Richardson v Transport Accident Commission
[2010] VCC 471
•12 May 2010
May
| IN THE COUNTY COURT OF VICTORIA | Unrevised |
Not Restricted
AT MILDURA
CIVIL DIVISION
DAMAGES-COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-09-05281
| CHRISTOPHER RICHARDSON | Plaintiff |
| v | |
| TRANSPORT ACCCIDENT COMMISSION | Defendant |
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| JUDGE: | HER HONOUR JUDGE K L BOURKE |
| WHERE HELD: | Mildura |
| DATE OF HEARING: | 21 and 22 April 2010 |
| DATE OF JUDGMENT: | 12 May 2010 |
| CASE MAY BE CITED AS: | Richardson v Transport Accident Commission |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 0471 |
REASONS FOR JUDGMENT
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Catchwords: TRANSPORT ACCIDENT – Transport Accident Act 1986 – Section 93 – impairment to the cervical spine - right shoulder.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Moulds | Ryan Legal Services Pty Ltd |
| For the Defendant | Mr W R Middleton SC and | Solicitor for the Transport |
| Ms A Ryan | Accident Commission | |
| HER HONOUR: |
1 This is an application brought by Originating Motion by which the plaintiff applies for leave pursuant to s.94(4)(d) of the Transport Accident Act 1986 (“the Act”), to bring proceedings to recover damages for injuries suffered by him arising out of a transport accident which occurred on 14 February 2005 (“the said date”).
2 Section 94(6) of the Act provides:
“A court must not give leave under sub-section (4)(d) unless it is satisfied
that the injury is a serious injury.”
3 The definition of “serious injury” relied upon by the plaintiff is under s.93(17)(a) – “a serious long term impairment or loss of a body function”.
4 The body function relied upon by the plaintiff in this application is the cervical spine and right shoulder.
5 The inquiry under sub paragraph (a) of the definition focuses attention, first, upon whether the injury has produced an organic impairment or loss of body function, and then by reference to the consequences of that impairment, to determine whether it is serious and long term.
6 The serious injury defined by sub paragraph (a) can have its seriousness measured in part by a mental response to a physical impairment. What it will not recognise is that the mental disorder can of itself constitute or be the producer of the impairment of a body function: see Richards v Wylie (2000) 1 VR 79.
7 In forming a judgment as to whether the consequences of an injury are serious, the question to be asked is, can the injury, when judged by comparison with other cases in the range of possible impairments, be fairly described as at least “very considerable” and more than “significant” or “marked”?: see Humphries v Poljak [1992] 2 VR 129, at 140-1.
8 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.
The Plaintiff’s Evidence
9 The plaintiff was born on 27 December 1985 and is now aged twenty-four. He is single and lives with his partner, their four month old son and his partner’s four year old daughter.
10 The plaintiff left school towards the end of Year 10. He then commenced his apprenticeship at Reef and Beef in Mildura where he worked for about four months. He then transferred his apprenticeship to the Avoca paddle steamer where he worked or a couple of months and whilst still in his first year he again transferred his apprenticeship to Fasta Pasta to join a friend who was working there.
11 In cross-examination, the plaintiff denied there were any other reasons for leaving the Avoca job to work at Fasta Pasta.
12 The plaintiff worked a split shift of 9.00 am to 2.00 pm and 4.00 to 9.30 pm at Fasta Pasta, five or six days a week, earning about $600 gross per week as a first year apprentice.
13 Prior to the said date the plaintiff’s health was good.
14 The plaintiff suffered injury on the said date when his car was hit from behind whilst stationary at the traffic lights (“the accident”). Due to the severe jolting nature of the impact, the plaintiff suffered injuries to his neck and right shoulder.
15 In the accident there was a large force from the rear which twisted the chassis of the plaintiff’s vehicle and wrote it off. On impact, the plaintiff’s neck went forward and back, with his baseball cap ending up in the back seat. At the time of impact, his right arm was on the steering wheel and his left hand was on the gearstick.
16 The plaintiff was cross-examined about the defendant driver’s version of the accident. The plaintiff did not know whether the defendant’s car had stopped before accelerating again to hit his vehicle in the rear. The plaintiff agreed his car was first in the line at the lights and had been waiting there for some time. There was a left turn arrow showing at the time of the accident.
17 The plaintiff’s car was pushed into the intersection on impact. His vehicle was a manual and he had his foot on the brake and clutch. The plaintiff agreed he had described the accident as one involving speed and force when he described it to various doctors.
18 The plaintiff was shown photographs of his vehicle after the accident which he agreed did not show the damage he had described but said that damage had occurred and did not show up on the photographs.
19 Immediately after the accident the plaintiff had pain. He did not call the police because he was in shock. He agreed that he did not really know what happened to his body in the accident and that he was just guessing about what had happened.
20 After the accident, the plaintiff drove to work and that was when “it all hit him”. He collapsed to the ground and his boss insisted his sister who was also at the workplace, take him to the hospital.
21 The plaintiff attended the Emergency Department of the Mildura Base Hospital (“the Hospital”) with neck pain, headaches, right shoulder pain and pins and needles in the fingers of his right hand. He was certified off work for two days and given some tablets. In cross-examination, the plaintiff agreed he had a full range of neck movement at the Hospital.
22 The plaintiff thought he had four or five days off work. On his return to work, he found it hard to use the big pans for cooking and he had difficulty with lifting and moving things, like twenty kilogram buckets of potatoes. Undertaking those tasks, the pain went down through the right side of his neck into his right arm.
23 In cross-examination, the plaintiff then agreed he was uncertain about how much time he had had off work and would not dispute it if someone said he had not had any.
24 Although the plaintiff continued to work as a chef, he suffered with right shoulder symptoms and, to a lesser extent, neck problems until October 2005, when he left his employer and sought employment in the mining industry.
25 In cross-examination, the plaintiff agreed that he was “accused of doing something he did not do” by Mr Wood a supervisor at Fasta Pasta and this as well as his inability to cope with his work because of his accident injuries was why he had left that employer. The plaintiff disagreed that by October 2005 he had decided on a career change to mining.
26 The plaintiff went straight from Fasta Pasta to working in the mines- a job he wanted to give a go with a mate.
27 The plaintiff agreed the next time he saw a doctor was when he saw Dr Beavon in about 2006 because of the pain in his shoulder and neck and problems with movement. He disagreed he had not gone to the doctor until that time because his pain had not been severe enough. He just persevered with it. He did not go to the doctor because he was not financially capable.
28 He could not recall going to the Hospital in December 2005 and getting a certificate from Dr Russell who had seen him on the said date.
29 The plaintiff was then taken through Dr Beavon’s records. The initial attendance was on 13 August 2002. There were further attendances in May and June 2004 and March 2006.
30 On 6 July 2006, Dr Beavon noted:
“Sharp shooting pain, left neck and shoulder aggravated by physical work in the mine. Right shoulder pain with abduction since car accident. Ultrasound right shoulder.”
The ultrasound was carried out the following day.
31 The plaintiff could not remember if that was the first time he had discussed the accident and his injuries with Dr Beavon.
32 The plaintiff could not explain why he did not see a doctor on Medicare while he was in Mildura. The pain was there and he disagreed it could not have hurt him.
33 The next mention of the accident injuries in that clinic’s notes is in April 2009. Since that time the plaintiff has been under the treatment of a female doctor at the clinic, Dr Rashmi.
34 Whilst working in Cobar the plaintiff received treatment from Dr Janak and Dr Bakare. Dr Bakare sent the plaintiff to Mr Kwong, an orthopaedic surgeon in Sydney, whom he saw him once about his neck and shoulder.
35 The plaintiff was taken through a number of attendances with Dr Bakare whom he first saw on 22 November 2005. On that visit, he complained of a neck abscess. There were subsequent attendances on 13 November 2006 for a right leg wound, 20 January 2007 for gastroenteritis and an abscess on the buttock on 19 July 2007. There was no mention of neck or right shoulder problems on any attendance.
