Shackles, Linton Peter v The Pasta Master Pty Ltd and VWA
[2009] VCC 1772
•6 November 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT BENDIGO
CIVIL DIVISION
DAMAGES-COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-08-04223
| LINTON PETER SHACKLES | Plaintiff |
| v | |
| THE PASTA MASTER PTY LTD | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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| JUDGE: | HIS HONOUR JUDGE MISSO |
| WHERE HELD: | Bendigo |
| DATE OF HEARING: | 4 and 5 November 2009 |
| DATE OF JUDGMENT: | 6 November 2009 |
| CASE MAY BE CITED AS: | Shackles, Linton Peter v The Pasta Master Pty Ltd & VWA |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 1772 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – whether the plaintiff suffered an aggravation of pre-existing injury to his right shoulder – whether the aggravation amounted to a compensable injury – whether the consequences of the aggravation met the statutory test for loss of earning capacity – necessity to consider pain and suffering upon finding that the plaintiff met the statutory test for loss of earning capacity – disentangling: section 134AB (38) (c) and (h).
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Richards SC with | Arnold Dallas McPherson |
| Mr M Schulze | ||
| For the Defendants | Mr J Parrish SC with | Hall & Wilcox |
| Ms S Manova | ||
| HIS HONOUR: |
Introduction
1 Before the Court is an application brought by Originating Motion filed on 6 October 2008 by which the plaintiff applies for leave, pursuant to section 134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”), to bring proceedings to recover damages for injuries suffered by him arising out of the course of his employment with the first defendant.
2 The plaintiff seeks leave to bring such proceedings for pain and suffering and loss of earning capacity.
3 Mr J Richards SC appeared with Mr M Shultz of Counsel for the plaintiff, and Mr J Parrish SC appeared with Ms S Manova of Counsel for the defendants.
4 The body function which the plaintiff says has been lost or impaired is the right shoulder.
5 The following evidence was adduced during the hearing:
• The plaintiff gave evidence and was cross-examined; •
The plaintiff tendered the Plaintiff’s Court Book (“PCB”), pages 18-25; 28- 66A; 70-75; 86-99; 103-116; 120-123; 130-149; 158-162; 162A-162D and 177-197: Exhibit A;
•
The defendants tendered the Defendants’ Court Book (“DCB”) pages 1- 130: Exhibit 1.
The Statutory Scheme
6 The application is brought under the definition of “serious injury” contained in subsection (37)(a) of the Act which requires the plaintiff to prove that he has suffered a “permanent serious impairment or loss of a body function”.
7 The relevant considerations which apply to such an application are as follows:
(a)
The plaintiff must prove that he has suffered a compensable injury; that is, an injury which he suffered arising out of the course of his of employment on or after 20 October 1999.[1]
(b)
The injury and the impairment must be permanent; that is, permanent in the sense that it is “likely to last for the foreseeable future”.[2]
(c)
The plaintiff bears the burden of proof to be determined upon the balance of probabilities, and in addition to the general burden imposed by subsection (19)(a), subsection (19)(b) and subsection (38)(e) impose a specific burden on the plaintiff in relation to a claim for loss of earning capacity.
(d)
Subsection (38)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than “significant” or “marked”, and as being at least “very considerable”.
(e)
Subsection (38)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise.
(f)
Subsection (38)(e) provides that in a claim for loss of earning capacity that such loss must be to the extent of 40 per cent or more both at the date of hearing and permanently.
(g)
Subsection (38)(f) and (g) provide the formula to be applied by which a claim for loss of earning capacity is to be determined.
(h)
Subsection (38)(j) provides that the assessment of serious injury is to be made at the time of the hearing of the application.
(i)
Subsection (38)(b) provides that the consequences of an injury and impairment in terms of pain and suffering and loss of earning capacity are to be considered separately. Furthermore, if a plaintiff is successful in proving loss of earning capacity it follows, without the necessity to determine the consequences to that plaintiff in terms of pain and suffering, that the plaintiff is entitled to leave to bring a proceeding for pain and suffering in any event;[3] an approach which I intend to follow in the appropriate case.
(j)
In conformity with Barwon Spinners, I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent, that is, likely to last for the foreseeable future; and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in subsection (38)(c). I have applied the principles set forth therein in reaching my conclusions in this application.
