Sharp v Victorian WorkCover Authority
[2024] VCC 206
•5 March 2024
| IN THE COUNTY COURT OF VICTORIA AT WARRNAMBOOL COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-23-02468
| ANDREW CAMERON SHARP | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Warrnambool | |
DATE OF HEARING: | 27 February 2024 | |
DATE OF JUDGMENT: | 5 March 2024 | |
CASE MAY BE CITED AS: | Sharp v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 206 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – physical injury to the right shoulder ꟷ whether pain and suffering consequences are “serious” under the Act – range case – application for leave to recover loss of earning capacity damages was abandoned by the plaintiff
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s325, s327 and s335
Cases Cited:Church v Echuca Regional Health (2008) 20 VR 566
Judgment: Leave is granted to the plaintiff to bring common law proceedings to recover damages for pain and suffering arising out of physical injury to his right shoulder in the course of his employment with Sun Pharmaceuticals Industries (Australia) Pty Ltd.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J P Brett KC with Mr G Pierorazio | Stringer Clark |
| For the Defendant | Mr R H Stanley SC with Ms M Cameron | TG Legal + Technology |
HIS HONOUR:
1By Originating Motion dated 23 May 2023, the plaintiff applied for leave pursuant to s325 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) to bring proceedings to recover damages suffered by him arising out of, and in the course of, his employment with the employer, Sun Pharmaceuticals Industries (Australia) Pty Ltd (“Sun Pharmaceuticals”). At the commencement of the hearing, Mr Brett, on behalf of the plaintiff, said the plaintiff would not be pursuing a claim for serious injury certification for loss of earning capacity.
2The legal principles and considerations for this application are well known to the parties and I will not traverse them in the course of these reasons. In essence, there were two issues in this application. The first was the plaintiff’s credit and the second was that it is a “range case”.
3The evidence in the case was as follows:
· The plaintiff gave evidence and was cross-examined.
4The plaintiff tendered the following exhibit:
· Exhibit “A” – Plaintiff’s Court Book (“PCB”), pages 6 to 52.
5The defendant tendered the following exhibits:
· Exhibit 1 – Defendant’s Court Book (“DCB”), pages 4 to 58.
· Exhibit 2 – video surveillance film and Defendant’s Court Book, pages 129 to 152.
· Exhibit 3 – Plaintiff’s Court Book, pages 53 to 78.
The Plaintiff’s background
6The plaintiff is 49 years of age. The plaintiff was educated to Year 12 level at Queenscliff High School.[1]
[1]PCB 6
7The plaintiff is a married man with two teenage children.
8The plaintiff had previously worked as a labourer in the building industry, with some forklift driving, and also in a timberyard in Port Fairy.
9The plaintiff commenced employment with Glaxo in November 2007. Sun Pharmaceuticals took over the factory at GlaxoSmithKline (“Glaxo”) in Port Fairy. The plaintiff remained in employment with Sun Pharmaceuticals after Glaxo had left. At the time of the plaintiff ceasing work, he was earning approximately $956 gross per week.
Medical treatment
10The plaintiff initially noticed symptoms in his right shoulder as a result of his work in 2019. It was not until 2020 that the plaintiff received medical intervention into his right shoulder. Initially, the plaintiff had a Depo steroid injection on 20 March 2020. That procedure was of limited value. He was subsequently referred to Mr Kevin Eng, orthopaedic surgeon, who performed an operation on his right shoulder to repair a full-thickness tear in his supraspinatus tendon in the right shoulder.
11The plaintiff underwent rehabilitation with his general practitioner, Dr Ian Sutherland, and Franco Cavalieri, a physiotherapist. The plaintiff engaged in a return to work program, but ultimately was dismissed from his work in November 2021, because the employer was unable to provide him with alternative suitable duties.
12In early 2022, the plaintiff commenced work, initially on a part-time basis, as a disability care worker. He then also commenced working as a fencing contractor with a friend, The fencing contractor work was four days a week, eight hours a day. On occasion, the plaintiff would work a five-day week. The plaintiff remained in this employment until November 2023. The plaintiff then obtained work with ProviCo Australia Pty Ltd (“ProviCo”) in Warrnambool a week prior to Christmas in 2023. At the time of the hearing of this application, the plaintiff was continuing to work at ProviCo and was paid approximately $1,500 gross per week. The plaintiff’s job was that of an evaporator/air dryer operator. The work at ProviCo is physically a much lighter form of employment than the fencing contracting that he had previously performed.
