Sheppard v VWA
[2025] VCC 501
•29 April 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-24-03767
| JAMES SHEPPARD | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE FRAATZ | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 March 2025 | |
DATE OF JUDGMENT: | 29 April 2025 | |
CASE MAY BE CITED AS: | Sheppard v VWA | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 501 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the left shoulder – pain and suffering – range
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act2013
Cases Cited:Humphries and Anor v Poljak [1992] 2VR 129; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Haden Engineering v McKinnon [2010] 31 VR 1; Giankos v SPC Ardmona Operations Ltd (2011) 34 VR 120; Stevens v DP World Melbourne Ltd [2022] VSCA 285;
Judgment: Leave to commence common law proceedings for pain and suffering damages refused
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr N Dunstan | Slater and Gordon |
| For the Defendant | Ms K Manning | Minter Ellison |
HIS HONOUR:
1On 16 March 2022, the plaintiff, James Sheppard, was injured in the course of his employment with St John Ambulance (“employer”) as a patient transport officer. Mr Sheppard had attended at a patient’s house for the purpose of transport to an outpatient hospital appointment. He was working alone. While transferring the patient from his walker into a wheelchair, the patient fell. Mr Sheppard felt immediate pain in his left shoulder when he reached out and took the patient’s full weight on his left side to try and prevent the fall.
2The circumstances of the incident are not in dispute and nor is there any issue as to causation. In other words, the Victorian WorkCover Authority (“the VWA”) concede Mr Sheppard has an ongoing compensable condition in relation to the injury to his left shoulder.
3Mr Sheppard seeks leave to bring common law proceedings for pain and suffering damages pursuant to s335 of the Workplace Injury Rehabilitation and Compensation Act 2013 under paragraph (a) of the relevant definition of “serious injury”, being for the “permanent serious impairment or loss of a body function”.
4The body function relied upon is the left shoulder, in the context of adhesive capsulitis requiring surgery in 2022.
5From the VWA’s perspective, the issues are Mr Sheppard’s credit and “range”. The VWA submit, having regard to the unreliability of some of the plaintiff’s evidence – including some exaggeration of the consequences of his injury – and the evidence overall, the consequences of Mr Sheppard’s left shoulder injury do not meet the “very considerable” test.
6The principal issue relates to non-disclosure of a previous left shoulder injury in 2018 working in a similar role for Wilson Medic One, prior to his commencement with the employer in 2019. Mr Sheppard’s evidence in cross-examination, confirmed during re-examination, was he simply “forgot” about the previous left shoulder injury and related treatment.
Principles
7The relevant legal principles in applications of this type are well known and are not in dispute.
8Mr Sheppard bears the onus of demonstrating his impairment is permanent and its consequences are serious.
9The narrative test is set out in s325(2)(a), (b) and (c) of the Act. The seriousness of an impairment is determined by whether the pain and suffering and enjoyment of life consequences –
“… when judged by comparison with other cases in the range of possible impairments of losses, can be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’.”[1]
[1] Humphries and Anor v Poljak [1992] 2VR 129 at 140
10While impairment is concerned with what has been lost, the significance of what has been lost may be informed to an extent by what is retained.[2]
[2] Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260, at paragraph [27]
11The fact that a worker has been able to return to full-time employment does not preclude an affirmative finding of serious injury. It is simply one of the matters to be taken into account.[3]
[3] Haden Engineering v McKinnon [2010] 31 VR 1 at [15]
Background
12Mr Sheppard was born in Australia in 1972. He is currently 52 years old and single, although he lives with his ex-partner. He has six children and a grandson.
13Since leaving school after Year 10, Mr Sheppard worked in various roles including:
(a) in the Army for three years;
(b) as a chef for approximately seven to eight years;
(c) as a security guard with Norwest Security for five years;
(d) as a prison officer for Corrections Victoria for 12 years;
(e) as a patient transport officer for Wilson Medic One for three years; and
(f) as a volunteer firefighter from 2008 to 2020.
14In July 2019, Mr Sheppard commenced working full-time for St John Ambulance as a patient transport officer.
