Ristanovski, Blaze v Dixie Cummings Enterprises Pty Ltd
[2010] VCC 108
•19 February 2009
| IN THE COUNTY COURT OF VICTORIA | Unrevised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES - COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-09-01755
| BLAZE RISTANOVSKI | Plaintiff |
| v | |
| DIXIE CUMMINGS ENTERPRISES PTY LTD | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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| JUDGE: | HER HONOUR JUDGE K.L. BOURKE |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 9, 10 and 11 February 2010 |
| DATE OF JUDGMENT: | 19 February 2009 |
| CASE MAY BE CITED AS: | Ristanovski, Blaze v Dixie Cummings Enterprises Pty Ltd & VWA |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 0108 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – injury to the right shoulder and lumbar spine – pain and suffering – loss of earning capacity.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Moore QC with | John Dellios & Associates Pty |
| Mr I McDonald | ||
| For the Defendants | Mr P Kozicki with | Lander & Rodgers |
| Ms M Britbart | ||
| HER HONOUR: |
1 This is an application for leave to bring proceedings for damages pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff on 7 September 2006 (“the said date”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity. These discrete heads of damage require the application of different statutory tests, as mandated by s.134AB(37) and (38).
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s.134AB(37) of the Act. There, “serious” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
4 The body function relied upon in this case is the right shoulder and the lumbar spine.
Outline of s.134AB
(i) Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages;
(ii) The impairment of the body function must be permanent;
(iii) The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, subsections (19) and (38)(e) impose specific burdens in relation to a claim for loss of earning capacity;
(iv) By subsection (38)(c) of the Act, the impairment must have consequences in relation to each of pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “at least very considerable” and “more than significant” or “marked”;
(v) I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders;
(vi) Where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of forty per cent or more, both at the date of hearing and permanently thereafter;
(vii) Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured;
(viii) Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the forty per cent loss has been established;
(ix) Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases;
(x) I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 in reaching my conclusions.
5 The plaintiff relied upon two affidavits and gave viva voce evidence. He was cross examined. The plaintiff’s general practitioner, Dr Esposito, was required to attend for cross examination.
6 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
7 The plaintiff was born in Macedonia on 10 April 1943 and is presently aged sixty nine. The plaintiff lives with his wife, his son and two grandchildren aged four and ten months.
8 The plaintiff completed school in Macedonia before migrating to Australia in 1966. Since that time the plaintiff has worked for the SEC as a labourer for five years, then for CUB as a forklift driver. For the next ten years he worked as a bus driver.
9 The plaintiff commenced employment with the first defendant as a furniture delivery truck driver on 6 September 1988.
10 Prior to the incident, the plaintiff was fit and healthy. He was physically strong and loved his work and had worked hard in what was physical and reasonably heavy work activities.
11 The plaintiff’s duties involved working five to six days a week delivering wholesale and private furniture from the first defendant’s furniture factory. He was required to load and unload heavy furniture from the truck. He worked on his own most of the time.
12 During the years the plaintiff worked as a delivery driver, he suffered strain injuries from time to time because of the heavy nature of his work, but had not suffered a back injury prior to the said date.
13 The plaintiff agreed in cross examination that he had attended Dr Esposito for right shoulder pain in 2004 and 2005.
14 On 29 March 2004, the plaintiff complained of pain in both shoulders and said it was because of heavy lifting that he was doing at work.
15 Six months later, in September 2004, the plaintiff attended with right shoulder pain. He told Dr Esposito his right shoulder was painful, worse at night, for a couple of weeks and that he had been lifting heavy furniture. The plaintiff was prescribed Vioxx at that time.
16 In October 2005 the plaintiff complained of a painful right shoulder and some lesser pain in the left shoulder, with such pains being worse at night.
17 Due to the heavy nature of his work, on occasions the plaintiff would develop some pain in his shoulders “or around that area,” however, he had always been able to continue on working.
18 The plaintiff said that this pain was not in the same area where he had surgery. It was in the general vicinity of his shoulders due to the heavy nature of his work. It was all over his shoulders and upper back area.
19 After the said date, the pain was on the top of the right shoulder and in the lower back.
20 The plaintiff disagreed he was having increasing pain and problems with his shoulders as time went on because of the nature of his work before the incident.
21 On the said date the plaintiff was required to deliver three pieces of furniture to a house in Templestowe. One was a sofa weighing ninety eight kilograms. The plaintiff, not having a jockey, asked the owner of the house to help him carry the sofa up the stairs.
22 The owner walked at the front of the sofa, and the plaintiff followed behind. When the owner got to the top of the steps, he lifted the sofa higher and the plaintiff was forced to take most of the weight of the sofa. At the same time, the owner pulled the sofa and the plaintiff experienced severe pain in his right shoulder and lower back (“the incident”).
23 The plaintiff was unable to continue this job without additional assistance.
24 The plaintiff attended Dr Esposito that day. The plaintiff was advised he had suffered a strain type injury to his back and right shoulder and was referred to a chiropractor. The plaintiff was also given a WorkCover certificate.
25 The pain in the plaintiff’s back and shoulder worsened. He was then referred for an x-ray of his back and an ultrasound of his right shoulder.
26 The plaintiff was advised he had a full thickness tear in the tendon of his right shoulder and Dr Esposito then referred him to an orthopaedic surgeon, Mr Nguyen, who operated on his right shoulder on 8 November 2006 (“the operation”).
27 After the operation, there was improvement in the movement of the plaintiff’s right shoulder but he continued to experience severe shoulder pain and was advised he had developed adhesive capsulitis.
28 The plaintiff was offered hydro dilatation but did not want to have this procedure as the operation had not been successful.
29 The plaintiff had a CT scan of his back on 29 September 2006 and an MRI scan of his back on 18 October 2006. The plaintiff was then referred by Mr Nguyen to another orthopaedic surgeon, Mr Ton.
30 Mr Ton advised the plaintiff he was suffering mechanical back pain due to internal disc derangement and that he should continue taking anti- inflammatory tablets and have physiotherapy.
31 The plaintiff has been involved in a number of return to work plans in September, October and December 2006, during which time he was incapacitated because of his right shoulder, the operation and subsequent capsulitis and also because of continuing lower back pain.
