Shakan v Snellco Pty Ltd
[2013] VCC 324
•27 March 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted |
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-11-04836
| IDRIS MOHAMED SHAKAN | Plaintiff |
| v | |
| SNELLCO PTY LTD | First Defendant |
| and | |
| WORKSAFE VICTORIA | Second Defendant |
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JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 February 2013 | |
DATE OF JUDGMENT: | 27 March 2013 | |
CASE MAY BE CITED AS: | Shakan v Snellco Pty Ltd & Anor | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 324 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to the left upper limb and the psyche of the plaintiff – pain and suffering and loss of earning capacity damages
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Mobilio v Balliotis [1998] 3 VR 833; Turner v Love & Transport Accident Commission (1995) 21 MVE 314; Advanced Wire & Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170; Kelso v Tatiara Meat Company Pty Ltd [2007] 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242
Judgment: Application granted for pain and suffering only.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr V Morfuni SC with Mr S Loftus | All States Legal Co Pty Ltd |
| For the Defendants | Mr A Middleton | Thomsons Lawyers |
HER HONOUR:
1 This is an application brought by the plaintiff for leave pursuant to s134AB(16)(b) of the Accident Compensation Act (1985) (as amended) (“the Act”) for injury suffered by him in the course of his employment with the first defendant on 21 October 2009.
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering and loss of earning capacity.
3 The plaintiff brings this application pursuant to clauses (a) and (c) of the definition of “serious injury” to be found in s134AB (37) of the Act.
4 There, “serious” is defined as meaning:
“(a) permanent serious impairment or loss of a body function.
…
(c)permanent severe mental or permanent severe behavioural disturbance or disorder ….”
5 The body function relied upon in this application is injury to the left upper limb (shoulder) and the psyche of the plaintiff.
6 The plaintiff relied upon two affidavits, sworn on 2 May 2011 and 20 December 2012. The plaintiff was cross-examined. I have not summarised the plaintiff’s affidavits or his evidence in cross-examination. However, I will refer to the plaintiff’s relevant evidence in my reasoning. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
Issues
7 Counsel for the defendants submitted that:
· The plaintiff’s injury does not meet the narrative definition of “serious injury”, and
· The plaintiff has a capacity for work and there is no evidence that the plaintiff has a loss of capacity of 40 per cent or more. Further, the plaintiff does not satisfy the requirements of retraining and rehabilitation.
Relevant Legal Principles
8 The Court must not give leave unless it is satisfied, on the balance of probabilities, that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s134AB(37) of the Act.[1]
[1]s134AB(19)(a) of the Act
9 In order to succeed, the plaintiff must prove, on the balance of probabilities, that:
(a) “the injury” suffered by him arose out of, or in the course of, or due to the nature of, his employment with the first defendant;[2]
[2]s134AB(1) of the Act and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph [11]
(b) “the injury” with its resulting impairment must be permanent, in the sense that it is likely to continue into the foreseeable future;[3]
[3]Barwon Spinners (op cit) at paragraph [33]
(c) “the consequences” to the plaintiff of his impairment to the left shoulder in relation to “pain and suffering” or “loss of earning capacity” must be “serious” – that is, when judged by comparison with other cases in the range of possible impairment and be fairly described as being more than significant or marked and as being at least very considerable.[4]
(d)“the consequences” to the plaintiff of his psychiatric injury in relation to “pain and suffering” or “loss of earning capacity” must be more than serious to the extent of being severe when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders as the case may be.[5]
(e)The judgment of the Court of Appeal in Mobilio v Balliotis[6] resolved the meaning of “severe”. Brooking JA held that the considerations in Turner v Love & Transport Accident Commission[7] were not sufficient to warrant departing from the conclusion at which one would prima facie arrive, namely, that the change in language from “serious” to “severe” betokens a change in meaning. Without suggesting the use of any particular adjective to mark the distinction, Brooking JA said that “severe” was used in the definition as a stronger word than “serious”.[8]
(f)Winneke P agreed with Brooking JA’s reasons, and further agreed with him that the word “severe”, where used in s93(17)(c) of the Transport Accident Act, was a word of stronger force than the word “serious” where used in that Act.[9]