Past medical history
15Mr Sheppard’s medical history includes:
(a) a right shoulder injury from working as a volunteer firefighter in around 2013. He received a cortisone injection, which resolved his symptoms;
(b) in his capacity as a prison officer, Mr Sheppard was involved in a riot in 2015 and suffered a psychological injury including post-traumatic stress disorder (PTSD). He commenced psychiatric treatment in 2016, and continues to see a psychiatrist and psychologist. He takes Effexor 225 milligrams and Mirtazapine 15 milligrams daily. In April 2022, his common law claim in respect of this injury settled; and
(c) discharge from the Army due to bilateral knee injuries.[4] His past treatment involved five surgeries on each knee[5] and two cortisone injections in the left knee.[6]
[4] Transcript (“T”) 33, Line “(L”) 2
[5] T33, L27
[6] T33, L4
16He also has a 20 year history of diabetes, which is controlled with medication.
The workplace accident, treatment and subsequent events
17Following the incident on 16 March 2022, Mr Sheppard completed an incident report but continued to work despite left shoulder pain.
18On 9 August 2022, Mr Sheppard underwent a left shoulder ultrasound which showed:
“Minor biceps tenosynovitis. Calcific tendinosis of subscapularis. Subacromial bursitis with bursal impingement. Ultrasound guided steroid injection can be performed for further management.”[7]
[7] Plaintiff’s Court Book (“PCB”) 49
19In early September 2022, Mr Sheppard ceased work after he experienced a flare up of left shoulder pain using a pat slide to move a patient. He attended his general practitioner, Dr Dedu Rathnayake, and was referred for treatment by orthopaedic surgeon, Associate Professor Martin Richardson, and for physiotherapy. His WorkCover claim, submitted later that month, was accepted.
20On 5 October 2022, an MRI of Mr Sheppard’s left shoulder showed marked thickening of the inferior glenohumeral ligament, consistent with adhesive capsulitis, mild supraspinatus tendinosis and biceps tenosynovitis.[8]
[8] Ibid
21In December 2022, Associate Professor Richardson diagnosed a severe frozen shoulder[9] and performed a left shoulder arthroscopic capsular release and manipulation under anaesthesia procedure on Mr Sheppard.[10] This improved his symptoms.[11]
[9] PCB 36
[10] PCB 45
[11] Defendant’s Court Book (“DCB”) 34
22In March 2023, Mr Sheppard attempted a return to work on light duties, four hours a day two days a week. Unable to cope due to left shoulder symptoms, he ceased working and has not worked again as a patient transport officer.
23On 20 March 2023, Associate Professor Richardson reviewed Mr Sheppard, noting his range of movement post-surgery was “excellent” and that he was “ready to start a gym based strengthening program to help strengthen his left diabetic capsulitis shoulder”.[12]
[12] DCB 77
24Mr Sheppard’s left shoulder “froze again”[13] and he underwent a cortisone injection and hydrodilatation procedure at the Epworth Hospital in August 2023.[14] This procedure significantly improved his pain and level of function, and he has not had any further treatment from his orthopaedic surgeon since his scheduled review in December 2023.[15]
[13] DCB 34
[14] PCB 46
[15] DCB 24
25In 2024, Mr Sheppard re-commenced a gym and swim program, a few days per week.[16]
[16] DCB 25
26Until in or around August 2024, Mr Sheppard attended physiotherapist Mr Vincent Kuriakose twice a week for treatment. Mr Sheppard reported to Mr Kuriakose having difficulties with some domestic cleaning and other forms of heavier work.
27Mr Kuriakose diagnosed marked adhesive capsulitis along with supraspinatus tendinosis and biceps tenosynovitis, which had stabilised. In his view,[17] while Mr Sheppard did not have capacity for his pre-injury employment, he had retained capacity for work which did not require lifting of his left arm above shoulder height or repetitive pushing or pulling.
[17] PCB 39, report dated 1 September 2024
28For his part, Mr Sheppard felt improvement with Mr Kuriakose had plateaued, and he consulted another physiotherapist, Ms Niki Jacobs, for treatment including:
(a) an exercise-based approach aimed at improving range of movement and functional strength;
(b) aquatic physiotherapy sessions, both independently and as part of a group; and
(c) manual therapy including joint mobilisations for pain relief and improvement in range of movement.
