoyed a wide range of recreational activities. Counsel for the defendant submits that the evidence discloses that the plaintiff suffered from a pre-existing injury to the left shoulder, which must have restricted the plaintiff’s physical activities to a considerable extent; alternatively, the plaintiff has failed to discharge the onus of proof with respect to the level of his pre-injury impairment.
[2][1994] 1 VR 436
Background
13 It is common ground that a compensable injury occurred in the course of the plaintiff’s employment as a traffic controller with the employer on 11 July 2011. On that day, the plaintiff described his injury thus:
“At the end of the day, the other traffic controller who was a woman, told me to pack up which meant to take down the signs, and she then went off to the toilet, leaving me to do it by myself. Normally, two people would take the signs down. One side would fold down and then the other side would fold down. I folded one side down, but then the other side got caught by the wind. I could see a car coming, and if I had let go of the sign it would have hit the car and caused an accident. I therefore had to hold on to it and I suffered the injury. It was very blowy, with strong gusts of wind all day. I do not believe that I should have been instructed to take down the signs by myself, particularly on such a windy day.”[3]
[3]Exhibit A, affidavit sworn 9 September 2014 at paragraph [5], Plaintiff’s Court Book (“PCB”) 2
14 Following this incident, the plaintiff underwent treatment, which is essentially unchallenged. He swore as follows:
“Following the injury I went to Monash Medical Centre (Hospital) which is part of Southern Health and is located in Clayton. There, my shoulder was put back in place under nitrous oxide by Dr. Jon Dowling. An X-ray of my left shoulder was done at the hospital.
Thereafter, I had some physiotherapy at the Southern Health Hospital at Dandenong. I went to see my usual general practitioner, Dr. Lamia Elias of Broadmeadows Family Health Care. I had some physiotherapy from a physiotherapist in Glenroy.
An MRI of my left shoulder was done on 6 September 2011. On 21 November 2011 I was examined by Mr. Roger Westh, Orthopaedic Surgeon.
I came under the care of Mr. Trung Nguyen, an Orthopaedic Surgeon. On 4 April 2012 at Warringal Private Hospital he operated on my left shoulder. The operation he performed was a left shoulder arthroscopic anterior stabilisation (Bankart repair).
Following the operation I had further physiotherapy.
Later, I had rehabilitation in the form of swimming twice a week and going to the gym.
As a result of the injury I was unable to work for a considerable period of time.
…
In respect of the injury I lodged a WorkCover claim on 17 July 2011 claiming weekly payments and medical and like expenses compensation. That claim was accepted. In respect of the injury I subsequently lodged a WorkCover impairment benefits claim in August 2012. That claim was also accepted.”[4]
[4]Exhibit A, affidavit sworn 9 September 2014 at paragraphs [6]-[13], PCB 2
Prior injuries
15 Under this heading, the plaintiff swore as follows:
“In about 2002 I dislocated my left shoulder when I fell off a trail bike in the bush. I think that my left shoulder went back into position by itself, but it was still rather sore so I went to Sale Hospital. I went to the hospital on the day of the injury. I think that was a Saturday of a long weekend, probably the Australia Day long weekend. At Sale I had X-rays and I think I was told that it had already gone back into place. Monday was a public holiday, so I was off work and I was back at my usual work on Tuesday. At that time I was working for a paintmaker in a factory at Dandenong South.
My left shoulder dislocated again in about 2004 or 2005 and I went to Dandenong Hospital. At that time I was playing cricket. I was bowling and threw my shoulder out. It did not feel right, so I went to the Dandenong Hospital where I had an X-ray and I think they said it had already gone back into place.
Within about six months of that occurrence, there was another occurrence. That was in about 2005. On that occasion I woke up from sleep and my left shoulder was sore. I felt it click back into place and then it was fine. Thereafter, I had no further trouble and I continued to play cricket and football and to ride my trail bike. I had no left shoulder trouble until I suffered the injury on 11 July 2011.”[5]
[5]Exhibit A, affidavit sworn 9 September 2014 at paragraphs [14]-[16] PCB 3
Consequences of prior injuries
16 In his affidavit, the plaintiff swore as follows:
“Before the injury and from about 2005 I had no further problems with my left shoulder and I was able to play occasional golf and regularly play cricket and football. I would regularly ride my trail bike. I was able to regularly work in the workforce.
Before commencing with the employer I worked at Mooroolbark Excavation as a labourer for about 13 or 14 months. There was about a week between that job and starting with the employer. Before Mooroolbark Excavations I worked for Eymac Stainless at Ringwood, where I worked as a metal polisher for about 2 years. There was about one week out of the workforce between the job with Eymac Stainless and Mooroolbark Excavations.
…
Before the injury I ran about 5 kilometres nearly every day. I was extremely fit and active. Because of the injury I cannot run as it causes shoulder pain. Because of the injury and the resulting inactivity I have put on about 15 kilograms in weight. Before the injury I enjoyed swimming but I have now stopped swimming. There was a period when I was swimming as my rehabilitation, swimming about twice a week, and I continued that for about 6 months. Eventually, I found that when swimming laps my left shoulder would become painful and also at times it did not feel quite right, as though it was not properly located.