(g)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”.[10]
[4]s134AB(38)(b) and (c)
[5]s134AB38(d)
[6][1998] 3 VR 833
[7](1995) 21 MVR 314
[8]Mobilio v Balliotis [1998] 3 VR 833 at 846
[9]supra. See also Phillips JA at 858 and Charles JA at 860-1 to similar effect
[10]s134AB(38)(h) of the Act
10 In addition, in relation to “loss of earning capacity consequences”, the plaintiff has a specific burden to establish:[11]
[11]s134AB(19B) and 38E of the Act
(a) that at the date of hearing he had a loss of earning capacity of 40 per cent or more, measured (subject to certain irrelevant exceptions) as set out in paragraph (f) of s134AB(38) of the Act;[12]
[12]s134AB(38)(e)(i) of the Act
(b) that after the date of hearing, he will continue permanently to have a loss of earning capacity which will be productive of a financial loss of 40 per cent or more;[13] and
(c) that even with rehabilitation and retraining he will still sustain a loss of 40 per cent or more.[14]
[13]s134AB(38)(e)(ii) of the Act
[14]s134AB(38)(a) of the Act
11 If the plaintiff satisfies the test laid down by the Act in relation to loss of earning capacity, then he is at large to make a claim for damages, that is both pain and suffering and loss of earning capacity.[15]
[15]Advanced Wire & Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170 at [63]
12 Consequently, the Court must consider the impairment of body function suffered by the particular plaintiff, but the test also requires an objective comparison between the impairment suffered by the plaintiff and the range of possible impairments.
13 In determining the application, the Court:
(a) must make the assessment of “serious injury” at the time the application is heard.[16]
(b) notes that it has been observed that the question of whether any injury satisfies the narrative test is largely a question of impression and value judgment.[17]
[16]s134AB(38)(j) of the Act
[17] See Kelso v Tatiara Meat Company Pty Ltd [2007] 17 VR 592 at 628; Sabo v George Weston Foods [2009] VSCA 242 at paragraph [67]
The Plaintiff’s Evidence
Background
14 The plaintiff was born in Eritrea, East Africa. He is now forty-eight years of age. He was married but is now living apart from his wife. He has two children who reside with his wife.
15 The plaintiff was educated in the Sudan to the end of Year 12. He worked as a volunteer teacher and performed casual manual work prior to migrating to Australia.
The Plaintiff’s employment
16 In Australia, the plaintiff’s work has been confined to unskilled process work. In June 2004, he commenced employment with the first defendant as a process worker which involved a range of various heavy and manual-intensive activities involving machine loading, carrying heavy objects off the rack, quality inspecting, packing and materials handling.
17 On 21 October 2009, the plaintiff was required to remove a rack of parts which had become stuck in an industrial oven. The rack weighed between 90 and 100 kilograms. He was required to use considerable force to remove the rack and, in doing so, immediately experienced acute discomfort in his left shoulder.
18 The plaintiff sought medical treatment and was off work for two weeks. He returned to work performing light duties until January 2011, when his employment was terminated. He has not worked since.
The plaintiff’s medical treatment
19 The plaintiff is right-hand dominant.
20 The plaintiff saw Dr Syeda, general practitioner, on 22 October 2009. The plaintiff complained of a left shoulder injury.
21 An ultrasound-guided left subacromial space injection was performed in November 2009, which provided temporary relief; a CT‑guided hydrodilation of the left shoulder was performed in May 2010, without much relief. A third injection was administered: there was short-term improvement.
22 The plaintiff was referred by Dr Syeda to the Springvale Sports and Spinal Physiotherapy Clinic for physiotherapy treatment, which continued from 2009 until 2012, when payment for physiotherapy was terminated by the defendants’ insurer. Mr Eden Law treated the plaintiff. He thought the plaintiff could perform light duties and may gradually return to normal hours. The plaintiff’s evidence was that he did not receive permanent relief from physiotherapy.
23 Dr Syeda referred the plaintiff to Mr Tom Tran, orthopaedic surgeon, in June 2010. Mr Tran saw the plaintiff on two occasions. Mr Tran said the plaintiff had a very restricted range of the glenohumeral joint, consistent with a frozen shoulder. He arranged for the plaintiff to have an MRI examination and recommended that he return to physiotherapy for further treatment. He did not think surgery was appropriate and said the plaintiff needed a work plan. In July 2010, Mr Tran reported that the MRI scan of the plaintiff’s shoulder was very normal. He recommended a formal multidisciplinary approach to manage the plaintiff’s plan for employment.
