Ryan v Twentieth Super Pace Nominees Pty Ltd
[2014] VCC 1454
•4 September 2014
| IN THE COUNTY COURT OF VICTORIA AT MILDURA CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-13-06635
| JOHN RYAN | Plaintiff |
| v | |
| TWENTIETH SUPER PACE NOMINEES PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Mildura | |
DATE OF HEARING: | 26 and 27 August 2014 | |
DATE OF JUDGMENT: | 4 September 2014 | |
CASE MAY BE CITED AS: | Ryan v Twentieth Super Pace Nominees Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2014 VCC 1454 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Damages – serious injury – bilateral shoulder impairment – pain and suffering
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b), s134AB(37) and (38)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Ansett Australia Ltd v Taylor [2006] VSCA 171; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C Harrison QC with Mr R Ajzensztat | Maurice Blackburn |
| For the Defendant | Mr W R Middleton QC with Ms B Myers | Hall & Wilcox |
HER HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff during the course of his employment with the defendant from 2006 to August 2010 (“the period of employment”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(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 each shoulder separately, and bilateral shoulder impairment.
5 Apart from being a serious injury, the injury must have arisen on or after October 1999 before the plaintiff is entitled to recover damages.
6 The impairment of the body function must be permanent.
7 The plaintiff bears an overall burden of proof upon the balance of probabilities.
8 By ss(38)(c) of the Act, the impairment must have consequences in relation to each of pain and suffering which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “at least very considerable” and “more than significant” or “marked”.
9 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.
10 Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
11 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[1] and Grech v Orica Australia Pty Ltd & Anor[2] in reaching my conclusions.
[1] (2005) 14 VR 622
[2] (2006) 14 VR 602
12 The plaintiff relied upon one affidavit and gave viva voce evidence. 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
13 The plaintiff is presently aged sixty-four, having been born in November 1949. He left school at fifteen and has not had any further formal training or education. He is naturally right handed.
14 For many years, the plaintiff worked as a shearer, and later as a truck driver. For a long time he worked as a long distance interstate truck driver, driving a variety of vehicles, including large semi-trailers and later, B-Double prime movers.
15 The plaintiff was cross-examined about shoulder problems prior to his employment with the defendant.
16 The plaintiff may have had some old injuries that popped up from time to time but they never “grounded” him like his present complaints. He never had problems to the extent that he suffered them after the curtain incident.[3]
[3]Transcript (“T”) 12 – December 2007
17 The plaintiff denied having any problems with his shoulders before that injury. As far as he could remember, there was nothing major – something that will not heal itself, and he has to go to the doctor. Maybe he had fallen over and hurt his shoulder and it had come good.[4]
[4]T12
18 When told the records indicated the plaintiff went to a doctor about his shoulder in 1998 and had an x‑ray at the request of Dr Gale, the plaintiff agreed he had bilateral shoulder pain in 1998 but that went away.[5]
[5]T14
19 The plaintiff agreed on re-examination with Dr Karna in 2014, he acknowledged having a fall that led to some shoulder girdle discomfort as far back as 1998, which precipitated x‑rays. He indicated the shoulder girdle discomfort he had prior to 2007 was bilateral, intermittent and easily managed with simple analgesics.[6]
[6]T36
20 The plaintiff thought he weighed about 25 kilograms less in 1999. He might weigh 155 kilograms now. He was then not as agile as someone of 90 kilograms. It was a bit of a problem getting in and out of the cabin of his truck then, but he could always do so, although it would have started to be a bit of a problem at that time.[7]
[7]T15
21 In the past, the plaintiff was a competitive weightlifter in the heavyweight division and could lift 200 pounds or more; however, he had not had any shoulder injury associated with weightlifting.[8]
[8]T15
22 The plaintiff could not remember being told by any doctor about a thoracic outlet syndrome or brachial plexopathy, nor having any discussion about an operation.[9]
[9]T16
23 The plaintiff agreed he had been with Dr Gale since 1995. He could not remember Dr Gale discussing joint pain with him in 2000. The plaintiff did not disagree he had complaints in his shoulders and wrists progressively over time since December 1998. He was told to lose weight as treatment for his condition.[10]
[10]T17
24 When he attended Dr Gale on 24 December 2007, the plaintiff could have complained to him about the cold weather aggravating his arthritis. The plaintiff attended to get some painkillers to keep him going. At that time, he had joint pain in both shoulders and wrists.[11]
[11]T37
25 The plaintiff did not know he had carpal tunnel syndrome until he was told by a doctor. He thought his wrists were alright.[12]
[12]T18
26 The plaintiff agreed he went to his doctor a number of times in the early 2000s complaining of pain in his wrists and other joints but he thought it was arthritis coming on.[13]
[13]T18
27 The plaintiff could have told Dr Bak in April 2008 of longstanding problems with his joints which he probably put down to arthritis.
28 Around 1999, the plaintiff would have been more comfortable doing other things rather than truck driving. Occasionally, he had a problem or two.[14]
[14]T31
29 The plaintiff agreed in re-examination that from time to time he had shoulder and wrist problems before 2007 but they came good.[15]
[15]T38
Employment with the Defendant
30 The plaintiff commenced employment with the defendant on 10 October 2006 when he was offered interstate truck driving work to and from Melbourne via Dubbo and travelling as far as Sydney, Brisbane and Perth.
31 During 2007, the plaintiff developed increasing soreness, discomfort and pain in both shoulders and arms, especially his left, and from about September, the problems worsened, making it difficult for him to do his work.
32 The plaintiff thought those problems were due to many physical tasks he had to undertake but he thought they would settle down and come good. However, the pain and symptoms continued, especially when completing tasks putting a lot of strain on his shoulders and arms.
33 In about December 2007, the plaintiff experienced acute pain in his left shoulder and arm when doing his normal work and he sought treatment from Dr Gale in Parkes, New South Wales. The plaintiff’s problems continued over the Christmas holidays whilst he did his normal work but he had ongoing worsening pain in both shoulders, wrists and hands with increasingly restricted and painful shoulder movement.