29The clinical notes of Ms Jacobs taken at her first consultation on 19 August 2024 record significant improvement in the left shoulder symptoms since the hydrodilatation procedure the previous year. Mr Sheppard told Ms Jacobs he was looking forward to starting full time employment later that month with Coles as a customer delivery driver.[18]
[18] DCB 69
30Ms Jacobs diagnosed biceps tenosynovitis, subacromial bursitis with impingement and adhesive capsulitis of the left shoulder. Her report dated 22 February 2025[19] records:
(a) Mr Sheppard’s range of motion had improved and was “close to full in abduction and flexion planes”, with some limitation in external rotation;
(b) his prognosis for regaining full movement is “very good” and will likely be achieved in the next few months; and
(c) her opinion that Mr Sheppard has capacity for work with lifting restrictions of 5 kilograms from waist to shoulder height, 2 kilograms overhead, and avoiding repetitive shoulder movements.
[19] PCB 56
31Mr Sheppard worked as a delivery driver with Coles from August 2024 to January 2025. His full-time duties involved frequent repetitive heavy lifting, handling up to 600 kilograms a day of groceries. These duties did not aggravate his left shoulder condition, save for slight niggling pain, which he managed with Nurofen and maybe a day off work.
32Mr Sheppard’s employment at Coles ceased for unrelated reasons, and in February 2025, he commenced employment with Office Fruit Group as a delivery driver on a casual basis, working 20 to 24 hours across three days.[20] His duties include loading a delivery van and effecting deliveries of fruit and milk on Monday and Tuesday; and on Friday packing the fruit for delivery the following week. His work at Office Fruit Group involves repetitive manual handling of 5 to 6 kilogram boxes of groceries and up to 18 kilogram crates of milk cartons.[21]
[20] T7
[21]T58
33Mr Sheppard intends to work greater hours, if and when they become available.
Medical evidence - the March 2022 injury
Dr Dedu Rathnayake, general practitioner
34As at 3 May 2024,[22] Dr Rathnayake diagnosed marked adhesive capsulitis, mild supraspinatus tendinosis, biceps tenosynovitis and subacromial bursitis. Although Mr Sheppard’s injuries had not yet fully resolved, Dr Rathnayake noted his condition has been improving, with flare ups of symptoms depending on Mr Sheppard’s level of activity.
[22] PCB 40
35In his initial opinion, Mr Sheppard did not have a current capacity for his pre-injury duties, but Dr Rathnayake expected that his work capacity would improve gradually with ongoing rehabilitation and prevention of further injuries.
36In his up to date report dated 4 February 2025, Dr Rathnayake sets out his opinion that Mr Sheppard is able to work full-time light duties with restrictions of a maximum 20 kilogram limit for lifting and no repetitive overhead activities.
37Ms Jacobs was aware of Mr Sheppard’s duties at Coles, so it is difficult in the absence of any explanation from her to explain the different lifting restrictions set out in her report. I prefer the opinion of Dr Rathnayake, which reflects Mr Sheppard’s evidence he was performing such duties without any significant difficulty, and the evidence of occupational physician Dr Dominic Yong, referred to below.
Mr Ash Moaveni, orthopaedic surgeon
38Orthopaedic surgeon, Mr Ash Moaveni, prepared a report dated 8 August 2024 at the request of Mr Sheppard’s solicitors. Unusually, Mr Moaveni was not asked to provide a diagnosis of injury. His report nevertheless records the following:
(a) a history of constant pain, aggravated with use and movement;
(b) no abnormal illness behaviour;
(c) some reduced range of motion in the left shoulder (flexion, extension and abduction and adduction);
(d) reduction in the movement of the left shoulder consistent with chronic capsulitis;
(e) likely preclusion or restriction in relation to activities involving reaching above shoulder height, pushing, pulling, lifting, driving/steering of a motor vehicle/truck, above shoulder and overhead movements, heavy lifting, repetitive lifting, and any other physical functions or motions;
(f) a guarded prognosis for the left shoulder injury, with limitation of movement and associated pain in his left shoulder; and
(g) his opinion Mr Sheppard is not at risk of further deterioration, will not benefit from further surgical intervention on his left shoulder, and should continue with physiotherapy treatment on a weekly basis.