32 On 20 March 2007, a further return to work plan was proposed. At that stage the plaintiff was still suffering pain and stiffness in his right shoulder. He was being seen regularly by Mr Nguyen, who diagnosed a frozen shoulder.
33 The plaintiff was provided with a certificate from Dr Esposito on 29 March 2007 to attempt modified duties in accordance with that plan.
34 Accordingly, the plaintiff returned to work on 20 April 2007. On that day, he had a flare up of right shoulder pain after driving a forklift for just an hour. He had problems with the suspension on the vehicle and with it bouncing around his back and his right shoulder condition worsened. Ten days later he was certified as unfit for any duties by Dr Esposito.
35 The plaintiff was referred by Dr Esposito to Mr Brian Barrett, orthopaedic surgeon, on 13 June 2007 for a second opinion in respect of his back. The plaintiff was advised by Mr Barrett that he had suffered a rupture of two discs in his lower back but that surgery was not advisable. Continuing conservative treatment was advised.
36 The plaintiff continued to see Mr Nguyen for his right shoulder injury and an MRI scan was arranged on 25 July 2007. Mr Nguyen explained to the plaintiff that the scan indicated that the tear in the rotator cuff had worsened and he recommended further surgery.
37 However, the plaintiff was frightened to have a further operation after the first operation had failed. He was then referred by Dr Esposito to another orthopaedic surgeon, Mr Richardson, in September 2007, who injected his right shoulder.
38 In November 2007, the plaintiff commenced a course of acupuncture.
39 WorkCover arranged for the plaintiff to be examined by an occupational physician, Dr Baynes, on 14 August 2007. Dr Baynes considered the plaintiff was not fit for any suitable duties, however he later thought the plaintiff could return to work on a limited basis of three hours, three days a week.
40 Accordingly, in November 2007, the plaintiff again attempted to perform modified duties four hours a day after he had discussed the return to work plan with Dr Esposito.
41 The plaintiff deposed that he had to cease work after the second day on 14 November 2007 because of increasing right shoulder pain going into his neck and increasing back pain.
42 In cross examination, the plaintiff explained that on his return to work in November 2007, he was “working outside the office checking the invoices that the drivers would bring in and whether they agreed with the recorded items”. He agreed that this was easy work and that he had a lot of experience in furniture removal and invoice type work. If he was offered that job today he would like to do it if he could, but then said he was unable to do it full time and that he could not do it in November 2007.
43 On 6 February 2008, the plaintiff attended a vocational assessment by ORS Group at the request of WorkCover, following which no offers of retraining, rehabilitation or alternative employment have been made.
44 When he was being certified fit for light duties by Dr Esposito, the plaintiff did not look for work because he was unable to do it.
45 He disagreed he was not looking for work because he regarded himself as finished with work and retired, nor that he had decided to stay on worker’s compensation as long as he could have.
46 The plaintiff has always been working and has never been afraid to work if he could.
“Even today if I am able to work, I’d be happy.”
47 The plaintiff received weekly payments of compensation for no current work capacity until the age of sixty five.
48 The plaintiff’s income in the three years prior to the incident was $34,924 in the financial year 2003-2004, $32,198 in 2004- 2005 and $33,529 in 2005- 2006.
49 Had the plaintiff not been injured, he believed his annual gross income from his work with the first defendant would have been at least $35,000.
50 The plaintiff deposed that he continues to be very limited doing things physically generally, like gardening and mowing the lawn, doing the shopping and carrying out general maintenance. He does some of these tasks now in a very different way and others he cannot do at all.
51 The plaintiff gets helps from his adult son, who lives at home, with gardening and household maintenance.
52 The plaintiff has difficulty doing some maintenance around the house like painting and repairs. The problem with painting is the over shoulder activity with his right arm. He did not know whether he could clean out the leaves from the gutter. He said he could get up a ladder to the gutters but he has not tried to clean the leaves out. He could not foresee any impediment to getting up on the roof and doing that.
53 The plaintiff agreed that his ladder was one that could be extended so he could get on the roof. The ladder was not too heavy and would not be too heavy to carry with one hand.
54 The plaintiff could not recall in the last couple of years having to use the ladder for anything. He agreed that if there was a leak on the roof he would be able to get up on the ladder, having carried it to the side of the house. He would be able to climb up to it, onto the roof, and he could work on the roof depending on what was required. He agreed he would have to use both hands and both arms to climb up the ladder.
55 When asked about being confident enough to walk around on a sloping roof, the plaintiff said he was not a cripple, he could do some things, and it just depended on what needed to be done.
56 In cross examination, the plaintiff said that he tries to mow the lawn and has done it once. His son usually does it. In terms of gardening, he has tried to dig a little bit and can manage for only a short period of time and his son “finishes things off”.
57 The plaintiff agreed that he weeded the garden but he could not remember how often. He was the sort of person who would try to do anything if he could.
58 The plaintiff cannot do any physical activity in the garden, but said that weeding was “like tying your shoe laces” and to do that he would just squat down and tie them and sometimes if he could, he would bend. He had difficulty squatting and bending.
59 The plaintiff uses both hands to drive. He has problems driving for a long period, of say half an hour or more, after which he starts to experience low- back pain as a result of sitting and he also has pain in his shoulders. The left shoulder problem started after the operation.
60 The plaintiff was cross-examined about the history he had given to Dr Castle of having problems with vacuuming and cooking. The problem with cooking was bending over the sink. He would like to help his wife with the vacuuming because the entire load is on her.
61 In terms of shopping, lifting something very heavy would be difficult. He does not have a problem lifting two kilograms of potatoes – he could do that with his left hand.
62 The plaintiff was then asked to stand and demonstrate his level of arm movement. He could raise his right arm to a bit over forty five degrees and could raise his left arm fully. Before he was injured he could move his right arm the same way he moved his left. His right arm is not strong enough to take weight on it. He agreed, if climbing a ladder, he could not put any weight on his right arm.