13The gross earnings from the ProviCo employment is greater than 60 per cent of his “without injury” earnings. The plaintiff, therefore, has abandoned his claim for serious injury certificate for loss of earning capacity.
Credit of the Plaintiff
14In the course of the hearing, the plaintiff’s credit was challenged by the defendant’s counsel. Video surveillance of the plaintiff working as a fencing contractor was played to the Court. It showed the plaintiff working on one single day. The video was for approximately ten to fifteen minutes. I was informed by Mr Stanley, counsel for the defendant, that there was some two hours of video taken of the plaintiff on that day. The defendant also tendered a number of photographs which had been extracted from the video and they had become part of Exhibit 2.
15The day of the video surveillance film was 5 April 2023. I note that the defendant also tendered the medical records of the general practitioner, Dr Ian Sutherland. On 17 April 2023, the plaintiff attended on Dr Sutherland and reported that he was still working okay and that the shoulder had been okay. He noted that it gets a bit sore and tired towards the end of the day. Dr Sutherland noted that the plaintiff still had a good range of movement. On 17 April 2023, Dr Sutherland prescribed Panadeine Forte, 500 milligrams, to be taken as one to two tablets every four hours instead of Panadol Osteo.[2]
[2]DCB 56
16The video showed the plaintiff using both his right and left arm while activating a battery-operated drill. The plaintiff also was shown to be using a battery-operated saw, which he used with his right hand. To my observation, the plaintiff could use the drill overhead, both in his left and right arm, while affixing a rail to the upright fence post. The use of the saw, however, was done when down close to his body, no higher than his chest height. The plaintiff gave evidence that he thought the drill weighed less than one kilogram. He stated that the saw would not have weighed any more than 2 kilograms. The plaintiff was also seen to be lifting rails, which appeared to be 4 inches by 2 inches, approximately 15 feet in length. There was another person, unseen, who was obviously holding on to the other end of the rail.
17The actions on film of the plaintiff at work were consistent with the histories that he gave to doctors as to what his capacities at work were and the nature of his work. I accept that the plaintiff could engage in fencing contracting work, as shown in the film. As will be noted later in the medical opinion section of this Judgment, most of the doctors were urging the plaintiff to change from this type of work because it would result in the risk of him further injuring his right shoulder.
18The film was of one day, while the plaintiff was performing the fencing duties. Right at the end of the displayed film, there was an action by the plaintiff using his left arm and hand to hold or massage the right shoulder region. To my observation, the film confirmed the plaintiff would do what was necessary to complete the work he was engaged to perform.
19The Court of Appeal have instructed judges at first instance in the case of Church v Echuca Regional Health[3] to be very careful in how video-surveillance film is to be used in the assessment of a plaintiff’s credit. In this case, I find that the video-surveillance film and the photographs taken from it, confirm that the plaintiff uses his left arm, as well as his right arm. I accept the plaintiff’s evidence that he uses his left arm to give relief to his dominant right arm due to the injury to his right shoulder.
[3](2008) 20 VR 566
20I assess the plaintiff as being a straightforward and honest witness. He gave a good account of himself. It is fair to describe the plaintiff’s general attitude and approach to his injury and his rehabilitation as that of a stoical plaintiff.
Medical evidence
The Plaintiff’s doctors
Dr Ian Sutherland, general practitioner
21Dr Sutherland prepared two reports, dated 24 May 2020 and 28 July 2021. I note, for completeness, that the defendant tendered a number of clinical notes from Dr Sutherland’s practice up to 13 December 2023.
22In his initial report dated 24 May 2020, Dr Sutherland prepared a referral to Mr Eng, an orthopaedic surgeon in Geelong. Dr Sutherland noted, in that referral, that the x-ray and ultrasound of the plaintiff’s right shoulder showed subacromial bursitis and a partial tear of the supraspinatus tendon. Dr Sutherland had performed a Depo steroid injection on 20 March 2020 to the plaintiff’s right shoulder. At that stage – that is, 24 May 2020 – the plaintiff had been prescribed Mobic, 7.5 milligrams, and Panadol Osteo, 665 milligrams.[4]
[4]PCB 19
23In his second report, dated 28 July 2021, Dr Sutherland set out the full history of the treatment up until that period of time. In particular, Dr Sutherland noted that Mr Eng had performed a right rotator cuff repair of the tear to the plaintiff’s right supraspinatus tendon on 17 November 2020. The plaintiff’s right arm was then in a sling for some six weeks. After the initial period, the plaintiff then commenced regular physiotherapy with Mr Cavalieri from 22 January 2021.