Before the injury I enjoyed going to a surf beach and to non-surf beaches and swimming, but now I avoid swimming and going to the beach. Before the injury I played golf socially from time to time. I tried to get back into golf, but the golf swing caused pain and my shoulder did not feel right so I gave it up. As part of my rehabilitation I went to the gym, mostly riding the exercise bike to try and keep fit and keep my weight down.”[6]
[6]Exhibit A, affidavit sworn 9 September 2014 at paragraphs [17]-[18] and [21]-[23] PCB 4-5
Consequences of compensable injury
17 The plaintiff swore as follows:
“As a result of the injury I have given up playing cricket which was something that I enjoyed very much. As a result of the injury I have stopped playing football, which was also something that I enjoyed very much. As a result of the injury I have stopped riding my trial (sic) bike which was something I enjoyed very much. As a result of the injury I have stopped running and going swimming which were things I enjoyed very much.”[7]
[7]Exhibit A, affidavit sworn 9 September 2014
“I have now been left with restricted movement in the left shoulder and frequent soreness in the left shoulder. I have been advised not to work in any job which involves heavy lifting, or which involves much work above shoulder height. It has been suggested that I should not lift anything weighing more than 13.7 kilograms. This is the result of a functional capacity evaluation report dated 12 November 2012 prepared by Martin Steed, a ESSA accredited exercise physiologist.
As a result of the injury I was unable to work until I obtained my present employment in May 2013. Presently, I am employed by Biford Equipment of Laverton. Originally when I started there I worked as a welder for two weeks, doing bench work with light gauge welding. I was then made factory supervisor and I remain a full time factory supervisor. I do not do any hands-on work. I supervise approximately 12 people and I do a lot of paperwork and phone work to ensure that materials arrive at the factory on time. I also walk around the factory and actually speak to and supervise the workers I am in charge of.
…
Now, movement in my left shoulder is restricted in all directions to some extent. The restriction is particularly marked and becomes painful when I move my left arm above about shoulder height. When I wake up in the morning my shoulder feels stiff and a bit sore. I have a hot shower and I loosen up after about half an hour.
After the working day my shoulder is usually fairly sore and I have another hot shower as soon as I get home. My shoulder becomes sore as a result of work and just moving around, even though I do not do any physical labour at work. I simply walk around the factory and do paperwork and use the phone.
The injury interferes with my sleep. Most nights I wake up because of pain in my left shoulder. Generally I wake up about 3 times each night. When I wake up it is difficult to get back to sleep and most of the time I will get up and move around a bit until the stiffness and soreness eases off. Thus I hardly ever get a good night’s sleep.
I do not take any medication. I am allergic to codeine. I avoid other painkilling medications for fear of addiction. When I was younger I did have an addiction to marijuana so I am very wary of my susceptibility to become addicted. I just put up with the pain as best I can.
The shoulder is often a bit sore and with activity the soreness increases. As much as possible I have to avoid working about shoulder height or lifting heavy weights or applying force through the shoulder, such as when pushing or pulling.
Although I did have some dislocations before suffering the injury, my shoulder was not giving me any problems for a period of years prior to the injury.”[8] (sic)
[8]Exhibit A, affidavit sworn 9 September 2014 at paragraphs [19] and [24]-[29] PCB 4-6
18 In his second affidavit sworn 9 May 2016, the plaintiff outlined the consequences:
“Since the swearing of my first affidavit I have continued to work at Biford employed as a Manager within the office. This is a desk job with no physical duties and I am capable of performing this role quite comfortably.
Further to my first affidavit I continue to work hard at this job as I have a young family to support including 4 children Tanisha aged 10, Tyson aged 9, Nevaeh aged 4 and Scarlett aged 1.5. I work hard for my kids, I do as much as I can and I try to stay healthy for them.
My left shoulder remains irritable and painful. I would describe my left shoulder as causing me constant discomfort along with pain when my left arm is moved to particular angles or performing certain tasks. WorkCover accepted that I had a permanent impairment of the left shoulder and I was paid a lump sum for this.
Activities such as running are no longer suitable for me because my left shoulder has caused me significant increased pain when I have attempted to run. I used to run 5kms per day to keep fit and I can no longer do this in a pain free manner. I have also tried to jog, keeping my arms steady, however this is also a painful activity and I now avoid it. Sport and fitness activities are a major loss to me because I loved all sports, played them well and had to give away the ones I loved most.
Fitness played a major role for me both pre injury and post injury. I swum approximately twice per week at the gym and I maintained a gym membership for about 6 or 7 years. I tried to return to swimming as part of my rehabilitation post surgery, however it was way too painful and I gave it away.
I am a right handed golfer and I played golf approximately every 2nd weekend. I believe my TaylorMade clubs cost more than $5000.00 when I bought the set. More frequently in the better weather, less frequently in winter. I was committed to this sport, I had undertaken lessons with a professional, I attended the driving range and I had gotten good enough to have scored a par 72 on a public course. I tried to return to golf because it meant that much to me. I returned to the professional at Moonee Ponds and had about 10 lessons, trying to fix my swing with a shorter back swing and shorter follow through so it would cause less pain however none of this worked and I gave it away. I believe that I have played around 4 or 5 rounds of golf since the shoulder surgery and my golf game is not good, but the left shoulder pain is worse.
I used to play club football up until a couple of years prior to the injury. Up until the injury I played social football with my mates during the winter season. This was a lot of fun and I enjoyed running around whenever I could. Work and family commitments meant that I could only play footy socially, however I loved it and I have not returned to playing any games with my mates and this is also a loss to me.