34 The plaintiff confirmed the first time he hurt his left shoulder was when a gust of wind suddenly caught a curtain he was holding with his left arm. He hurt his right shoulder for the first time when a gate fell on him.[16]
[16]T11
35 When the plaintiff saw Dr Kwa, he might have figured he had arthritis setting in. The plaintiff put his condition down to muscle aches and sprains due to work. He supposed he told Dr Kwa there was no specific trauma or incident as he was thinking along those lines at that stage.[17]
[17]T18
Medical treatment
36 In about March 2008, the plaintiff saw his general practitioner again and was referred to a rheumatologist, Dr Bak, in Orange. He arranged for the plaintiff to have an ultrasound of both shoulders, and the plaintiff was later referred to an orthopaedic surgeon, Dr Kwa in Orange.
37 Dr Kwa arranged a nerve conduction study but the plaintiff was not able to have the MRI scans recommended. Despite that, Dr Kwa recommended the plaintiff have left shoulder and arm surgery which was undertaken on 7 August 2008 (“the first operation”).
38 Following that procedure, the plaintiff’s left upper limb was put in a sling and he was referred for physiotherapy. He lodged a WorkCover claim which was accepted.
39 The plaintiff stayed off work and had further reviews with Dr Kwa, who recommended further investigations, and later operated on the plaintiff’s right shoulder and arm on 18 April 2009 (“the second operation”).
40 The plaintiff had similar post-operative treatment and remained off work, and gradually the symptoms and function of both shoulders and arms improved.
41 The plaintiff has not seen Dr Kwa since September 2009. At that time, the plaintiff’s symptoms had plateaued and then they sort of levelled off – halfway through 2011.
42 The plaintiff said his condition had not changed since, but then said he had gone downhill. However, he was not going to increase his exercises because his physiotherapist told him never to let it hurt and if it hurts “you’ve buggered it”. His doctor also told him to be careful.[18]
[18]T29
43 In evidence-in-chief, the plaintiff described how he cannot do the same amount of things this year as what he could have done a couple of years ago. Whether that was old age catching up on him or what, he did not know, but he did know his shoulders were deteriorating.[19]
[19]T9
44 The plaintiff initially could not recall Dr Kwa saying he could go back to work, but then agreed that was the case.[20] He did not like the idea of the plaintiff going back on a B‑Double prime mover. He thought he could go back to driving a truck as a tanker driver or something like that, somewhere he was not going to be overusing his arms.[21]
[20]T30
[21]T30
45 Eventually, the plaintiff was provided with WorkCover certificates to allow him to work light modified duties with the defendant at Parkes.
46 On his return to work after his surgery, the plaintiff just did paperwork noting registration numbers; he did not go back to truck driving. He stopped work when his employment was terminated in August 2010.[22]
[22]T20
47 When asked why he had stopped work, the plaintiff initially suggested Dr Gale told him he would not be able to wipe his bottom if he suffered further problems driving with another company. The plaintiff then said he was sacked because he was “sprung surf riding on the back of a trailer”.[23]
[23]T21
48 The plaintiff did not know whether the light duties clipboard work with the defendant was a made up job. He was told by a co-worker he would was to get the sack in any event, later that week.[24]
[24]T39
49 From that time, the plaintiff has been self employed as a vehicle escort driver, escorting large transports. He holds all current licences.[25]
[25]T9
50 The plaintiff copes with that work because the movement of this type of machinery is slow and time consuming. It is often done when there is little traffic.
51 The plaintiff has driven as far as Western Australia, a trip which took over a fortnight. He could do those sorts of jobs if they are available. The vehicle he drives is not a truck. He just pokes along. If he can avoid doing tasks related to truck driving like loading, pulling and dragging down curtains, he will. He has not tried any of those tasks since his last surgery.[26]
[26]T23
52 It was easier to drive the pilot truck, which was a Volkswagen transporter, than a big truck. They were like chalk and cheese. The transporter was nowhere near as heavy in the steering. The plaintiff did not have to keep changing gears all the time, like he would in a truck, and the seat was a lot more comfortable, as was the suspension.[27]
[27]T40
Progress
53 The plaintiff agreed, when examined by Professor Hart in February 2010, he still had a bit of shoulder pain during the day but he was able to cope with it. He would probably have had a good range of movement. He had worked out how to sleep. He was then not keen on taking medication because of his liver. There was a little bit of discomfort on palpation of the shoulders.[28]
[28]T32
54 Despite surgery and treatment, as of August 2013, the plaintiff deposed he continued to have serious problems with both arms and shoulders. Movements were very restricted and often painful. He was unable to use his shoulders and arms as freely and fully as he could in the past. Shoulder movements were severely restricted.
55 There was always discomfort around both shoulders and arms. The plaintiff had made a good recovery from the treatment of both wrists and hands.
56 He cannot do the same amount of things this year as he had done in the past with his shoulders a couple of years ago. Whether that is old age catching up with him or what, he does not know, but he knows that it is deteriorating.[29]
[29]T9
57 In cross-examination, the plaintiff described his left shoulder was “very, very bloody sore for a while” and after surgery, as it started to heal, it started to come good and eventually it was “bloody beautiful”.[30] It has its days. At the moment “it is quite enjoyable”. The plaintiff has had no left carpal tunnel complaints since that surgery.[31] His left shoulder is like brand new in comparison to what it was after the curtain incident.[32]
[30]T18
[31]T18
[32]T19
58 Both the plaintiff’s wrists and shoulders are feeling really good right at the present moment. They came good after surgery and he did a bit of rehabilitation and they have remained like that.[33]
[33]T19
59 The plaintiff deposed that the discomfort and pain he experiences with both shoulders is made worse by activity. As a result, because of the nature of the work tasks associated with interstate truck driving, he is no longer capable of that work.