39Although Mr Moaveni considered Mr Sheppard had capacity to work 15 to 18 hours per week as a trainer with St John Ambulance, this would involve unsuitable duties such as demonstrating CPR. I prefer the evidence of Mr Sheppard’s treating doctor and physiotherapist, and in particular occupational physician Dr Dominic Yong, in terms of his capacity for suitable employment.[23]
[23] Giankos v SPC Ardmona Operations Ltd (2011) 34 VR 120 at paragraph [96]
Dr Dominic Yong, occupational physician
40As at the date of his first report in June 2023, Dr Dominic Yong accepted Mr Sheppard’s current symptoms included pain in his left shoulder, at times radiating to the base of his neck, with a mild reduction in the range of movement.[24]
[24] DCB 3
41In Dr Yong’s ultimate opinion in February 2025,[25] Mr Sheppard:
(a) had sustained a left shoulder soft tissue injury, treated surgically, with persisting left shoulder dysfunction; and
(b) had capacity to perform his duties at Coles for at least nine days per fortnight.
[25] DCB 23
42There is no objective evidence Mr Sheppard took regular time off work at Coles up until he ceased in January 2025, upon which Dr Yong’s opinion is based. Mr Sheppard’s evidence he had regular time off was not reflected in any of the detailed notes of Ms Jacobs or the general practitioner notes; and any time off at Coles was by reason of a combination, in any event, of his shoulder pain, knee pain and a “big chunk” of time for dental surgery.[26]
[26] T 64
43In my view, Dr Yong’s opinion is consistent with Mr Sheppard’s treaters that he has retained capacity to work full-time in suitable employment, involving relatively heavy manual handling.
Dr David Elder, occupational and environmental medicine specialist
44Dr David Elder examined Mr Sheppard for the purposes of an impairment assessment in December 2023. At that time, Dr Elder reported the worker had ongoing left shoulder dysfunction relevant to the original injury, treated surgically with no sequela of the scarring.[27]
[27] DCB 18
Credit
45The reliability of Mr Sheppard’s evidence was in issue, as counsel for the VWA, Ms Manning, put it, in relation to “a couple of little credit issues”.[28]
[28] T6
Undisclosed previous injury to the left shoulder
46While not disclosed in either of his affidavits, it emerged in cross-examination Mr Sheppard had suffered a pre-existing left shoulder injury in the form of a partial thickness bicep tendon tear. He sustained this injury lifting a patient onto a stretcher in 2018 while working in a similar role as a patient transport officer with Medic One.[29]
[29] DCB 42
47Mr Sheppard reported left shoulder pain to Dr Martina Kefford in February and April 2018, who diagnosed a frozen left shoulder and referred him for an x-ray and ultrasound of his left shoulder. An x-ray on 19 April 2018 showed “arthropathy … within the AC joint with cortical irregularity and slight sclerosis either side of the articular margin and slight inferior osteophytic lipping”. An ultrasound on the same day disclosed “delamination within long head of biceps”.[30]
[30] DCB 75
48On 23 April 2018, Mr Sheppard underwent a left shoulder subacromial bursa ultrasound guided steroid injection.[31]
[31] DCB 76
49There is then a gap in treatment records until April 2019 when Dr Jos de Jong referred Mr Sheppard to a physiotherapist for back and bilateral shoulder pain.[32]
[32]DCB 47, letter dated 29 April 2019 from Dr de Jong to physiotherapist, Mr Ben Gidley
50Approximately 18 months later, on 8 December 2020, Mr Sheppard attended upon his general practitioner, Dr Priyank Gupta, for left shoulder pain. The history recorded included:
(a) onset of left shoulder pain due to biceps tendon tear, which was worsening;
(b) Mr Sheppard was not able to work;
(c) previous left shoulder pain; and
(d) a “flare-up while playing with daughters accidentally hyperextended”.