63 The plaintiff was then asked to bend as if pulling up weeds. and he did so with a one-legged squat or kneeling on one knee. He then demonstrated bending his knees and leaning forward to pick up something off the ground. He had to put his hands on his knees to get up if he was completely down. He does not have great difficulty getting up all the time. His ability to bend is variable.
64 The power and use of the plaintiff’s right upper limb is quite limited and he relies more on his left arm in which he is now getting symptoms as well. This is particularly apparent when he picks up his grandchild to sit him on his knee.
65 The plaintiff continues to see Dr Esposito regularly. He prescribes Panadeine Forte, which the plaintiff takes four times a day, and also Celebrex and Avanza. He takes Tramal twice a day.
66 Dr Esposito has arranged for the plaintiff to have five sessions of chiropractic treatment each year under Medicare as the Victorian WorkCover Authority has refused to pay for this treatment.
67 The plaintiff had hydrotherapy/swimming until the end of 2009, which he had been paying for when he could. He stopped going swimming because he could not afford to pay for it. He went swimming to strengthen his muscles and get rid of the stiffness in his arms and shoulder.
68 The plaintiff’s injuries have also resulted in a strain in his relationship with his wife as he has become frustrated, easily upset, stressed and annoyed. Before his injury he would have described himself as easygoing and certainly got on much better with his wife, but now he tends to lose his temper.
69 There are times when the extent of his pain, soreness, restriction and limitation of movement, both in the right shoulder and back, are such he has to lie on the floor and rest until things have settled down.
70 Even if there was some theoretical job within his physical capabilities, the plaintiff would not be able to guarantee that he could work without having to lie on the floor on occasion. He could not guarantee being at work five days a week because of his symptoms, or being there on time on a regular basis.
71 The plaintiff said that his ability to do light work depended on the type of work involved and the time he was required to work.
72 As regards his literacy, the plaintiff can read and understand spoken English better than he can speak it but he has a poor level of being able to write so as to communicate English in written form.
73 The plaintiff has become quite depressed about the pain he suffers and also very frustrated because of his inability to work and see and mix with his workmates. The plaintiff was referred to a psychologist, Mr Zac Stojcevski, whom he sees every two weeks and he gets some benefit from counselling.
74 At the time he suffered injury the plaintiff had been employed by the first defendant for eighteen years. He enjoyed his work and was never intending to retire as long as he was fit to continue. Had it not been for his injury, the plaintiff believed he would have worked until at least the age of seventy.
75 The plaintiff continues to have pain in the front and on top of his right shoulder, radiating into the right side of his neck. After he received acupuncture, the pain which used to radiate into his chest was much improved. However, the pain running down the back of his shoulder has worsened and spread further down the right side of his body.
76 Right shoulder movements have continued to be restricted and limited, although depending on what he is doing, the nature and extent of symptoms vary. He has greater movement in the shoulder on some days and much less on others. He can lift his right arm to the side to about shoulder level and in front of him also to about that level. However, at the top of each lift, he experiences a tearing pain in his shoulder.
77 The plaintiff continues to experience pain and stiffness in the left side of his lower back, worsened by prolonged sitting or standing. Activity worsens his back condition, however, he is the sort of person who keeps on trying to do things and if he goes past what he can do in a limited way, he gets increased back and shoulder symptoms.
78 The plaintiff walks for half an hour or so on the recommendation of his doctor. In the mornings his back is sore and he experiences restriction and limitation of movement. He does stretching exercises each morning to try to get his back into order. From time to time he experiences pain into the right leg down his knee.
79 The plaintiff’s sleep is affected by both his back and shoulder symptoms and pain causes him to wake up, and movement in bed causes problems.
80 The plaintiff tries to do something with his right arm because if he does not, it would stiffen up completely. He does not use it normally; he uses it with caution. He uses his left arm if he has to and that is why he started to experience left arm pain because he is using it most of the time. He would use it all the time if he could.
81 The plaintiff disagreed that his back was a lot better than a couple of years ago and said it had worsened over the last six months.
The Plaintiff’s Medical Evidence
82 The plaintiff first presented to Dr Esposito on 7 September 2006. He most recently reported on 5 February 2010.
83 On that date, Dr Esposito noted the plaintiff had been complaining of increased stiffness and pain in the right shoulder and lower back since chiropractic treatment ceased.
84 The plaintiff’s current symptomology consisted of intermittent stiffness of the neck which lasted for hours and was helped with movement of the neck. He had constant right shoulder pain over the operation site with radiation to the wrist and scapula, exacerbated with adduction and flexion above ninety degrees.
85 The plaintiff had nocturnal pain and could not sleep on that side.
86 The plaintiff’s lower back pain was constant with intermittent radiation to the right leg to the level of the knee. The referred pain lasted for hours and settled by itself. There was also nocturnal pain in bed and the plaintiff was unable to get comfortable.
87 The plaintiff could sit and walk for about twenty to thirty minutes and then needed to cease activity due to his lower back pain. He could stand for about thirty to forty five minutes and then needed to change due to back and right shoulder pain. He drove his car locally but had difficulty getting out of it.
88 In summary, Dr Esposito concluded the plaintiff had not recovered from his work related injury, namely his right shoulder injury, chronic lower back pain due to discogenic injuries and depression related to his physical injuries.
89 In Dr Esposito’s view, the plaintiff was unable to return to his pre-injury duties. He thought the plaintiff’s capacity for retraining would be limited due to his limited transferrable skills and limited education and he doubted whether further rehabilitation would improve the plaintiff’s condition.
90 Dr Esposito thought the plaintiff’s prognosis would at best be described as poor and noted the plaintiff was on the aged pension and could not be gainfully employed in his current state.
91 By letter dated 30 January 2007, Dr Esposito requested CGU Insurance accept liability for a gymnasium program for the strengthening of the plaintiff’s shoulder muscles.
92 Dr Esposito wrote to CGU on 16 December 2007 supporting the proposed return to work plan.
93 On 27 February 2008 and 20 November 2008, Dr Esposito wrote to the Accident Compensation Conciliation Service supporting the need for ongoing chiropractic treatment.
94 Between 19 December 2007 and September 2008, Dr Esposito certified the plaintiff fit for light duties with no lifting or pushing pursuant to the graduated return to work.