(k)
In an application where it is alleged that the plaintiff had a pre-existing condition which arose prior to 20 October 1999, I must, in conformity with Barwon Spinners, identify the injury and impairment arising after 20 October 1999, and I must then determine the consequences of that injury and impairment by comparing the plaintiff’s condition before and after that injury: see Petkovski v Galletti.[4]
[1] S.134AB(1), and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph 11
[2] Barwon Spinners, at paragraph 33
[3] Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170
[4] (1994) 1 VR 436
8 I am required by section 134AE to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action, and in doing so to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.
The Plaintiff’s Background
9 The plaintiff was born on 18 February 1976. He is now thirty-three years of age. He lives with his domestic partner, Rhiannon Jackson, and their three children who are nine, seven and five years of age.
10 The plaintiff was born and raised in Swan Hill. He commenced Year 12 at Swan Hill Technical School. He left after three months. He re-commenced Year 12 at Bendigo High School the following year. He left after five months.
11 After leaving school, the plaintiff worked in a number of occupations. He was involved in a transport accident on 26 May 1998. At the time when that occurred he was working for Hazeldene’s Chicken Farm Pty Ltd as a process worker.
The Transport Accident
12 On 26 May 1998, the plaintiff was riding a motorcycle when he was struck by a car which performed a right-hand turn in front of him.
13 The plaintiff was removed from the scene of the transport accident to the Emergency Department of the Bendigo Health Care Group. The plaintiff presented with injuries to his right shoulder, left wrist and left knee. Mr McCullough, orthopaedic surgeon, attended upon the plaintiff.
14 The plaintiff was diagnosed as having a fracture to his left wrist which apparently did not require any specific treatment. He was also diagnosed as having a major injury to his right shoulder. Mr McCullough operated on the plaintiff’s right shoulder, inserting a screw to reduce a disrupted acromio- clavicular joint.
15 On 2 February 1999, Mr McCullough removed the screw from the plaintiff's right shoulder. In the meantime, the plaintiff suffered a complication of the first episode of surgery. The wound became infected with golden staph.
16 In a report dated 1 July 2003, Mr McCullough described the injury and his findings at operation as follows:
"At operation there was a complete disruption of the right acromio- clavicular joint. This was reduced and fixed with a screw, through the clavicle into the coracoid process of the scapular, this produced stable fixation in good position… x-rays showed that satisfactory reduction of his dislocation had been achieved."[5]
[5] PCB 76
17 Following further surgery on 2 February 1999 to remove the screw, Mr McCullough reviewed the plaintiff on 10 February 1999, when he reported that the plaintiff was very comfortable, and he had a full range of movement of his right shoulder.[6]
[6] PCB 77
18 Mr James, orthopaedic surgeon, took over the treatment of the plaintiff. In a report dated 8 February 2001, he described the plaintiff's right shoulder injury arising out of a transport accident as follows:
"I initially saw Mr Shackles on the 17th of July 2000 in my rooms. … Mr Shackles reported having sustained an injuring to his right shoulder in a motor vehicle accident that occurred on the 26th of April 1998. Mr Keith McCullough performed his initial management. It seems he had sustained a disruption to the right acromioclavicular joint and this was internally fixed with a trans clavicular per coracoid screw. The screw was subsequently removed. In the post-operative period, Mr Shackles developed an infection, which he states took ‘a couple of months to settle down’".[7]
[7] PCB 33
19 The plaintiff first returned to work following the transport accident in October 1999, working for a firm known as Milne’s Engineering as a foundry worker.
20 The work the plaintiff was required to undertake aggravated his right shoulder. He suffered aching in his right shoulder at the end of a day's work. He consulted Dr Malcolm, general practitioner, who referred the plaintiff to have some x-rays. She also referred him to Mr James .