36 There was mention of a printed letter to Mr Tony Kwong in July 2007.
37 The plaintiff said that it was Dr Janak not Dr Bakare whom he mainly saw at that clinic “so there had to be something from him”. If he had mentioned his injury to a doctor who did physical examinations for the mine he would have lost his job; he would have lost everything and he would not have had a job.
38 The plaintiff does not know why it took him over a year after the accident to lodge a TAC claim. He first became aware he could make a TAC claim via his family but he could not remember when that was.
39 The plaintiff first saw a solicitor, Geoffrey Langford, whilst in Cobar, who sent him to CMC Lawyers in Sydney, who paid for various medical attendances. The plaintiff could not remember why he did not complain to these doctors in Sydney about any problem with his neck.
40 The plaintiff described the examination for work purposes with Dr Bakare when he tested the plaintiff’s breathing and lung capacity and did not do a thorough physical. He then saw a CSA physiotherapist for the purposes of the work physical. He struggled with the examination and what she required him to do. She then asked him whether he had had an accident given his restricted shoulder movement.
41 After leaving Fasta Pasta the plaintiff went to work at the CSA mine at Cobar doing ground support installing six metre cables in the back of the mine. He worked there for six to eight months. The work was heavy and physically demanding. It was painful for his neck and right arm. He kept working to make money to survive and he enjoyed that work. He would like to be doing it now had he not hurt himself.
42 There were four to five on his crew who helped him out with work. He had “hiccups” when he was doing it. His shoulder gave him pain but he continued working but he did not have treatment at that time. The plaintiff denied he was sacked form this job but agreed he was given a verbal warning.
43 The plaintiff then spent three months on his partner’s parents’ sheep station at Glenhope doing unpaid work. The work was “wrecking him” but there were jobs that needed to be done. Most of the time he was working on a motorbike.
44 The plaintiff then returned to the mine at CSA doing ventilation work on the walls. He was mixing concrete for the bricklayers using a concrete mixer. It was heavy work, lifting ten kilogram bags of concrete into the mixer. The plaintiff was able to do that work because he had a partner who helped him who knew the plaintiff had problems with his neck and shoulder.
45 After that job, the plaintiff worked for about eight months at Silver City Drilling Company which operated the Endeavour lead mine. He was working as a driller offsider. He was required to lift six foot cables and poles out of the rig and to operate a drilling rig. The work could be hard. In this job he also had assistance from a co worker who knew about his injuries. He stopped that job because he could not do it any more because of the pain he was going through. He did not tell that employer about his problem because it would have affected his employment prospects in Cobar. He would have got a “mark against his name” and every other mine would have been notified.
46 After Silver City the plaintiff did not work for a while. He then went to Pybar where he worked for five weeks from August to September 2007 and earned “plenty of money”.
47 The plaintiff spent half the time in this job seated. He also got help from others. He agreed he undertook lifting up to fifteen kilograms but not over any distance at all. He worked five or six days a week, twelve hours a day. He never complained about his problems to his boss because he would have lost his job. In this job and earlier jobs, the supervisor would not see what the plaintiff was doing and he was left to do his assigned tasks.
48 The plaintiff knew this contract was going to be a short one and undertook the work to get his feet in the door with the mining company CSA - to start at the lower end of the scale working in a role such as a dump truck driver.
49 To obtain work with CSA the plaintiff had to undergo a medical which he failed. Having failed the medical, the plaintiff returned to Red Cliffs to be with his parents. He then had a brief stint in Broken Hill where he did not seek work and he then returned to Mildura.
50 Whilst in Cobar the plaintiff has did two brief cooking jobs to help out friends.
51 The plaintiff described heavy work at the pub in Cobar where he was required to cook for busloads of customers so he was producing large quantities of food. He was not able to cope with that work and knew it was only going to be for a short time to help out a mate. At the end of the two cooking jobs he was in pain and suffering, and he would not be able to work full time permanently as a chef. He has a particular problem with overhead work with the positioning of cooking utensils overhead in most kitchens.
52 In a history given to Mr Maniam, the plaintiff said he could not do work as a chef, but also said he was not happy doing it. He got the job at the Cobar Motel helping out a mate. He did that job as a kitchen hand for a month or so and helped out with cooking. The plaintiff agreed that he told Mr Dickens that he was not keen to work as a chef and he would like to return to work in the mine.
53 In cross-examination, the plaintiff agreed that he does not want to be a chef but he “would do it and then pay for it” as he would if he worked as a truck driver. He persevered in the mines as he had help from co workers and he was keen to make a career working there.
54 For about four or five weeks at the start of 2008 the plaintiff worked for Leader Farm Equipment where he was engaged in stocking duties. He also had to drive to various sites to replace harvester rods. It was physical work. He suffered for it but he needed to keep himself going to make money to survive and he worked until the end of the season.
55 After that work finished, the plaintiff did further station work on a cattle and agistment property in Ivanhoe with a mate who knew about his injury. The plaintiff struggled with this work. He was required to ride a motorbike. He did the work for the day then paid for it at night. However, his friend got into financial problems and he could not afford to keep the plaintiff on.
56 The plaintiff then went to Nyngan and did similar work for a period of time on a similar property then he returned to Mildura.
57 In re-examination, the plaintiff explained that after riding the motor bike he would stop for a couple of days to get his body relaxed and then he would carry on. In a stint he would probably ride for an hour or two hours a day “because of the heat and everything out there”.
58 At the beginning of 2009 the plaintiff worked at Zilzie’s Wines doing maintenance work. He did this work for about three or four months, a job lighter than farming and mining work. There was no heavy lifting because it was all done by forklift.
59 The plaintiff then undertook a Certificate II Automotive Course at TAFE. He attended the six month course but has not completed all the modules. It is something that he enjoys doing. Having that qualification, he could be able to walk into an apprenticeship as a mechanic in mid second year. It gives him a better chance of finding a job.
60 In cross-examination, the plaintiff agreed it was his intention to seek employment as an apprentice mechanic, but then said he did not think he would be able to do it. He then said he did the course to keep himself occupied. He then looked for work but could not find any and was in receipt of Centrelink benefits.
61 The plaintiff was off work until January 2010, when he returned to Zilzie’s Wines where he was employed as cellar hand with a view to being employed for the vintage period of about eight weeks. He recommenced this employment on 18 January 2010 but worked only for a week when he got caustic soda in his right eye, causing him to be off work.
62 This was a heavier job than maintenance work, having to drag and move pipes and undo things. Maintenance work only involved maintaining machinery.
63 The plaintiff started work on 21 April 2010 with Best Bottlers in Mildura. He did one shift and was paying for it the next day. That job required standing on a line, moving boxes and stacking, bending, lifting and twisting. It is casual work and he will do it when he gets a call but he does not think he will be able to keep doing it.
64 The plaintiff presently has a driver’s licence and a number of underground mining licences enabling him to work in specific mines. He would like to get an endorsed truck licence or a forklift driving ticket. However he cannot drive because of the jarring motion – he gets very uncomfortable and his right shoulder starts to ache and he has to drive with his hand on his leg.
65 If the plaintiff was still working in the mining industry he would be earning $1,500 to $2,000 a week. He had the capacity to earn thirty two dollars an hour as a ground controller, thirty five dollars an hour plus bonuses as a driller and forty five to seventy five dollars an hour as a loader. Due to his injuries, the plaintiff has been unable to do this work despite the fact that he has attempted to do so and sought work.
66 The plaintiff denied the reason he did not stay in one job for an extended period was that he did not like staying in one spot. The reason he did not stay long at various jobs was because of his pain.
67 The plaintiff continues to suffer from ongoing constant pain in his neck, right shoulder and arm. The pain comes down from his neck into his shoulder and down his right arm into the fingertips of his fourth and fifth fingers. He also gets numbness and tingling in those fingers and part of his hand. His right shoulder grinds and crunches when he moves it.
