Reeve v Victorian WorkCover Authority
[2023] VCC 1958
•2 November 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-23-00549
| PETER REEVE | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE MYERS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 August 2023 | |
DATE OF JUDGMENT: | 2 November 2023 | |
CASE MAY BE CITED AS: | Reeve v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1958 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the right shoulder – pain and suffering
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s325
Cases Cited:Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Sutton v Laminex Group Pty Ltd (2011) 31 VR 100; TTB SMS Pty Ltd v Reading [2020] VSCA 203
Judgment: Application dismissed
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Fitzpatrick Mr B Cooper | Maurice Blackburn |
| For the Defendant | Mr T Storey | TG Legal + Technology |
HER HONOUR:
Introduction
1Mr Peter Reeve, the plaintiff, is a sixty-one-year-old storeman and forklift driver. He seeks leave to issue proceedings claiming pain and suffering damages for an injury to his non-dominant right shoulder pursuant to paragraph (a) of the definition of “serious injury” in the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”).
2On 19 July 2017, the plaintiff was loading bundles of bubble wrap onto a truck during his employment with Sealed Air Pty Ltd (“the employer”), when he experienced pain in his right shoulder (“the incident”). The plaintiff alleged that his injury was aggravated thereafter performing that same task during 2018 and 2019.
3There was no issue that the plaintiff suffered a compensable injury to his right shoulder in the course of his employment.
4The defendant contested the proceeding only on the issue of “range”.
5The legal principles are well known and were not in issue.
6The plaintiff was the only witness to give viva voce evidence.
7For the reasons that follow I have determined that the plaintiff has not satisfied his onus of establishing that the permanent impairment consequences of his right shoulder injury can be fairly described as more than “significant” or “marked” and “at least very considerable” when compared to the range of possible impairments.
Background
8The following matters of background are not, I believe, controversial. In so far as any part is contested, these represent my findings save where indicated.
9The plaintiff is a married man with an adult son and a grandson.
10The plaintiff is left-hand dominant.
11In 1988, the plaintiff began working as a storeman for W R Grace. That business merged with the employer in the early 2000s, and the plaintiff has worked for them ever since.
12Following the incident, the plaintiff consulted his general practitioner (“GP”), Dr Magdy Shahat. He was prescribed Celebrex for pain.
13On 7 August 2017, the plaintiff underwent a right shoulder X-ray and ultrasound. Those investigations were reported to reveal rotator cuff degeneration, subacromial osteophytes, mild degenerative changes at the glenohumeral and AC joints, an articular partial thickness tear at the supraspinatus anterior insertion, and mild bursitis.
14The plaintiff was absent from work for about two weeks following the incident, and then resumed his pre-injury duties. Thereafter, he undertook some physiotherapy treatment at work.
15The plaintiff alleged that his right shoulder condition deteriorated during 2017, 2018 and 2019 whilst performing the task of loading the bundles of bubble wrap in the course of his employment.
16In early December 2019, the plaintiff experienced a significant increase in his right shoulder pain performing that task at work. He ceased work.
17On 6 December 2019, an ultrasound of the plaintiff’s right shoulder was reported to reveal a complete tear of the rotator cuff, thickening of the subacromial bursa in keeping with bursitis, subacromial impingement and degenerative changes.
18The plaintiff’s GP referred him to the orthopaedic surgeon, Mr Bernard Lynch, for an opinion.
19On 24 December 2019, the plaintiff consulted Mr Lynch. He advised the plaintiff to undergo an arthroscopy, acromioplasty, subacromial bursectomy, rotator cuff tear repair and resection of the prominent greater tuberosity. That surgery took place on 5 February 2020.
20Following the surgery, the plaintiff developed an infection which necessitated the involvement of Dr Ian Jennens, infectious diseases physician.
21On 17 February 2020 and 19 February 2020, the plaintiff had two hospital admissions, for debridement, drainage, and washout of his right shoulder wound. He required intravenous antibiotics.
22Mr Lynch reviewed the plaintiff on three occasions following the surgery. At the second review on 14 April 2020, Mr Lynch encouraged the plaintiff to return to work, provided office-based duties were available.
23On 16 April 2020, the plaintiff returned to work performing modified, primarily office-based, duties.
24From May 2020 for approximately 12 months, the plaintiff had physiotherapy treatment from Stacy Chan at Transform Physio.