21 Mr James injected the plaintiff's right shoulder with a mix of steroid and local anaesthetic in July 2000. He made an initial diagnosis of rotator cuff and biceps tendinitis.[8]
[8] PCB 33
22 Mr James recommended to the plaintiff that he undergo an arthroscopic examination of his right shoulder. It was performed on 14 December 2000. Mr James found the following:
"Inspection of the glenohumeral joint showed no pathology. The subacromial space was then entered. The rotator cuff tendon was intact, but there was a significant amount of scar tissue and some ossified scar tissue around the anterior and medial aspects of the subacromial space. This looked to be responsible for impingement of the rotator cuff tendons and decompression was performed. It seemed there had been a near complete bony bridge develop between the coracoid and the under surface of the clavicle in the region of the previous surgery. This debrided on its under surface to relieve pressure from the cephalad surface of the rotator cuff musculotendinous junction."[9]
[9] PCB 33-34
23 Mr James reviewed the plaintiff. In a report dated 21 November 2002, he was of the opinion that the plaintiff had recovered quite well from the last episode of surgery, and he appears to have partly reached that conclusion by reason of the fact that the plaintiff had commenced work.[10]
[10] PCB 38
24 In about 2001, the plaintiff obtained employment with Ortech Industries Pty Ltd as a factory hand. He was unable to manage the work he was required to undertake.
25 He applied for a disability pension because he considered that it was likely that he would have difficulty obtaining and holding down a job. He was obliged to undergo an examination by a medical panel organised by Centrelink. It was as a result of that examination that he was advised that he was fit for work.
26 The plaintiff was referred by Centrelink to the first defendant, which took him on. He commenced employment with the first defendant on 23 April 2002 as a casual process worker. He estimated that he sometimes worked over 38 hours in a week, and on one occasion worked 15 hours as a result of filling in for a worker who was absent from the workplace.
The Work Injury
27 In his affidavit sworn 28 May 2008, the plaintiff described the occurrence of his work injury as follows:
"On 18 September 2002, I was lifting pallet down from a stack of pallets in the chiller room at The Pasta Master Pty Ltd factory, when I felt a sharp pain in my right shoulder. …"[11]
[11] PCB 21
28 Mr Parrish asked the plaintiff to describe the extent of the pain and restriction of movement in his right shoulder that he experienced following the transport accident and while he was working for the first defendant. He said:
"Q: … What happened then after that all cleared up, you still had
persisting problems in your right shoulder though didn't you?---A: Yes. Q: When I'll be talking about persisting problems, there was stiffness
in your shoulder - you will have to say yes or no?---A: Yes, sorry. Q: Yes, stiffness in your shoulder, there was restriction of movement
in your shoulder?---A: Yes. Q:
By restriction of movement, by that I mean in particular, bringing your shoulder or bringing your arm, your right arm above shoulder height, that was always difficult?---
A: Yes, pretty much, yes. Q: In fact it's always been difficult hasn't it?--- A: Always, yes. Q: Indeed, was it also the case then of moving your right arm out
from your body, was that difficult?---A: Yes, pretty much. Q: Yes?--- A: Sore yes, just from - can't sort of get it up past 90 degrees. Q: Yes, exactly so either in front or out the side or bring your arm up
the side like that?---A: Just - - - Q: That caused problems and always has caused problems?--- A: Yes."[12] [12] Transcript 22
29 In order to clarify what the plaintiff meant, I asked him to demonstrate the movements of his right arm by using his left arm. He demonstrated that he could raise his right arm to shoulder height extended out from his body, and directly out in front of his body. He demonstrated that he could move his right arm freely below shoulder height. On one occasion he demonstrated that he could raise his right arm above shoulder level to probably 30 degrees above shoulder height when working on a cryovac machine.[13]
[13] Transcript 52-53
The Plaintiff's Medical Treatment
30 The plaintiff saw Dr Pinder, general practitioner, on 18 September 2002. He noted the following:
"Examination on this day showed him to have gross swelling and
tenderness over his right infraspinatus muscle.He was managed with ice, sling, pain relief and total rest, and an ultrasound was arranged."[14]
[14] PCB 70
31 Dr Pinder referred the plaintiff to have a number of radiological investigations. He then referred the plaintiff to Mr James. It would appear that Mr James saw the plaintiff on 21 November 2002. In a report bearing that date, he took the following history:
"… He was doing quite well with his job until about seven weeks ago when he twisted trying to carry a plaster sheet. He felt something wrench in his shoulder. Since then, he has had pain in the region of the AC joint and over the supraspinatus fossa. I agree with you, he still has quite a distorted shoulder girdle appearance, both the result of his AC step and of him dropping the scapular."[15]
[15] PCB 38. Mr James misunderstood the reference to the first defendant's name "Pasta Master" referring repeatedly to it as "Plaster Master", and furthermore made an assumption that the plaintiff
32 Mr James considered, at that time, the plaintiff required a reconstruction of the acromio-clavicular articulation and a reconstruction of his coraco clavicular ligaments.