24By February 2021, the plaintiff had returned to light duties at Sun Pharmaceuticals. A repeat MRI scan of the right shoulder was performed on 24 March 2021 and showed that the surgery repair was intact and progressing well.[5] Dr Sullivan noted that the plaintiff was unable to perform his pre-injury duties at Sun Pharmaceuticals. He noted that the employment of the plaintiff at Sun Pharmaceuticals was terminated in August 2021.
[5]PCB 26
25As early as April 2022, Dr Sutherland noted that the plaintiff was unable to work with his arms stretched out in front of him. He otherwise described the shoulder as going well.[6]
[6]DCB 45
26In November 2022, Dr Sutherland noted that the plaintiff’s range of motion in the right shoulder was good. The plaintiff complained that the shoulder felt awkward and uncomfortable if extended out in front of him. The plaintiff stated that he had no problems with work-bench work and doing work that is close into his body.[7] In February 2023, the plaintiff attended on Dr Sutherland and stated that his shoulder remained the same and it was okay with current work, but uncomfortable with the arms out in front of his body.
[7]DCB 49
27On 13 December 2023, the plaintiff attended upon Dr Sutherland in respect of an application to ProviCo for employment. The doctor noted there was process work and not much physical work involved. The doctor encouraged the plaintiff to apply for the job, and noted that the shoulder injury was based on pathology and had been appropriately treated, that rehabilitation had taken place, and that he had been returned to work doing fencing and building work for the past two years, which had gone well.[8]
[8]DCB 58
Mr Kevin Eng, orthopaedic upper limb and hand surgeon
28Mr Eng prepared three reports, dated 12 June 2020, 12 January 2021 and 21 June 2021. In his first report, Mr Eng confirmed that the MRI scan showed a full-thickness tear of the supraspinatus and, in his opinion, it was best to try and repair it.[9] In his second report, Mr Eng notes that the surgery had gone well, and stated he was due to perform a subsequent MRI scan in three months’ time.[10] In his final report, dated 21 June 2021, Mr Eng stated that he performed the operation on the plaintiff’s shoulder on 17 November 2020.
[9]PCB 21
[10]PCB 22
29Mr Eng noted that, by April 2021, a follow-up MRI scan had shown an intact rotator cuff and that the plaintiff could reach the top of his head and reach behind to tuck in his shirt on the right side. The plaintiff complained of having difficulty with paddling and stiffness in the abduction plane.[11] In Dr Eng’s opinion, suitable employment would ideally involve avoiding working away from his body or overhead for long periods. He stated that the plaintiff would have difficulty swimming, in particular. On the issue of prognosis, Mr Eng said as follows:
“Having a rotator cuff tear at the age of 45, the prognosis in the short to medium term is quite good. There is a failure rate of these in the future and his shoulder could become problematic over the longer term.”[12]
[11]PCB 23
[12]PCB 24
Franco Cavalieri, physiotherapist
30Mr Cavalieri prepared reports dated 25 October 2021 and 30 November 2023.
31In the initial report, he stated that the plaintiff had done a remarkable job of rebuilding his shoulder muscles after surgery. Mr Cavalieri was very supportive of the plaintiff engaging in gymnasium membership in order to improve his shoulder function and strength.