60 Many tasks or activities are difficult. Tasks such as those requiring a strong, sustained grip or frequent forceful pulling, sustained grip or frequent forceful pulling/pushing movements involving each shoulder or which require him to lift each arm or shoulder above head height or to stretch and perform tasks or activities at or above shoulder head height are now very difficult for him.
61 As a result, the plaintiff cannot do many of the tasks involved in truck driving such as tying down and securing loads, pulling, dragging and locking down curtains on Tautliner trailers, tying and securing loads using straps or lifting, manhandling and fitting heavy items such as a spare truck tyre. These tasks are all very difficult for him now.
62 The plaintiff is no longer capable of performing those tasks or performing interstate long-distance truck driving work.
63 In cross-examination, the plaintiff explained that provided he does not go stupid and go too hard, he can do quite physical things with his upper limbs. He has shoulder pain on occasion. He has to manage it but “right at the very moment everything is all right”.[34]
[34]T19
64 Providing he pays attention to what he is doing, the plaintiff can fairly freely move his shoulders. Under extreme duress he can change a car tyre.[35]
[35]T20
65 The plaintiff’s shoulder function is better than what it was before surgery. He does not want to do anything that is going to put his arms in jeopardy because he wants to be able to look after himself down the track. He cannot wipe his backside with his right hand because of his shoulder pain.[36]
[36]T27
66 Providing he does not do anything stupid, the plaintiff can cope. He can do his own washing, put it on the line, do his own cooking and cleaning and he does the dishes. The owners of his flat mow his lawn.[37]
[37]T28
67 If the plaintiff was to do something without thinking about it first, like just jumping in like a bull at a gate and doing it, he could get himself into a position where he is going to injure his shoulders. That was with generally anything and everything. Pretty much before he goes to do anything he thinks that he does not want to aggravate his shoulders. He would not wish that on anyone.[38]
[38]T39
68 The plaintiff could change a car or truck tyre if he had to. If he had the right equipment, he would have a go at it, but it would take him very long to do it. He could not do it as part of his job if he was being paid by the hour.[39]
[39]T42
69 The plaintiff deposed that if he is resting or not doing much, he does not have too many problems with his shoulders and arms but his sleep is disturbed by pain. Often it is difficult to get a good night’s sleep because if he rolls on either shoulder, they become very painful and that wakes him.
70 The plaintiff should use medications more frequently than he does. He tends to put up with the discomfort and pain because he dislikes medication.
71 In evidence-in-chief, the plaintiff said he is taking Panadeine Forte when required and a couple of other medications for other things.
72 The plaintiff deposed that for a long time there has been little improvement in the movement, strength and power of his shoulders and arms. He suspects there is little likelihood of any further improvement. The ongoing problems he experiences with both shoulders and arms continue to be very significant ongoing problems for him.
The video surveillance
73 The plaintiff was shown working on his Nissan four-wheel drive out the front of his house on 29 October 2013.[40]
[40]T24
74 The plaintiff agreed he could work on an older sort of car. He was trying to jumpstart the car. He was holding a battery pack that weighed not much more than 10 or 12 pounds. He agreed he opened the bonnet of the vehicle and raised both arms into the air in an unrestricted manner.[41]
[41]T25
75 Within reason, the plaintiff can raise both of his arms in a normal fashion above shoulder height, as long as he does not go stupid and try to do anything too fast. He has to be able to hand the clothes out somehow.[42]
[42]T25
76 The plaintiff can raise his arms above his shoulders without a problem. He just has to be careful. He could work under the bonnet with his elbows, sitting on the mudguard. He could reach in and pull the dipstick out. He could use the 6-inch spanner or shifting tool to undo the terminals.[43]
[43]T26
77 When it was put that on the film there was no noticeable restriction in his arm movements, the plaintiff said he was being careful. He did not see himself exhibiting any discomfort in any of his arm movements.[44]
[44]T26
78 The bonnet shown on the film had air shocks on it and it went up easily.[45]
[45]T42
79 In re-examination, having initially said he could not compare his present shoulder condition to what it was like before 2007, the plaintiff then described how he had absolutely no problems “with big pain” when he started with the defendant. Prior to that, he had had a few medical issues which he had always put down to arthritis and growing old, and it was not until he saw Dr Kwa and had x‑rays he was told of a rotator cuff problem. Previously, he was able to work. There was no other way of being able to feed himself, so he had to work.[46] He is now on more medication than he was before 2007.[47]
[46]T43
[47]T44
The Plaintiff’s treaters
80 The plaintiff told Dr Kwa, orthopaedic surgeon, in June 2008 that for the last few years he had had problems with his shoulders. He put this down to muscle aches and sprains and felt it was due to his work with all the heavy lifting and pulling down straps that he had to do as a truck driver.
81 There was no specific traumatic incident and the plaintiff never reported any of his symptoms. However, they gradually worsened and around Christmas 2007, he felt the pain got too bad and he had to see a doctor. He found that he now had difficulty climbing into his truck, elevating his arm, and sleeping.
82 The plaintiff had a corticosteroid injection in April which gave him good relief for a week. He had been put off work. In the last few years he had also noticed paresthesia and numbness in both hands while driving and sometimes at night.
83 On examination, the plaintiff was grossly obese. His left shoulder had no active elevation but full passive elevation. Internal and external rotation was limited by pain. There was marked weakness at external rotation and abduction. The plaintiff’s left shoulder was very painful.
84 The plaintiff’s right shoulder had full active elevation and restricted internal and external rotation. There was only very mild weakness of external rotation and abduction with excellent subscapularis strength.
85 Dr Kwa thought the ultrasound reports did not correlate with the clinical findings which suggested infraspinatus tears with weakness of abduction. He thought the plaintiff required an MRI scan which may be difficult because of his size. He also noted that the plaintiff had symptoms suggestive of bilateral carpal tunnel which subsequent nerve conduction tests confirmed was of moderate severity.