33 Mr James operated on the plaintiff's right shoulder on 4 June 2003.16 On review, Mr James noted that the plaintiff's right shoulder was very stiff. He undertook a manipulation of his right shoulder under general anaesthetic on 13 August 2003.17
34 Mr James was asked to provide an opinion on causation, that is, whether the work injury was a discrete injury or whether its occurrence was attributable solely to the transport accident. In a report dated 28 August 2003, he was asked a number of specific questions. The relevant answer regarding causation is as follows:
"It would appear Mr Shackles was able to manage this line of work successfully for several months before a sudden deterioration in his circumstances occurred, consistent with a new on old injury. It is clear Mr Shackles had significant pre-existing damage to the shoulder girdle prior to his commencing work with Plaster (sic) Master. He had not seen a full recovery from the previous injuries with regard to a normal range of motion and function at the level of the acromioclavicular joint or the shoulder girdle is as a whole. It is not surprising that work requiring frequent heavy lifting at shoulder height and above has made Mr Shackle’s right shoulder increasingly symptomatic."18
35 It is convenient to deal with the oral evidence of Mr James at this point. Mr James was cross-examined at some length by Mr Parrish. The thrust of the cross-examination went to the question of the extent to which the plaintiff's pre-existing injury to his right shoulder had been aggravated by the work incident.
36 Mr James used a blackboard to sketch the bony structure of the shoulder for the purpose of describing, firstly, the pre-existing damage to the plaintiff's right shoulder, and secondly, to demonstrate what he subsequently found when he
was carrying plaster and fittings. His misunderstanding is apparent throughout all of his reports
PCB 49
PCB 59
PCB 63
treated the plaintiff following the occurrence of the work incident.
37 Essentially, Mr James did not depart from the opinions he expressed in his reports regarding the damage to the plaintiff's right shoulder which occurred as a result of the transport accident. However, he did describe pathological changes to the plaintiff's right shoulder which he considered were likely to have been the result of the work incident. He said as follows:
[19] Transcript 135-136
"Q: So, what is the point you're making about the direct effect of this incident on the glenohumeral movement of the shoulder, the lifting of the pallet?--- A: Yes, my interpretation is that he had a relative fixed position of the collar bone and the wing bone. When I saw him after this incident, he still had a relatively fixed position, but it was a different position, and as a consequence of the different position, the bone was tilted down on the humerus and therefore had had re-acquired some pain of impingement. The MRI subsequently confirmed that the ball and socket joint actually was capable of moving, but it was limited by pain rather than a mechanical obstruction, and so we were back now with regard to the rotator cuff symptoms, to where we were before he had the previous decompression. So that's one issue. The second issue is the acromioclavicular joint, it had been fixed in a certain, though be it abnormal position, and after this episode, it appeared to be in a fixed but more rotated position, and the AC joint now, after presumably having moved its relative fixed position, was experiencing pain where it had not before, and that was why we proceeded with the division and removal of some of the collar bone, to try and separate those two painful joints or the two ends of the painful joints, because prior to this, that joint, although abnormal, hadn't been a particular site of pain for him."[19]
38 Mr James was asked to comment on the observations made by Dr Pinder on the occasion when the plaintiff first consulted him on 18 September 2002, and in particular, the history taken by Dr Pinder that the plaintiff showed evidence of gross swelling over his right shoulder. Mr James considered that that was clear evidence of an acute injury.[20]
[20] Transcript 134
39 Mr James was also asked to comment on the plaintiff’s evidence of his capacity to undertake work with the first defendant.[21] He considered that the change in the plaintiff’s level of function, performance and comfort were an important part of his overall assessment going to whether the plaintiff had suffered a further injury as a result of the work incident.
[21] Transcript 134
40 Mr James ceased treating the plaintiff on 28 August 2003.[22] Since that time the plaintiff has been treated by Dr Pinder, Dr Murphy, physician, and more recently, by Dr Sharma, general practitioner.