25At the beginning of 2021, the plaintiff resumed his pre-injury duties for the employer on full-time hours. He was provided with a certificate of capacity certifying him fit for his pre-injury employment from 5 March 2021.[1]
[1]Defendant’s Court Book (“DCB”) 16
26Whilst the plaintiff resumed his pre-injury position, there had been changes to work practices, which meant that the storeman role required less manual handling than was previously the case.
27The plaintiff has continued to work full-time as a storeman and forklift driver, although his duties are predominantly on the forklift. Additionally, he works on a Saturday whenever it is available.[2]
[2]Transcript (“T”) 50-51
28Until early 2023, the plaintiff had weekly sessions with a personal trainer, to increase his right shoulder strength. He ceased those sessions for financial reasons.
29The plaintiff said that he has not formally consulted a GP regarding his right shoulder condition since approximately March 2021, although he said that he plans to discuss his condition with his new GP soon.
30The plaintiff takes Panadol Osteo for right shoulder pain. He is not receiving any hands-on treatment for his right shoulder condition and no future treatment or referrals are planned.
The claimed impairment consequences
31In his first affidavit affirmed on 22 September 2022, the plaintiff deposed to the following impairment consequences of his right shoulder condition:
“26I continue to experience a throbbing pain in my shoulder, which can fluctuate in pain levels but is always present. When it’s particularly stiff it will feel like it needs to crack. At its worst the pain would be around a 5 or a 6 out of 10. However, my main frustration is that it feels as though there is a constant pressure in the shoulder which means I have stretch it all the time.
27 I try to avoid taking medication wherever possible but I still have to take Panadol osteo when my pain is at its worst, around once or twice a week. I only take it when I’m really fed up with dealing with the pain but as a result I am left with the constant throbbing pain.
28 Otherwise, I’ve been focused on strengthening up the area so I see a personal trainer once a week, who gives me exercises to build up the muscles in my shoulder. I find the exercises very beneficial as it frees up the movement a bit. However, when I don’t do the exercises or I miss PT then my shoulder stiffens up and the pain increases. I worry what this will mean for the future when I’m not able to do the personal training because I do not want to be left reliant on medication.
29 As a result of the weakening and stiffness in my left shoulder I’m not able to do things around the house like I used to. I try to avoid mowing the lawn because I can’t pull start the mower. If I do mow then I’m left pushing it more with my left arm or the vibrations increase the stiffness in my right shoulder. Similarly, I avoid gardening because the pulling movements flare up my pain levels.
30 I used to do the more physically demanding jobs around the house, like painting, decking or small building jobs around the back garden. Because I know these jobs will irritate my shoulder I have put them off and now I think they would only get done if I paid someone to do it. I’m annoyed that I have to do this because prior to my injury I was more than capable of doing these jobs myself and now it becomes an expense I have to pay.
31 Since suffering my injury, I no longer sleep in the same bed as my wife. I have to sleep in the spare room so that I can reposition my arm throughout the night without waking her up. The pain in my shoulder wakes me up at least once a night, before I have to reposition it either up against the wall or on a pillow before trying to go back to sleep. I have about three pillows that I use to prop myself up in different ways in order to sleep.
32 Prior to suffering my injury, I used to enjoy fishing and golf, as well as bike riding. I am mindful that I’m not far from retirement and my injuries have impacted on many of my hobbies that I would have enjoyed. I am trying to get back into fishing but though I feel as though the casting motion may be ok I don’t think I would be able to reel in a fish. I have been fishing once since the injury but I found that afterwards my pain was worse. I’m still hopeful I could try it but I will have to change how I approach it and so I have put off going back.
33 I used to play golf with friends every couple of months, playing on different public courses. I haven’t played with friends since I first suffered my shoulder injury in 2017, though I’ve tried swinging the clubs.
34 I used to enjoy riding bikes. I still think about jumping on the bike but I’m mindful of what could go wrong and how far it could set me back if I hurt my shoulder again. As a result, I’ve avoided cycling.
35 Since my injury I’m not able to play with my grandson in the same way. We used to play basketball together or kick the football but I’m concerned about what would happen if I tried now. I still like to spend time with him so I get him to come with me to the gym but the change makes me aware of how limited I am.
36 I’ve found that since the injury I’ve become a lot more lethargic and I get frustrated more easily. I can snap at people where I wouldn’t have before. I used to be very active, doing lots of jobs around the house and I was house proud. Since the injury I just don’t have the energy to get out and work in the same way. I try to get on with things but I lack the motivation that I used to have.