86 Dr Kwa noted the plaintiff felt both his problems were significantly related to work due to the constant nature of the use of his hands and shoulders. There certainly would be some contribution to his current problems from the plaintiff’s work in Dr Kwa’s opinion.
87 Dr Kwa also stressed to the plaintiff the possibility of complications and, in particular, due to his obesity, he was at a much higher risk of peri-operative morbidity and it would also make the surgery for repairs much more difficult, but he noted the plaintiff was keen to proceed.
88 Dr Kwa carried out a right carpal tunnel release, right shoulder arthroscopic subacromial decompression of arthroscopic biceps tenotomy on 16 April 2009.
89 In his report of May 2009, Dr Kwa advised he expected once the plaintiff recovered from his surgery, he should be able to resume pre-injury duties, and he did not anticipate any permanent incapacity at that stage. He noted the plaintiff’s left upper limb had regained full function and the right was still in post-operative phase.
90 On 24 December 2007, the plaintiff first presented to Dr Gale complaining of pain and discomfort in both shoulders and wrists. He told of driving the Melbourne to Brisbane run three times each fortnight and a recent cool snap had aggravated his problem. The plaintiff then weighed 148.5 kilograms.
91 The plaintiff was recommended to continue his present medication of Nurofen and Panadol and was advised on joint care by way of a light exercise and a stretching program.
92 The plaintiff next presented in February 2008 with bilateral shoulder, wrist, knee and elbow pain. In March 2008, he was still reporting pain and discomfort, especially about the shoulders and wrists. Imaging was arranged and he was then referred to specialist rheumatologist, Dr Bak, and later, Dr Kwa.
93 Dr Gale noted shoulder dysfunction is common as people age. The conditions the plaintiff listed, being working above shoulder height, low frequency vibration, repetitive work tasks, driving for long periods and shift work, were some of the circumstances where people can develop shoulder damage.
94 Dr Gale thought it reasonable that the plaintiff’s occupation had contributed significantly to his shoulder and upper limb disorders, particularly so because in his early truck driving career, the plaintiff would have been responsible for loading and unloading the truck, tarping up and untarping the load and roping it down. These were tasks involving working above shoulder height with heavy stresses on the shoulder ligaments and tendons.
95 Dr Gale noted that since his bilateral shoulder procedures, the plaintiff underwent a gradual return to truck driving with support of a rehabilitation provider but it was found he had difficulty with the task of curtain and gate manoeuvres.
96 Of some concern was the plaintiff’s ability to climb in and out of the cabin since that task required him to elevate his arm above shoulder height and effectively pull his weight of 140 kilograms into the cabin. That would place considerable strain on the shoulder repair. Also the trailer gates and curtain ties often involved stress forces on above-shoulder movements.
97 Dr Gale understood the plaintiff found he could not continue in the task of heavy vehicle driver. Since leaving the task, he had now established a pilot service for overweight and oversize vehicles whereby he assisted in escorting those large loads on the public roads.
98 Dr Gale would expect the plaintiff to maintain reasonably regular and frequent medical reviews, not only for his shoulders but his general health status. He thought his general health required regular monitoring and that would be an opportune occasion to re-evaluate his shoulder status.
99 Physiotherapists might also need to be involved with ongoing reviews to ensure there was no deterioration and provide the plaintiff with assistance. If he was to have the misfortune of a fall or injury, the shoulder condition could be damaged and compromised, hence the reason to support and assist in managing the plaintiff’s total health.
100 Dr Gale thought presently, the plaintiff had received appropriate treatment for his condition and continues to do as best he can for a man who continues to work in a highly mobile itinerant occupation and also engages in quite active tasks for a man of sixty-three. He thought the plaintiff does demonstrate reasonable insight into his shoulder and other health conditions with a resourcefulness to seek and obtain support and assistance from many sources. He had last seen the plaintiff on 22 January 2013 in relation to lower limb problems.
101 Dr Gale noted the plaintiff is a sixty-three year old truck driver who has been driving trucks all his working life. The plaintiff suffered bilateral shoulder tendon tears requiring repair to each shoulder on separate occasions. He had made a reasonable recovery from the repairs but had not been able to return to his former occupation of truck driving. His other conditions may have contributed to the inability to return to regular driving.
102 Dr Gale noted the plaintiff has since made a sideways movement in the trucking industry and established a vehicle pilot service for heavy vehicles. He thought the plaintiff’s general health and shoulder conditions still require monitoring and will continue to do so in future years.
103 Dr Dalton wrote to Dr Gale in February 2010 thanking him for referring the plaintiff.
104 Dr Dalton noted that the plaintiff sustained an initial injury to his left shoulder when the wind blew open the curtains of his semitrailer. He did not seek any medical attention but six weeks later when he was in Brisbane, he felt a sharp pain in his right shoulder as he was lifting a gate at the side of the truck.
105 Overall, the plaintiff reported his left shoulder was certainly better since the surgery and he was able to sleep on his left side. It was minimally symptomatic with normal activities of daily living. He had maintained full mobility in the right shoulder but could not sleep on that side. He was independent in personal care but experienced some pain and discomfort with activities of daily living.
106 On examination, the plaintiff had a full active range of forward elevation and abduction in both shoulders with no painful arc. There was minimal subacromial tenderness and he had maintained reasonable strength with good power in external and internal rotation. There was mild weakness and pain with resisted abduction and flexion.
107 Dr Dalton thought clearly, despite undergoing surgery, the plaintiff had an underlying rotator cuff and biceps tendinopathy. He had achieved a good functional result in terms of overall mobility and strength, although still mildly symptomatic. He thought all that the plaintiff required was a home exercise program and the main issue was his fitness to work, noting the plaintiff was very reluctant and apprehensive about returning to driving trucks, where he would be required to lift gates or handle curtains in strong winds.
108 Dr Dalton thought the plaintiff would be capable of returning to truck driving but not if he was required to manually load or unload vehicles or manoeuvre metal gates on the side of a truck. He would also have to be careful getting in and out of the vehicle due to his obesity and lower limb function which, in itself, placed an increased load on either arm as he pulled himself into the vehicle.