51Dr Gupta provided Mr Sheppard with a medical certificate and prescribed nonsteroidal anti-inflammatory drug Mobic for his pain.
52This pre-existing and ongoing left shoulder condition was not disclosed to any of the examining medico-legal doctors:
(a) Dr Dominic Yong in June 2023 – who obtained a history of “no previous shoulder conditions”;[33]
(b) Dr David Elder in December 2023 - Mr Sheppard disclosed a previous right shoulder injury, but “no other history of injury to the left shoulder”;[34]
(c) Dr Ash Moaveni in August 2024 – Mr Sheppard only disclosed the 2013 right shoulder injury;[35] and
(d) Dr Yong in February 2025 - Mr Sheppard confirmed to Dr Yong the previous history obtained in June 2023, with “no contradictions to note”.[36]
[33] DCB 6
[34] DCB 17
[35] PCB 44
[36] DCB 24
53Mr Sheppard frankly conceded his histories to the medico-legal consultant doctors were inaccurate to the extent he had not disclosed his previous left shoulder injury and related treatment.
54When asked in cross-examination why he did not disclose his pre-existing left shoulder pain and treatment in his affidavits or to any examining medico-legal doctors, Mr Sheppard said:
(a) he had no recollection of left shoulder pain and treatment in 2018, 2019 and 2020 at the time of swearing his affidavits;
(b) he was shown medical records referring to this previous injury the day prior to trial;[37] and
(c) the previous left shoulder injury occurred during a period when he was experiencing a flare up of his longstanding symptoms of PTSD, which “consumed” his life.[38]
[37] T9, L15-16, T14
[38] T13, L13-18; T21
55As Ms Manning pointed out, Mr Sheppard was able to work full-time during the period 2018 to 2020. Further, in contrast to his evidence he could not recall the previous left shoulder injury at the time he swore his affidavits or when he underwent medico-legal examinations in 2023 and 2024, it is apparent Mr Sheppard:
(a) gave a history of his left shoulder condition to Dr Priyank Gupta in December 2020;[39] and
(b) upon his first attendance on general practitioner Dr Rathnayake on 14 July 2022, gave a history of “left shoulder pain … Biceps tendon tear few years ago”, for which he had a steroid injection.[40]
[39] DCB 46
[40]Exhibit 7
56Mr Sheppard’s explanation of a PTSD flare up consuming his life as the reason he did not recall his previous injury is inconsistent both with his evidence he was able to work full-time during this period; and his recall of the pre-existing condition in consultations with different general practitioners over time.
57In cross-examination, Mr Sheppard denied deliberately omitting the prior left shoulder condition from his affidavits because he thought it might affect his current claim.
58Mr Sheppard’s oral evidence included his history to Dr Rathnayake on 14 July 2022 was he had sustained a previous injury to the right shoulder, as opposed to the left shoulder as recorded in the clinical note of the attendance. I do not accept this evidence. Mr Sheppard recalled his previous left shoulder pain in December 2020, and the history recorded by Dr Rathnayake also accords with the independent record of previous treatment, including a steroidal injection into the left shoulder in April 2018. I find it probable that Dr Rathnayake’s note is correct.
59Mr Sheppard has a pre-existing psychological comorbidity, for which he takes significant prescription medication daily. His PTSD requires monthly treatment from a psychologist, and he sees a psychiatrist every few months. I take this into account when considering his ability to provide an accurate account of workplace events.[41]
[41] Stevens v DP World Melbourne Ltd [2022] VSCA 285 at [44]-[45]
60Having regard to his presentation overall, I am not satisfied Mr Sheppard deliberately omitted or otherwise tried to mislead the court or any examining doctor in omitting his history of a pre-existing left shoulder condition. In my view, Mr Sheppard was doing his best to give an honest account of his injury and its consequences during his evidence in court.
61I accept Mr Sheppard’s explanation that he forgot about the previous left shoulder injury and its treatment. I find it was inadvertent. He also twice failed to disclose to Dr Yong his history of right shoulder injury in 2013 which, on any view, could not have affected this claim. Mr Sheppard frankly conceded during cross-examination the histories were inaccurate.