[22] PCB 63
41 The plaintiff was referred to the John Lindell Rehabilitation Unit where he was first seen on 10 October 2003. The plaintiff attended two sessions of hydrotherapy, an assessment by an occupational therapist and a physiotherapist, but subsequently failed to attend appointments and was discharged from the care of Dr Murphy.[23]
[23] PCB 86
42 The plaintiff was referred to have pain management treatment at the Ann Caudle Centre in 2005, which was apparently of little assistance to him.[24]
[24] PCB 75
43 The plaintiff has been referred for physiotherapy and hydrotherapy since suffering his work injury. He has been prescribed medication. At present he is not in receipt of any prescriptions for medication. Dr Sharma recently ceased the plaintiff's prescription for Norspan patches which slowly releases morphine into the plaintiff’s body.
44 Dr Sharma said that the reason why he no longer prescribes Norspan patches is because the plaintiff requires morphine during the colder months when his right shoulder symptoms are much worse, however, during the warmer months he considers that the plaintiff should survive without morphine.
The Medical Opinions
45 Dr Pinder appears to have accepted that the plaintiff suffered a compensable injury as a result of the work incident. He provided him with medical certificates certifying him as incapable of any type of manual duties. He was of the opinion that the plaintiff had no skills for clerical or sedentary type work and would, in any event, find that kind of work difficult due to virtually having no use of his right arm.[25]
[25] PCB 74
46 Dr Sharma accepted that the plaintiff suffered a compensable injury as a result of the work incident. Although he expressed some optimism and keenness to have the plaintiff retrain and return to suitable employment, in the end it was his opinion that the plaintiff is virtually unemployable due to the injury to his right shoulder.[26]
[26] PCB 130-140
47 Mr King, orthopaedic surgeon, first examined the plaintiff in November 2004. He was of the opinion that the plaintiff sustained further trauma to an already scarred, stiff, and painful right shoulder joint. He attributed two-thirds of the impairment of the plaintiff’s right shoulder to the transport accident and one- third to the work incident.
48 After examining the plaintiff, Mr King was of the opinion that the plaintiff’s right shoulder injury had stabilised and that he had a level of chronic severe impairment of the function of his right upper limb amounting to approximately 45 per cent loss of function of the right upper limb on clinical grounds.
49 Mr King was of the opinion that the plaintiff was permanently unfit for any sort of work that might be available to him in the foreseeable future, particularly in view of his lack of any special skills.[27]
[27] PCB 110-111
50 Mr King re-examined the plaintiff in January 2008. He essentially repeated his previous opinion.[28]
[28] PCB 115-116
51 Dr Clayton Thomas, consultant in rehabilitation and pain medicine, examined the plaintiff on 17 March 2008. He described the transport accident as being partially responsible for the plaintiff's symptoms.
52 Dr Thomas was of the opinion that if the plaintiff had not suffered an aggravation of a work incident, that he probably would have been able to continue working for the first defendant.
53 Dr Thomas said he was not impressed by the prospect of the plaintiff being a one armed man in manual work as a viable option, and he added that he did not think that re-training would bear fruit for the plaintiff. His reasons for expressing the latter opinion seemed to be based upon the gravity of the plaintiff's injury to his right shoulder as he assessed it.[29]
[29] PCB 145-146
54 The defendants referred the plaintiff for examinations by a large number of medical practitioners.
55 Mr Troy, surgeon, was the first of those to examine the plaintiff. He examined him on 4 December 2002. He was of the opinion, at that early stage, that the plaintiff had suffered a compensable injury as a result of the work incident, being a soft tissue injury to his right shoulder girdle. He did not consider that the plaintiff had a capacity for his pre-injury employment, but could return to light duties with the first defendant using his left hand.[30]
[30] DCB 4-6
56 Mr Scott, surgeon, examined the plaintiff on 22 October 2003, 16 August 2005 and 8 May 2007. He was of the opinion that the plaintiff had suffered a compensable injury as a result of the work incident. He considered the aggravation of the plaintiff's pre-existing injury to his right shoulder to have been significant. He considered that the plaintiff was fit for very light work only not requiring the use of his right upper limb.[31]
[31] DCB 21-24
57 Dr Wallin, physician, examined the plaintiff on 23 February 2004. He was of the opinion that the plaintiff had suffered a compensable injury as a result of the work incident. However, he was unable to determine the difference between the condition of the plaintiff’s right shoulder before the work incident and after it had occurred. He accepted the opinion of Dr Troy, and especially Mr Scott, that the plaintiff had a poor prognosis overall and also in relation to his capacity to undertake work.[32]
[32] DCB 31-32
58 Mr Bourke, orthopaedic surgeon, examined the plaintiff on 17 June 2004 and 16 November 2004. He appears to accept that the plaintiff suffered a compensable injury.