24 In December 2012, Dr Syeda confirmed that the plaintiff had a frozen shoulder, was unable to use his left arm and suffered ongoing pain. Dr Syeda said the plaintiff was not fit for his pre-injury duties. She said the plaintiff suffers psychological stress from his shoulder injury and that his psychological issues will improve once he starts doing suitable work activities. She said his social interaction and relationship with his family is affected by the shoulder pain and lack of employment. Dr Syeda said the plaintiff had been treated with injections and despite the injections and physiotherapy treatment, the pain persists in the left shoulder. She currently prescribes Durotram, one daily, for pain, and Lexapro, one daily, for depression. She recommended further physiotherapy treatment.
25 The plaintiff’s evidence was that he sees his general practitioner monthly.
The other medical opinions
26 The plaintiff has been examined by a number of medical practitioners to whom he was referred by his solicitors and by the solicitors for the defendants.
27 In December 2012, Mr Kenneth Myers, vascular surgeon, examined the plaintiff at the request of the plaintiff’s solicitor. On examination, he said there was a marked restriction in the range of movements of the left shoulder associated with pain. It was his view that the plaintiff had severe capsulitis in the nature of a frozen shoulder which was work related. He noted that the treatment the plaintiff had undergone to date was injections of steroids and hydrodilatation without benefit. He recommended a multi-disciplinary pain management course through one of the pain management centres. He said the plaintiff had no capacity for full or part-time pre-injury employment. He reviewed the NES Vocational Assessment Report and said the plaintiff could cope with work as a customer services officer or interpreter. He considered the left shoulder injury will markedly restrict the plaintiff’s social, domestic, recreational and employment activities, which restrictions are likely to be permanent.
28 In September 2010, Dr Andrew Miller, occupational physician, examined the plaintiff at the request of the defendants and undertook a worksite inspection. He accepted the injury was work related. He said the plaintiff was capable of working with the following restrictions:
· Avoid lifting in excess of 10 kilograms
· Avoid movements of his left shoulder beyond a comfortable range
· Avoid repeated or sustained use of his left arm above shoulder level
· Avoid forceful pushing or pulling activities.
29 Dr Miller was provided with a copy of a surveillance investigation report dated 15 September 2010, when the plaintiff was observed to drive a car without any difficulty and to lift various shopping items. Dr Miller said the evidence did not eliminate the possibility that the plaintiff was suffering from an injury to his left shoulder; however, it did indicate he had quite good function of the left shoulder and that the left shoulder did not appear to be troubling him to any significant extent. He reaffirmed his opinion that the plaintiff was capable of working with restrictions.
30 In December 2010, Mr Gerald Moran, orthopaedic surgeon, saw the plaintiff at the request of the defendants’ insurer. He said the plaintiff was working five hours a day, five days a week on light duties without lifting. The plaintiff complained of intermittent left shoulder pain and restrictions in the movement of his left shoulder.
31 Mr Moran said that, on examination, there were signs of impingement of the rotator cuff against the coraco-acromial arch. He confirmed the plaintiff had subacromial bursitis of his left shoulder and that his impairment had stabilised.
32 In March 2012, the plaintiff was medically examined by Dr Leon Le Leu, occupational physician, at the request of the defendants’ insurer. The plaintiff complained of pain, particularly at night, especially cold nights. The plaintiff told Dr Le Leu that he had previously driven taxis but would have difficulty handling luggage now. Dr Le Leu was not convinced that the MRI scan of the left shoulder showed no abnormality. He suggested an MRI arthrogram of the shoulder in view of the plaintiff’s lack of progress. Dr Le Leu thought the plaintiff had a tear to his supraspinatus tendon and was unsure whether the plaintiff had bursitis as there was a negative impingement test. He thought he was not fit to return to his pre-injury duties and hours, but believed he had a current work capacity. He imposed restrictions of:
· No lifting, pushing, pulling or carrying greater than 2 kilograms with the left arm
· No work with the left hand or arm at or above mid breast level
· No requirement for a strong reliable grip with the left hand
· No work on ladders or at heights.