95 From 3 August 2009 to 21 January 2010, Dr Esposito certified the plaintiff unfit for all duties.
96 In cross examination, Dr Esposito confirmed the plaintiff was ready to try to go back to work in March or April 2007 and he approved a return to work plan at that time.
97 Dr Esposito confirmed investigations in relation to the plaintiff’s back did not reveal anything that required anything other than conservative treatment.
98 By November 2007, Dr Esposito thought the plaintiff was ready to attempt some light work again. He thought the duties set out in the report from Dr Baynes were appropriate. Dr Esposito did not have much recollection about what happened when the plaintiff returned to work on that occasion.
99 Dr Esposito agreed it “was the general idea that the type of work suggested was something the plaintiff could in fact do on a more fulsome basis as time went on and add to his hours.” There was nothing he had seen, prior to the plaintiff leaving work in November 2007, that made Dr Esposito think the plaintiff would not have been able to cope and gradually increase his hours.
100 Dr Esposito agreed that at the end of February 2008, his view remained the same, and he continued to certify the plaintiff fit for light work most of the way through that year.
101 During that year he did not recall having any conversation with the plaintiff about him looking for other work within his capacity.
102 Dr Esposito could not recall supporting a handicapped parking sticker for the plaintiff but said that he probably did. It was the sort of permit he would have given to people who could not walk far or who had a medical condition that would prevent them from being mobile. It was the plaintiff’s back pain that was the basis of that requirement.
103 Dr Esposito understood that as the plaintiff “was not free in his back”, it took him longer to walk than it would otherwise and it was his impression that the plaintiff, when he walked, walked very slowly. It was more a question of speed rather than duration of walking. He confirmed that was the only basis on which he would give him a permit.
104 Dr Esposito explained that the plaintiff’s neck pain was “sort of interposed with his shoulder pain” and that he had stiffness of the neck on the right side. He had problems turning his neck but he could not recall the plaintiff complaining to him about particular activities that gave him a problem because of neck stiffness.
105 Dr Esposito understood the plaintiff’s current problem was constant pain in the lower back which stopped him doing things. He could bend but he was not free. The plaintiff was restricted in his movements and the speed in which he did things particularly. He could not bend as far forward or as freely as a normal person. He would not expect the plaintiff to bend at the waist freely. He agreed he would expect it to be difficult for the plaintiff also to straighten up and it would take some time for him to stand up again in the vertical position.
106 Dr Esposito did not think the plaintiff was doing any manual work around the house and would not expect him to be doing too much gardening. He did not really know what the plaintiff did on a day to day basis. He thought the plaintiff could walk for twenty or thirty minutes and then need a rest and then be able to walk again. He thought it would be very difficult for him to vacuum or do manual work around the house.
107 Dr Esposito thought the plaintiff could probably climb a ladder because it was vertical and did not involve bending his back. However, he did not think it would be a good idea. He thought the plaintiff should stay away from activities that may exacerbate his back pain.
108 It was his understanding the plaintiff had problems carrying things. He could drive. It was more an issue of getting in and out of the car and sitting for long periods of time. He would expect the plaintiff to be slow getting in and out of the car.
109 Dr Esposito was then shown the video of the plaintiff, initially in his garden, then going shopping, and later at home repairing a tile on the roof on 30 November 2009. The film also included footage of the plaintiff walking briskly at about 8.00 am on 30 January 2010.
110 Dr Esposito agreed that the plaintiff made repeated quick bends when doing weeding and on a number of occasions bent from the waist and was able to touch the ground and that he stayed in a bent position for some time while it seemed he was collecting some weeds from the garden. Further, he agreed that the plaintiff was shown being able to squat in the garden for a length of time and to hold that position for a while and unroll a hose using his left hand and his right hand to pull the hose.
111 Dr Esposito thought the plaintiff seemed to be slow and stiff in his gardening movements, with regard to his back. He considered bending of the hips and knees would not necessarily be over demanding on the plaintiff’s back. He thought the plaintiff was slower getting up than one would expect.
112 Dr Esposito thought the bending shown was normal. He agreed that that normal movement was certainly not what he would have expected, having formed an impression of the plaintiff over the time he was treated. Dr Esposito then said that it was not surprising that someone with back pain could bend fully depending on the degree of pain experienced and that they would have good days and bad days.
113 Before he saw the video, Dr Esposito would not have expected the plaintiff to do a lot of gardening nor had he expected him to do what was shown on the video. What was shown was somewhat different from what the plaintiff told him over the time he had been treating him.
114 Dr Esposito thought the plaintiff was walking normally when shown in the shopping centre and he was certainly not walking slowly.
115 When asked about going up on the roof and whether that was his understanding of the plaintiff’s restrictions, Dr Esposito said “certainly on the roof it wouldn’t be a good idea. It was a silly thing to do”. Dr Esposito agreed that the plaintiff going up and down the ladder and on the roof and carrying it out the back certainly showed that the plaintiff had a lot more movement than Dr Esposito thought he had.
116 Similarly, with the walking shown on 30 January 2010, it was not the impression he had of the way the plaintiff walked.
117 When asked whether, having seen the video, he would still provide the same certification, Dr Esposito responded “if you generalise it. I mean, that’s two days or one day or one hour – you know, and the other question is that was five to ten minutes or whatever it was, to expect him to work a forty hour basis doing whatever it’s a totally different scenario”.
118 Dr Esposito agreed that the plaintiff could still work according to his earlier certification if he was able to do what he was shown doing on the video on a regular basis.
119 He agreed the walking showed was certainly not the type of person who you would expect would need a handicapped parking permit.
120 When it was put to Dr Esposito that with the plaintiff being able to go shopping and go for walks, that he would be capable of some activity, Dr Esposito said “maybe not fulltime, maybe not what he was doing before this injury but capable of some activity if he’d been able to be out and about most of the time”.
121 In re-examination, Dr Esposito thought that when weeding, walking up the drive and walking around with his grandchildren, the plaintiff’s movements were consistent with someone with a back injury with slowish movements. There was no inconsistency with the plaintiff reporting variable levels of pain.