37 I’m also self-conscious about the scarring to my shoulder from the surgery and as a result I’ve stopped wearing singlets and other clothes that allow people to see it. At times I feel some pressure and discomfort from the scarring but I try to keep it hidden.”
32In his second affidavit affirmed on 12 July 2023, the plaintiff deposed to the following impairment consequences:
“5Since swearing my first affidavit my pain and restrictions from my right shoulder remain the same.
6 I continue to suffer from a constant, throbbing pain in my right shoulder, which varies in intensity depending on activity. I still feel a constant pressure making me feel like I need to stretch my shoulder all the time. I have become more reliant on my non-preferred left arm and I get some pain in that shoulder as a result.
7 I continue to work normal duties since my first affidavit. However, this continues to be because I no longer have to do any physical work or manual handling. They have been supportive in accommodating my limitations from my injuries. I worry that if I had to find other work, I would struggle as a result of my injuries, as well as my age and experience.
8 Since my first affidavit I stopped seeing my personal trainer, in around the beginning of 2023. While I found the treatment would give me some benefit in terms of strength I was constantly worried that I would aggravate or re-injure my shoulder as it hasn’t felt as strong since my injury. I thought if I lifted a weight incorrectly or did something the wrong way I would go backwards. I am a lot more conscious of the limitations in my right shoulder now. As a result, I limit myself to going for longer walks at the gym or doing stretching exercises.
9 I remain limited in what I’m able to do around the house. Since my first affidavit, we have organised for someone to come in and do the gardening once a month because I’m not able to do it because of my shoulder pain. Similarly, I have not been able to get back to doing any of the small maintenance jobs around the house like painting or decking. I believe we will just have to get someone in to do those sorts of jobs from now on because I cannot do it. It will be an unwanted cost as I used to be able to do those jobs.
10 I still sleep in a separate bed to my wife. I continue to toss and turn a lot and I have trouble repositioning myself during the night because the pain in my shoulder wakes me up. I still use my three pillows to prop myself into different spots to get comfortable.
11 While I still try to avoid taking medication where possible, my medication use has increased since my first affidavit. I usually take two Panadol osteo in the morning before work and I’ll then take two more some when I get home from work. I find taking them in the evening helps a little bit when I try to sleep. However, it also helps as I get sore by the end of the work day in my shoulder, even without the more physical work.
12 I haven’t been able to get back to fishing or golf since my first affidavit. I am not willing to risk my shoulder condition swinging a club or casting a reel. I had initially hoped to get back to some activity but as time has gone by I have become more cautious and careful about using my arm and so I don’t believe I will be able to do those activities again.
13 Since my injury I worry a lot more about my future and I have to be more careful about how I use it. I worry that it will only get worse as I get older.
14 As my wife retired back in around late 2019, we are more reliant on my income to plan for the future and our retirement. I worry a lot about having to stop work early or that my shoulder injury will put me off before we had planned. If this were to happen, we would be under financial strain. Even having to pay for things like gardening or maintenance because I cannot do it myself has put us under more financial strain.”
The Plaintiff as a witness
33Counsel for the defendant submitted that the plaintiff was an unreliable witness, who had a tendency to overstatement. It was submitted that his evidence ought to be viewed with caution, particularly in circumstances where it was not supported by objective evidence.
34Counsel for the plaintiff submitted that whilst the plaintiff did not read his affidavits as carefully as one might wish, he should be found to be a witness of credit.
35The plaintiff made two corrections to his second affidavit affirmed on 12 July 2023 at the start of his viva voce evidence.
36The first correction was to the treatment the plaintiff received from his GP. In his affidavit affirmed on 12 July 2023, the plaintiff deposed:[3]
“3.Since affirming my first affidavit I stopped seeing my old GP, Dr Shahat at Darby Street Clinic. He closed down his practice towards the end of 2022, so I moved over to see Dr Raad Hammod at Sussex Medical Centre. I see him once every couple of months for review of my condition and review of my medication.”
[3]Plaintiff’s Court Book (“PCB”) 19
37The plaintiff corrected that account at the start of his viva voce evidence to say that his GP attendances were for a lumbar spine condition, not his right shoulder, although the plaintiff added, “I thought I run it by him”.[4] By that I took the plaintiff to mean that he thought he had in fact mentioned his right shoulder condition to his current GP in passing.