I also had played both cricket and indoor cricket prior to the injury. I played indoor cricket for at least one season prior to suffering injury and I have not returned to this activity either. Social footy, cricket, indoor cricket are games I played with my mates, midweek, after work and they were a good chance to catch up for a couple of hours, even with a young family. I miss playing sport with my mates and the loss of this sport is due to my injured shoulder.
My left shoulder bothers me when I roll over upon it during my sleep. It bothers me and I wake up during the night and getting back to sleep is sometimes difficult. The shoulder hurts a lot more in the mornings when I wake up and it is stiff and painful. It frees up more after I’ve had a hot shower and get myself moving. I’m fortunate that I’ve got a desk job, but it means I have to stay inside all day and I enjoyed outside work, especially in better weather.
My shoulder impacts upon my ability to pick up the kids. It hurts when I pick them up as the younger ones are getting heavier now but I don’t care about the pain and I will continue to pick them up when they want a cuddle even if my arm falls off. Life hasn’t been easy over the past few years as I have also assisted with raising my partners 4 half siblings as our own foster children. I work hard for a reason and it’s generally about the kids.
I used to enjoy going to the gym and it was a big part of my life before the injury and I attended frequently after the surgery for rehabilitation. I did a fair bit of arm and upper body weights, however this was quite painful, a pain that I would normally feel after the completion of the session. I did my best doing the weights work, I was supervised at the gym, but the weights were painful and at times I was only lifting a fraction of what I used to lift pre injury (sic).”[9]
Viva voce evidence
[9]Exhibit A, second affidavit sworn 9 May 2016 at paragraphs [3]-[16] PCB 7-9
19 In cross-examination, the plaintiff conceded he signed a witness statement dated 31 August 2011.[10] He stated therein:
“I previously played football from age 5 until 17 on a club competitive basis. I ceased playing football due to my social life. I was never injured while playing football.”[11]
[10]Exhibit 2, DCB 24-32
[11]Exhibit 2, DCB 25??
20 The plaintiff further stated therein:
“I am into cars and going for long social drives, I enjoy motorbike riding however have not been able to participate in these hobbies because I do not have time, with a baby on the way; needless to say, things are hectic.”[12]
[12]Exhibit 2, DCB 25
21 Further, the plaintiff was cross-examined on a physiotherapy functional capacity evaluation report dated 12 November 2012.[13] He conceded that, on that occasion, he rated his shoulder pain levels to be as follows:
“At Time of Assessment 0
At Worst Over the Last Week 0.”[14]
[13]Exhibit 9, DCB 33-38
[14]Exhibit 9, DCB 33
22 Further, the plaintiff’s current treatments included:
“• Consultation with treating GP – monthly
• Home-based exercises – completed independently on a daily basis
• Physiotherapy – once a week since May 2012
• Medication – none reported due to side effects of medication
• Swimming – 3-4 times per week since May 2012
• Self-paced gym program x 3 times per week.”[15]
[15]Exhibit 9, DCB 33
23 Additionally, the plaintiff revealed in cross-examination that he had purchased a jet ski approximately one-and-a-half years ago as a substitute activity for riding motorbikes. He said he had been out on the jet ski twice when the lake was flat. He had not been told by any doctor that he was unable to perform that activity. In re-examination, he stated that the jet ski had only been used for about four hours and he did not ride it beyond that because “I don’t feel confident”.[16]
[16]Transcript (“T”) 17, Line (“L”) 28
Medical treatment – pre-injury
24 The plaintiff’s left shoulder was x-rayed on 29 December 2004. On that date, there was a clinical history of a motorbike accident, with a fall onto his left shoulder, with a past history of dislocation of the shoulder.[17]
[17]Exhibit 3, DCB 1
25 On 7 January 2007, the plaintiff attended the Dandenong Emergency Section at Southern Health. The nursing assessment reads:
“… ?L) SHOULDER DISLOCATION SPONT TODAY. HAS HAD SAME IN PAST – RELOCATED IN SALE.”[18]
[18]Exhibit 4, DCB 2
26 On 11 July 2011, the plaintiff presented at the Monash Medical Centre Emergency Department. The Discharge Summary relevantly reads as follows:
“Presenting problem: dislocation of shoulder
Past Medical History: multiple dislocations previously
Initial post dislocation post MVA,
Most other dislocations self reduced
One dislocaiton requiring reduction at dandenong hospital
…
History of Presenting Coimplaint: Pt holding sign – due to wind sign was going to land in the street – pt held onto it – causing dislocation – unable to self reduce.”[19]
(sic)
[19]Exhibit B, PCB 11
Medical treatment – post injury