33 Dr Le Leu recommended that the plaintiff return on four hours, three days a week, and that his progression beyond that would depend upon his symptoms. He thought that the plaintiff’s left shoulder had not been definitively treated.
34 In May 2012, the plaintiff was examined by Mr Rodney Simm, orthopaedic surgeon, at the request of the defendants. Mr Simm accepted that the plaintiff suffered a left shoulder strain injury at work and that employment was a significant contributing factor. The plaintiff had recovered from the physical injury and his condition is now due to non-physical factors.
35 Mr Simm diagnosed a cervico-brachial regional pain syndrome. He said there were no specific clinical signs of an identifiable physical cause for the ongoing pain and the investigations of the neck and left shoulder are, essentially, normal. He reviewed the physiotherapist’s records which suggested an impingement syndrome and mild changes of fluid around the biceps tendon and subdeltoid bursa on the original ultrasound. Mr Simm said the plaintiff probably suffered a strain of the left shoulder as a result of the lifting incident. There were reactive changes and he developed a subacromial impingement syndrome. Mr Simm said the progress reports from the physiotherapist indicate that the plaintiff was gradually improving for some time and that the “empty can sign” for subacromial impingement was also improving.
36 After March 2010, the physiotherapist noted “extra symptoms” and it was Mr Simm’s view that at that point in time, the physical condition was gradually superseded by the development of a cervico-brachial Regional Pain Syndrome. Mr Simm said the plaintiff did not present with features of any residual subacromial impingement syndrome or any other identifiable condition. Mr Simm said the global weakness of all muscle groups of the left upper limb and the marked reduction of grip strength on formal assessment are features of a Regional Pain Syndrome. He said the plaintiff had an entrenched pattern of symptoms with features of chronic pain and that his condition would persist.
37 Mr Simm said whilst he was unable to identify an ongoing physical condition, he was not in a position to ignore the plaintiff’s complaints of symptoms. He said the plaintiff would be confined to relatively light uses of his non-dominant left upper limb in the workplace and his arm would need to be used below shoulder height.
38 Mr Simm said that based on his assessment of the purely physical component of the plaintiff’s condition and with the exclusion of any non-organic and/or psychological factors, he was of the opinion that the plaintiff had the physical capacity to undertake selected employment identified by NES, such as security officer, customer service officer, interpreter, sales assistant, community service worker, mail sorter, lobby attendant, ticket taker and meter reader, provided the plaintiff would not have to use his left arm for activities above shoulder height or for unduly repetitive and strenuous activities.
39 In May 2012, Professor Ivor Jones, consultant psychiatrist, medically examined the plaintiff at the request of the defendants’ insurer. Professor Jones said the plaintiff does show some psychiatric symptoms of anxiety and of depression but not of a profound degree, which is associated with strong feelings of resentment and anger. Professor Jones said these feelings are in part directed towards his employers but in substantial part are consequent upon his marital situation. He said that he doubted whether the plaintiff’s symptoms of a psychiatric nature were sufficient to warrant a diagnosis of Adjustment Disorder with Anxiety and Depression of a mild degree. He said the features would not, in themselves, preclude resumption of work, and he would regard them as contributed to in greater part by the plaintiff’s marital and adjustment problems. He said that anti-depressant medication had recently been started but the most important aspect from a psychiatric point of view would be re-employment in a suitable occupation. He said psychiatric symptoms would not preclude return to his pre-injury duties and hours.
Investigations
40 In October 2009, an x-ray and ultrasound of the left shoulder showed no specific findings. A small amount of fluid was seen in the tendon sheath of the longhead biceps. Fluid was noted in the subdeltoid bursa (2.7 millimetres).
41 In January 2010, an MDCT scan of the cervical spine was undertaken which showed that the thecal sac and nerve roots are preserved at all levels. There was no evidence of focal disc herniation, spinal canal stenosis or foraminal stenosis or nerve root impingement was detected.
42 In July 2010, an MRI scan of the plaintiff’s left shoulder revealed normal examination. There was no cause for the plaintiff’s symptoms. There was minimal fluid in the subacromial bursa.