Overstatement of consequences
62There was also inconsistency between the consequences deposed to in Mr Sheppard’s affidavits, and the notes of physiotherapy treatment between 19 August 2024 to 20 January 2025 recorded by Ms Jacobs.
63In my view Mr Sheppard’s evidence of constant pain and restriction of range of movement overstate the consequences of his left shoulder injury.
64Mr Sheppard commenced at Coles in August 2024. By 25 November 2024, Ms Jacobs’ notes record Mr Sheppard’s symptoms were "90 to 95 per cent better” and he had “not needed pain relief for some time".[42] Her notes do not reflect “constant pain” or any regular time off work.
[42] DCB 55
65By the time of her last consultation with Mr Sheppard in January 2025, the plan was to reduce physiotherapy treatment to fortnightly, which eventuated.
66Mr Sheppard’s evidence of the amount and frequency of over-the-counter medication taken by him is also inconsistent with the physiotherapy notes.
67These credit issues are not sufficient to reject Mr Sheppard’s evidence overall, particularly when he made so many concessions as to his current level of capacity. I find that any exaggeration was not deliberate, but reflect the inclination of a person in his circumstances, with a past history of severe pain from an injury sustained at work, to tend towards an account favourable to his claim.
68Ultimately, the objective evidence of the histories provided to treating doctors and observations of allied health practitioners must be carefully considered in assessing the consequences of Mr Sheppard’s injury.
69In circumstances where his credit is in issue, including in relation to domestic tasks, there was no affidavit from Mr Sheppard's partner to corroborate difficulties on that front, or his levels of pain and functional restrictions more generally.
70Of course the failure to disclose the previous left shoulder condition and any exaggeration of the extent of Mr Sheppard’s current functional restrictions affect both the weight which may be given to his evidence, and the medico-legal opinions relied upon by him.
Findings of fact
71On the evidence available to me, I make the following findings.
72Mr Sheppard:
(a) is right hand dominant;
(b) suffered an injury to his left shoulder and biceps tendon in 2018 which required significant treatment including an ultrasound guided injection in April 2018, an unascertained amount of physiotherapy in 2019, and time off from his work as a patient transport officer with the employer in December 2020;
(c) was prescribed Mobic for his left shoulder in December 2020, prior to the claimed injury in March 2022;
(d) was able to discharge his duties as a patient transport officer after December 2020; and
(e) injured his left shoulder at work in March 2022, which developed into adhesive capsulitis (frozen shoulder).
73A left shoulder hydrodilatation procedure in August 2023 resulted in significant improvement in Mr Sheppard’s left shoulder range of movement, and pain symptoms.
74By August 2024, when he commenced physiotherapy with Ms Jacobs, Mr Sheppard’s left shoulder pain and function had improved 80 per cent from its worst following the injury in March of 2022.[43] By September 2024, it was 95 per cent better overall.[44]
[43] T29
[44] T31
75I accept Dr Yong’s diagnosis of a left shoulder soft tissue injury, treated surgically, with persisting left shoulder dysfunction.[45]
[45] DCB 29
76Mr Sheppard does not experience constant daily pain in his left shoulder. As at February 2025, Mr Sheppard’s general practitioner, Dr Rathnayake, reported intermittent pain, which fluctuates depending on the level of physical activity.[46] The detailed clinical notes of Ms Jacobs are consistent with Dr Rathnayake’s evidence.
[46] PCB 64
77Although he has previously taken prescription pain medication since March 2022, Mr Sheppard is presently only taking over-the-counter medication, and has reduced his intake over time.
78As at late 2024, Mr Sheppard often did not need to take pain relief for his left shoulder, and he could not identify any activity in particular that was aggravating his shoulder,[47] save:
(a) he was sore for 24 hours after lifting 30 slabs of Coca Cola, which settled quickly with Nurofen;[48]
(b) slight tightness/pain in early December 2024 pulling heavy two-wheel delivery trolleys up flights of stairs at various customers’ premises;
(c) his shoulder was “a bit stiff” after “big week at work” delivering 600 kilograms of groceries a day around Christmas 2024;[49]
(d) minor soreness (at most) but no flare up of symptoms after performing significant manual landscaping work at home; and
(e) he was occasionally sore at the end of the day in January 2025.[50]
[47] T36
[48] T40
[49] T40 and 63
[50] T41
79The recorded circumstances of minor left shoulder pain in the context of demanding levels of physical activity are an indicator of a high level of retained function on a day-to-day basis.