32In his most recent report of November 2023, Mr Cavalieri stated that he noted the plaintiff had been involved in manual-labouring positions, mostly as a fencing contractor, and that this work was physically demanding and had been very challenging due to the plaintiff’s right shoulder injury. In Mr Cavalieri’s opinion, the plaintiff needs to seriously seek to change his occupation to work that is not so physically demanding upon his shoulder. Mr Cavalieri noted that the plaintiff’s strength and muscle bulk had actually regressed, and he has signs of rotator-cuff weakness, tendinitis and bursitis. This is not good for a repaired rotator cuff.[13] Mr Cavalieri went on to state that his opinion was that the plaintiff required a course of treatment to keep him at work, settle down his symptoms and then, when able to, recondition his periscapular strength and control. Mr Cavalieri thought the plaintiff may even require a cortisone injection if some of the plaintiff’s symptoms did not settle.[14]
[13]PCB 29
[14]PCB 29
Mr Robert Wood, orthopaedic surgeon
33Mr Wood prepared two medico-legal reports, dated 9 June 2022 and 31 January 2024. On examination, Mr Wood noted there was minor wasting in the periscapular muscles of the plaintiff’s right shoulder.[15] Mr Wood’s diagnosis was that there was dominant right shoulder subacromial impingement, with a significant full-thickness tear of the rotator cuff at the supraspinatus. He noted that there was a residual of mild bicep tendinitis and symptoms with activity.[16] In Mr Wood’s opinion, the plaintiff should not return to his previous duties, as they were ergonomically unsuited to the plaintiff.[17] Mr Wood’s opinion, in respect of suitable alternative employment, was that the plaintiff should look for work other than fencing, as that occupation was wrought with significant risk of re-injury.[18] He noted that the plaintiff had ceased surfing activities and that the plaintiff’s sleep and driving were occasionally interfered with as a result of the right shoulder complaints.[19]
[15]PCB 32
[16]PCB 32
[17]PCB 33
[18]PCB 34
[19]PCB 34
34In his most recent report, dated 31 January 2024, Mr Wood confirmed his opinion that it was in the plaintiff’s best interest that he ceased work as a fencing contractor.[20] Mr Wood took a history that the plaintiff had found a role in a milk factory, which the plaintiff finds is within his capability and does not seem to trouble him to a significant degree.[21] Mr Wood’s opinion was there was still an option of further surgery with biceps tendinosis, in particular, but the plaintiff is not keen to undertake that process, as the alteration in workplace activities appears to be successful.[22]
[20]PCB 47
[21]PCB 47
[22]PCB 48
Dr Simone Scovell, occupational physician
35Dr Scovell prepared a report dated 22 June 2023. Dr Scovell took a history from the plaintiff that he needed to keep his arm tucked in quite tight towards his body and can only operate within a particular range of movement before his right arm becomes troublesome. Dr Scovell stated that the plaintiff did not have a capacity to return to his previous pre-injury employment at Sun Pharmaceuticals.[23]
The Defendant’s medical opinions
[23]PCB 45
Dr Ron Haig, orthopaedic surgeon
36Dr Haig prepared two reports, dated 10 May 2023 and 29 May 2023. At the time of his assessment in May 2023, Dr Haig noted that the plaintiff’s current treatment was of physiotherapy and that the plaintiff was taking Panadeine Forte, perhaps a couple of times a week, when his shoulder was sore. He also noted the plaintiff was complaining of it being painful to sleep on his right side.[24] Dr Haig noted that the plaintiff had a full range of movement of the right shoulder. He noted that there was some wasting of the supraspinatus muscle belly.[25]
[24]DCB 8
[25]DCB 12
37Dr Haig went on to state that the injury to the plaintiff’s right shoulder was not work related. I note, here, that this opinion of Dr Haig is the only medical opinion that states the plaintiff’s work at Sum Pharmaceuticals, and, Glaxo, prior to that, were not related to his right shoulder injury. Further to that, Dr Haig stated that the plaintiff was able to perform his pre-injury employment duties. Again, he is the only medical practitioner who was of that opinion.
38The second report of Dr Haig was prepared after he had been shown surveillance reports and video of the plaintiff. Dr Haig noted that the surveillance footage is consistent with the manner in which the plaintiff presented to him at the time of examination.[26]
[26]DCB 18
Dr Catherine Bones, occupational physician
39Dr Bones prepared a report dated 14 March 2022. At the time of the examination by Dr Bones, the plaintiff was embarking upon the role of a disability support worker. Dr Bones’ opinion was that the work of a disability support worker was suitable alternative employment for the plaintiff. She stated that the plaintiff was not able to return to his pre-injury duties for the foreseeable future.[27]
[27]DCB 25
Dr David Elder, consultant in occupational and environmental medicine
40Dr Elder prepared a report dated 16 November 2022. Dr Elder noted that the plaintiff still had ongoing right shoulder dysfunction.[28] Dr Elder took a history from the plaintiff, noting that his sleep was disturbed when he rolled onto his right shoulder. He also noted the plaintiff no longer went surfing.[29]
[28]DCB 32
[29]DCB 33
41On examination, Dr Elder noted that the plaintiff still had significant wasting of the supraspinatus, and the testing of resisted movements was done cautiously. It was weak. He noted the plaintiff had a good range of movement.[30] Dr Elder stated the plaintiff still had an ongoing sequela of his right shoulder injury which had been treated surgically. He stated that the plaintiff was unable to return to his pre-injury duties.[31] Dr Elder expressed the opinion that the plaintiff was demonstrating that he had suitable employment capacity; however, fencing is not ideal for someone with his condition.[32] Dr Elder noted the plaintiff continued to take Panadeine Forte, but that he had not fully recovered after the surgery.[33]
[30]DCB 34
[31]DCB 34
[32]DCB 35
[33]DCB 36
Conclusion
42The medical opinions are in agreement that the plaintiff is not able to return to his pre-injury employment as a result of the injury to his right shoulder. The only outlying medical opinion is Dr Haig’s. The plaintiff has engaged in alternative suitable employment at ProviCo and all medical examiners agree that is a better alternative than his work as a fencing contractor. The plaintiff’s right shoulder surgery has been reasonably successful, but he retains a painful right shoulder and limitations in the manner in which he can use his right dominant arm.