Vocational Assessment Reports
43 The following reports were obtained by the defendant:
Ipar OES Cessation Report
44 This report confirmed that as at 25 January 2011 suitable duties for the plaintiff offered by the employer were terminated as suitable duties were no longer available.
NES Vocational Assessment Report dated 7 April 2011
45 This report identified suitable employment options for the plaintiff, after consultation with Dr Syeda, of security officer, customer services officer, interpreter, sales assistant and community service worker.
130 Week Vocational Assessment Report dated 20 April 2012
46 This report identified the following employment options after consultation with Dr Syeda, for the plaintiff of: community service worker, mail sorter, meter reader, lobby attendant and ticket taker.
47 The plaintiff indicated he would be most interested in employment as a community services worker, usher, library assistant or meter reader and would consider employment as a mail sorter.
Credit of the plaintiff
48 The cross-examination of the plaintiff was not extensive. The plaintiff did not rely upon an interpreter. His English was good; however, on occasions he asked for a question to be repeated. On other occasions he provided an answer which was not responsive. His answers were brief. I gained the impression that he found the process difficult. He made concessions, which on occasions did not assist his case. Mr Simm described the plaintiff as “co-operative and straightforward”. Dr Le Leu said the plaintiff was “pleasant and articulate”. On balance, I accepted that the plaintiff was truthful.
Analysis of the evidence
49 A number of the medical opinions were of limited assistance because they had not been updated. In considering the consequences of the plaintiff’s impairments, I must make the assessment at the date of hearing. Accordingly, I will be assisted by the medical opinions of Dr Syeda, Mr Myers, Dr Le Leu, Professor Jones and Mr Simm.
50 There were two views expressed about the medical evidence. The majority of the current medical evidence was that the plaintiff suffered a physical injury variously described as “capsulitis in the nature of a frozen shoulder”,[18] and a tear to his supraspinatus tendon. [19] As opposed to that view, Mr Simm said it was a cervico-brachial Regional Pain Syndrome. His reasoning was persuasive; however, he went on to say that the plaintiff may have an undiagnosed underlying physical condition. Accordingly, I prefer the medical evidence of Mr Myers, Dr Syeda and Dr Le Leu that the plaintiff suffered a physical injury to his left shoulder.
[18]Mr Myers, Dr Syeda
[19]Dr Le Leu
Are the injuries work related?
51 Based on the medical evidence, I am satisfied that the plaintiff suffered a compensable injury to his left shoulder arising out of or in the course of his employment with the first defendant. This was consistent with all the medical evidence. I also accept that the psychiatric condition is work related.
52 Professor Jones accepted that the plaintiff’s psychiatric injury was in part work related. Mr Simm accepted the plaintiff’s injury was work related and described his present diagnosis as a cervico-brachial Regional Pain Syndrome.
The Act
53 The Court must examine the consequences of an impairment in a separate context of:
(a) Pain and suffering; and
(b) Loss of earning capacity.
54 The provisions of s134AB(38) provide a narrative test for determining whether a worker may make a claim for damages for pain and suffering and loss of earning capacity.[20] The subsection then imposes additional tests which must be satisfied in determining whether a worker may make a claim for damages for loss of earning capacity.[21] If a worker satisfies the tests laid down by the Act in relation to loss of earning capacity, then he or she is able to make a claim for damages (that is, both for pain and suffering and loss of earning capacity).[22]
[20]s134AB(38)(b) and (c)
[21]s134AB(38)(e), (f) and (g)
[22]Advanced Wire & Cable Pty Ltd & VWA v Abdulle (supra) at [63]
55 Accordingly, it is appropriate for me to look first at the various tests for loss of earning capacity which must be satisfied by the plaintiff.
Loss of earning capacity
(a) The physical injury – the left shoulder
56 Under s134AB(38)(h) of the Act, the Court, in assessing pain and suffering consequences of a physical injury, must exclude the psychological or psychiatric consequences of the injury.