68 The plaintiff gets uncomfortable when he sits in one position and he has to move his neck slowly to free it up. He cannot push his head up or down properly and he has restricted neck movement sideways. He also suffers from regular headaches. He has lost strength in his right arm and even has difficulty writing. He now has to rely more upon his left arm.
69 If he sleeps on his right side he wakes up with pins and needles and numbness in his hand and most nights his partner wakes him up because his arm is shaking.
70 In cross-examination, the plaintiff explained that his injury to his shoulder made sexual relations difficult and that his relationship with his partner was “falling apart”.
71 Prior to the accident the plaintiff was very active. He always used to go out with his mates riding motorbikes when he had a chance.
72 The plaintiff disagreed that he had done a lot of motorbike riding since the accident. He agreed he had to ride over rough terrain on the properties where he worked but he did not do so everyday. He managed “persevering with it”. He would ride for a couple hours and then there were periods of a couple of days when he would not get back on the bike.
73 Prior to the accident, the plaintiff had sold his bike in 2004 or 2003 and was not riding at the local track. He bought a new bike a year ago which he had for two or three weeks but sold it because he could not ride it, having tried riding it on the flat road at Merbein.
74 Prior to the accident, the plaintiff enjoyed water skiing and jet skiing on his uncle’s speedboat. He liked knee boarding and he went on the river probably four times a month. He also really enjoyed fishing every weekend or so and loved camping. Now his neck and right shoulder restrict him in relation to activities such as fishing, doing the reeling, winding and lifting.
75 Fishing is too strenuous on his shoulder because he is right handed and he has to reel with his right hand. He can do casting but he pays for it when he gets home. It is uncomfortable for him to sit in the boat and he cannot sit for long periods of time.
76 The plaintiff explained that he persevered with heavy work, when he was not even able to fish, to make money because he needed to survive.
77 When he was in Cobar the plaintiff went shooting a couple of times but stopped because he could not do it anymore. He has not done any shooting since returning to Mildura. He has problems shooting because he is right- handed and he cannot hold the gun to his right shoulder.
78 As a result of his injuries, the plaintiff has been unable to resume playing golf which he used to play socially.
79 The plaintiff used to enjoy pigging but he can no longer hold onto the pigs or participate in kangaroo shooting which he used to do, enjoy and derive some income from. He last went pig hunting and kangaroo shooting about two years ago and could not do it now.
80 The plaintiff is also limited in driving for lengthy periods. He gets uncomfortable, getting pain in his arms and he cannot rest his arm on the window and he has to rest it on his leg. He holds the steering wheel in his left hand and the middle of his right hand.
81 The plaintiff is also limited in activities he can perform in and about the house and domestically, including assisting with his partner’s child, shopping and lawn mowing. He struggles feeding his four month old baby and he has to continually chop and change sides when feeding him.
82 The plaintiff becomes emotional and uncomfortable. He has been down in the dumps over the last few years since the injury. He gets angry, upset, depressed, irritable and frustrated with the pain and limitations.
83 Everything the plaintiff really wanted to do is now too hard for him. He can no longer work in the mines or on the farm. He is not only missing out on money, which upsets him, but also missing out on what he really wanted to do.
84 The plaintiff has seen Mr Pease once or twice. He organised an MRI scan but did not speak to the plaintiff about what could be done in relation to treatment. Insofar as the future is concerned, the plaintiff is waiting to get back his reports such as MRIs taken in February 2010, to find out what can be done.
85 The plaintiff is presently under the care of Dr Rashmi at the Tristar Clinic. He takes Nurofen Plus for his pain. The pattern of medication over the years has been Nurofen Plus, Panadeine and any quick pain reliever, such as Panadeine Forte, that was given to him by Dr Beavon at one stage. The plaintiff had to pay for his own medication until 2009 when TAC agreed to pay for it.
The Plaintiff’s Medical Evidence
86 The plaintiff presented at the Emergency Department at the Mildura Base Hospital on the said date complaining of neck pain, a headache, pain in his right shoulder and pins and needles in the tips of his fingers of his right hand. It was noted at that stage that his general health was good and he took no regular medication.
87 On examination, the plaintiff had some neck tenderness, his right biceps tendon was painful and he had tingling in the fingers of his right hand. He was tender at the outer end of the right clavicle.
88 X-rays were taken of his cervical spine and right clavicle and no fracture or dislocation was seen. The cervical collar was removed and the plaintiff was found to have a full range of neck movement. He was given Panadeine for pain due to soft tissue injuries and given a certificate for two days.
89 Dr Bakare of Tony’s Medical Centre in Cobar, New South Wales, wrote to Dr Kwong in Darlinghurst on 19 July 2007 thanking him for seeing the plaintiff. He noted the plaintiff presented with a history of a motor vehicle accident and right shoulder injury. He had been advised to have an MRI scan of his right shoulder and Dr Bakare requested Dr Kwong review the plaintiff with regard to that request. At that stage the plaintiff was taking Panadeine Forte (500 milligrams, 2 tablets).
90 The plaintiff was examined by Dr Bowers, specialist rehabilitation physician, in Sydney on 5 June 2007 on referral from CMC Lawyers.
91 The plaintiff told Dr Bowers that he was taking Panadol as required for his right shoulder. He told him had been involved in a rear end collision when he believed the other car was travelling at sixty five kilometres per hour.
92 The plaintiff told Dr Bowers that after the accident he saw Dr Beavon with ongoing right shoulder pain and apparently no specific treatment was given.
93 The plaintiff told Dr Bowers that he applied for a job as a miner in Cobar and was told during a pre-employment assessment of a decreased range of right shoulder movement and he was unsuccessful in obtaining that job.
94 The plaintiff told Dr Bowers that subsequently he saw another general practitioner, Dr Janak in Cobar, and was told nothing further could be done.
95 On examination, the plaintiff complained of sharp pain over the supero-lateral aspect of the right shoulder. There was no locking. There was painful crepitus. There was a feeling of pins and needles generally about the right forearm and particularly down the medial aspect of the forearm and little finger.
96 The plaintiff told Dr Bowers he returned to work on modified duties after the accident, then obtained work with a mining company contractor in a ground support role, a job he did for a period but with increasing pain.
97 At another stage he trialled work with a drilling contractor but was unable to continue because of pain and he had applied for work with other mining companies but had been unsuccessful. At the time of the examination, the plaintiff was then working as a cook at the Cobar Motor Inn in a relatively quiet position with assistance from a kitchen hand who performed heavy tasks.
98 Dr Bowers noted the ultrasound of the right shoulder of 7 July 2006 demonstrated mild bursal impingement.
99 On examination, there was no exaggeration. There was no joint swelling, no muscle wasting and no complex regional pain syndrome. On palpation there was tenderness over the right acromioclavicular joint and lateral aspect of upper right arm. Restricted shoulder movements were associated with a complaint of right shoulder pain and the arc test was only able to be performed to sixty degrees on the right with a complaint of pain. There was tenderness and guarding of the right trapezius muscle. The range of neck motion was normal.
100 Measurement of limb circumferences demonstrated no muscle wasting. Sensation was decreased in all areas of the right arm in a non-dermatomal pattern. There was reduction of abduction, flexion and external rotation.
101 Dr Bowers diagnosed a musculoligamentous strain to the right rotator cuff sustained in the accident and confirmed on investigations.
102 Dr Bowers thought the plaintiff should consult a shoulder surgeon and have investigations, such as an MRI scan performed. He considered the plaintiff may respond to cortisone injections of the right subacromial space and if no further treatment was available the plaintiff would be would be prone to intermittent exacerbations of pain requiring physiotherapy. Even if successfully treated, he thought the plaintiff would be prone to ongoing aches and pains in his right shoulder in the long term.
103 At that time, Dr Bowers thought the plaintiff was fit for sedentary/semi- sedentary or very light physical work as he was now doing, and he would be expected to be able to continue with this for ninety per cent of normal hours until retirement.