[4]T8
38The second correction was to paragraph 6 in the plaintiff’s affidavit affirmed on 12 July 2023, in which he deposed:
“6.I continue to suffer from a constant, throbbing pain in my right shoulder, which varies in intensity depending on activity. I still feel a constant pressure making me feel like I need to stretch my shoulder all the time. I have become more reliant on my non-preferred left arm and I get some pain in that shoulder as a result.”
39The plaintiff corrected that account, stating he is left-handed. His left arm is not his “non-preferred” arm.
40When making those corrections, the plaintiff did not offer any explanation as to how he came to affirm his affidavit in its original form.
41The plaintiff’s right shoulder condition has been stable in terms of symptoms since at least March 2021.[5]
[5]PCB 19, T12
42The plaintiff was cross-examined regarding the nature and extent of his ongoing right shoulder pain and the frequency with which he takes Panadol Osteo.
43In his first affidavit the plaintiff referred to constant but variable pain, which reached a level of five or six out of ten “at its worst”. The plaintiff deposed to taking Panadol Osteo “when my pain is at its worst, around once or twice a week”.
44In his viva voce evidence, the plaintiff said that aspect of his affidavit may have been in error, and he was possibly taking Panadol Osteo every day at the time.[6]
[6]T13-14
45In his second affidavit, the plaintiff deposed to continuing to suffer from constant but variable pain but said there had been an increase in his use of medication. No reason for the increase was stated. The increased use of medication appeared to be incompatible with the plaintiff’s evidence that his pain and symptoms remained the same.
46I found the plaintiff’s evidence regarding the frequency of his pain and use of Panadol Osteo unsatisfactory.
47Both the plaintiff and his wife deposed to the plaintiff being unable to perform gardening because of his right shoulder impairment. They both said that they had organised and paid for someone to come in and do the gardening once a month, and the expense had caused them financial strain.[7]
[7]PCB 20, PCB 21, PCB 24
48A granny flat was constructed in the plaintiff’s back yard in about 2017 which was occupied by the plaintiff’s adult son and grandson. The import of the plaintiff’s evidence was that this dwelling occupied a significant part of the back yard, reducing the garden space.
49The plaintiff said that he had a veggie patch in the rear garden, and a very small area of grass. He said the veggie patch was now just weeds.
50When asked in cross-examination why he had produced no receipts or evidence as to the payment of a gardener when requested to do so, the plaintiff said that his son took care of the gardener and the cost involved.[8] That is, contrary to the affidavits of the plaintiff and his wife, the plaintiff and his wife had not organised and paid for a gardener, and that expense was not causing them financial strain.
[8]T25-26
51The defendant tendered Google images of the plaintiff’s home taken in 2007, 2009, 2014, 2016, 2017, 2019, and 2021.[9] Across those years the plaintiff’s front garden consisted of a small lawn and driveway. To my observation, it is not the garden of someone who could be described as a keen gardener.
[9]DCB 115-122
52I accept that the plaintiff did perform some gardening activities prior to his injury. This seems to have involved mowing, weeding and maintaining a small veggie patch.
53The evidence from the plaintiff and his wife regarding the need for, and payment for, gardening assistance was an example of overstatement of the plaintiff’s impairment consequences and unreliability.
54The defendant submitted that the plaintiff’s failure to mention any other current or past health conditions in either of his affidavits weighs against his reliability.
55Further, that the plaintiff had not disentangled the impairment consequences of those health conditions from those referable to his right shoulder impairment.
56The plaintiff was diagnosed with severe sleep apnoea in 2013 and used a CPAP machine for treatment of that condition for some years thereafter. The plaintiff’s evidence was that he lost weight after this time, no longer suffered from symptoms of sleep apnoea, and did not require the use of a CPAP machine at night for approximately the last five to six years.[10]
[10] T40
57I accept that the plaintiff no longer requires the CPAP machine.
58It became evident during cross-examination that the plaintiff has suffered from intermittent low back pain since approximately 2019.[11] He has attended GP Dr Hammod since September 2022 primarily for this condition.
[11] T38
59I accept the plaintiff’s evidence that he has suffered episodic low back pain which can be “crippling” at times. It has necessitated GP attendances, prescription analgesia, physiotherapy, and some days off work.
60I find that the plaintiff is periodically incapacitated from many day-to-day activities for discrete periods by virtue of low back pain.