27 The plaintiff attended the Monash Medical Centre Emergency Department on 11 July 2011, with a dislocated shoulder following the subject injury. The initial treatment was recorded:
“… shoulder re-located under nitrous by dr john dowling –
placed in shoulder imboliser
for post reduction views.”[20]
(sic)
[20]Exhibit B, PCB 11
28 The post-reduction x-ray was designated: “NAD”.[21]
[21]Exhibit B, PCB 11
29 Subsequently, the plaintiff attended his general practitioner, Dr Lamia Elias, who obtained a history that the plaintiff had initially injured his shoulder on 31 December 2002, New Year’s Eve, when he had a motorbike accident in the bush and had been taken by ambulance paramedics to the Sale Hospital. Apparently an x-ray was said to be normal and the doctor discharged him without any treatment. He returned to work as a renderer immediately after the public holiday. Apparently, he otherwise denied any recurrent left shoulder injuries to the general practitioner.[22]
[22]Exhibit C, PCB 12
30 Thereafter, the plaintiff was referred to orthopaedic surgeon, Mr Roger Westh, who saw him on 21 November 2011. Mr Westh recorded:
“[The plaintiff] had a significant past history of a motor bike accident 10-12 years previously in which he dislocated his shoulder and since that time he has had further dislocations.”[23]
[23]Exhibit D, PCB 14
31 An MRI scan was reported as showing:
“… a chronic Hill Sachs deformity with extensive tearing of his labrum and also some chondral wear changes.”[24]
[24]Exhibit D, PCB 14
32 Mr Westh referred the plaintiff to Mr Trung Nguyen, who specialised in shoulder surgery. Mr Westh reported that:
“… surgery was subsequently performed at Warringal Private Hospital on 4 April 2012. The operation was a left shoulder arthroscopic anterior stabilisation (Bankhart repair). There was a large Bankhart lesion and a Hill Sach lesion. There was no rotator cuff tear. There was some damage to the anterior part of the glenoid as a result of recurrent shoulder dislocations. The Bankhart repair was performed with three anchors.”[25]
[25]Exhibit D, PCB 14
33 Relevantly, Mr Westh reported that once the patient had fully recovered from his surgery and when the shoulder had stabilised, he would be able to return to work. He further stated:
“There is a possibility that he may have some ongoing pain in his shoulder due to the fact that there was reported damage to the anterior part of the glenoid.”[26]
[26]Exhibit D, PCB 15
34 Mr Trung Nguyen reported to the plaintiff’s solicitors on 13 February 2013.[27] He was initially seen on 22 February 2012. He recorded the plaintiff’s clinical history as follows:
“During the first consultation, Mr Randall informed me that he was a 30 year old right-handed man who was employed as a traffic controller whom presented with left shoulder recurrent anterior dislocations.
The history was that he sustained an injury to his left shoulder about 7 months earlier, when he was holding up a street sign, when it suddenly fell backwards, pulling his shoulder back with it. The shoulder was then dislocated. He was taken to the Monash Medical Centre, Emergency Department for reduction. Since this accident he has been complaining of recurrent subluxations and a feeling of instability in his shoulder. He was also complaining of pain at night during the first consultation.
He had one dislocation 10 years earlier when he was riding a bike but he has had no further problems until now.”[28]
[27]Exhibit E, PCB 16-18
[28]Exhibit E, PCB 16
35 The pre-operation investigations were reported as follows:
“The MRI scan of his left shoulder performed by Epping imaging on September 9th, 2011 reported a SLAP tear with a Bankart and Hill sach lesion, which is typical in recurrent anterior dislocations.”[29]
[29]Exhibit E, PCB 16
36 The diagnosis was one of:
“… recurrent anterior shoulder dislocations with a typical Bankart and Hill sach lesion with a SLAP lesion in his left shoulder.”[30]
[30]Exhibit E, PCB 17
37 Mr Nguyen’s operation report included the following finding:
“There was some damage to the anterior part of the glenoid from recurrent shoulder dislocations.”[31]
[31]Exhibit E, PCB 17
38 Thereafter, Mr Nguyen reported the post-operative management as follows:
“Two months after his shoulder surgery on June 4th, 2012 the patient reported he had no problems. In terms of range of motion he had regained a forward elevation of 160 degrees, external rotation 55 degrees and internal rotation to the level of T12. He was advised to commence physiotherapy with no lifting for another 3 months and no sport for another 6 months. The patient was also asked to return in 3 months for further follow up, however he did not attend, so this was the last time I saw the patient.”[32]
[32]Exhibit E, PCB 17
39 He further stated:
“I believe the patient should have a good prognosis as the recurrent rate is usually less than 10% after surgery.
Normally the shoulder condition would be stabilised 12 months after surgery, therefore if the patient has not had any problems, then his shoulder condition should be stabilised in the next month or so.