104 If surgery was successful, Dr Bowers expected a return to light physical work not requiring repeat overhead tasks and not lifting more than ten kilograms repeatedly. He did not expect the plaintiff to be ever able to work as a miner in the long term.
105 Dr Kwong, consultant physician and rheumatologist, saw the plaintiff at the request of CMC Lawyers on 7 June 2007.
106 The plaintiff gave a history of the accident and told Dr Kwong he could only work for about twenty minutes in the kitchen and needed a break and then served customers in the front. The plaintiff complained of persistent shoulder pain. He had seen Dr Beavon and a right shoulder ultrasound was undertaken.
107 The plaintiff told him that with persisting pain, he moved to Cobar as he wanted to change his job. He worked for Everyday Mining for eight months with difficulty, especially pulling and lifting cables and his employment was terminated.
108 The plaintiff then worked for Silver City Drilling for six months lifting pipes weighing up to twenty kilograms. He did not cope with those duties and stopped work after six months.
109 The plaintiff then worked as a cook at the Cobar Motor Inn but was not keen to work in that capacity and preferred to return to work in the mine. He told Dr Kwong he had seen Dr Janak and a visiting specialist who worked for the mining company.
110 The plaintiff complained of constant right shoulder pain and had restricted range of movement. He had paresthesia in his right little finger.
111 On examination, there was no suggestion of exaggeration. The plaintiff’s neck had a good range of movement. He had wasting over the right deltoid region. The diameter of his right upper arm was thirty two centimetres, and the left was thirty one centimetres.
112 The plaintiff’s right shoulder had flexion to ninety degrees, extension of forty degrees, abduction of ninety degrees, adduction of thirty degrees, external rotation was forty degrees and internal, thirty degrees.
113 Impingement signs were positive. Dr Kwong thought the plaintiff’s initial injuries and present complaints were referrable to the accident and that he had been partially unfit for work thereafter. In his view, the plaintiff was fit to work as a chef except for ‘above shoulder’ activities. He was not fit to work in a mine as a ground supporter with drilling nor to work overtime or extended shifts.
114 Dr Kwong considered further treatment depended on the results of the MRI scan. In his view, clinically the plaintiff had a rotator cuff tear with impingement and it was very likely he would need an arthroscopy. He thought the plaintiff’s prognosis was guarded.
115 Dr Maniam, orthopaedic surgeon, saw the plaintiff on 7 June 2007 at the request of CMC Lawyers.
116 The plaintiff told Dr Maniam of the accident after which his car was irreparable. He told him that he had his right hand on the steering wheel and his left was on the gears on impact and that he was whipped and tossed around in the accident.
117 The plaintiff told Dr Maniam that subsequently he started to see his family doctor then consulted with two specialists because of right shoulder pain and inability to sleep.
118 On examination, there was no embellishment. There was restricted abduction, adduction, flexion, extension, external and internal rotation and impingement sign was positive.
119 The ultrasound of the right shoulder of 7 July 2006 was noted and Dr Maniam commented he would have preferred to have submitted the plaintiff to an MRI scan.
120 Dr Maniam diagnosed chronic impingement syndrome in the right shoulder associated with bursitis causally connected to the accident. He thought the way to proceed would be to obtain an MRI scan and thereafter plan treatment. In his view, there would be an indication for an ultrasound-guided subacromial injection. He could not rule out the need for surgery given the chronicity of pain and the moderate to severe disability.
121 Dr Maniam noted that the plaintiff had been able to carry out work of a physical nature. He was seeking lighter jobs and appeared to be working then as a part time cook, self managing his injury. The plaintiff had difficulty reaching, lifting and carrying and had a capacity only for selected duties until further treatment had been instituted and he had made a more substantial improvement
122 At that stage Dr Maniam considered the plaintiff’s capacity was for selected duties on a part time basis. He suggested the plaintiff see an orthopaedic surgeon, undertake some physiotherapy treatment and further investigations.
123 The plaintiff was assessed by Mr Long, general surgeon, at the request of CGU Workers Compensation on 15 April 2008.
124 It was noted that in spite of his symptoms, the plaintiff had obtained work in Cobar but he explained that he was able to operate ground machinery using joysticks. At that stage he had remained unemployed for four months because of pain. Other lucrative jobs had been offered to him. Invariably, the plaintiff failed the necessary medical examination and remained unemployed.
125 On examination, the plaintiff presented with pain in the right posterior neck radiating into the right arm where it was situated mainly in the anterior aspect of the right upper arm but continued down to the right little finger. On elevation, pain recurred and was associated with tingling in the medial aspect of the right hand and fifth finger and aggravation of pain in the right posterior neck and shoulder.
126 The plaintiff told Mr Long, “it’s now impossible to ride a motorbike”. He had to steer a car by maintaining his hands on the lower aspect of the steering wheel. He was unable to carry objects in his right hand because of weakness and lack of precise control. Activities such as using a gun, bike riding, golf, jet skiing and tennis were now impossible, and throwing objects with his right hand suddenly increased his symptoms. He also had problems with sleep.
127 At that stage the plaintiff was taking occasional Panadol for pain relief. He was looking for work, particularly in the mines, as he believed he was fit to operate machinery and had a loader ticket. The use of joysticks did not require him to elevate his arm.
128 In Mr Long’s view, the plaintiff presented a straightforward history without embellishment. He appeared to move without difficulty. Flexion of his neck was slightly restricted and there was right paravertebral muscle spasm with tenderness which spread into the musculature above and medial to the right shoulder. There was limitation of abduction and flexion of the right shoulder with the plaintiff indicating these movements caused discomfort in his right arm and tingling along the medial border of the right hand and right little finger. Sensation to light touch at the medial border of the right hand and right finger was diminished and two point discrimination of the right little finger was approximately ten millimetres. The right finger jerk was absent and present on the left side.
129 Mr Long had available to him the July 2006 ultrasound of the right shoulder. He considered the plaintiff’s symptoms in his right posterior neck and arm were directly related to the accident and continued to contribute to his incapacity for work and the requirement for treatment.
130 Mr Long noted the plaintiff continued to have significant symptoms and evidence of radiculopathy to his right arm as a result of the accident. He thought the plaintiff required further investigation and reassessment before an appropriate timeframe could be devised for review.
131 In Mr Long’s view, the plaintiff would not be able to return to appropriate work until his core management was properly defined. He thought the plaintiff required further investigation of his neck, in particular, the lower regions of it and his upper thoracic spine and, in particular, at C1.
132 Mr Long also thought the plaintiff should be assessed from an investigation and treatment point of view by an appropriate neurosurgeon, preferably an orthopaedic surgeon.
133 He considered the plaintiff sustained a lower cervical spine injury, probably affecting an intervertebral disc causing initially bilateral radiculopathy to his arm but now persistent in his right arm (C8-T1).
134 In his view, the plaintiff did not have a capacity for his pre-injury duties or those requiring elevation of his arm, particularly his right. He considered the plaintiff’s history and clinical findings suggested a nerve root irritation at C8-T1 level which had most properly occurred because of a prolapse of a disrupted cervical disc.
135 Mr Long commented that the medical management of the plaintiff had been sadly lacking and it was imperative those responsible for his further medical management accept this responsibility for further appropriate investigation.
136 Mr Schofield, orthopaedic surgeon, examined the plaintiff on two occasions, initially on 29 August 2008, and more recently on 2 February 2010. On initial examination, the plaintiff complained of pain in the right side of the neck radiating down the right arm to the ulnar fingers associated with tingling, numbness and weakness. He also had localised pain with movements of his right shoulder, especially above his head.
137 There was a reduced range of neck movement with posterior tenderness noted. There was a two centimetre wasting of the right upper arm and there was mild weakness in the grip of the right hand and numbness over the fourth and fifth fingers. The plaintiff’s right shoulder was also noted to have a restricted range of abduction and flexion and he had a positive impingement test.
138 Mr Schofield noted the July 2006 ultrasound showed mild impingement of the bursa and the acromial but with a normal rotator cuff. His assessment at that time was incomplete without the suggested MRI scan of the neck and right shoulder.