61I find that the plaintiff has sufficiently identified the impairment consequences caused by that condition.
62Whilst it is unsatisfactory that the plaintiff did not mention his other health conditions in his affidavits, I accept his explanation that he did not refer to them as he believed that what was relevant was his right shoulder condition.
Conclusions regarding the Plaintiff’s reliability
63The plaintiff is a hardworking man, who has got on with things following his right shoulder injury.
64However, for the reasons stated I find that the plaintiff was an unreliable witness in relation to a number of important matters. In particular, as to the nature and frequency of his right shoulder pain, the frequency with which he takes medication, the need for GP attendances, the asserted favouring of his other arm which was in fact his dominant arm, and in relation to the need for and payment for gardening services.
65I find that the plaintiff overstated the impairment consequences of his right shoulder condition in his evidence.
66I therefore approach the plaintiff’s evidence as to his right shoulder impairment consequences with caution unless that evidence is corroborated objectively.
The evidence of the Plaintiff’s wife
67The plaintiff’s wife, Mrs Michelle Reeve, affirmed one affidavit dated 12 July 2023. Her evidence was largely supportive of the plaintiff’s account of his impairment consequences.
68No application was made to cross-examine Mrs Reeve. However, Mrs Reeve’s evidence must be viewed in light of the findings I have made as to the plaintiff’s reliability and the evidence more generally.
The medical evidence
Treating practitioners
Dr Magdy Shahat, GP
69The plaintiff tendered one report from his former GP, Dr Magdy Shahat, dated 11 March 2021.
70Dr Shahat was the plaintiff’s regular GP from the time of the incident until March 2022.[12] In his report, he outlined his treatment of the plaintiff’s right shoulder condition from 2017. He noted the diagnosis of “right partial thickness tear at supraspinatus anterior insertion right” and “subacromial bursitis,” treated surgically. He noted the plaintiff’s return to pre-injury duties on 5 March 2021.
[12]DCB 80
71He opined that future treatment might be required if the condition was exacerbated, and that the plaintiff might need physiotherapy, depending on the progress of healing.
72Dr Shahat retired in early 2022.
73Since approximately May 2022, the plaintiff has attended Dr Raad Hammod at the Sussex Medical Centre.
74No report was tendered from Dr Hammod.
Mr Bernard Lynch, orthopaedic surgeon
75The plaintiff tendered two reports from his treating orthopaedic surgeon, Mr Lynch, dated 26 May 2020, and 21 July 2023.[13]
[13]PCB 30 and PCB 31
76Mr Lynch noted that the diagnosis was of a right supraspinatus tendon tear. He outlined his treatment of the plaintiff between December 2019 and May 2020.
77He noted that when he reviewed the plaintiff on 14 April 2020, nine-weeks post-surgery, the plaintiff could achieve a full range of abduction and elevation.
78On 26 May 2020, the plaintiff had his final review with Mr Lynch. Mr Lynch noted the plaintiff was able to achieve full elevation with his right shoulder with no discomfort. He recommended that in the long term the plaintiff ought to keep his right elbow by his side when lifting weights, especially over the following 12 months.
79In his report dated 21 July 2023, Mr Lynch noted that as he had not seen the plaintiff since May 2020, he was unable to opine as to his current condition. He concluded:
“Future treatment has not been planned nor anticipated. Should further problems occur with the right shoulder, then a further assessment would be required.”[14]
[14]PCB 32
Dr Ian Jennens, infectious diseases physician
80Two reports were tendered from Dr Jennens who treated the plaintiff’s post-surgical infection in February/March 2020.[15] These reports are of little assistance to the current application.
[15]PCB 35 and PCB 36
Stacy Chan, physiotherapist
81The plaintiff tendered two physiotherapy assessment notes from Ms Chan dated 16 February 2021 and 8 March 2021.[16]
[16]PCB 37 and PCB 38
82The defendant tendered clinical notes of Ms Chan for attendances upon the plaintiff between 13 May 2020 and 9 December 2020.[17]
[17]DCB 56-75
83No report was tendered from Ms Chan with respect to her treatment of the plaintiff.
84Neither party asked the plaintiff any questions about these clinical notes, and neither party made any submissions about them. In the circumstances this material was of little assistance.
Dr Neil Smith, respiratory and sleep disorders physician
85The defendant tendered five reports from Dr Smith dated between 11 February 2013 and 5 May 2014.[18]
[18]DCB 10-14
86During 2013 Dr Smith diagnosed the plaintiff with severe obstructive sleep apnoea, and recommended CPAP therapy.