If it did [re-occur], then the patient would require stabilisation surgery again.”[33]
[33]Exhibit E, PCB 18
40 In a follow-up report dated 22 February 2016,[34] Mr Nguyen virtually repeated his earlier report, having not seen the patient in the meantime and relevantly stated:
“… the chance of Mr Randall having normal shoulder function after surgery would be more than 90%”.[35]
[34]Exhibit F, PCB 19-13
[35]Exhibit F, PCB 21
41 Thereafter, the plaintiff was seen by his general practitioner, Dr Elias, on 9 August 2012, who recorded he had been having physiotherapy twice a week and the plaintiff felt:
“… that the left shoulder became easier to move, but on examination he couldn’t abduct the left shoulder more than 100 degrees and couldn’t raised (sic) the left arm above the head.”[36]
[36]Exhibit C, PCB 13
42 Later, in a report dated 22 March 2016, Dr Elias recorded he had not seen the plaintiff for his left shoulder since 12 October 2012.[37]
[37]Exhibit C, PCB 22
43 The defendant also tendered in evidence, the clinical records of the plaintiff’s alternative treating general practitioner, Dr Tatlow Ng, of the Belair Medical Centre.[38] The record extends from 13 July 2011 until 26 April 2016. On the former date, it is recorded he has suffered a “LEFT SHOULDER INJURY”.[39] On 15 October 2012, it is recorded:
[38]Exhibit 5, DCB 3-5
[39]Exhibit 5, DCB 5
“Had left shoulder reconstruction in April 2012
Unable to go to see his previous LMO
Accident at work
Still on work cover
Seeing his rheumatologist on Friday 21/11/2012 for final assessment
Still on physiotherapy.”[40]
[40]Exhibit 5, DCB 5
44 On 7 December 2012, it is recorded:
“WorkCover till January
Having return to work plan arranged.”[41]
[41]Exhibit 5, DCB 5
45 On 7 January 2013, it is recorded:
“Pain in the left shoulder hurts yesterday while swimming in Queensland
Tender over the left shoulder
Very limited movements in all directions due to pain.”[42]
[42]Exhibit 5, DCB 5
46 On 16 January 2013, it is recorded:
“Left shoulder better but still occ pain
U/S did not show any muscle tear but tendinopathy
Advised rest and voltaren 1tds … .”[43]
[43]Exhibit 5, DCB 5
47 On 5 February 2013, it is recorded:
“Better
Pain left shoulder is less now.”[44]
[44]Exhibit 5, DCB 5
48 There is a similar reference to the left shoulder on 19 February 2013 and then Certificates of Capacity issued on 7 March 2013, 9 April 2013 and 15 May 2013. Thereafter, there is no attendance at the clinic with respect to the left shoulder. There are various unrelated attendances between 9 July 2013 and 26 April 2016.
49 On 14 February 2013, Dr Ng completed a questionnaire for the WorkCover insurer. In essence, with respect to the dislocated left shoulder and reconstruction of same performed on 4 April 2012, Dr Ng expressed the opinion that the plaintiff had “fully recovered now”.[45] Further, he stated the plaintiff:
“… can resume light duties now. Can gradually resume pre-injury duties.”[46]
[45]Exhibit 6, DCB 6-7
[46]Exhibit 6, DCB 6-7
50 The above material was the sum total medical evidence from treating practitioners.
Medico-legal evidence
51 The plaintiff was examined on behalf of the defendant by Dr Clive Kenna, a consultant in musculoskeletal pain management, on 14 March 2013. He reported on 18 March 2013.[47] He noted that there was no prior history of left shoulder injury problems. Further, at the time of examination, he noted the plaintiff was not having any formal treatment, other than general practitioner certificates. Dr Kenna also noted that the treating general practitioner, Dr Ng, had certified him as fully recovered and coping well. Further, Dr Kenna recited that the plaintiff told him:
“… he believes he is close to making 100% recovery but acknowledges that he is not keen to do any work and has been advised to avoid any repetitive work forcefully, at or above shoulder-height.
Nevertheless, with regard to his rehabilitation, (he was very much a bit of a gym junky prior to the incident and had been for years) he is back attending his gym and is doing his range of exercises (he is quite well-built for age and height).
He noted that prior to the incident, some 20 months ago, he was 69 kg. He increased to 88 kg and he is now 76 kg.”[48]
[47]Exhibit 7, DCB 14-21
[48]Exhibit 7, DCB 15
52 As to current symptoms, Dr Kenna related:
“… [the plaintiff] does experience some interior shoulder discomfort but is not substantive.”[49]
[49]Exhibit 7, DCB 16
53 Clinical examination indicated:
“… a well-muscled individual with still 1 cm wasting of the left upper arm in comparison to the right (he is right-arm dominant), hence there essentially may be no wasting whatsoever.
…
On examination of the left shoulder, he demonstrated up to 170 degrees of flexion and 160 degrees abduction (which I would consider effectively full range in view of the Bankart procedure). At the end range, there is a tight feeling but there is no pain. Internal rotation and external rotation were reduced by about 30%, but again he had functional capacity pertaining to such.
Key Point
He has obtained an excellent result. His joint is stable.”[50]
[50]Exhibit 7, DCB 16
54 Dr Kenna observed a surveillance DVD taken of the plaintiff on 13 February 2013.[51] He considered the activities:
“… would be compatible with his current clinical presentation where he is certainly able to lift and raise his hand to his head. He was also observed swinging his left arm freely while walking, etc. Nevertheless, that is compatible essentially with my assessment that he has overall good range of movement but, as noted, he was not doing anything forceful with the arm at or above shoulder height, which he is well aware of.
He essentially does not have any problems, provided he keeps the arm at or below shoulder height from the perspective of any physical work. He would not be able to do that in a labour hire company where he could work essentially as a picker/packer or whatever physical work he would be doing.
He is fit to return to work full-time but best not into pre-injury duties. He is regularly doing gym and resistance work. He enjoys that. He is exploring the possibility of obtaining tickets and retraining from the point of view of a bobcat excavator and backhoe licence.