109 Dr Dalton noted the functional capacity evaluation suggested the plaintiff’s morbid obesity, limited lower limb strength and poor cardiovascular fitness were significant barriers, and a program of regular exercise to improve cardiovascular fitness had been recommended.
110 Given the condition of the plaintiff’s shoulders, Dr Dalton thought the plaintiff was best suited to light manual work where heavy lifting, repetitive or sustained overhead reaching or lifting was not required and, most importantly, he should avoid any manual work where moderate to heavy lifting was required with his arms in an outstretched position.
111 Given the plaintiff’s previous employment background, Dr Dalton thought a driving job with physical restrictions would be the most appropriate employment. He noted clearly, constitutional and other non-compensable factors would impact on the plaintiff’s prospects for employment on the open labour market.
Medico-legal examinations
112 Dr David Love, orthopaedic surgeon, examined the plaintiff in July 2014.
113 The plaintiff presented with a long history of bilateral shoulder pain. Dr Love commented that the plaintiff’s history at some points was vague and some of the dates that were requested were difficult to obtain from him.
114 Several years ago while working as a long-haul truck driver, the plaintiff developed pain in both shoulders. He stated that between May 2007 and somewhere in 2008, he had an incident where while either loading or unloading a truck, a curtain that helped maintain the truck’s cargo load was pulled in a strong gust of winds. As a result of the sudden wrenching of this curtain, he injured his left shoulder.
115 Additionally, in October 2007, while trying to unload a heavy gate for the truck, it fell on him, injuring his right shoulder.
116 The plaintiff told Dr Love he had had no problems with his shoulder prior to this injury and then said the pain developed as the result of gradual use of his shoulders loading and unloading trucks.
117 Currently, the plaintiff described bilateral shoulder pain, worse during cold weather, and he had associated weakness with the functioning of his shoulders. He was unable to put weight through them. He was able to lift his arms above his head but it was difficult and time consuming.
118 The plaintiff reported no significant past history.
119 On examination of the plaintiff’s shoulders, there was very mild tenderness which was symmetrical in finding.
120 Dr Love thought the plaintiff was still suffering from symptoms of subacromial impingement and bursitis which could be the result of the repetitive nature of his work and also heavy loads.
121 Dr Love thought, unfortunately, at sixty-four, the plaintiff’s ability to work currently and in the future is limited. The plaintiff had spent most of his life in jobs that were mainly labour and with his current situation, Dr Love thought that was going to be very difficult. He considered the plaintiff could be involved in a job that would be suited with his level of education in office-based duties. However, the plaintiff freely stated he had no ability to use a computer and certainly did not have the ability to be involved in a significant amount of bookwork.
122 In the future, Dr Love thought the plaintiff was only going to be suitable for work that required no significant lifting.
123 The plaintiff could do his job reasonably comfortably for durations of between three and five hours before his shoulders became uncomfortable, and then he usually required a rest break. As such, Dr Love thought his ability for present and future capacity for work was limited, and would be so for the near future.
124 Dr Love would say that the plaintiff’s inability to work is likely to be permanent. He has had very little in the way of response to his surgery and Dr Love was not sure there was much else that could be offered to him. He could foresee the plaintiff’s symptoms persisting at some level into the near future.
125 Dr Love would have a guarded prognosis for the plaintiff’s shoulders in the future. He noted the plaintiff was going to have ongoing problems of pain and possibly weakness in function. There was some possible treatment that he may benefit from but that had not been utilised recently, mainly because of his inability to afford it.
126 Dr Love thought it possible the plaintiff might benefit from repeat injections into his subacromial space on both sides. That would have to be done in conjunction with a physiotherapist who could help him improve his strength. Dr Love thought that may help both the pain and functioning of the plaintiff’s shoulders in the near future. He did not think there was any role for surgery on the shoulders in the coming timeframe.
The Defendant’s medical evidence
127 An x-ray of the shoulders and cervical spine was carried out on 30 December 1998.
128 In relation to the shoulders, it was reported examinations were limited; ie inadequate views. There appeared to be acromioclavicular joint arthritis bilaterally and the glenohumeral joints had a normal appearance.
129 Dr Hughes, neurologist, wrote to the plaintiff’s general practitioner, Dr Gale, in February 1999 thanking him for the referral.
130 Dr Hughes thought the plaintiff’s arm paresthesia may well be due to either an atypical thoracic outlet syndrome or brachial plexopathy. However, at that stage, as they were just reasonably intermittent symptoms, he would not institute any treatment except to institute weightloss therapy as he thought if the plaintiff lost a significant amount of weight, his problems would probably resolve.
131 Dr Hughes noted that the plaintiff’s problems went back over about three to four years where he had had intermittent pains which usually started in both shoulders and during that, he would also have associated paresthesia, numbness and weakness in both arms.
132 Dr Hughes noted on examination, the plaintiff was significantly obese. He had some minor crepitus of the left shoulder but his range of shoulder movements was otherwise normal. There was no upper limb wasting and power was normal, as was sensation in the upper limbs. The reflexes of the upper limbs were mildly depressed but symmetrical and intact. There was no shoulder girdle weakness or wasting.
133 Dr Hughes thought that the plaintiff’s intermittent pain and paresthesia related to posture, and changing weather was a puzzling syndrome. In his view, the most likely situation was that the plaintiff either had an unusual form of thoracic outlet syndrome or the other alternative was that he had an unusual brachial plexus entrapment. However, that would be extremely rare and unusual.
134 Dr Hughes noted there were no features of any carpal tunnel syndrome. He thought the only management issues were to institute a weightloss program.
135 Dr Kwa most recently reported in September 2009, five months after the plaintiff’s right shoulder surgery.
136 Dr Kwa noted the plaintiff was improving substantially and he was able to lift his arm up and he was up to 3 kilograms of weight with his exercises. He felt his arm was getting stronger all the time.