87As at October 2013, the plaintiff was noted to be using the CPAP machine for eight hours a night. In May 2014 he was using it for six hours a night.
Medico-legal practitioners
Mr Ash Chehata, orthopaedic upper limb surgeon
88The plaintiff tendered two reports from Mr Chehata dated 3 June 2023, and 19 July 2023.[19]
[19]PCB 40-48
89Mr Chehata examined the plaintiff on one occasion, on 30 May 2023.
90In his first report, Mr Chehata described the plaintiff’s current function and social and domestic history as follows:
“Mr Reeve has had significant improvement over time and he has been able to regain almost a full range of movement, but he is certainly weak and can no longer perform explosive or repetitive activities with that right arm.
He has been able to return back to work as a storeman and forklift driver. He has been doing this for over thirty years.
…
Mr Reeve is married and has an adult son.
He can no longer play golf but he does do some gardening.”[20]
[20]PCB 42
91Mr Chehata’s diagnosis was of a traumatic rotator cuff tear. He opined as follows regarding the plaintiff’s impairment consequences:
“He now has a full range of movement, although the work related injury has obviously affected his ability to load and perform repetitive above shoulder activity, more related to an irreparable cuff that had an attempted repair and then subsequent infection. Obviously, the foreseeable future is difficult but may actually involve deterioration of the overall level of function of the right shoulder over a period of 10 to 15 years. However, at this stage, he is compensating quite successfully, explaining his full range of movement, although he is certainly very weak with no strength.”[21]
[21]PCB 44
92In response to a question as to the need for further investigation or referral to a specialist, Mr Chehata opined as follows:
“Unfortunately, with the previous infection and an irreparable cuff, this may be something that will require further operative intervention in terms of shoulder surgery and he may ultimately require a reverse shoulder replacement. …”[22]
[22]PCB 45
93Mr Chehata noted that the prognosis was “reasonable”.
94Mr Chehata provided a supplementary report addressing the cause of the plaintiff’s right shoulder injury. Given that the defendant conceded that the plaintiff suffered a compensable right shoulder injury, it is unnecessary to consider the supplementary report further.
Mr Timothy Gale, general and trauma surgeon
95The defendant tendered one report from Mr Gale, dated 15 June 2021.[23] Mr Gale examined the plaintiff the same day to provide an impairment assessment.
[23]DCB 31
96Mr Gale noted the following about the plaintiff’s symptoms:
“At the present time the worker has minor ongoing symptoms. There is a feeling of weakness when carrying out certain movements of the right shoulder and arm, particularly forcibly pushing upwards when carrying out weight-exercises in the gym, and there is often a pressure feeling in the shoulder. He has difficulty pull-starting the mower using the right arm, but he is not restricted in most other activities. He has no significant pain and is not aware of any significant restricted range of shoulder girdle motion.
Current treatment involves attending a gymnasium on the advice of his physiotherapist to improve muscle strength, he doesn’t require to take pain-relieving medications or any other form of medication for the shoulder.”[24]
[24]DCB 32
97The above account was not put to the plaintiff during cross-examination. Whilst it is evidence which I have considered, where it conflicts with the plaintiff’s evidence, I attach little weight to it as the plaintiff was not given an opportunity to comment upon it.
98Mr Gale’s examination findings noted there was free and spontaneous use of the right upper limb. He noted the surgical scarring, which did not impede shoulder girdle motion “although there was slight tethering to the underlying structures”. He noted no focal tenderness or palpable abnormality of the shoulder girdle. There was a good range of motion, and neurological examination revealed no abnormality. Mr Gale noted “good and equal strength in the right biceps as compared to the left”.
99Mr Gale opined that the plaintiff’s prognosis was good, and that his minor persisting symptoms would likely resolve in a year or so. No specific treatment was required, save for muscle-strengthening exercises for two to three months. He said:
“The worker will not suffer injury or harm by engaging in appropriate occupational and daily living activities, but prudence would dictate that he avoids the physical employment duties that caused the injury in the first place.”[25]
[25]DCB 33
Medical Panel Opinion and Reasons
100The defendant tendered a Medical Panel (“the Panel”) Opinion and Reasons dated 24 August 2021 in respect of the plaintiff’s permanent impairment. The Panel comprised Dr Anna Korin, physician, and Associate Professor Andrew Hardidge, orthopaedic surgeon.