80I reject his evidence he is taking medication for his left shoulder daily, having regard to the objective record. The notes of weekly consultations with Ms Jacobs from August 2024 to January 2025, establish his pain and function have improved up to 95 per cent since his injury, and he was taking only occasional Panadol Osteo to manage pain during his employment with Coles. This is consistent with his general practitioner’s notes recording significant improvement over time, with the prospect of further improvement. Dr Rathnayake’s most recent report does not mention Mr Sheppard taking any form of pain relief.
81Mr Dunstan submitted that Mr Sheppard is a stoic, doing his best to get on with life as best he can, without complaint.
82This submission may be accepted in relation to his previous knee and psychological injuries; but, save for Mr Sheppard’s affidavits, there is limited evidence as to the extent of ongoing pain in his left shoulder now that the initial symptoms of his soft tissue injury and capsulitis have settled after appropriate treatment. I accept Mr Sheppard’s severe adhesive capsulitis on a background of diabetes was very painful in the past.
83Mr Sheppard presently experiences regular low levels of intermittent pain in his left shoulder of a minor, niggling nature, not constant, for which he takes no medication. Intermittent exacerbations of his pain settle with rest and use of over-the-counter medication.
84Mr Sheppard has a significant and ongoing bilateral knee conditions resulting in daily pain since his time in the army: five operations on each knee; medical discharge from the Army; cortisone injections in 2021; and further orthopaedic assessment in February 2025 in the context of a recent increase in pain and interruption to daily activities, including the left knee giving way one or two times a month.
85His knee condition has prevented Mr Sheppard from riding his motorcycle in the past.[51] The left shoulder condition also inhibits his motorcycle riding due to the vibrations transmitted through his arm. Mr Sheppard had enjoyed a return to motorcycle riding from about 2020, once or twice a week, up to two hours at a time. He sold his motorcycle last year.
[51] T52
86Mr Sheppard is an amateur photographer with a particular interest in aviation photography. He is no longer able to hold a heavy telephoto lens for sustained periods of time above shoulder height to photograph planes at air shows, which he previously enjoyed. Although Mr Sheppard is limited in his hobby of aviation photography, he is still capable of handling smaller lenses, and is able to enjoy photography in other contexts.
87He has moderate difficulties at home and must adjust some of his activities. He continues to perform all his activities of daily living, including cooking, cleaning and laundry with some modifications. He is able to undertake gardening, whipper snippering and mow the lawn every two to four weeks.
88There is no impact on his social engagement or engagement with family.
89Mr Sheppard is permanently incapacitated for his pre-injury duties as a patient transport officer. He is precluded from heavy duties in relation to patient handling, and applying chest compressions as part of CPR or advanced CPR airway work, which causes pain in his left shoulder.
90Mr Sheppard has retained the capacity to work full-time in suitable employment, including roles requiring significant repetitive manual handling duties as a delivery driver.
91His general practitioner recommends a lifting restriction of 20 kilograms,[52] but nothing above shoulder height. He is capable of managing these restrictions, based on his current employment and very recent duties with Coles.
[52] PCB 64
92Mr Sheppard can drive without a break for 90 minutes, noting he has been employed full-time in the recent past as a delivery driver for Coles, and presently works in a similar role three days per week with Office Fruit Group.
93Mr Sheppard recently constructed garden beds at his home which involved handling very heavy treated pine sleepers, digging holes, mixing concrete in a wheelbarrow, pouring and setting posts in that concrete. He was able to complete this work without a flare up in his symptoms.[53]
[53] DCB 50
94The range of motion in Mr Sheppard’s left shoulder is not significantly restricted,[54] and continues to improve.
[54]T27
95He experiences some sleep disturbance if he lies on his left side.