122 In terms of going on the roof, he said, “well a sixty three year old man with a back injury climbing on a roof I think that’s, yeah, quite silly but if he’d fallen and had a some serious injury – it could have been life threatening”.
123 Dr Esposito agreed that medical advice was for the plaintiff to stretch and walk in the morning. Walking was a very good form of exercise for his back and leg muscles and mobility should be encouraged regardless of anyone with back pain.
124 Even with the film of the plaintiff on the roof, he thought it was still consistent with a back injury. Dr Esposito confirmed he would let the plaintiff have his sticker as he believed the plaintiff had genuine back pain.
125 Mr Nguyen saw the plaintiff on referral from Dr Esposito on 14 September 2006. He noted that examination demonstrated features of strong impingement syndrome. The x-ray of that date also demonstrated a thickened acromion with a small spur bilaterally associated with moderate arthritis in the AC joint. The previous ultrasound also demonstrated the full thickness tear of the supraspinatus on the right.
126 Mr Nguyen agreed the plaintiff would be a suitable candidate for an arthroscopic subacromial decompression, plus resection of the AC joint and repair of the rotator cuff. At that stage the plaintiff was undecided about what option to take.
127 On 13 October 2006, Mr Nguyen wrote to Allianz requesting acknowledgment of liability for surgery. The surgery was performed on 8 November 2006.
128 Arthroscopy of the glenohumeral joint demonstrated normal long head of bicep, normal articular surface and some fraying of the anterior labrum. There was a partial thickness tear of the supraspinatus involving all tendons, with less than fifty per cent thickness of the tendons.
129 Arthroscopy of the subacromial space demonstrated very thickened and inflamed subacromial/subdeltoid bursa. There was a very large and much thickened acromial spur which narrowed the space very significantly and there was very severe arthritis of the AC joint.
130 The plaintiff commenced treatment from Dr Cipurovski, chiropractor, upon referral from Dr Esposito on 7 September 2006. He provided treatment until the end of 2009 in relation to the plaintiff’s lower back and right shoulder injury.
131 Dr Cipurovski wrote to the Accident Compensation Conciliation Service in February 2008 disagreeing with Dr Baynes’ view that chiropractic treatment was no longer necessary.
132 Mr Lu Ton, orthopaedic surgeon, wrote to Mr Nguyen on 19 December 2006 after he had seen the plaintiff.
133 Mr Ton noted, on examination, lumbar movement was reduced due to pain, especially in flexion, which reproduced pain. Nerve root irritation was negative for SLR and femoral nerve stretch and hip joint was not irritable. Neurological examination of the lower limb was unremarkable.
134 An x-ray and MRI scan of the lumbar spine taken 18 October 2006 showed an essentially normal spine with minor degenerative changes. There was a small disc herniation at L3-4 level but Mr Ton thought this was clinically insignificant.
135 Mr Ton diagnosed mechanical back pain due to internal disc derangement and he advised he would refer the plaintiff for physiotherapy and exercises.
136 Mr Richardson, orthopaedic surgeon, wrote to Dr Esposito on 26 October 2007, having injected the plaintiff’s shoulders that day with local anaesthetic and Depo-Medrol. Mr Richardson advised Dr Esposito he would review the plaintiff in a month to see how the injection went.
137 On this review on 16 October 2007, Mr Richardson advised Dr Esposito the plaintiff had minimal relief from the injection.
138 Mr Richardson thought at that stage no further surgical input was required and he would like to try some acupuncture to address the plaintiff’s main problem which seemed to be pain radiating down over the right pectoralis major muscle belly region.
139 The plaintiff was referred to Mr Barrett, orthopaedic surgeon, by Dr Esposito in June 2007.
140 On examination, the plaintiff’s lumbar spine showed normal contours and his movements were very limited, particularly extension and all produced lower back pain at various limits. Following forward flexion, the plaintiff had to push on his thighs to regain an erect position. Straight leg raising was to about 70 degrees on the left and 45 on the right. Power, reflexes and sensation were all normal and symmetrical.
141 Mr Barrett noted the September 2006 CT scan and the lumbar MRI scan.
142 Mr Barrett carefully explained to the plaintiff that he had sustained ruptures involving the L3-4 and L4-5 lumbar discs and that there were no clear indications for considering any form of operative treatment.
143 Mr Barrett also explained to the plaintiff that lumbar disc injuries of that type had no power of healing or repair and it was likely his symptoms and disability would continue for some considerable time. Mr Barrett considered it unlikely the plaintiff would be able to return to his former work which was physically heavy and involved a lot of lifting.
144 Mr Barrett thought the plaintiff would need to continue to avoid prolonged stooping and any lifting or pushing activity into the future and he would need to continue with his analgesics, anti-inflammatories and conservative measures.
145 Dr Charles Castle, occupational physician, examined the plaintiff for medico- legal purposes on 7 September 2009.
146 On examination, the plaintiff was tender over the L5-S1 facet joint. Straight leg raising was to 60 degrees on the right and to 80 degrees on the left.
147 Reflexes were equal, symmetrical and of normal amplitude for biceps, triceps, supinator, knee, ankle and plantar responses. Muscle power was normal and there was no wasting. Femoral and sciatic stretch tests were negative on the right and left.
148 Flexion was to 50 degrees and extension to 20 degrees, as was lateral flexion and rotation to the right and left.
149 In relation to the right shoulder, there was no supra scapular wasting. The plaintiff was tender in the subacromial area. The range of shoulder movement was very restricted.
150 Dr Castle diagnosed a right shoulder problem due to a supraspinatus tendonopathy and an intrasubstance lamina tear at the insertion of the supraspinatus. The tendonopathy also involved the deep articular surface fibres.
151 In relation to the lower back, he thought the injury was an extruded disc fragment at L3-4 with bilateral lateral recess stenosis.
152 Dr Castle considered the incident was a significant contributing factor, where load would have been enough to cause separation of the intervertebral disc fragment.
153 Dr Castle considered the plaintiff totally incapacitated for his pre-injury work with heavy manual labour. Because of the pain and restricted movement of his right shoulder, he thought the plaintiff was significantly restricted in his ability to use his right shoulder. The plaintiff was only able to drive for short periods and could only carry light weights.