It is stated the worker is not undergoing any formal treatment; that is true. He is now complementing that with his own gym program.”[52]
[51]Exhibit 10
[52]Exhibit 7, DCB 16-17
55 Dr Kenna considered the diagnosis one of a recurrent dislocation of his left shoulder in an anterior direction. That incident occurred in a work-related incident on 11 July 2011. Upon assessment almost twelve months’ post-operatively, Dr Kenna considered that:
“… that [the plaintiff] has maximised the benefit of the operative procedure. I would not state the condition has resolved but it is not dislocated but the shoulder is now much more stable.”[53]
[53]Exhibit 7, DCB 17
56 Further, Dr Kenna stated:
“… if one looks at the condition from the perspective of his physical presentation, he has almost effected 100% response.”[54]
[54]Exhibit 7, DCB 18
57 As to independence with daily living or impact upon work, Dr Kenna stated:
“… [The plaintiff] is quite independent with regard to the activities of daily living and does not require treatment to remain in the workforce.”[55]
[55]Exhibit 7, DCB 18
58 Finally, Dr Kenna noted:
“Further Key Points
He presented better than expected after a pre-assessment reading of the reports. He acknowledges he has regained good function of the left shoulder. He acknowledges he is active. He attends gym. The Seca investigation report is somewhat compatible with his overall stated level of activity. He probably needs to retrain as noted and he probably just needs to be given a push along with regard to obtaining his licences and re-entering the workforce in a different guise.”[56]
[56]Exhibit 7, DCB 19
59 The plaintiff’s solicitors had him examined by orthopaedic surgeon, Mr Russell Miller, who reported on 7 March 2016.[57] Mr Miller took a history of the motorbike accident on approximately 31 December 2002, in which the plaintiff dislocated his left shoulder. Although the plaintiff said he had some feelings of the shoulder “moving around”, he described no further episodes of dislocations. He stated:
“… the shoulder effectively settled down and there were no ongoing problems until the second event.”[58]
[57]Exhibit F, PCB 24-9
[58]Exhibit F, PCB 25
60 The plaintiff complained of the following symptoms:
“° Left Shoulder
He has ache, discomfort and intermittent pain in the left shoulder. It occasionally feels stiff and sore. He has some difficulties with heavy physical work and overhead work. He stated the shoulder does feel loose and he has occasional sensations of it shifting.
He complained of no other specific orthopaedic symptomatology.
In terms of treatment, [the plaintiff] has used a range of medications in the past, but these are not ongoing.
He has had extensive physiotherapy and rehabilitation in the past, but there is no ongoing treatment. There are no plans for further surgery.”[59]
[59]Exhibit F, PCB 26
61 On examination:
“There was deltoid muscle wasting.
…
Abduction 130°
Forward Elevation 130°
External Rotation 40°
Internal Rotation 40°
There was moderate irritability with overhead activity. Apprehension test was positive.”[60]
[60]Exhibit F, PCB 27
62 Mr Miller noted:
“He has had a reasonable recovery following that surgery. There have been no further frank dislocations, but he does have some ongoing symptoms suggestive of some residual shoulder instability (no implied criticism of the treating surgeon).
He is at risk of developing further shoulder problems in the long term. The prognosis for the left shoulder is only fair.”[61]
[61]Exhibit F, PCB 28
63 Mr Miller’s opinion was that the work injury in July 2011:
“… aggravated the pre-existing problems and caused further superimposed injury and therefore, there is a significant work related component to the shoulder problem.”[62]
[62]Exhibit F, PCB 28
64 Further:
“He is at increased risk of developing arthritic disease in the shoulder, but is unlikely to do so to the point where he will require surgical intervention.”[63]
[63]Exhibit F, PCB 28
65 Although Mr Miller considered the injuries had substantially stabilised, he thought he would be ill-advised to return to work that involved use of the left arm in the above-shoulder position, lifting of weights more than 10 kilograms or performing other forms of heavy physical work. He would also be not suitable for climbing. He believed his decision to return to office-based duties or other forms of light physical work is appropriate. He was not fit to return to his pre-injury duties as he would be at risk of further injury.[64]
[64]Exhibit F, PCB 28
66 Importantly, with respect to lifestyle evaluation, Mr Miller noted that the shoulder injury should not interfere with his mobility and that the orthopaedic injury should not impact directly on personal relationships. He further considered he should be capable of normal domestic and gardening activities.[65]
[65]Exhibit F, PCB 29
67 As to leisure activities, Mr Miller related:
“… [The plaintiff] previously enjoyed football, cricket and recreational motor bike riding and golf. He had attempted a return to golf, but he stated the shoulders did not ‘feel right’, and has therefore not continued with that. He has not returned to his other pre-injury activities and would be ill-advised to do so. He will therefore, have significant restrictions in his capacity for pre-injury, leisure and recreational activities.”[66]
[66]Exhibit F, PCB 29
68 Finally, the defendant had the plaintiff’s condition assessed by Associate Professor Bruce Love, orthopaedic surgeon, who reported on 30 March 2016.[67] On this occasion, Associate Professor Love stated:
“The accompanying record suggests that at least five dislocations or subluxations of the left shoulder occurred prior to the present at the Monash Medical Centre on 11 July 2011.”[68]
[67]Exhibit 8, DCB 22-3
[68]Exhibit 8, DCB 22
69 This history is consistent with the plaintiff’s counsel’s chronology wherein he relates incidents on 31 December 2002, 29 December 2004, 2004-2005, 2005 and 7 January 2007. Associated Professor Love considered that this history suggested that spontaneous reduction of these dislocations had been a consistent feature of his condition. Accordingly, he concluded the plaintiff had a constitutional predisposition to shoulder instability. Although only providing an opinion “based on the papers provided”, Associate Professor Love stated that:
“… a pre-existing shoulder condition existed prior to 11 July 2011 and the incident [of that date] aggravated that condition. I can conclude that the force generated by wind blowing on a traffic control sign would in my opinion by (sic) unlikely to produce a shoulder dislocation if there were not predisposing conditions in existence.