101The plaintiff’s description of his symptoms and medication use to the Panel when he was examined were not put to the plaintiff during cross-examination.
102In those circumstances, whilst it is evidence which I have considered, where it conflicts with the plaintiff’s evidence I attach little weight to it as the plaintiff was not given an opportunity to comment upon it.
103Upon examination, the Panel relevantly found as follows:
“There was no tenderness of the acromioclavicular joint, biceps nor any other focal area of the shoulder. There was no shoulder joint crepitus consistent with arthritis but there was a clicking elicited by rotational movement of the shoulder consistent with rotator cuff tear or irregularity. There was no shoulder instability. The biceps contour was normal. The supraspinatus and infraspinatus were weak and wasted. Subscapularis was normal. Gerber’s lift off test was negative. There was a restricted range of right shoulder movement in flexion, extension, abduction, adduction, external rotation and most apparent on internal rotation (see measurements below). Sensation of the right upper limb was normal as was grip strength. There were no features of vascular impairment.”[26]
[26]DCB 42-43
Dr Terence Saxby, orthopaedic surgeon
104The defendant tendered one report from Dr Saxby, dated 24 January 2023.[27] He examined the plaintiff once, on 13 January 2023.
[27]DCB 47
105Dr Saxby noted the following complaints and symptoms:
“At this stage Mr Reeve has made a good recovery. He is not receiving any physiotherapy. He does have some discomfort at night when he sleeps on that shoulder, but otherwise he does not require medications regularly. He notices some slight restriction in motion of the shoulder, but otherwise it is functioning well.
…
At the present time he self manages the condition and uses Panadol Osteo for pain as required.
…
He is able to do his normal social and domestic activities. He is somewhat impeded, for example in playing golf, but other than that he is functioning normally with his recreational activities including gardening.”[28]
[28]DCB 50-54
106Dr Saxby reported that the plaintiff was able to perform his normal household duties without restriction; that he previously enjoyed playing golf but was not able to do that “at the moment”; that “he is into his gardening with some discomfort and he states he mainly uses his left upper limb”.[29]
[29]DCB 51
107The above account was not put to the plaintiff during cross-examination. In those circumstances, whilst it is evidence which I have considered, where it conflicts with the plaintiff’s evidence I attach little weight to it as the plaintiff was not given an opportunity to comment upon it.
108Dr Saxby noted the plaintiff was able to remove his shirt without difficulty. He found only slight restriction of movement of the right shoulder, no obvious loss of muscle mass and no localised tenderness.
109Dr Saxby opined as follows regarding the plaintiff’s prognosis:
“The long and short term prognosis is excellent. Other than his infection, Mr Reeve has had a good recovery. He has only minor functional loss and slight restriction of motion and therefore I believe his prognosis is excellent.”[30]
[30]DCB 52
110Dr Saxby further opined that the plaintiff “has no real objective loss”.
Conclusions regarding the medical evidence
111There was little dispute on the medical evidence regarding the plaintiff’s right shoulder injury and treatment.
112The recent opinions, which were medico-legal, were essentially agreed that the plaintiff has a good range of movement in his right shoulder, no obvious loss of muscle mass, no instability, no neurological abnormality, and no vascular impairment.
113There was a dispute as to the extent of weakness in the right shoulder. Mr Chehata opined that the plaintiff was “very weak” and had “no strength”. I do not accept that opinion. First, Mr Chehata did not outline the results of any test of the plaintiff’s strength in his right upper limb. Second, that opinion appears to be at odds with the plaintiff’s undisputed level of function. Third, the opinion is not consistent with the findings on examination of the Panel, Mr Gale, or Dr Saxby whose opinions I prefer on this issue.
114There was a consensus amongst the medico-legal practitioners that the plaintiff does not currently require any hands-on treatment for his right shoulder condition.
115Mr Chehata was the only practitioner to suggest that there was a risk of deterioration and a potential for further surgery. I acknowledge his expertise as an upper limb surgeon. However, Mr Chehata did not set out the path of reasoning that led to his opinion. Further, he did not state the likelihood of deterioration occurring, or the likelihood of further surgery being necessary. For those reasons I attach little weight to that aspect of Mr Chehata’s opinion.
Findings as to the plaintiff’s impairment consequences
116I make the following findings as to the impairment consequences to the plaintiff of his right shoulder condition, in light of the medical evidence which I have accepted, and my findings regarding the plaintiff’s reliability.
