Shrimpton v Reinforced Concrete Pipes (Australia) Vic Pty Ltd
[2016] VCC 718
•2 June 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-15-03036
| MARK SHRIMPTON | Plaintiff |
| v | |
| REINFORCED CONCRETE PIPES (AUSTRALIA) VIC PTY LTD | Defendant |
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JUDGE: | HER HONOUR K BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 and 20 May 2016 | |
DATE OF JUDGMENT: | 2 June 2016 | |
CASE MAY BE CITED AS: | Shrimpton v Reinforced Concrete Pipes (Australia) Vic Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 718 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – right shoulder –– psychiatric impairment – pain and suffering – loss of earning capacity
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b), (37) and (38)
Cases Cited:Mobilio v Balliotis [1998] 3 VR 833; Turner v Love & Transport Accident Commission (1995) 21 MVR 314; Veljanovska v Socobell Oem Pty Ltd [2005] VSCA 227; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Ansett Australia Ltd v Taylor [2006] VSCA 171; Meadows v Lichmore Pty Ltd [2013] VSCA 201; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Aluthgamage v Select Care Personnel Pty Ltd (2012) 35 VR 494; Doolan v Rayners SawmillsPty Ltd & Anor [2008] VSCA 219
Judgment: Leave granted to bring proceedings for damages for pain and suffering and loss of earning capacity.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Clements QC with Mr J Valiotis | Zaparas Lawyers Pty Ltd |
| For the Defendant | Mr B McKenzie | Lander & Rogers Lawyers |
HER HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of his employment with the defendant, in particular on 7 February 2012 (“the said date”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity. These discrete heads of damage require the application of different statutory tests, as mandated by s134AB(37) and (38).
3 The plaintiff brings this application pursuant to clause (a) and (c) of the definition of “serious injury” to be found in s134AB(37) of the Act. There, “serious injury” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function; or” …
(c)permanent severe mental or permanent severe behavioural disturbance or disorder … .”
4 The body function relied upon is the right shoulder. The plaintiff also relied upon a psychiatric impairment pursuant to clause (c).
5 Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.
6 The impairment of the body function must be permanent, in the sense that it is likely to continue into the foreseeable future.
7 The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, ss(19) and ss(38)(e) of the Act impose specific burdens in relation to a claim for loss of earning capacity.
8 By ss(38)(c) of the Act, the impairment must have consequences in relation to each of pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments, can fairly described, at the date of the hearing, as being “more than significant or marked”, and as being “at least very considerable”.
9 I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
10 The judgment of the Court of Appeal in Mobilio v Balliotis[1] resolved the meaning of “severe”. Brooking JA held, at paragraph 846, having referred to the considerations mentioned in Turner v Love & Transport Accident Commission,[2] that they were not sufficient to warrant departing from the conclusion at which one would prima facie arrive, namely that the change in language from “serious” or “severe” betokens a change in meaning. Without suggesting the use of any particular adjective to mark the distinction, his Honour said that “severe” was used in the definition as a stronger word than “serious”.
[1][1998] 3 VR 833
[2](1995) 21 MVR 314
11 In Mobilio, Winneke P agreed with Brooking JA’s reasons and further agreed with him that the word “severe”, where used in sub-paragraph (c) of ss(17) of the Transport Accident Act, was a word of stronger force than the word “serious” where used in that Act (see also Phillips JA at 858 and Charles JA at 860 to 861 to similar effect).
12 I accept, however, that a Chronic Pain Syndrome can result in an impairment under sub-paragraph (c) if a plaintiff can establish a sufficient causal link between an initial compensable physical injury and a Chronic Pain Disorder which meets the severe criteria of a claim under definition (c) – per Ashley JA in Veljanovska v Socobell Oem Pty Ltd.[3]
[3][2005] VSCA 227
13 Where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of 40 per cent or more, both at the date of hearing and permanently thereafter.
14 Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured.
15 Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the 40 per cent loss has been established.
16 Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
17 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[4] and Grech v Orica Australia Pty Ltd & Anor[5] in reaching my conclusions.