It is reasonable to accept that the work related aggravation still materially contributes to the workers current condition. That is he has had a recent investigation which has diagnosed him as having supraspinatus tendonopathy, subacromial bursitis and a glenohumeral fusion consistent with an internal derangement as evidenced by the ultrasound investigation on 9 January 2013.”[69]
[69]Exhibit 8, DCB 23
70 Further, Associate Professor Love stated:
“Clearly the purpose of the surgery performed by Mr Nguyen on 4 April 2012 was designed to minimise the risk of further dislocation and therefore it can be stated that the worker’s shoulder is now less likely to dislocate than prior to surgery.”[70]
[70]Exhibit 8, DCB 23
Video surveillance
71 The plaintiff was shown a video of himself taken on 13 February 2013 at the front of his residence. It commenced at 10.46am. There was a large pile of red tanbark and a large pile of sand on the nature strip. The plaintiff stated it was between .5 and 1 cubic metre of tanbark and about .5 cubic metre of sand.[71] The film showed him shovelling the tanbark into what looked like a rubbish bin and then carrying it to some position, apparently in his front lawn. The film shows him tipping the load onto the ground from waist height. In all, about 16 minutes of video were shown on that day, between 10.46am and 13.11pm. It shows the plaintiff engaged, virtually non-stop, between 10.46am and 11.15am, with no apparent restriction shown.[72]
[71]T9, L25-T10, L5
[72]T10, L6-17
72 At 11.16am, there is a gap in the film until 12.43pm, where he is shown, again, engaging in the activity until the film ceases at 13.11pm, with the plaintiff taking his shovel to the front yard.
73 In cross-examination, the plaintiff stated he did not move the sand at all, but stated he removed the tanbark over some days, but he could not remember exactly. He said he did it:
A:“… slowly and casually and just taking my time … .
Q:Without any sign of restriction at all?---
A:… I was cautious about everything and I checked the weights and the weights of everything.”[73]
[73]T10, L18-30
74 My own view is that the video surveillance shown is compatible with the plaintiff retaining a considerable function of the left shoulder.
Identifying compensable injury
75 There is some variation in the histories taken by various medical practitioners. However, there does not seem to be much disparity in the opinions expressed with respect to the role played by the incident in July 2011.
76 Mr Westh, orthopaedic surgeon, saw the plaintiff on 21 November 2011 and perhaps took the history which best aligns with the lay evidence. Mr Westh noted:
“He had a significant past history of a motor bike accident 10-12 years previously in which he dislocated his shoulder and since that time he has had further dislocations.”[74]
[74]Exhibit D, PCB 14
77 The treating orthopaedic surgeon, Mr Trung Nguyen, reported that the MRI scan of the left shoulder dated 9 September 2011:
“… reported a SLAP tear with a Bankart and Hill sach lesion, which is typical in recurrent anterior dislocations.
…
From the history obtained, my examination, and the investigations above, I concluded that the problem with Mr Randall’s left shoulder was that of recurrent anterior shoulder dislocations with a typical Bankart and Hill sach lesion with a SLAP lesion in his left shoulder.”[75]
[75]Exhibit E, PCB 16-17
78 Arthroscopic findings recording by Mr Nguyen included synovitis in the rotating interval of the glenohumeral joint, together with a Bankart lesion from the 6 to 11 o’clock position, together with a large Hill sach lesion and “some damage to the anterior part of the glenoid from recurrent shoulder dislocations”.[76] Although damage to the anterior part of the glenoid has been attributed to recurrent shoulder dislocations, there is no opinion as to whether the other findings may have existed prior to July 2011. Whatever the state of the pre-existing pathology in the left shoulder, it is clear that consequences of same were a susceptibility to recurrent dislocation of the shoulder, which may occur either spontaneously, such as waking in the morning, or when pointing the left arm when about to bowl a cricket ball with the propulsion mechanism coming from the right shoulder.
[76]Exhibit E, PCB 17
79 Associate Professor Bruce Love opines that:
“… following a primary dislocation [in about 2002] injuries to the shoulder joint may occur and these include a bankart lesion where the glenoid labrum is torn from its attachment at the margin of the glenoid reducing the inherent stability of the shoulder or a hill sachs lesions (sic) where an indent is the result of a dislocation which again predisposes the shoulder to further episodes of dislocation or subluxation.”[77]
[77]Exhibit 8, DCB 22-3
80 Associate Professor Love considers that these changes were part of the pre-existing shoulder condition, and the incident of 11 July 2011 aggravated that condition. He further concluded that the force generated by the wind blowing on a traffic control sign would, in his opinion, have been unlikely to produce a shoulder dislocation if there were no predisposing conditions in existence.[78] However, I am prepared to infer that, as a result of the recent ultrasound investigation on 9 January 2013, which apparently disclosed supraspinatus tendinopathy, subacromial bursitis and a glenohumeral fusion consistent with an internal derangement, those conditions are causally related to the aggravation injury of 11 July 2011.