154 Considering all those factors, Dr Castle did not think there was any possibility of the plaintiff returning to any of his pre-injury work.
155 In his opinion, the plaintiff had no current work capacity due to his right shoulder problem alone. The pain and restricted movement in a sixty six year old man who had always worked as a truck driver was such that he would not be able to return to any form of employment.
156 Similarly, for his lower back, because of persistent pain, the weakness of his right leg, his reduced sitting, standing and walking tolerances, Dr Castle considered the plaintiff had no capacity for employment of any kind.
157 Dr Castle thought the right shoulder injury alone and the plaintiff’s back injury alone was sufficient to prevent him from doing any work.
158 In Dr Castle’s view, the plaintiff had no capacity for suitable employment nor any capacity to undertake any form of retraining. Dr Castle noted the plaintiff had poor English and was unable to sit or stand for very long and he needed to change position regularly.
159 Dr Castle considered it appropriate that the plaintiff participate in a chronic pain management program, applying both to his right shoulder and spine.
160 In his opinion, the consequences of both injuries would continue into the foreseeable future. Both injuries restricted and precluded the plaintiff in relation to social, domestic, recreational and employment activities.
161 Mr Brearley, orthopaedic surgeon, examined the plaintiff on 20 November 2009.
162 The plaintiff told Mr Brearley that his right shoulder was comfortable resting but as soon as he used it for any significant purpose he had pain. He had limitation in shoulder movements which had not improved and he was unable to do any significant lifting or repetitive work with his right arm.
163 The plaintiff told him his lower back was a source of constant discomfort. He had pain there when doing much bending, stooping and attempting lifting. He was unable to stand for long periods and had a similar pain after sitting for long, and walking was limited to about forty minutes.
164 On examination of the right shoulder, there was no wasting or deformity. There was moderate limitation of movements of the shoulder joint. There was limited flexion, extension, adduction and rotation.
165 There was no deformity of the back. There was some tenderness in the left lumbar area. There was moderate restriction of flexion, extension, lateral flexion to both sides and rotation to both sides.
166 Straight leg raising was to 90 degrees on the left and to 60 degrees on the right. There was some reduction in sensation over the lateral aspect of the right side and there was no wasting or obvious loss of muscle power.
167 Mr Brearley concluded the plaintiff had suffered a tear of the supraspinatus portion of the rotator cuff with resulting subacromial bursitis. He noted that had been operated upon without a good result and the plaintiff continued to have stiffness, pain and disability of the right shoulder and arm.
168 In terms of the lower back, Mr Brearley diagnosed multilevel degenerative disc disease with intra disc rupture of the L3-4 intervertebral disc with acute prolapse and sequestration of a portion of the disc as shown on MRI, resulting in chronic lower back pain and right sided leg pain.
169 Because of the plaintiff’s right shoulder and also his lower back injury, Mr Brearley thought the plaintiff has been incapacitated indefinitely for his pre- injury work as a driver in furniture delivery. Either injury considered separately would cause this inability to work.
170 Mr Brearley considered the plaintiff had no current work capacity as a result of the right shoulder injury or the lower back injury. Mr Brearley was not aware of any functional component to the plaintiff’s symptoms which he thought appeared to be completely organic and physical.
171 Because of his right shoulder injury, Mr Brearley thought the plaintiff unfit for any so-called suitable employment. He noted the plaintiff had limited use of his right arm, his employment history was purely in the labouring or driving field, he was aged sixty six and he had minor language difficulties. Mr Brearley thought the plaintiff did not in fact have a capacity for any employment.
172 Because of his lower back injury, he thought the plaintiff was unfit for any employment also. There was no work which would be suitable for him given his work experience, language difficulties and age.
173 If per chance the plaintiff was considered suitable for some part time light employment, Mr Brearley considered he would be able to work for only two hours a day, four days a week. He thought the plaintiff would be irregular in attendance and require time off without notice because of exacerbation to his shoulder and back pain. He would require rest breaks for ten minutes every hour or so and would not be reliable or punctual.
174 Accordingly, Mr Brearley concluded there was no possibility of any employer being willing to engage him.
175 He thought the plaintiff was not capable of undertaking any of the vocational options referred to and there was no realistic probability whatever, that a prospective employer with knowledge of his injuries, would offer him employment. Mr Brearley considered the plaintiff not capable of any retraining because of his age. He thought the plaintiff needed ongoing physical treatment but no surgical or interventional treatment was recommended.
176 Mr Brearley concluded the consequences of both injuries would continue for the foreseeable future and the prognosis in relation to both was poor.
177 The plaintiff was assessed for medico-legal purposes by Mr Russell Miller, orthopaedic surgeon, on 7 December 2009.
178 At that time the plaintiff told Mr Miller that he had ongoing right shoulder problems, where he had pain, discomfort worse with repetitive activities and overhead activities. The symptoms fluctuated but there was no pattern towards improvement.
179 In relation to the lumbar spine, the plaintiff had lower back pain and discomfort, with radiation into both buttocks and down the right leg, with numbness and tingling in the leg. These symptoms were worse with repetitive bending and lifting. Back pain was the dominant feature. The symptoms fluctuated but there was no pattern towards improvement. The plaintiff also reported significant sleep disturbance.
180 On examination of the right shoulder, there was minor deltoid muscle wasting and tenderness in the region of the acromioclavicular joint. Adduction was to 90 degrees, forward flexion to 80 degrees and external and internal rotation to 30 degrees. There was irritability with shoulder movement.
181 Examination of the lumbar spine revealed no scars, no deformity, diffuse tenderness and mild lower lumbar muscle spasm. Flexion was to 50 degrees, extension to 10 degrees, rotation and left lateral flexion to 20 degrees and right rotation and right lateral flexion to 15 degrees.
182 Straight leg raising caused back discomfort on the left and right sides at 50 degrees. There was no neurological deficit and power, sensation and reflexes were preserved.
183 Mr Miller considered there was severe arthritis in the right AC joint, the area where surgery had been performed.
184 Mr Miller thought the plaintiff had only shown moderate improvement following surgery and had ongoing symptoms with adhesive capsulitis. In his view, the prognosis for the right shoulder was fair to poor.