137 On examination, there was full active forward elevation, with some limitation of internal rotation and external rotation. The plaintiff had good strength of all cuff muscles against resistance with no pain, and his impingement sign was negative.
138 Dr Kwa advised that the plaintiff was making excellent progress and he was happy for him to gradually increase his weight limits with a view to returning him to his previous level of functioning. He noted the plaintiff had recovered well from his carpal tunnel releases and that these did not bother him at all.
139 At the end of the consultation, Dr Kwa reported to the plaintiff’s employer and rehabilitation provider. He hoped that the plaintiff would be able to get back to his previous level of function over the next six weeks and his employer had asked whether a gym program would be helpful, which Dr Kwa would certainly be in favour of.
140 Dr Kwa completed a medical practitioner return to work questionnaire on 20 September 2009. In that form, he set out that he anticipated the plaintiff would return to full pre-injury duties in six weeks with a progressive increase in weight limits. He noted that obesity perhaps was a non-work-related factor impinging on the plaintiff’s ability to return to work.
Medico-legal examinations
141 Dr David O’Keefe, orthopaedic surgeon, examined the plaintiff in June 2010.
142 The plaintiff told him he had been employed for five years in Parkes as a long-distance truck driver and on 24 December 2007, he injured his left shoulder while pulling the curtains open on his semitrailer. He saw his general practitioner, who referred him to Dr Dalton, who recommended cortisone injections.
143 Six weeks later, the plaintiff was unloading a truck in Brisbane lifting a heavy steel gate when he felt right shoulder pain. He saw his general practitioner around Easter 2008 and he was then referred for specialist medical treatment to Dr Bak, rheumatologist, and ultimately Dr Kwa, upper limb surgeon, who operated on both shoulders.
144 Dr O’Keefe noted, from a medical point of view, the plaintiff had a left total hip replacement in 1995 which was not work related.
145 The plaintiff told Dr O’Keefe he was a lot better than he was prior to the shoulder operations, although he could not sleep on either of them. He felt the situation had deteriorated since he stopped doing his exercises. He did not think he would ever be able to get back to doing any work that involved lifting tarpaulins, overloads, moving curtains etc.
146 On examination, there was no evidence of muscle wasting of the shoulders. Tests for rotator cuff integrity on both sides were good. Right grip strength was 30 kilograms, and 46 kilograms on the left.
147 Dr O’Keefe thought the plaintiff had had a satisfactory response to the arthroscopic surgery for rotator cuff pathology of both shoulders and decompression of the carpal tunnel syndromes.
148 Dr O’Keefe noted the plaintiff had been advised by his treating surgeon not to do any further overhead work so he would not be able to return to his pre-injury employment as a long-haul truck driver. He was only then doing clerical work, which he called “computer operating”, and Dr O’Keefe believed that is all the plaintiff would be able to do for the foreseeable future.
149 Dr O’Keefe thought the prognosis was guarded and taking into account the plaintiff’s body hiatus and age, it was highly unlikely he would be able improve his working ability to above shoulder height.
150 Dr O’Keefe did not think that there was any doubt the plaintiff sustained rotator cuff tears in his injury but there was definitely a pre-existing age-related degenerative change in his right rotator cuff as with all people of his age. He believed employment was the substantial contributing factor to the plaintiff’s injury and need for surgery. He thought the condition had stabilised.
151 Professor John Hart, orthopaedic surgeon, examined the plaintiff in March 2010.
152 The plaintiff told him of the December 2007 incident with the gust of wind and in October 2007, falling backwards when a gate fell on him.
153 The plaintiff complained of pain in the left shoulder when sleeping but it was otherwise pain free. He claimed to have a good range of movement and said his shoulder clicked occasionally. There were no symptoms of pain or paresthesia in the left wrist or hand.
154 The plaintiff suffered pain on sleeping on the right shoulder and when lifting more than 10 kilograms as well and when pushing and pulling. He said his right wrist had fully recovered.
155 The plaintiff said he had had no problems with his wrists or shoulders before mid 2007. He had had the hip replacement in 1995.
156 The plaintiff performed all household activities and had no problem with them, or activities of daily living. He was considering returning to work and would prefer to work as a driver. The plaintiff weighed 145 kilograms.
157 On examination, there was no tenderness over either shoulder. There was no impingement on the right but a slightly positive impingement on the left. Adduction was limited by the plaintiff’s morbid obesity. There was no wasting and there was normal sensation in both hands.
158 Professor Hart noted the plaintiff gave a very imprecise history, stating somewhere between May 2007 and May 2008, he developed pain in his shoulders.
159 Professor Hart thought the plaintiff had suffered bilateral subacromial bursitis treated by subacromial decompression with a good result bilaterally. He still had mild residual symptoms in both shoulders.
160 Professor Hart would accept the plaintiff’s subacromial bursitis was related to the repetitive reaching up to tie down loads on his truck and to tie down the curtains. He did not consider the bilateral carpal tunnel to be work related. He thought the conditions were all primary and not aggravations of pre-existing conditions. He noted the plaintiff claimed not to have suffered from symptoms in either shoulder or wrist prior to the onset in 2007.
161 Professor Hart noted the plaintiff had made an excellent recovery from his carpal tunnel procedures and had recovered full mobility in both shoulders and there is no reason why he could not return to work as a truck driver. It was not necessary for the plaintiff to remain on modified duties and he could return to truck driving. There was no need to review the plaintiff’s work capacity. He commented it was not clear at that stage why the plaintiff had not returned to work, noting the plaintiff said he had been considering work.
162 Professor Hart provided a supplementary report, having received a vocational assessment from a rehabilitation consultant, Jane Clark, in which she concluded the plaintiff was not fit to return to his pre-injury duties and, for various reasons, had not been able to identify any vocational option in the region of Parkes.
163 Professor Hart noted it appeared the plaintiff’s previous employer was willing to employ him if he was able to return to pre-injury duties.