139 On re-examination, the plaintiff said he had not been able to play sport since the accident. Over the past three months he had been employed on a casual basis working in a winery doing light duties only. He had difficulty sleeping. His neck was painful and he got cramps in his arms. He continued to make similar complaints of right shoulder pain radiating up to the side of the neck and down his arms to the two ulnar fingers.
140 On examination, neck movement was reduced by twenty per cent in all directions except for extension, which was restricted by about forty per cent of the normal range. Neurological examination of the upper limbs revealed non dermatomal sensory changes affecting the whole of the right arm. There was still the two centimetre wasting. There was definite weakness of grip in the right hand. The plaintiff had minimal biceps jerk and normal triceps jerk. There were subjective sensory changes affecting the palmar aspect of the fourth and fifth fingers of the right hand.
141 Examination of the right shoulder revealed anterior tenderness, restricted movement of abduction, flexion, extension and of both internal and external rotation. There was also a mild restriction of abduction. There was some mild winging of the right scapula, indicating possible damage to the long thoracic nerve.
142 Mr Schofield noted the results of the ultrasound of the right shoulder taken on 21 January 2010 and x-rays of the cervical spine. He had available to him Mr Miller’s report of July 2009 and Dr Walton’s report. Mr Schofield noted the plaintiff had shown no significant improvement since the last examination. The reason for significant spasm affecting the lower cervical spine, in his view, could not be properly diagnosed without an MRI scan, which he believed was to be arranged in the next two weeks.
143 Mr Schofield considered the plaintiff should also have an MRI scan of his right shoulder because he thought that may require some surgical intervention due to a lack of improvement. In addition, Mr Schofield now noted winging of the scapula which may have developed since the injury as a consequence thereof. He thought, in that regard, the plaintiff should be referred to a specialist shoulder surgeon for assessment to see whether or not he had an injury to the long thoracic nerve.
144 In a supplementary report, Mr Schofield commented that recent x-rays had again demonstrated there was muscle spasm immobilising the lower two cervical discs. Mr Schofield noted Mr Miller had similar findings on examination.
145 In Mr Schofield’s view, there was clinical investigational evidence to support the injury to the right shoulder. In view of the failure of conservative treatment, Mr Schofield thought the plaintiff should be referred to a shoulder surgeon whom he believed would undertake surgery of decompression and repair of the rotator cuff. Mr Schofield considered that this type of operation, was likely to produce a significant improvement in the function of the right shoulder, albeit with some residual incapacity in the long term.
146 Mr Schofield doubted that even with an excellent result the plaintiff would be advised to return to work as a chef.
147 He concluded that there was clear clinical evidence of cervical spine pathology with a reduced range of movement, weakness of grip in the right hand and sensory changes in the dermatomal distribution affecting the fourth and fifth fingers to the right hand. That was mixed with some non dermatomal sensory changes affecting the right arm.
148 Mr Schofield noted some debate as to the presence of nerve compression at C5-6, with Mr Miller finding a prolapse at the level, whereas the authorised report stated there was no prolapse. On clinical grounds, however, Mr Schofield thought the plaintiff did have evidence of radiculopathy which was most likely due to a disc prolapse.
149 In Mr Schofield’s view, the investigational evidence supported lower cervical muscle spasm and facet hypertrophy on the right side. He noted Mr Long’s report, where he stated that the plaintiff had clinical evidence of radiculopathy involving the right arm.
150 In balance, therefore, Mr Schofield supported the views of Mr Long and Mr Miller that the plaintiff continued to have evidence of cervical disc injury, including radiculopathy of the right arm.
151 Dr Walton, psychiatrist, examined the plaintiff on two occasions. He initially saw the plaintiff on 20 March 2009 and re-examined him on 4 March 2010.
152 On re-examination, the plaintiff stated he was always stressed and described ongoing anxiety. He also reported persisting irritability. His level of depression had deteriorated. His sleep remained disrupted by pain and also he woke and ruminated about his problems.
153 The plaintiff also reported a recent comfort eating problem. There had been no change in his lack of sexual interest. He reported difficulties with concentration and memory.
154 On mental status examination, there was no evidence of significant cognitive deficit and throughout there had been no signs of psychosis.
155 Dr Walton’s original diagnosis of a depressive disorder remained current. He noted there was no point forcing the plaintiff to have psychiatric treatment but ideally he should be involved in at least some counselling. He thought the plaintiff was suffering from significant partial incapacity for work on psychiatric grounds.
156 Mr Miller, orthopaedic surgeon, examined the plaintiff initially on 29 June 2009, and more recently on 15 February 2010.
157 On re-examination, the plaintiff continued to have neck pain and discomfort radiating into the right shoulder and into the right arm. He had numbness and tingling in the right hand affecting mainly the fourth and fifth fingers with his right hand feeling weak, particularly with finger flexion. The plaintiff said his symptoms felt worse than on previous examination. He had significant sleep disturbance and found his symptoms quite distressing. He continued to have pain and discomfort in his right shoulder, worse with repetitive activities. He described problems with anxiety and depression and frustration.
158 The plaintiff advised Mr Miller, that he had been reviewed by Mr Pease, orthopaedic surgeon, and they had discussed the possibility of neck surgery, but there were no plans for surgery at this stage.
159 On examination, there was diffuse tenderness of the cervical spine and right- sided muscle spasm. There was restriction of movement. Examination of the right shoulder revealed diffuse tenderness with no muscle wasting. There was slightly localised tenderness to the region of the acromioclavicular joint with tenderness in that area. There was restriction of shoulder movement and there was irritability with overhead movement.
160 Neurological examination revealed diminished sensation involving the fourth and fifth fingers and there was weakness of finger flexion and wrist flexion.
161 Mr Miller personally reviewed the MRI scan of the cervical spine taken on 15 February 2010. He noted this revealed degenerative change at C6-7 and disc prolapse at that level and retrolisthesis. There was also lateral recess stenosis.
162 In Mr Miller’s view, the plaintiff suffered a musculoligamentous strain and disc injury, probably at C6-7, and he had a degree of radiculopathy. Mr Miller also thought the plaintiff had a rotator cuff injury to the right shoulder, evidence of impingement and probable capsulitis. In that regard, prognosis was only fair.
163 Mr Miller believed there was likelihood the plaintiff would require surgical intervention in the form of a discectomy and fusion.
164 In Mr Miller’s view, the plaintiff was not fit for pre-injury work and could not perform significant physical work. He thought the plaintiff would have difficulty with work that involved repetitive neck movements with the use of the neck in a sustained posture. Further, with his right arm he would have difficulty with work involving repetitive arm action, the use of his arm in ‘above shoulder’ position or lifting of more than two kilograms.
165 In a supplementary report dated March 2010, Mr Miller set out he did not agree with the MRI report of 15 February 2001. In his view there were significant abnormalities, including disc degenerative disease at C6-7, disc prolapse at that level, retrolisthesis and lateral recess or foraminal stenosis. He thought x-ray findings reflected significant pathology in the cervical spine.
166 Mr Miller was required for cross-examination.
167 In cross-examination, Mr Miller agreed the plaintiff had given him the impression that the impact in the accident was of some considerable force that he was off work for four to five days and then continued working for about a month but could not keep going because of significant symptoms, having done some restricted work. Mr Miller explained, when he described the accident as being substantial, that it was his understanding that it had a substantial impact on the plaintiff and that the exact energy of the accident may or may not have been large.
168 Mr Miller confirmed his examination findings on the first occasion. There was no wasting, and the only neurological sign was slightly diminished sensation in the fourth and fifth fingers of the right hand which formed part of the clinical picture.