59 Mr Bourke initially considered that the plaintiff was unfit for all work with some potential to return to work with Telstra. After he was provided with a vocational assessment conducted on the plaintiff, he was of the opinion that the plaintiff could work as a sales assistant, at a video store, as a sales clerk or in work as a telemarketer at a call centre. However, he qualified that opinion by saying that he could cope with that work once he was able to get over his current physical and emotional problems.[33]
[33] DCB 38 and 40-41
60 Dr Baker, specialist in occupational medicine, examined the plaintiff on 13 June 2007. Dr Baker was of the opinion that the plaintiff had suffered a compensable injury, but that his ongoing portrayed incapacity was of a non- physical nature and related to his psychological state and his behaviour. He is the only medical practitioner to examine the plaintiff who expressed an opinion of that kind.[34]
[34] DCB 68-69
61 However, Dr Baker was of the opinion that the prospect of the plaintiff being able to obtain employment was remote.[35] He described the plaintiff's capacity for work as extremely limited, and limited to him working one-handed with his non-dominant arm.
[35] DCB 68 and 63
62 Dr Kostos, rheumatologist, examined the plaintiff on 1 September 2008. He was of the opinion that the plaintiff had suffered a compensable injury as a result of a work incident. He was of the opinion that 80 per cent of the plaintiff's impairment was contributed to by the transport accident and 20 per cent by a work incident.
63 Dr Kostos was also of the opinion that the plaintiff had suffered a significant loss of right shoulder function which he equated to 50 per cent loss of upper limb function. He considered that the plaintiff would be able to work in a sedentary environment where reaching and elevation were not required, but he would need significant re-training to achieve a work capacity.[36]
[36] DCB 72-73
64 Mr Simm, orthopaedic surgeon, examined the plaintiff on 10 March 2009. He was of the opinion that the plaintiff had suffered a compensable injury as a result of a work incident. He made the same apportionment as Dr Kostos.
65 Mr Simm was of the opinion that the plaintiff could undertake light forms of employment on a full-time basis because of what he observed to be good use by the plaintiff of his right hand close to his body and below shoulder height. He referred to jobs such as internal sales, telemarketer, enquiries clerk, IT operations/administration, concierge, and gatehouse/control room guard as suitable.[37]
[37] DCB 79-80
A Compensable Injury
66 The preponderance of the medical evidence supports the conclusion that the plaintiff suffered a compensable injury as a result of a work incident, especially the opinion of Mr James, which I have summarised in paragraphs 32-39 above.
67 The only medical practitioner who has expressed a different conclusion is Dr Baker, who was of the opinion that whatever compensable injury the plaintiff suffered initially was no longer apparent.
68 Mr King, Dr Kostos and Mr Simm are the only medical practitioners who have expressed opinions on contribution by reference to percentages. Mr King is of the opinion that the work incident has contributed one-third and Dr Kostos and Mr Simm 20 per cent.
69 The remainder of the medical practitioners have not chosen to go to the extent that Mr King, Dr Kostos and Mr Simm have gone, but it is apparent by the language they chose to use that they considered that the contribution was significant.
70 I accept the plaintiff’s evidence that the work activity which he described was responsible for the occurrence of an aggravation of a pre-existing significant injury to his right shoulder, and from that time onwards he has suffered persistent symptoms which required surgical treatment by Mr James, and other treatment provided by Dr Pinder, Dr Murphy and Dr Sharma.
71 I accept that the plaintiff gave his evidence in a very fair, straightforward and honest way. There were no features of his evidence which suggested that he was being other than entirely truthful.
72 Therefore, the combination of my acceptance of the plaintiff's evidence and the preponderance of the supporting medical evidence leads me to conclude that the plaintiff did suffer a compensable injury.
Serious Injury
73 I propose to deal, firstly, with the plaintiff's application that the compensable injury has resulted in a serious injury for loss of earning capacity.