164 Professor Hart noted that Dr Kwa, in May 2009, expected, once recovered from surgery, the plaintiff should be able to resume pre-injury duties (six weeks). Dr Kwa had also noted that there was no significant structural damage to the shoulders shown on surgery.
165 Professor Hart noted Dr Dalton’s views in his letter to Dr Gale of 23 February 2010. Professor Hart thought Dr Dalton’s reasons for his view the plaintiff would be able to return to truck driving not involving manual work were largely theoretical.
166 Professor Hart agreed with Dr Kwa that there was no physical reason why the plaintiff could not resume work as a line-haul driver. He noted the plaintiff is a very large man with a height of 178 centimetres and therefore manipulations of curtains and gates would not be particularly difficult for him and would not involve him in any significant overhead activity which is the only activity that is likely to cause discomfort.
167 Professor Hart thought now that the plaintiff’s subacromial space had been decompressed, it was less likely that he would develop symptoms in the shoulders with overhead activity.
168 Professor Hart thought the plaintiff had regained virtually full function in his shoulders when examined and, in his view, the plaintiff would be able to return to work as a line-haul driver and perform his pre-injury duties.
169 Professor Hart considered the plaintiff should be able to retrain in some of the roles that Ms Clark thought were unsuitable.
170 Dr Karna, rheumatologist, first examined the plaintiff in May 2013 and re-examined him in January 2014.
171 On the initial examination, the plaintiff said he was in good physical condition when he started work with the defendant. Over the passage of time, while driving his vehicle, pulling up curtains, he was getting aches and pains in his shoulders, noting the incident in December 2007 where the wind blew a curtain and pulled his right arm back with a tearing sensation and he had developed right shoulder pain.
172 The plaintiff suggested then, tending to restrict his right shoulder movements, he used his left shoulder more and some weeks later when trying to put the gates out on his truck, he developed pain in the left shoulder.
173 The plaintiff complained of an ache in the left shoulder at rest, difficulty lying on the left side and reduced range of motion. He could not sleep on the right side and he had rest pain as well as pain with stretching and reaching.
174 Dr Karna thought the plaintiff had bilateral shoulder problems leading to subacromial decompressive procedures but without excision of the distal clavicle. He had residual restriction of motion. There were no super added neurological issues or features of autonomic dysfunction.
175 On re-examination, the plaintiff confirmed his shoulder pain is predominantly activity related.
176 The plaintiff acknowledged having a fall that led to some shoulder girdle discomfort as far back as 1998, which precipitated x‑rays. He indicated his shoulder girdle discomfort he had prior to 2007 was bilateral, intermittent and easily managed with simple analgesics.
177 Dr Karna noted the plaintiff’s shoulder girdle discomfort now precludes him from using his arms overhead but he readily admitted to doing some housework and being able to drive a four-wheel drive and change a tyre if necessary or change a battery (as shown on the video).
178 The plaintiff continued to be troubled by sleep apnoea, for which he used a machine. He weighed about 140 kilograms plus.
179 Dr Karna noted the plaintiff also has a past history of left total hip replacement but the prosthesis was defective and needed replacing. He was getting right hip pain and that was affecting his mobility.
180 On examination, shoulder abduction arcs remained grossly restricted. Upper limb reflexes were difficult to elicit. Carpal tunnel provocation testing was positive on the right, negative on the left.
181 Dr Karna thought it was clear the plaintiff had had significant shoulder injuries occurring around 2007 with tears identified but not necessarily having occurred with the 2007 incident. Noting the 1999 events, Dr Karna thought it quite likely the plaintiff did have some shoulder pathology prior to 2007.
182 Dr Karna thought the surveillance video did not really add much to the above history as the plaintiff quite readily admitted to being able to change a tyre occasionally or lift some items. There was nothing on the surveillance video to suggest the plaintiff was using his shoulders overhead for any sustained period of time.
183 Dr Karna concluded the plaintiff has a gross restriction of functional capacity because of his shoulders, his morbid obesity and his restricted mobility related to his significant hip problems with a failed prosthesis on the left. The film did little to alter Dr Karna’s opinion, as it did not show the plaintiff being unduly mobile or using his arms overhead or doing significant sustained lifting.
Surveillance
184 The plaintiff was filmed working on his car between 10.31am and 11.06am on 29 October 2013.
185 During that time, the plaintiff was shown working very slowly on his four-wheel drive outside his home, walking around the vehicle and at times, bending forward working under the bonnet, having opened it with his arms fully extended.
186 The plaintiff agreed that he appeared to be in no obvious discomfort in the film but he would have felt discomfort at the time.[48]
[48]T26
Overview
187 It is not disputed that the plaintiff suffered compensable injuries to both shoulders during the course of his employment with the defendant. The consensus of medical opinion is that he suffered bilateral rotator cuff tears and has developed subacromial bursitis.
188 I am mindful of the fact that the defendant accepted liability for the payment of weekly payments and medical expenses. This acceptance of liability may not be binding, but as said by Ashley JA in Ansett Australia Ltd v Taylor,[49] such admission should ordinarily be regarded as very significant:
“. . . albeit not conclusive because a defendant in a particular case might be able to satisfactorily explain its conduct.”