[78]Exhibit 8, DCB 23
Consequences of compensable physical injury
81 The plaintiff’s counsel submits that, although there was a pre-existing weakness in the left shoulder, as evidenced by the recurrent dislocations, the pre-injury impairment is minimal, as the plaintiff was participating in full-time physical work and enjoying a full array of physical sporting activities for a number of years prior to July 2011. I have some real doubts as to whether the documented instances of dislocation amount to a pre-injury zero impairment for the purposes of analysis dictated by Petkovski v Galletti.[79] In particular, I accept Mr Love’s opinion that the shoulder is now less likely to dislocate compared with prior to injury.
[79]Supra
82 However, for reasons which follow, I consider that the seriousness of the consequences do not, in any event, meet the required threshold.
83 The plaintiff has retained the capacity to work on a full-time basis in suitable employment. Prior to July 2011, the plaintiff primarily performed work that involved manual labour. Since June 2013, he has been employed by Byford Equipment and has had several promotions. He is now a manager, and is earning an income far in excess of his pre-injury employment.
84 Defence counsel submits that the plaintiff does not allege any pain and suffering consequence in relation to employment, such as the loss of ability to undertake previously enjoyed work activities, or frustration at such loss. I accept this submission.
85 Associate Professor Bruce Love has opined that “the worker’s shoulder is now less likely to dislocate than prior to surgery”.[80] Certainly there is no evidence that the shoulder has dislocated since April 2012. Further, the video surveillance taken on 13 February 2013, as discussed above, would appear to corroborate this opinion, as the activities therein disclosed are far more strenuous than those which produced dislocation prior to the subject injury, such as bowling a cricket ball, or upon waking in the morning.
[80]Exhibit 8, DCB 23
86 As to curtailment of the plaintiff’s physical activities, the functional capacity evaluation report discloses that as at 12 November 2012, the plaintiff was swimming three to four times per week since May 2012.[81] Further, the clinical notes of treating general practitioner, Dr Ng, discloses that on 7 January 2013, the plaintiff suffered pain in the left shoulder while swimming in Queensland. Examination revealed tenderness over the left shoulder and very limited movements in all directions due to pain. By 16 January 2013, the notes disclose that the left shoulder was better but, still, there was occasional pain, and by 5 February 2013, it was recorded that the pain in the left shoulder was “less now”.[82] Thereafter, there is no further note of symptomatic treatment of the left shoulder by Dr Ng.
[81]Exhibit 9, DCB 33
[82]Exhibit 5, DCB 5
87 With respect to football, it would appear inaccurate that the plaintiff was playing club football “up until a couple of years prior to the injury”.[83] This is to be contrasted with his signed statement dated 31 August 2011, wherein he said he “previously played football from age 5 until 17, on a club competitive basis. I ceased playing football due to my social life”.[84]
[83]Exhibit A, second affidavit sworn 9 May 2016 at paragraph [9], PCB 8
[84]Exhibit 2, DCB 25
88 Although the plaintiff alleges he is unable to engage in running with the state of his shoulder, there is no medical practitioner who corroborates this disability, and the video surveillance referred to suggests that emptying buckets of tanbark over a number of hours would seem to be inconsistent with an inability to jog.
89 I would accept that riding a trail bike would lead to vibrations of the left shoulder, but given that the shoulder is less likely to dislocate than before the subject injury, and given that the plaintiff has purchased a jet ski and has admitted to at least some activity thereon, it lends some corroboration to the assertion of the plaintiff in November 2012, that his shoulder pain levels at that time were zero, and over the week preceding the same, were also zero.[85]
[85]Exhibit 9, DCB 33
90 With respect to his gymnasium activities, I note that he was engaged in a self-paced gym program three times per week as at November 2012[86] and, to my mind, this is consistent with the activities shown in the subject surveillance.
[86]Exhibit 9, DCB 33
91 In all, the evidence would tend to support the statement by the plaintiff to Dr Kenna on 18 March 2013, to the effect that “he believes he is close to making 100% recovery …”.[87]
[87]Exhibit 7, DCB 15
92 Nonetheless, I would accept that the advice to the plaintiff to avoid any repetitive work forcefully at, or above, shoulder height, is reasonable in all the circumstances. I also accept that there is ongoing pathology which would explain ongoing symptoms, to wit, supraspinatus tendinopathy, subacromial bursitis and a glenohumeral fusion consistent with an internal derangement, as evidenced by the ultrasound investigation on 9 January 2013.[88]
[88]Associate Professor Bruce Love, Exhibit 8, DCB 23
93 The plaintiff alleges that his sleep is interrupted most nights, up to three times a night, because of pain in his left shoulder. This is to be contrasted with the lack of the need to take painkilling medication or, in fact, attend his general practitioner for any treatment whatsoever in recent times. On balance, I consider that the evidence discloses pain and suffering consequences, which are both significant and marked, but I am not persuaded that those consequences can be fairly described as being “more than significant or marked”, or as being “at least very considerable”.[89] I also take into account the dicta set out in Dwyer & Calco Timbers Pty Ltd (No 2),[90] to the effect that:
“… the significance of what has been lost, which bears upon the seriousness of consequences, may be informed, to an extent, by what is retained.”
[89]See s134AB(38)(c) of the Act
[90][2008] VSCA 260 at paragraph [27]
Conclusion:
94 For the reasons given the application should be dismissed.
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