185 Mr Miller noted that the plaintiff had aggravated degenerative disease in the lumbar spine and had significant ongoing symptoms. He thought the plaintiff was unlikely to be helped by surgery and the prognosis was fair to poor.
186 In Mr Miller’s opinion, the plaintiff’s current clinical status in relation to both his back and right shoulder reflected the effects of the work injury. He also had an adverse mental state reaction requiring a separate assessment.
187 Whilst surgery was inappropriate, he thought the plaintiff would need to continue with his current regime on an indefinite basis.
188 Mr Miller thought the plaintiff was not fit to return to work and noted the unsuccessful return to work plan.
189 From the shoulder point of view, he thought the plaintiff would not be able to perform work involving repetitive arm actions, use of the arm in the above shoulder position and lifting of weights of more than five kilograms. In relation to the lumbar spine, he thought the plaintiff would not be able to perform repetitive bending, repetitive lifting or lifting of weights of more than five kilograms. The plaintiff also had a requirement to shift his posture on a regular basis.
190 Combining these work restrictions and Mr Miller’s understanding of the plaintiff’s age, education level and work experience, he did not envisage a return to work due to the combined effects of the right shoulder and lumbar spine injury which were work-related. Mr Miller considered the plaintiff’s symptoms were likely to continue on a long term basis.
191 Mr Kevin King, orthopaedic surgeon, examined the plaintiff on 2 December 2009.
192 At that time, the plaintiff complained of constant aching in the right shoulder, associated with stiffness and weakness in the joint. The pain was always present, fluctuating in intensity, and was always of at least moderate severity with periodic severe flare ups with any use of the arm. The plaintiff’s sleep was disturbed every night. He also complained of constant lower back pain day and night, fluctuating in intensity, always of moderate severity with periodic severe flare ups with exertion. He also experienced a constant ache in the right buttock and thigh off and on every day for a few hours at least and as a lesser problem than back pain.
193 On examination of the lumbosacral spine, there was mild to moderate limitation of movement by some pain and spasm – approximately two thirds of the normal range of all movements were present. Straight leg raising to the right was to 70 degrees and to the left, 90 degrees. There was no neurological abnormality.
194 There was painful limitation of glenohumeral and combined movements of the right shoulder joint consistent with a diagnosis of a chronic rotator cuff lesion of moderate severity. All shoulder movements were limited by some pain and spasm.
195 Mr King concluded the sort of trauma involved in the incident represented a significant degree of potential damage to the lumbar discs and associated ligamentous structures and to the rotator cuff of tendons and ligaments surrounding the right shoulder.
196 He thought the injury to the right shoulder would appear to have resulted in a complete tear of the rotator cuff and subsequent inflammation and the development of a chronic severe disabling rotator cuff injury.
197 Mr King considered the injury to the thoraco lumbar spine would have caused damage to lumbar discs and associated ligamentous structures at multiple levels, this trauma being superimposed upon mild, pre-existing, but almost completely symptomless degenerative changes, consistent with age and occupation (several minor occupational bouts of back ache in the past).
198 Mr King concluded the plaintiff seemed to be chronically and severely disabled from a long term point of view as a result of his injuries. He thought the plaintiff was permanently unfit to go back to any of the jobs he had done throughout his adult life. He thought the plaintiff’s condition had stabilised and noted he was now on an aged pension and would remain on it for the foreseeable future.
199 Mr King could not find any evidence of any sort of functional overlay and he thought there was no indication for any surgical treatment.
200 Mr King considered both the right shoulder and the lower back injury, taken together or individually, would be sufficient to prevent the plaintiff returning to any of his old jobs. In his view, the plaintiff had no current work capacity from a practical point of view, nor was alternative employment or retraining a practical proposition.
Vocational Evidence
201 Mr Radley, psychologist, carried out a vocational assessment report, having interviewed the plaintiff on 18 November 2009.
202 Mr Radley concluded the plaintiff had no current work capacity to return to his pre-injury employment or any similar employment. He thought, in relation to his back injury alone, that was the case, similarly with his shoulder injury.
203 Further, Mr Radley concluded the plaintiff had no capacity for any type of occupational retraining, given his age, low level of education, limited English skills, low level of general intelligence, limited ability to sit or stand for more than a short period, limited ability to bend or twist or work in a stooped posture, limited ability to use his dominant right hand, his high level of anxious and depressed mood and significant impairment of concentration and short term memory.
204 He noted that the previous jobs of truck driver, furniture removalist, bus driver, forklift driver or labourer all included at least some physically strenuous work activity which exceeded the physical limitations for the plaintiff as outlined in the medical reports.
Investigations
205 A lumbosacral spine x-ray was undertaken on 11 September 2006. It showed mild, multi-level spondylosis.
206 On that date a right shoulder ultrasound was also carried out. It showed a full thickness supraspinatus tendon tear. It was noted if further imaging were sought, an MRI scan would be recommended.
207 A further right shoulder ultrasound was carried out on 13 December 2006. It was concluded there was no sonographic evidence for rotator cuff tear. Supraspinatus appearances were compatible with post-surgical change, which it was noted may also explain the subacromial/subdeltoid bursa appearances. An MRI scan was again recommended.
208 An x-ray of both shoulders was carried out on 14 September 2006. The x-ray of the right shoulder demonstrated the right humeral head was congruent and the right glenohumeral joint was normal. There was slight lateral sloping of the right acromion with a small bony spur arising from an inferior aspect thereof. The osseous acromial outlet fuse failed to demonstrate any significant narrowing on either side. There was slight curvature of both acromion but there was no typical Type 2 spur or beak.
209 A CT scan of the lumbar spine was carried out on 29 September 2006. At L3- 4 there was a small disc bulge. There was moderate hypertrophy and degenerative change of the facet joints seen. There was also some encroachment seen in the right by these changes into the exit foramina which was the path of L3. At the disc level the canal was becoming a tight structure. It was noted it was not a canal stenosis at that stage.