Conclusion
96The evidence is unclear as to the level of pain, difficulties or restrictions Mr Sheppard was experiencing at work because of his pre-existing left shoulder condition prior to March 2022. The court did not have the benefit of any medico-legal opinion as to the state of his left shoulder prior to the incident in March 2022 for the purposes of a Petkovski v Galletti[55] type assessment of the extent of the aggravation of his pre-existing condition.
[55] [1994] 1 VR 436
97Counsel for Mr Sheppard, Mr Dunstan, accepted the claim must be put on that basis.[56] Mr Dunstan submitted that the evidence otherwise supported findings Mr Sheppard had minimal attendances on his general practitioner before March 2022, with significant gaps, was able to discharge his work duties, was not receiving weekly physiotherapy, had not had surgery and was not restricted in any of his domestic, recreational or other hobbies until the incident in March 2022.
[56] T91
98I accept that submission up to a point. Nevertheless, the onus on Mr Sheppard is to adduce evidence to enable the court to accurately assess the extent of the aggravation.
99For the purpose of determining this application, I will assume as at March 2022 his pre-existing left shoulder condition had no material effect on his capacity, and Mr Sheppard had little or no ongoing pain or loss of function. The question is whether his persisting left shoulder dysfunction, comprising minor levels of pain, with intermittent exacerbations, and his functional limitations, are enough to establish “serious injury”.
100Taking into account all of the evidence, although it is finely balanced, Mr Sheppard has not discharged his burden of establishing the consequences of his left shoulder injury are more than “very considerable”.
101I accept Mr Dunstan’s submission that the amount of past treatment, including capsular release surgery, cortisone injection and hydrodilatation in 2023, and extensive physiotherapy, is significant. Ultimately, however, this treatment has been successful in reducing Mr Sheppard’s left shoulder pain to a manageable level and substantially restoring its function. I also take into account the injury is to his non-dominant side.
102I accept Dr Rathnayake’s evidence, consistent with the physiotherapist’s notes, that Mr Sheppard’s improvement is continuous and there will be continuing improvement into the future provided he is careful and maintains physiotherapy. The notes of Ms Jacobs also support my finding, as at the date of the hearing, Mr Sheppard has relatively limited loss of function in his left shoulder, with very good and improving range of motion, as a result of his treatment.
103Mr Sheppard’s:
(a) incapacity for his previous employment as a patient transport officer (including CPR training);
(b) inability to engage in some daily activities without modification;
(c) functional restriction in riding motorcycles (in combination with his pre-existing knee condition); and
(d) inability to enjoy his previous hobby of aviation photography using a heavy camera lens,
are each also significant to him, and objectively.
104The evidence overall, however, must establish the consequences of his left shoulder injury are at least “very considerable”.
105What is lost is informed to an extent by the reality he has retained a great deal. Mr Sheppard’s oral evidence included he was very recently able to perform heavy manual tasks over two weekends constructing two large garden beds at home. This required him to lift and manoeuvre very heavy treated pine sleepers, manually mix concrete, transport that concrete in a wheelbarrow, dig out holes and set posts in concrete in the ground, all without any symptoms or exacerbation of pain. He undertook this work over two weekends during a period when his usual full-time duties during the week as a delivery driver at Coles involved manually handling up to 600 kilograms of groceries a day.
106In my view, this evidence is a reliable indicator of the high level of retained function in the left shoulder, and inconsistent with “serious injury” when judged against the range of comparable cases, including those which do not come before the Court.
107Mr Sheppard has retained capacity to work full-time in a manual handling role, with only intermittent pain, controlled with over-the-counter medication.
108He has minimal difficulties with performing his hygiene, managing shopping duties and household chores; no issues using a computer or smartphone device; no difficulty gardening, including heavy hard landscaping tasks; with only moderate sleep disturbances due to his pain.
109Mr Sheppard’s prognosis regarding retaining full movement in his left shoulder is very good, and likely to be achieved in the next few months with continued physiotherapy.
110Leave to commence common law proceedings to recover pain and suffering damages is refused.
111I will hear the parties as to the form of final orders, and as to costs.
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