[49][2006] VSCA 171
189 No such explanation has been forthcoming in the present case.
190 Whilst the plaintiff had had arthritic problems in the past affecting his upper limbs, Counsel for the defendant did not submit that this was an aggravation case. This position was understandable as, prior to injury with the defendant, the plaintiff was capable of full-time unrestricted employment. Also, there was medical evidence that the plaintiff’s injuries were not an aggravation of a previous condition.[50]
[50]Professor Hart
Credit
191 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[51]
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
[51](2010) 31 VR 1 at paragraph [12]
192 Counsel for the defendant submitted that the plaintiff was not a witness of credit, given his differing histories as to the circumstances of his injury, at times attributing his injuries to specific incidents and at other times, describing ongoing shoulder problems of some duration.[52]
[52]T58-59
193 Another credit point relied upon by the defendant was the plaintiff’s denial in his viva voce evidence and to certain doctors of any problems with his shoulders prior to 2007.[53]
[53]T47, T59
194 The issue of inconsistent histories as to past shoulder complaints and the circumstances of injury was raised mainly as to credit, as it was conceded the defendant had a struggle to convince the Court at this level that it is a causation issue.[54]
[54]T48
195 Counsel for the plaintiff submitted that the plaintiff is not a sophisticated man, hence the issue of conflicting histories does not go to credit.[55] Further, it was submitted because the plaintiff is open and candid, his evidence should be accepted as to the consequences of his shoulder injuries.[56]
[55]T63
[56]T64
196 Counsel for the plaintiff submitted that the plaintiff does not exaggerate and he tends to downplay things and that is part of his psychological makeup and in that regard he is quite stoic.[57]
[57]T70
197 I accept the plaintiff’s evidence that it was not until Dr Kwa’s diagnosis of rotator cuff tears that the plaintiff thought he had a specific shoulder injury rather than more generalised arthritis for which he had sought treatment from Dr Gale in the late 1990s.
198 In my view, the plaintiff was a very candid witness and at times made concessions against his own interests when describing his present level of shoulder pain and restriction.
199 Maxwell P in Haden Engineering Pty Ltd v McKinnon[58] stated that the evidentiary basis of the pain assessment will ordinarily comprise, inter alia, what the plaintiff says about the pain (both in court and to doctors).
[58]Supra
200 In my view, the plaintiff’s own description of his present level of pain and restriction and the outcome of surgery does not meet the high statutory threshold of “serious”.
201 The plaintiff described how, after surgery, his left shoulder started to heal, it started to come good and eventually it was “bloody beautiful”.[59] Whilst it had its days, at the moment “it is quite enjoyable” – a comment I understood to mean it does not cause him a problem.[60] His left shoulder is like brand new in comparison to what it was after the curtain incident.[61]
[59]T18
[60]T18
[61]T19
202 Further, the plaintiff described how both his wrists and shoulders are feeling really good right at the present moment. They came good after surgery and they have remained like that.[62]
[62]T19
203 As Counsel for the defendant submitted, the plaintiff’s evidence is of a successful outcome of surgery and mitigates against any consequences of his shoulder condition meeting the statutory test.[63]
[63]T55
204 Clearly, some years ago, the plaintiff required surgery on both shoulders and he was given injections. However, he has not required ongoing treatment, save for limited medication intake, taking Pandeine Forte when required.
205 Whilst I accept the plaintiff has some ongoing shoulder pain and discomfort, it does not interfere in a significant way with his daily activities. Although he mentioned some recent deterioration, in examination-in-chief, that has not resulted in the need for further treatment or increased medication.
206 The plaintiff was hard pressed to explain what activities he presently had difficulty with due to his shoulder condition. On a number of occasions, he said that he could cope if he did not rush and “go at things like a bull at a gate”. He had to be careful not to aggravate his shoulders.
207 The plaintiff conceded that he could do quite physical things with his upper limbs. He has shoulder pain on occasion which he had to manage but “right at the very moment everything is all right”.[64]
[64]T19
208 As his Counsel described, the plaintiff does things very carefully and thinks about what he does before.[65]
[65]T66
209 The plaintiff is still able to undertake a significant level of activity, including cooking, cleaning, putting clothes on the line, and driving his four-wheel drive.
210 The plaintiff is able to work on his four-wheel drive, albeit slowly, as shown in the October 2103 video. Although his use of his upper limbs was not heavy or repeated, he was able to briefly lift the bonnet with his arms fully extended above shoulder height – a task he described as easy, given the bonnet mechanism.
211 There is no interference with recreational activities and the plaintiff still enjoys swimming in the summer months.
212 There is some interference with the plaintiff’s sleep because of his shoulders; however, he does not require any sleeping medication, nor does he complain of tiredness the next day affecting his work or other activities.
Work
213 Significantly, the plaintiff has been able to continue full-time work in the trucking industry, albeit in a different capacity, since his employment was terminated in 2010.
214 The plaintiff’s current job involves driving jobs for up to two weeks escorting road trains across Australia. Whilst that job does not involve tying down loads, as was the situation in his previous role, the plaintiff is able to do this job without any restriction or the need for increased medication.
215 The plaintiff has a significant work capacity in that as shown by his ability to drive for two weeks to Mount Newman. As the plaintiff agreed, he could do such long drives if the work was available.
216 Whilst I accept the plaintiff would have difficulty doing repeated overhead work tying loads and chains on semi-trailers,[66] he is not precluded from other work in the trucking industry, as evidenced by his ability to continue in his present position for nearly five years without interruption.
[66]T65
217 Medical opinion as to the plaintiff’s capacity in this regard range from Dr Kwa and Professor Hart, who considered that he can return to his pre-injury duties, and Dr Dalton, who felt the plaintiff was capable of less onerous duties in that field.
218 As of September 2009, when he last saw the plaintiff, Dr Kwa anticipated the plaintiff would be fit to return to pre-injury duties in six weeks and he did not consider there would be long-term permanent restrictions. No report from Dr Kwa as to the plaintiff’s current capacity is before the Court.
219 I am not satisfied, taking into account all the evidence, in particular the plaintiff’s viva voce evidence where at times he described a significantly different situation to that deposed to, the plaintiff has a serious injury in relation to either his right or left shoulder.
220 Counsel for the plaintiff also submitted it was permissible to treat the plaintiff’s shoulder condition as a bilateral impairment, aggregating each shoulder condition, as they both arose out of the same work process.[67]
[67]T70
221 It is not necessary for me to make a finding as to whether this course is permissible in this case as, in my view, for the reasons expressed above, the consequences of any bilateral impairment are also not “serious”.
222 Accordingly, the application is dismissed.
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