210 At L4-5 there was a small disc bulge. Early hypertrophy and degenerative change of facet joints was seen. The exit foramina was clear. There was a small disc bulge at L5-S1 level. The beginning of hypertrophy and degenerative change was seen of the facet joint. The exit foramina were clear.
211 An MRI scan of the lumbar spine was taken on 18 October 2006. At L3-4 superimposed on a broad-based disc bulge, ligamentum flavum bulging and mild bilateral facet joint arthropathy, was a small left paracentral disc extrusion/ sequestrated disc fragment which lay posterior to the inferior half of the L3 vertebral body. It caused mild left subarticular recess canal stenosis but no neural compromise. There was mild right subarticular recess canal stenosis and mild left sided neural foraminal stenosis, also without neural compromise. There was no central canal stenosis.
212 An MRI scan of the right shoulder was taken on 25 July 2007. Appearances were compatible with previous right shoulder decompression with acromioplasty. Distal supraspinatus tendonopathy was complicated by the presence of an intra substance lamina tear at the insertion extending approximately over 1.5 centimetres and also involving the deep articular surface fibres measuring one centimetre in width and involving up to 80 per cent of the tendon thickness with bursal fibres intact. There was no full thickness tear. There was no subacromial-sub deltoid bursitis. The infraspinatus tendon was thin but intact, with irregularity noted at its insertion. There was also bursal surface fraying but no tear.
The Defendants’ Medical Evidence
213 The plaintiff was examined by Mr Battlay, orthopaedic surgeon, on 14 December 2007 for the purposes of an impairment assessment.
214 On examination, the plaintiff performed half the expected range of back movement and he could flex to 50 degrees. On flexing to 50 degrees, he stood with an instability pattern. There was no evidence of sciatic nerve root irritation or a lower limb neurological loss. There was no measurable right calf or thigh muscle wasting and the plaintiff was able to walk on his heels and toes.
215 Examination of the right shoulder showed no major deltoid muscle wasting. There was a restriction of movement generally and some fair power of resisted adduction at the right shoulder.
216 Mr Battlay concluded, presumably in the incident, the plaintiff had sustained a partial rotator cuff tear in his right shoulder and probable L3-4 disc derangement. As the plaintiff was probably not going to have further surgery, he thought the plaintiff had a permanent impairment of both his right shoulder and lower back.
217 Dr Baynes, occupational physician, examined the plaintiff on a number of occasions.
218 Initially, on 27 March 2007, an examination of the right shoulder showed flexion to 100 degrees with pain, adduction to 90 degrees with pain, extension to 20 degrees with pain and adduction to 15 degrees with marked pain. External rotation was limited to 30 degrees with normal internal rotation.
219 Examination of the thoraco lumbar spine revealed flexion to 80 degrees with pain, extension to 30 degrees, lateral flexion to 20 degrees on the left and right and rotation to 30 degrees.
220 A slump test was negative for nerve root compression and neurological examination of the lower limbs was normal. Palpation revealed tenderness over the spinous processes of L3 to S1 and over the left facet joint. Straight leg raising was limited to 60 degrees on the right and to 50 degrees on the left.
221 Dr Baynes, at that stage, thought the plaintiff suffered from a right supraspinatus rotator cuff tear in association with the strain to his back. He thought there was evidence of age-related degenerative change affecting the lower lumbar discs and he noted evidence of a small left paracentral disc extrusion at L3-4 which may be associated with the injury.
222 At that stage he thought the plaintiff was not fit for suitable duties. He believed it highly unlikely the plaintiff would return to paid employment. He noted the plaintiff had limited range in the function of his right dominant arm and also reported ongoing neck pain. His right shoulder was the major limitation to a return to work.
223 Dr Baynes thought the plaintiff would benefit from a referral for a hydro dilatation of the right shoulder as he had evidence of adhesive capsulitis. He did not consider ongoing chiropractic treatment would provide any benefit and may in fact be counteractive in terms of the adhesive capsulitis.
224 When Dr Baynes saw the plaintiff again on 14 August 2007, the plaintiff reported no change in his symptoms. He did advise, however, improvement in the range of the right shoulder but still reported significant pain.
305 Considering the plaintiff’s age of sixty six, his education, skills and work experience and the nature of his right shoulder incapacity, I am satisfied that he has no capacity to engage in suitable employment.
306 The duties suggested by Dr Baynes in late 2007, and attempted by the plaintiff for two days before the job became unavailable, is not a real job generally available in the employment market.
307 Further, the ORS recommendations as to work for which the plaintiff is suited, are somewhat limited. The job of delivery driver suggested was on the basis the plaintiff could not drive for thirty minutes or more without changing position. Further, it was noted that the plaintiff would have difficulty getting a job because of his age and his inability to work extended periods of time. The other job of car park attendant was one where it was thought the plaintiff could not work for more than four-hour shifts at a time.
308 I am satisfied that the loss of earning capacity demonstrated at the time of the hearing will continue permanently.
309 I am also required to consider issues of retraining and rehabilitation pursuant to subsection 134 AB (38)(g) of the Act.
310 In light of my findings as to the plaintiff’s impairment and his incapacity for employment, I am satisfied there is no rehabilitation or retraining that would be appropriate to be undertaken by the plaintiff which would alter the situation that he has a permanent loss of earning capacity of forty per cent or more. As rehabilitation and retraining have nothing to offer the plaintiff in terms of his capacity for employment, the plaintiff has satisfied the requirements of s.134AB(38)(g).
311 I am satisfied the plaintiff has established that he has a loss of earning capacity of forty per cent or more within the meaning of s.134AB(38)(e) of the Act.
312 If a worker satisfies the test laid down by the Act in relation to loss of earning capacity, then he or she is at large to make a claim for damages, i.e. both for pain and suffering and loss of earning capacity: See Forrest J in Acir v Frosster Pty Ltd (supra) at paragraph 147, and Advanced Wire & Cable Pty Ltd & VWA v Abdulle [2009] VSCA 170.
313 Further, having accepted the plaintiff has a serious injury in relation to his right shoulder, I am not required to make a finding as to his lumbar spine impairment.
314 Accordingly, I grant the plaintiff leave to bring proceedings for damages for loss of earning capacity and pain and suffering.
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