74 On my analysis of plaintiff’s evidence and the medical evidence, I find that the plaintiff suffered an aggravation of a pre-existing significant injury to his right shoulder. I find that the aggravation has resulted in an impairment of the function of his right shoulder which previously did not exist, and that the impairment is permanent.
75 Apart from Dr Baker, my analysis of the medical evidence does not point to any serious opinion suggesting that the impairment resulting from the work incident is other than permanent.
76 I accept the opinions of Mr King, Dr Kostos and Mr Simm, that the present impairment of the plaintiff's right shoulder is severe. Mr King’s assessment was that it amounted to a 45 per cent loss of function of the right shoulder, and Dr Kostos’ opinion was that it amounted to a 50 per cent loss, and is demonstrative of a massive loss of function of the plaintiff's dominant upper limb.
77 Whilst the other medical practitioners did not express the impairment of function in percentage terms, the language they used overall is entirely consistent with the language used by Mr King, Dr Kostos and Mr Simm. Therefore, my impression is that they were more likely than not describing the same degree of damage to the plaintiff's right shoulder.
78 However, when the plaintiff came to commence his employment with the first defendant, what is clear is that he had the capacity to undertake that work. It was manual work which no doubt tested the plaintiff's capacity to use his right arm. He was successful in managing that work for a significant period of time before an event occurred which involved what appears to me to be a moderately heavy lift which placed strain on his right shoulder joint.[38]
[38] The plaintiff produced a schedule of the hours he worked. For the week ending 10 May 2002, he worked 46.5 hours, and for the week ending 31 May 2002, he worked 39.2 hours. These were the most hours the plaintiff worked, but showed a capacity to work reasonable hours despite persisting symptoms affecting his right shoulder
79 There is nothing in the evidence, nor in the material tendered, to suggest that the incident was trivial, and indeed, Mr Parrish did not cross-examine the plaintiff to suggest that was the case. Perhaps the reason for that was that the preponderance of the medical evidence strongly supports the plaintiff's case that he did suffer a compensable injury, and that none of the medical practitioners have suggested that the work incident did not or could not have caused an injury of that kind complained of by the plaintiff.
80 There is no doubt that the plaintiff could not return to his pre-injury employment. That position is supported by all of the medical practitioners.
81 However, there is a significant difference of opinion amongst a number of medical practitioners about whether the plaintiff has any capacity for employment, and whether the residual capacity that he retains is exercisable in undertaking the light work which Mr Simm referred to.
82 The plaintiff bears the onus to prove, pursuant to subsection (19)(b) of the Act, any inability to be retrained or rehabilitated or to undertake suitable employment or any employment including alternative employment and the extent of any such inability.
83 There are a number of matters about which there is little controversy - firstly, that the plaintiff did have a residual capacity for work following the occurrence of the transport accident. This is clearly evidenced by the fact that he was able to work with the first defendant even with persisting symptoms, which I find he was able to tolerate well.
84 Secondly, the work incident has played a significant role in taking from the plaintiff that residual capacity. None of the medical practitioners who have commented on the plaintiff's capacity for work appear to argue otherwise.
85 What that leaves is whether the plaintiff has any residual capacity to undertake the work to which Mr Simm exposed.[39]
[39] Mr Simm was provided with a report of Job-Fast, at DCB 124-130
86 The only medical practitioners who proposed that the plaintiff is capable of suitable employment on a full-time basis are Dr Kostos and Mr Simm. I am not impressed by the opinion expressed by Dr Kostos because it is brief and lacking any analysis of the kind of work which he considered the plaintiff would be able to undertake.
87 Mr Simm is the lone voice in advocating that the plaintiff is fit for specific full- time work. Interestingly, Mr Simm was of the opinion that the plaintiff had a reasonable level of function in his right arm close to his body and below the shoulder height. In other words, he was of the opinion that the plaintiff could undertake work to that extent of his right arm, and no doubt fully with his left arm.
88 Dr Baker and Dr Thomas are both specialists in occupational medicine. They strongly disagree with Mr Simm. Their opinions are probably superior to that of Mr Simm because of their particular speciality.
89 Dr Sharma shared the same opinion as Dr Baker and Dr Thomas. Mr Parrish cross-examined Dr Sharma at some length regarding the opinions he expressed in a number of reports.