169 Mr Miller confirmed there was no suggestion of a tear in the supraspinatus on the film of 7 July 2006.
170 Mr Miller explained the plaintiff’s probable disc injury was based on the clinical picture, neck pain radiating down the arm, numbness and tingling and some degenerative change noticed. He had not recorded at what level there was some foraminal narrowing noted in the cervical spine. The probable disc injury was not based on one thing but a combination of facts, namely disc injury, foraminal narrowing and degenerative change, probably at C5-6 or C6-7.
171 It was Mr Miller’s understanding that the plaintiff had experienced the tingling symptoms and arm and neck problems since the accident. There was probable inflammation in the rotator cuff, which could have resulted from hanging onto the steering wheel or a wrenching injury.
172 It was Mr Miller’s impression the plaintiff had only done work for a period of months since leaving the cooking job and that he was either working not at all or minimally. He thought the plaintiff would have difficulties with repetitive arm actions, shifting around and physical work as a chef.
173 It depended on the level of symptoms, not the plaintiff’s activity or otherwise as to whether there was an ongoing problem from the accident when the plaintiff did not go to the doctor, yet he was working. If he was struggling and not coping with that level of symptoms, then “it’s where it is”. He would expect complaints of the level of which the plaintiff described causing significant symptoms when doing heavy work and that would necessitate him likely going to a doctor.
174 Mr Miller confirmed the presence of muscle spasm on the second but not first examination.
175 When asked about the finding by some practitioners of a prolapse at C6-7 and others not finding it in the MRI scan of 15 February 2010, Mr Miller explained it in two ways: first, there being a high level of intra and interobserver error between specialists reviewing MRI scans, particularly in relation to the cervical spine; and, secondly, his earlier clinical impression was that this was due to a combination of facts, not just a disc prolapse, but to a combination which would be degenerative change, disc prolapse and leading to foraminal stenosis. Whether or not there was a disc prolapse at that level, it was still his clinical view that there was a problem in approximately the mid-cervical level. Mr Miller did not believe a competent specialist would look at the MRI and call it normal. He thought the plaintiff had lateral recess stenosis not compromise of a nerve root but narrowing of the nerve root with exit foramina.
176 Mr Miller agreed that Mr Hunt’s diagnosis of mid-cervical spondylosis was in the same ballpark as his diagnosis. They were talking about roughly the same thing but were having considerable difficulty identifying the level which was not a typical clinical situation. However, tingling gave a guide, but, unfortunately, it did not follow rigid dermatome patterns.
177 As far as the retrolisthesis was concerned, Mr Miller thought it possible the injury caused or aggravated it or it could have nothing to do with it. It was a point against this condition being related to the accident if the plaintiff had no significant symptomology for six to twelve months after the accident.
178 The purely objective findings included a loss of normal lordosis, being an unusual finding in an asymptomatic spine. It implied there was ongoing muscle spasm at least at the time of the MRI scan. He thought the findings shown were beyond those that one would expect from a degenerative process, particularly in a man of the plaintiff’s age. If it was global as opposed to dermatomal, then it was a point against radiculopathy.
179 With the findings in relation to the fourth and fifth fingers Mr Miller put the problem at a C7 or C8 level. He agreed there were no hard findings of radiculopathy. He confirmed it was not normal to have a retrolisthesis in the cervical spine. He found some non-organic features but always did on any examination although not of the nature found by Mr Dickens.
180 On re-examination, Mr Miller confirmed the mechanism of the accident could cause the injury and he confirmed ongoing complaints of pain although the plaintiff was continuing to work and not having treatment, were consistent with the original history given at the hospital and what he was later told. He thought the plaintiff would have difficulty doing significant work in the area of mining on a prolonged basis, but he may be able to do so for some short periods.
181 The plaintiff was examined by Mr Hunt, orthopaedic and spinal surgeon, on 6 April 2010.
182 On examination, there was some tenderness of the neck with pain in the biceps region and tingling in the fingers of the right hand. The plaintiff was also tender over the acromioclavicular joint and neurological examination was otherwise normal.
183 At the time of that examination, the plaintiff had recently finished work for Zilzie’s Wines on 18 February 2010. He found work as a cellar hand difficult, with constant lifting, bending and twisting. He had gone fishing the week before and was unable to use the rod and reel very well.
184 The plaintiff at that stage was taking three to four Panadeine tablets a day, as well as Voltaren - fifty milligrams daily, and Nurofen tablets - one to two when required on a regular basis.
185 The plaintiff’s current complaints were of axial neck pain felt mainly on the right side of the neck in the mid-cervical region, feeling like there was a twenty kilogram bag sitting on his head. That pain radiated to his right arm along the ulnar side of his right hand where he experienced the majority of the tingling symptoms.
186 On examination, there was no evidence of muscle wasting over the right shoulder girdle. The plaintiff had tenderness in the mid-cervical region on the right, with tenderness globally over the right shoulder, both over the deltoid, the acromion and the scapular spine. There was normal cervical lordosis.
187 The plaintiff had half the normal flexion/ extension of the cervical spine, as was the case with lateral flexion and rotation. All movements of the right shoulder were painful and restricted. He had a subjective sensation of crepitus and grinding in the shoulder on an active range of motion. Provocative tests for instability were negative and he also had a negative impingement sign.
188 Neurological assessment revealed the plaintiff had a positive Tinel’s test over the cubital tunnel and a tingling in the ulnar nerve distribution. He had reduced sensation in all dermatomes of the right upper limb on light touch from C5 to T1.
189 Mr Hunt noted the MRI scan of the right shoulder of 6 April 2010 which demonstrated mild to moderate subdeltoid bursitis with thinning of the supraspinatus tendon but no tear, no definite labral pathology, no definite articular cartilage wear and no pathology involving the long head of the biceps. He considered the MRI scan of the cervical spine on 15 February 2010 showed evidence of disc desiccation at C2-3, 3-4, 4-5 and 5-6 discs. There was no evidence of focal protrusion or other abnormalities seen.
190 Mr Hunt diagnosed mild cervical spondylosis with probable previous cervical disc prolapse and possible nerve root irritation with ongoing paresthesia in the right upper limb despite lack of evidence of acute disc prolapse on the most recent MRI scan. He also diagnosed impingement syndrome with moderate subacromial bursitis and thinning of the supraspinatus. He thought it possible there was a peripheral nerve entrapment syndrome with the positive Tinel’s test. In his view, a nerve conduction study would be required to identify the absence or presence of that syndrome.
191 Mr Hunt considered the plaintiff’s ability to return to work would be limited. He did not believe the plaintiff had the capacity to work at present in anything other than sedentary type of work, this would allow him to move around as necessary to get relief for his symptoms. He thought the plaintiff would have the capacity to perform physical work.
192 Explaining the absence of a prolapse on the MRI taken on 15 February 2010, Mr Hunt noted it is possible to have an acute prolapse that may have resolved since the time of the injury five years before and that may explain the absence of findings on the current investigation to explain the plaintiff’s right upper limb paresthesia symptoms. He noted the shoulder MRI scan did reveal however, the plaintiff had a significant subdeltoid bursitis and thinning of the supraspinatus tendon.
193 An MRI scan of the right shoulder was carried out at Mr Hunt’s request on 6 April 2010.
Clinical Notes
194 Dr Bakare’s clinical notes were tendered. The plaintiff attended on 22 and 23 November 2005, 13 November 2006, 24 January 2007, 19 July 2007, and 20 and 27 May 2008.
195 No notes mentioned the plaintiff’s neck or shoulder, save for a neck abscess on the first attendance. However on 19 July 2007 Panadeine Forte was prescribed and a referral was made to Mr Kwong.
196 The plaintiff’s clinical notes from the Tristar Medical Clinic and the Lime Avenue Medical Centre where he saw Dr Beavon were tendered. The Tristar notes commence on 13 August 2002 and there is no further entry until 16 February 2008. Mention was first made of the car accident at that clinic to Dr Tassone on 3 April 2009 and attendances in relation thereto continued after that date until March 2010.
197 The Lime Avenue Medical Clinic notes contained the same initial attendance on 13 August 2002, two attendances in mid-2004 and an attendance on 24 March 2006.