Consequences of the right shoulder injury
43The plaintiff relies upon his three affidavits, sworn 5 January 2023, 12 December 2023 and 22 February 2024, to support his claim for serious injury certification arising from his right shoulder injury. The plaintiff has a number of consequences arising from the injury to his right shoulder.
Pain
44I accept that the plaintiff does suffer pain, and, as a result of the injury to his right shoulder, the pain is ongoing and is exacerbated by use of his right arm, in particular if the work is of a heavy nature. The plaintiff has been prescribed, and does take, Panadeine Forte. His evidence in relation to the taking of medication, was that he tries not to take it and would only take it if the pain was too much. He had a fear of being addicted to pain-relief medication. I accept that was a reasonable fear on his part. The plaintiff has also been prescribed Mobic to assist in his symptoms of pain. As previously stated, I find that the plaintiff exhibits a stoical approach to his situation and was doing the best he can. I find that the plaintiff’s experience of pain, and his approach to it, is a very significant consequence for him.
Sleep
45The plaintiff has deposed to, and given a history to doctors, that his sleep is interfered with by the injury to his right shoulder. In particular, his sleep is interfered with if he lies on the right side. I find the fact that the plaintiff’s sleep is interrupted due to his right shoulder injury is a very significant consequence for him.
Activities of daily living
46The plaintiff deposes to, and has given a history to medical practitioners, that he is more limited in his activities of daily living, including the manner in which he goes about the gardening at his home and the domestic tasks of housekeeping and/or hanging out the washing. I accept that the plaintiff uses his left arm a lot more than he would otherwise use it in order to protect the use of the right arm. In his words, he can “get by”, but with pain. I accept the reduction in his domestic-duties capacity is a very significant consequence for him.
Sport
47The plaintiff has given a history, and stated in his affidavits, that he no longer surfs as a result of the injury to his right shoulder. In his evidence, he fairly conceded that surfing was not such a big deal to him. He stated that he would like to return to surfing, but he has only done so on one occasion since the time of his surgery. I note that the medical practitioners say that swimming will be a problem for the plaintiff as a result of his right shoulder injury. The plaintiff is otherwise engaged in, or has been engaged in, coaching football for his son, and clearly enjoys contact with the sporting world. The plaintiff has enjoyed a number of holidays since the time of his surgery, but this does not, on its own, mean he does not suffer consequences of the right shoulder injury.
Work
48The plaintiff has deposed, and I accept, that he thought he was going to have a lifetime job at Sun Pharmaceuticals. The income he was receiving there was significantly more than his current income in alternative employment at ProviCo. The plaintiff had worked at Glaxo and then Sun Pharmaceuticals (the same factory) for some ten to fourteen years prior to his injury. I find that the loss of his career, and role, at Sun Pharmaceuticals to be a very considerable consequence for the plaintiff.
49In conclusion, I find that the total of the consequences, separately and taken in combination for the plaintiff, are more than “marked” and “at least very considerable”, when judged by comparison with other cases in the range of possible losses of body function, in particular to the right shoulder.
Conclusion
50I grant leave to the plaintiff to issue proceedings to recover damages for pain and suffering arising from the injury to his right shoulder in the course of his employment with Sun Pharmaceuticals.
51I will hear the parties on costs.
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