90 A fair reading of those reports suggests that Dr Sharma was expressing some optimism regarding the plaintiff's capacity to re-train and return to suitable employment. However, the impression I obtained from Dr Sharma’s evidence was that he believed that therapeutically it was in the plaintiff's interests to avoid long-term unemployment. His optimism was more directed to assisting the plaintiff to avoid what he considered was the inevitable onset of depression in someone so young with such a devastating injury.[40]
[40] Transcript 76
91 However, I consider that Dr Sharma put his opinion in perspective when he gave the following evidence:
"A:
Doctor, you were asked questions about the prospects of re- raining and the prospect of employment in relation to this man with his disability?---
A: Yes. Q: You answered talking about conceptually on the one hand and
practically on the other hand?---A: Yes, that is correct. Q: The jobs that were suggested to you, one of them was, I think, sales assistant?--- A: Yes. Q: And put that he might do a course in retail management or retain,
re-training?---A: Yes. Q: How would this man go in any retail situation where he had to
move any items about?---A: He would not be able to. Q: What would happen if he tried to do it with his right arm?--- A: If he tried to? Q: If he tried using his right arm to move items about?--- A: He can't and that would be a definite no. Q: What happens if he starts using his left arm?--- A: I would expect that over a period of time, he is more likely to
create at strain injury to his shoulder.Q:
If you have a concept of this man being required by an employer to turn up to work to set hours, say three or four hours a day, each day through the year, through the winter months and through the summer months and do something useful for the employer, what do you say as to whether or not this man is going to be to fulfil a reasonable employer's requirements like that?---
A:
There will definitely be days where he, through the nature of his injury, will flare-up for no apparent reason and he will not be able to go into work or completely fulfil his obligations."[41]
[41] Transcript 81-82
92 I prefer the evidence of Dr Baker, Dr Thomas and Dr Sharma to that of Mr Simm. The weight of the opinions which I prefer is added to significantly by the opinion of Mr King, who, likewise, considered that the plaintiff had no capacity for work.
93 I do not accept the submissions made by Mr Parrish that the plaintiff has not tested himself in the workplace by not making attempt to obtain re-training or by applying for jobs. I consider that to be an unrealistic submission because the weight of the evidence which I prefer strongly points to the prospect of re- training being of little benefit to the plaintiff, and moreover, because the plaintiff has little or no capacity for work.
94 It can hardly be a point against the plaintiff that in the absence of any real capacity for the fact that he has not made attempts, is held against him. It seems to me to be a non sequitur.
Other Matters
95 There is undoubtedly a thread through all of the opinions of the medical practitioners who have examined the plaintiff that he has suffered a psychological disorder.
96 I am not to take into account any psychological or psychiatric consequences of a physical injury by reason of subsection (38)(h). I have not done so in this application. The identity of the physical injury, the body function which it impairs, and the loss of earning consequences are demonstrably clear. On a fair reading of the reports of the medical practitioners, it is clear that they have been able to identify the physical injury to the plaintiff’s right shoulder and the psychological or psychiatric consequences separately.
97 I have had no difficulty in understanding the consequences of the aggravation of the pre-existing injury to the plaintiff’s right shoulder and its consequences in terms of loss of earning capacity. I see no need for any so-called disentangling.
Conclusion
98 In conclusion, I find that the plaintiff suffered an aggravation of a pre-existing injury to his right shoulder which has further impaired the function of his right shoulder. I find that the further impairment is permanent. I also find that the consequences of that further impairment, in terms of loss of earning capacity, is at least very considerable when judged with other cases in the range of possible impairments or losses of body function.
99 It is unnecessary for me to separately consider the question of whether the plaintiff meets the statutory test for pain and suffering given that the plaintiff has satisfied the statutory test for loss of earning capacity.[42]
[42] Advanced Wire & Cable Pty Ltd v Abdulle (supra)
100 On the basis of the foregoing reasons, findings, and conclusions, I grant the plaintiff leave to bring a proceeding at common law pursuant to section 134AB(16)(b) of the Accident Compensation Act 1985 to recover damages for pain and suffering and loss of earning capacity arising out of his employment with the first defendant.
101 After discussion with counsel, I will pronounce formal orders and will hear the parties on the question of costs.
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