57 Where, such as in this case, a plaintiff makes a claim based upon a physical injury (a serious injury application) under paragraph (a) of the definition of s134AB(37), a court is required to separate the psychiatric or psychological consequences of an impairment from those that are organically based: See Barwon Spinners Pty Ltd & Ors v Podolak.[23]
[23](supra) at paragraph [70]
58 Accordingly, in considering the left shoulder injury, I do not take into account the psychological or psychiatric consequences.
59 The evidence is that the plaintiff had two weeks off work following the injury. He returned to work performing modified duties until January 2011, when his employment was terminated. Since then, he has not obtained employment. Approximately eight months ago, he asked friends about employment,[24] and since September 2012 he has been registered with Centrelink. He has not been to any job interviews. He suggested to IPAR and his case manager that he wished to enrol in a computer course, but funds were not made available. He agreed he had renewed his taxi licence but there was no evidence as to why he could not drive a taxi. He told Dr Le Leu that he could not lift luggage.
[24]T14, L13-21
60 The plaintiff’s evidence was that he had been certified by his doctor as fit for suitable employment. He agreed that there was nothing preventing him from doing work that required the use of his right arm and that he could use his left hand provided he did not raise it above shoulder height.[25]
[25]T19, L17 and L20-21
61 All of the medical witnesses accepted that the plaintiff could not return to pre-injury employment, but that the plaintiff had a capacity for suitable employment.
62 In April 2012, an NES Vocational Assessment Report identified the following employment options for the plaintiff after consultation with Dr Syeda: community services worker, mail sorter, lobby attendant, ticket taker and meter reader.
63 In June 2012, Mr Simm provided an opinion on the plaintiff’s work capacity for jobs listed in the NES Vocational Assessment Reports, excluding psychological or psychiatric consequences. On the basis of his assessment of the purely physical component of the plaintiff’s condition, he was of the opinion the plaintiff had the physical capacity to undertake selected employment as a security officer, customer services officer, interpreter, sales assistance, community service worker, mail sorter, lobby attendant, ticket taker and meter reader, provided he did not have to use his left arm for activities above shoulder height or for unduly repetitive and strenuous activities.
64 Dr Le Leu said the plaintiff had a current work capacity for alternate duties with restrictions. As the plaintiff was right-handed, he would be able to use his right hand in clerical, administrative and reception work. He would need retraining.
65 Dr Myers reviewed the NES Vocational Assessment Report and said the plaintiff could cope with work as a customer services officer or interpreter.
66 Counsel for the plaintiff submitted it was inconceivable that the employment options contained in the NES Vocational Assessment Report could be performed without full and unrestricted use of the left arm and with the restrictions imposed by Dr Le Leu. Accordingly, none of the jobs were “suitable jobs” that the plaintiff can do.
67 The difficulty with that submission was that there was no medical evidence to support it, not even Dr Le Leu, who imposed restrictions. Dr Le Leu said that the plaintiff had a current work capacity, he was right handed, that he may need retraining, and if he received appropriate training and work was within restrictions, he could perform such work. This was also supported by Mr Simm. Mr Myers and Dr Syeda said the plaintiff could perform suitable work, but did not impose restrictions.
68 Accordingly, I accept the medical evidence that the plaintiff has a capacity for suitable work.
69 Counsel for the plaintiff said that if I accepted the plaintiff had a capacity for suitable work, the plaintiff had not provided evidence as to what he could be earning in that suitable work and conceded that the plaintiff has not made out his case. I am satisfied that the plaintiff can perform suitable work. As there was no evidence upon which the plaintiff relied as to what he would earn in suitable employment and permanently thereafter, the plaintiff did not satisfy the statutory test for loss of earning capacity.
70 As the plaintiff relied on a psychiatric condition, it is necessary for me to consider whether the plaintiff makes out a case for loss of earning capacity under that head.
(b) Psychiatric injury
71 Professor Jones, psychiatrist, said the plaintiff’s psychiatric symptoms would not preclude the plaintiff from returning to work. He said the plaintiff’s psychiatric condition would benefit from a return to work. He said alternative work would be preferable. As there was no evidence as to the plaintiff’s earning capacity in suitable/alternative work, the plaintiff does not satisfy the statutory test for loss of earning capacity.
72 Accordingly, the plaintiff does not make out his case in respect to loss of earning capacity in respect to physical injury and, in the alternative, psychiatric injury.