198 On 6 July 2006 it was noted “sharp shooting pains left neck shoulder aggravated by physical mine work”. There was pain on abduction of the right shoulder which the plaintiff said had been there since the accident. An ultrasound of the right shoulder was requested. A post motor vehicle accident supraspinatus tendon injury was the potential diagnosis.
Investigations
199 The plaintiff underwent an ultrasound of his right shoulder organised by Dr Beavon on 7 July 2006. It was concluded some mild bursal impingement was thought present.
200 The plaintiff underwent an ultrasound of his right shoulder and bursal injection organised by Dr Nachiappan on 27 August 2008.
201 There was a mild degree of swelling of the supraspinatus tendon which showed a patchy echo texture in keeping with low grade tendonitis. There was some fluid in the thickened subacromial bursa in keeping with bursitis. On abduction there was mild to moderate bursal and tendon impingement which appeared to reproduce the symptoms. No tear was seen and the remaining tendons appeared normal. The AC joint appeared stable.
202 An x-ray of the cervical spine and right shoulder was organised by Mr Schofield on 4 February 2010. On the right shoulder there was no bone or joint injury. There was loss of acromiohumeral joint space, which it was noted may be secondary to rotator cuff tear or degeneration.
203 In relation to the cervical spine, multiple mild disc narrowing was noted between C3 to C7 vertebrae with minimal spur formation. There was a loss of normal cervical lordosis. There was some restriction of flexion.
204 Multiple facet joint degeneration was noted and there was a posterior osteophyte encroaching on the C5-6 foramen on the right side. Mild to moderate facet joint and uncovertebral joint degeneration was seen. There was no bone or joint injury.
205 An MRI scan of the cervical spine was arranged by Mr Pease on 15 February 2010. It was concluded there was loss of normal cervical lordosis with minor disc degeneration. There was no focal disc protrusion, cord compression or intrinsic cord abnormality.
206 An MRI of the right shoulder was arranged by Mr Hunt on 6 April 2010. No significant subacromial spur was seen. There was mild to moderate subdeltoid bursitis with marked thickening of the rotator cuff and minor tendinosis. There was no partial or full thickness tear or retraction of tendon fibres. Mild insertional tendinosis was also demonstrated of the subscapularis. The long head of the biceps and labrum were intact.
Vocational Evidence
207 Ms Margaret Leitch, occupational therapist of Evidex, carried out a vocational assessment of the plaintiff in March 2009.
208 In her view, the plaintiff did not have the capacity to return to his pre-injury work as an apprentice chef and she thought it unlikely he would be able to sustain his current employment as a maintenance worker. Analysis of his medical restrictions and limitations indicated he should avoid work involving moderate to heavy manual lifting, overreaching of his upper limbs, sustained or frequent use of his upper limbs, particularly with force, and frequent or sustained neck movements.
209 She considered a newspaper deliverer, sales assistant, service station console operator, motor vehicle parts sales assistant, bar attendant and gaming worker for a maximum of eight hours a day, three days a week, were occupations potentially suitable for him. Otherwise, further occupational retraining or rehabilitation was unlikely to lead to other suitable employment.
210 She noted the plaintiff lives at Red Cliffs, sixteen kilometres south of Mildura.
211 A supplementary vocational assessment was carried out in March 2010, at which time the plaintiff reported he was experiencing increasing symptoms working as a cellar hand. Ms Leitch noted that since the earlier assessment the plaintiff had been diagnosed with a depressive disorder.
212 She ultimately concluded there was no occupation for which the plaintiff was likely to qualify as suitable following his injury and that his situation would continue indefinitely.
The Defendant’s Evidence
213 The defendant tendered the TAC Claim for Compensation dated 27 March 2006.
214 The plaintiff was initially examined at the request of the defendant by Mr Dickens, orthopaedic surgeon, on 29 June 2009, and re-examined by him on 15 February 2010.
215 On re-examination, the plaintiff complained of neck pain, going down the shoulder down the inside of the right arm into the two ulnar fingers. He had reduced range of neck movement and was aware of pins and needles and numbness in those two fingers. His neck pain caused him difficulty with sleeping and he described a heaviness and a cracking sensation in his neck.
216 The plaintiff described spasms and twitching all the time in the shoulder and problems with dropping things. He complained of pain over the top of the shoulder and he was aware of crunching and grinding with movement. He could not sleep on his right side and had restricted mobility. He reported that depression commenced when he was working at Nyngan, which he attributed to problems he had as a consequence of the accident and his inability to work.
217 Mr Dickens noted that the plaintiff presented in a different manner to the original examination. He was flat in his affect and there were some unusual responses to even minimal pressure in his neck and right arm region, suggesting there was an abnormal illness response which was not present on the first occasion.
218 The plaintiff’s range of movement was much less in the cervical spine than on the initial examination. However, there was still tenderness but he had an acute reaction to even the slightest pressure over the cervical spine down both sides of the neck, out to the right shoulder and down the arm as far as the forearm. Even the most minimal pressure resulted in a significant pressure and pulling away in spasm. However, he had no obvious wasting.
219 There was a sensory alteration on the right side of the upper limbs which was global in nature and did not conform as to what would be regarded as a normal anatomical disruption suggestive of radiculopathy.
220 Flexion in the right shoulder was to ninety degrees with forty degrees of extension. Abduction was seventy degrees and adduction was to forty degrees. External rotation was to eighty degrees and internal rotation was zero.
221 The plaintiff brought no investigations with him but Mr Dickens noted the plaintiff had undergone ultrasounds of the right shoulder which were normal and an x-ray of the cervical spine which was normal.
222 In Mr Dickens’ view, the plaintiff had sustained a soft tissue injury to the cervical spine and right shoulder as a result of the accident. In the neck, although the plaintiff had pain and restricted movements and neurological symptoms, Mr Dickens thought he had no hard neurological symptoms to diagnose radiculopathy. Mr Dickens noted, apart from having cortisone injections into his shoulder, there had been no other treatment.
223 Mr Dickens concluded that in the absence of radiological changes in the neck and shoulder, he thought it difficult to suggest that the plaintiff had sustained major trauma. He noted it would be interesting to see an MRI scan conducted today. It would not surprise him if that demonstrated changes in the cervical spine but not necessarily unusual and frequent in the plaintiff’s age group. In his view, none of the studies he had seen indicated any significant trauma. In view of the development of depression and an abnormal illness response, he suspected there was a significant non-organic component to the plaintiff’s problems which would make his prognosis very difficult to predict.
224 Mr Dickens thought there was very little evidence of organic pathology to explain the plaintiff’s incapacity for employment.
225 Mr Dickens was provided with the MRI report of 15 February 2010 and another x-ray of 4 February 2010. In his view, the MRI indicated some changes in hydration of the discs of the cervical spine but no evidence of disc protrusion or nerve root impingement. He thought these were the sort of changes that could occur as part of the natural ageing process. He repeated his comments as to significant abnormal illness behaviour and noted that the radiographic findings did not provide an explanation for the rather exquisite response to his touch.
Overview
226 I accept the plaintiff suffered an injury to his right shoulder in the accident involving a tear of his right rotator cuff. He also suffered an injury to his cervical spine with some neurological involvement, as indicated by the tingling in his fingers and the referred pain and numbness down his right arm.
227 It is the impairment not the injury that is relevant consideration therefore the existence or otherwise of a C6-7 prolapse is not crucial to the plaintiff’s case nor is the exact identification of the level of his cervical spine which is involved.
228 The plaintiff reported both injuries to the Hospital on the said date. Since that time, both conditions have continued to give him problems to a similar degree.
229 Only Dr Dickens considered that there is a significant non-organic component to the plaintiff’s presentation having found exaggeration and inconsistencies on the most recent examination. Further Mr Dickens is the only supporter of the view that the findings on investigation occurred as a result of the natural aging process.