117Mr Fitzpatrick submitted that I should find that the plaintiff is stoic. I accept that the plaintiff has got on with his life following his injury, albeit with some adaptations, but the medical evidence does not suggest that such activities were beyond him.
Pain and treatment
118The plaintiff’s right shoulder condition has been stable for some years. I find that the plaintiff experiences an ache and intermittent pain in his right shoulder.[31] At its worst the pain reaches a level that requires simple analgesia once or twice a week. The plaintiff does not receive any treatment for his condition.
[31]T12
Sleep
119I find that right shoulder discomfort disturbs the plaintiff’s sleep from time to time. I accept his evidence that he and his wife sleep in separate rooms, but I am not persuaded that is a continuing arrangement necessitated by the extent of sleep disturbance caused by the plaintiff’s right shoulder condition.
Gardening
120I do not accept that the plaintiff’s ability to perform the relatively limited gardening activities he undertook prior to his right shoulder injury are impacted in a significant way by his right shoulder impairment. Whilst I accept that the plaintiff may experience difficulty starting his lawnmower with his right arm, he is in fact left-hand dominant.
121I find that the plaintiff’s ability to perform gardening activities has been affected to some degree, in that he is restricted in heavier activities which require the use of his non-dominant arm. I do not find this is a particularly significant consequence to the plaintiff.
Domestic activities
122I find that the plaintiff is able to perform domestic tasks, albeit that he experiences pain from time to time performing heavier activities.
Household maintenance
123I find that the plaintiff has some limitations regarding his ability to perform heavier infrequent household maintenance (such as re-coating a deck) given his right shoulder impairment.
Recreational activities
124I accept the plaintiff’s evidence that he used to go fishing with a friend, on a boat, every couple of months, and that he has some restriction in his ability to enjoy that activity due to his right shoulder impairment affecting his capacity to reel in a larger fish.
125I accept the plaintiff’s evidence that he used to play golf with friends every couple of months. I do not accept the evidence of his wife that he used to play every two to three weeks.
126I find that the plaintiff has tried to swing a golf club on one occasion since suffering his injury, and he found that it caused an increase in right shoulder discomfort. Whilst I accept the plaintiff’s evidence that he misses this activity, I note that he did not play golf particularly frequently before suffering his injury.
127I further accept the plaintiff’s evidence that he was no longer able to enjoy bicycling as he felt nervous doing so because of his right shoulder impairment. However, the frequency with which he enjoyed that activity prior to the incident is not stated.
128I find that whilst there has been some diminution in the plaintiff’s ability to enjoy his former recreational activities by reason of his right shoulder impairment, those interests were not previously engaged in in a way that could be described as a particular passion.
Risk of deterioration and/or further surgery
129I place little weight on Mr Chehata’s opinion regarding the risk of future deterioration or surgery for the reasons outlined above.
Retained capacity
130In considering what has been lost, I must also consider what has been retained.
131The plaintiff has retained the capacity to perform his pre-injury duties on a full-time basis and undertakes as much overtime as is available. Whilst the ability to return to suitable employment does not preclude a finding of “serious injury”, it is a factor to take into account.[32]
[32]Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1, [15]; Sutton v Laminex Group Pty Ltd (2011) 31 VR 100
132The plaintiff did not depose to experiencing any restriction in consequences such as his personal care, capacity to drive, his mobility more generally, socialising, or cognitive functioning (from the use of pain-relieving medication).
Conclusion
133The injury is to the plaintiff’s non-dominant arm.
134The plaintiff has a good range of movement of his right shoulder.
135The plaintiff experiences intermittent pain requiring over-the-counter analgesia and has some mild restrictions in terms of activities.
136An impairment is not to be held to be serious unless the pain and suffering consequences are, when judged by comparison with other cases in the range of possible impairments or losses of a body function, fairly described as being more than significant or marked and as being at least very considerable.[33]
[33]TTB SMS Pty Ltd v Reading [2020] VSCA 203 at paragraph [30]
137In the exercise of the value judgment required of me, I am not persuaded that the permanent impairment consequences of the plaintiff’s right upper limb injury can fairly be described as “more than significant or marked, and as being at least very considerable” when compared to the range of possible impairments.
138The plaintiff’s application is therefore dismissed.
139I will hear the parties on the issue of costs.
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