73 As the plaintiff has not made out his case in respect to loss of earning capacity, I must consider the pain and suffering consequences.
Pain and suffering consequences
(a) Left shoulder injury
74 The plaintiff’s evidence was that he had difficulty with most ranges of movement of his left shoulder, resulting in pain. This was confirmed by the doctors who saw him. Mr Myers said that the plaintiff had “marked” restriction in the range of movement of the left shoulder associated with pain. Dr Le Leu said the plaintiff complained of pain in the left posterior lateral aspect of the neck, in the left shoulder and on raising the left arm. Further the plaintiff complained of pain, particularly at night and especially in cold weather. Dr Syeda said the plaintiff was unable to use his left arm and suffers ongoing pain. Despite physiotherapy and injections, the pain persists in the left shoulder.
75 The plaintiff said he avoids lifting heavy objects with his left arm. He can no longer perform push-ups. From time to time he performs activities with his left arm, such as pushing, pulling, lifting and carrying, but pays for it later with increased pain. This evidence is consistent with the restrictions imposed by Dr Le Leu for the use of the left arm.
76 In his affidavit, the plaintiff said he had difficulty dressing, putting on shirts and jumpers. He can perform self-care tasks but some can be difficult. He reported to Dr Le Leu he had stopped cutting his grass, cleaning his house and vacuuming. He told Mr Simm he lives with his sister and is not required to shop, clean or cook. I accept it is more likely that he has ceased those activities because he is now living with his sister.
77 In his affidavit, the plaintiff said if he turns on his left side in bed his sleep is disturbed, and the next day he feels lethargic and short tempered. He reported disturbed sleep to a number of the doctors he saw, particularly if he rolls onto his left side. I accept the plaintiff’s evidence that he suffers disturbed sleep.
78 The plaintiff’s evidence is that he attends his general practitioner on a regular basis usually at monthly intervals or more frequently if required. He currently takes prescription medication daily of Durotram for the pain and Nurofen and Panadol as required. There was no suggestion that his treatment was inappropriate. A number of the doctors suggested he return to physiotherapy treatment and attend a multi-disciplinary pain-management course. Dr Le Leu suggested that further investigations be conducted.
79 The plaintiff told Mr Simm that he has difficulty turning his head from side to side when reversing his car. He drives for 30 minutes but does not drive for long distances. I accept that this is a consequence which I can consider.
80 While it was not seriously suggested that his marriage broke up as a result of his injury, there were references to the breakdown of his marriage following the work injury. Professor Jones obtained a history that the marriage was not successful. The plaintiff’s wife was disappointed with the plaintiff’s position and expected more from life in Australia. The plaintiff was supporting his family in Eritrea which was an additional problem with his wife. I accept that the marriage was under severe strain prior to the work injury.
81 The plaintiff is aged forty-eight. Since leaving school, he has mainly performed manual work. In Australia, he has been confined to unskilled process work. He has depended on his physical capacity with the unrestricted use off both upper limbs to perform his duties. All medical witnesses accepted that he could no longer perform his pre-injury work. Both Mr Simm and Dr Le Leu imposed restrictions upon the use of his left upper arm. I accept for this particular plaintiff this represents a significant consequence which I can take into account. I accept that his self-esteem and identity are significantly affected.
82 I am satisfied that the plaintiff cannot return to his pre-injury employment, which was a job he enjoyed. He can no longer perform a job with the unrestricted use of both his upper limbs. Those consequences are supported by the evidence of the plaintiff, and the medical evidence. I accept the plaintiff suffers pain which affects his daily living.
83 I accept that the plaintiff has suffered impairment to his left non-dominant shoulder, which is permanent. The plaintiff has suffered impairment since the injury. The medical evidence suggests it will continue.
84 I accept the consequences to this particular plaintiff are serious. I am satisfied that it is fair to describe the pain and suffering consequences as being more that significant or marked and properly regarded as very considerable when judged by comparison with other cases in the range. The plaintiff therefore satisfies the narrative test. No element of the mental component is taken into account in this assessment. Indeed, the mental element is required to be excluded by s134AB(38)(h) of the Act.
85 In such circumstances, the plaintiff’s application seeking leave to bring proceedings for pain and suffering is successful.
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