230 The question to be asked is, can the injury to the plaintiff’s neck and or right shoulder, when judged by comparison with other cases in the range of possible impairments, be fairly described as at least “very considerable” and more than “significant” or “marked”?: see Humphries v Poljak [1992] 2 VR 129, at 140-1.
231 It was submitted by counsel for the defendant that the plaintiff’s work history after the accident indicated that the any impairment resulting from his accident injuries is not serious.
232 Counsel for the plaintiff submitted that the plaintiff’s work capacity has been compromised by his accident injuries and he is no longer able to work as a chef or work in the mines as was his desired career path and he is restricted in his ability to perform work involving his right arm..
233 I accept that the plaintiff was in shock after the accident. He was eager to get back to work and he finally attended Hospital at the suggestion of his employer after he collapsed on his return to work. It is not clear whether he had any time off work at all thereafter, but in any event, he resumed his first year apprenticeship duties at Fasta Pasta working there until October 2005. His evidence about the problems he had with lifting heavy pans or buckets of potatoes and other particular work tasks during that time was uncontradicted.
234 It is not totally clear why the plaintiff left that apprenticeship. Whilst he accepted that he had an argument with a supervisor, he also said that he left because he could not cope with the work because of his accident injuries. He denied that he left the apprenticeship for a career change to work in the mines.
235 Whilst it was put to the plaintiff in cross-examination that he was not the sort of person to stay in one job for very long, there was no evidence contradicting his evidence that he left the apprenticeship in these circumstances.
236 In considering this application, the question then arose why, if the plaintiff was experiencing problems with neck and shoulder pain following the accident, would he leave that apprenticeship to take up what, on the face of it, was heavy work at the mines?.
237 In response to this question, counsel for the plaintiff submitted that the plaintiff at that time was a young man of about twenty who was very keen to go to the mines with a mate to earn money quickly - the plaintiff thought he was “bulletproof” and disregarded his physical condition.
238 Further, the plaintiff explained he was able to do heavy work which was required at times at the mines because in all jobs he had assistance from fellow workers, who knew of his injuries, and often lifting tasks were assisted also by the use of machinery.
239 I accept that the plaintiff was experiencing problems with his neck and shoulder when he lodged a TAC claim form in March 2006, which was accepted only last year.
240 The plaintiff reported problems with his duties at the mine when he saw Dr Beavon on his return to Mildura in July 2006. On the three examinations with the medico legal examiners in Sydney in mid 2007, the plaintiff made similar complaints.
241 I accept the plaintiff’s evidence that he ceased working in the New South Wales mines because of problems with his neck and right shoulder.
242 Whilst the circumstances of the physical examination are somewhat unusual and uncorroborated by either Dr Bakare or the physiotherapist involved, the plaintiff’s evidence is unchallenged that he failed the medical because he demonstrated some restriction of shoulder movement.
243 After that failed examination, the plaintiff did not seek further work in the mines. No other explanation was offered as to why he gave up the mining work and I accept he did so on physical grounds despite the lack of medical treatment at that time.
244 Clearly until recent times, the plaintiff has had limited treatment for his accident injuries.
245 When the returned to Mildura on the first occasion in July 2006, he saw Dr Beavon, who arranged an ultrasound of his shoulder.
246 On his return to Cobar until mid 2007 whilst attending Dr Bakare’s clinic where he also saw Dr Janak, the plaintiff did not complain of his neck and shoulder problems because, in his view, word would have got around of his injuries if he had reported them and his employment prospects would have been affected.
247 Dr Bakare did refer the plaintiff to Mr Kwong in July 2007 for further investigations of his right shoulder. However on the history given to Dr Bowers in June 2007 this referral appears to have taken place after the plaintiff failed the medical examination.
248 Whilst in Cobar, the plaintiff saw a solicitor, Geoffrey Langford, who referred him to CMC Solicitors in Sydney. That firm organised a number of medico- legal appointments, and similar appointments were arranged by the worker’s compensation insurer in 2007.
249 These medico legal examiners, whilst focussing on the plaintiff’s shoulder injury, with Mr Kwong being specifically asked to organise an MRI scan thereof, accepted that the plaintiff was experiencing ongoing right shoulder pain, and all three doctors agreed the plaintiff’s shoulder warranted further examination.
250 The following year when the plaintiff was seen for medico-legal purposes by Mr Long, Mr Long commented that the medical management of the plaintiff whom he considered had significant symptoms had been sadly lacking.
251 Since the plaintiff left the mining work in about mid 2007, he has had difficulty performing all the types of work he has obtained including further station hand duties, working as a storeman and packer in farm equipment, working for Zilzie’s Wines, initially as a maintenance man in January last year, and more recently in this season, in 2010, as a cellar hand and most recently in his new job at Best Bottlers where he worked only one shift.
252 Whilst the plaintiff’s employment choice after leaving Fasta Pasta is somewhat unusual for a man with shoulder and neck problems, I accept that these problems restrict the range of work available to him at the present time.
253 Save for Mr Dickens, the consensus of medical opinion is that the plaintiff is unfit for unrestricted physical work on the basis of his physical injuries.
254 In addition to these employment consequences, the plaintiff’s recreational and sporting activities have been restricted by his accident injuries.
255 At the time of the accident the plaintiff was a very young man, aged nineteen, who had an extensive sporting life involving fishing, shooting, pigging, water skiing and other activities. His involvement in these activities has been compromised by the injury to his right dominant arm and his neck with referred arm symptoms.
256 The plaintiff now has difficulties casting the fishing rod with his right hand. He has problems riding a motor bike forcing him to sell a bike he had purchased only two weeks earlier. He has not gone pigging and done very little shooting because of pain in his right dominant arm.
257 Since the accident, the plaintiff has continued to experience pain and restriction of movement, particularly with elevated use of his right shoulder and will continue to do so in the future. Simply extending his arm out straight as he demonstrated in court results in pain.
258 The plaintiff has pain down into his right arm into his little finger which is a sharp, needle type pain. He also has numbness and tingling in his fourth and fifth fingers. The plaintiff gets uncomfortable sitting in the one position and has to move his neck slowly to free it up. He has restricted neck movement sideways.
259 The plaintiff continues to take over the counter medication such as Nurofen plus for pain relief, and Panadeine Forte has been prescribed in more recent times by Dr Rashmi.
260 Whilst there is no lay evidence supporting the plaintiff’s claimed level of pain and restriction, there is no film or other evidence, save for that of Mr Dickens, inconsistent with the plaintiff’s evidence in this regard.
261 I accept that the plaintiff has tried to get on with his life both at home and work. He is doing his very best to get himself back on his feet and provide for his de facto wife and children. He is distressed about not being able to feed his four-month old baby because of arm and neck pain. His sexual relationship has been affected because of these injuries.
262 The plaintiff had a psychological response to the pain and restriction caused by his injuries which I am permitted to take into account in considering his level of impairment.
263 The plaintiff is a twenty-five year old man who suffered significant injuries to his neck and right shoulder in the accident. There is no evidence of any supervening accident or injuries.
264 Although there was an attack made on the plaintiff’s credit in terms of his evidence in relation to the mechanism of the accident and whether or not he had time off work thereafter, I accept the plaintiff was a credible witness.
265 The plaintiff presented as a young man with little education who had only ever done manual work and was not particularly sophisticated. I did not believe he was trying to avoid answering questions and at times became confused because of the nature of the questions.
266 I do not accept the submission by counsel for the defendant “that there are factors about the plaintiff’s presentation that clearly smack of a compensation type approach to this litigation” given the plaintiff’s continuing attempts to find work to provide for his family when he is having ongoing physical problems even to the point of obtaining his most recent job only a matter of days before this hearing commenced.
267 As there is no evidence that the plaintiff is likely to recover from these injuries and as it has been over five years since the accident, I accept that his impairment is long term.
268 Taking into account all of the evidence, I am satisfied the plaintiff suffered a serious injury to both his neck and to his right shoulder in the accident.
269 Accordingly, I grant leave to the plaintiff to bring proceedings for damages in relation to the accident.
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