[4](2005) 14 VR 622
[5](2006) 14 VR 602
18 The plaintiff relied upon two affidavits and gave viva voce evidence. He was cross-examined. He also relied on an affidavit sworn by his wife, Karen Shrimpton, on 12 May 2016. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s evidence
19 The plaintiff is presently aged fifty six, having been born in August 1959. He attended school until Year 10.[6]
[6]Transcript (“T”) 43
20 The plaintiff deposed that he then worked in a number of jobs, including plasterer, dogman and rigger, carpenter and maintenance man, before commencing employment with the defendant in May 2011.
21 Five years before the plaintiff started with the defendant, he worked as a construction supervisor.[7]
[7]T62, history to Dr Doherty
22 In 2009-2010, the plaintiff carried on business with his wife under the name M & K Shrimpton (“the business”). The business did work for a Queensland company, Global Shopfitting, refurbishing Supercheap Auto shops.[8]
[8]T47
23 The business involved carpentry work. The plaintiff did all the pricing and the quoting.[9] He was also receiving a wage from Global Shopfitting when he did fitouts on its behalf. The work probably lasted for about eight months and was not full time.[10]
[9]T48
[10]T49
24 While working for the defendant, the plaintiff earned about $850 gross per week.
25 On the said date, having carried out heavy manual handling duties, the plaintiff noticed he had lost strength in his right arm when he went to raise it. Movement of his arm was further restricted that night (“the injury”).
26 The plaintiff believed he injured his right shoulder as a result of performing frequent, heavy and forceful movements in the course of his employment, such as he was doing on the said date.
27 The plaintiff reported the injury to his manager the following day. The plaintiff attended Kilmore Medical Centre (“Kilmore”) where he saw Dr Jain.
28 The plaintiff was put off work and prescribed medication. He underwent an ultrasound of his right shoulder in February 2012. At that time, his right arm pain was not so bad if his arm was supported.
29 The plaintiff returned to light duties on 14 February 2012. He started treatment with a myotherapist, whom he saw twice weekly for about six weeks for massage and acupuncture, but this treatment did not help much. The plaintiff ceased anti-inflammatories as they upset his stomach.
30 The plaintiff’s manager suggested he see the work doctor at Willandra Medical Clinic (“Willandra”). The plaintiff attended Willandra for a while and stopped going to Kilmore. He also attended physiotherapy weekly at Willandra.
31 The plaintiff returned to full duties but his right shoulder pain worsened, and he was put back on light duties.
32 Dr Tunaley, at Willandra, arranged an ultrasound-guided steroid injection into the plaintiff’s right shoulder on 18 May 2012. This improved the pain but only for a few days.
33 The plaintiff returned to Kilmore for physiotherapy in June 2012, because it was too far to travel to Willandra. Treatment was weekly until 2013, when WorkCover ceased funding.
34 Dr Tunaley organised a further ultrasound injection on 8 June 2012. The plaintiff was then referred to Mr Lynch, orthopaedic surgeon. The plaintiff saw him in July 2012 and he organised an MRI scan a month later.
35 About this time, the plaintiff was given clerical work involving invoicing two hours a day. There was then not much for him to do at work.
36 Mr Lynch suggested surgery, which was approved by WorkCover. The plaintiff stopped work on 12 September 2012.
37 Mr Lynch undertook surgery the following day (“the first operation”). The plaintiff was an inpatient for two days. On discharge, he wore a sling for about four weeks, and then recommenced physiotherapy. Unfortunately, the first operation resulted in no real change in the plaintiff’s right shoulder.
38 In December 2012, on two occasions, the plaintiff suddenly felt increased discomfort in his right shoulder and he could see a raised prominent area of muscle near the point of his shoulder. He was then having ongoing difficulty coping with pain and restricted shoulder movement.
39 Dr Jain referred the plaintiff to Dr Riddle, a psychologist, in late 2012. The plaintiff attended him fortnightly for several months and then monthly for six weeks until late 2013, when WorkCover ceased funding.
40 The plaintiff continued to see Mr Lynch about every month or so for review. In December 2012, Mr Lynch suggested further surgery, and a further ultrasound was undertaken on 4 February 2013.
41 Further shoulder surgery took place on 8 February 2013, at which time the plaintiff believed Mr Lynch also operated on his right biceps tendon (“the second operation”). The plaintiff was an inpatient for two days and, on discharge, wore a sling for about two or three weeks, starting physiotherapy in February 2013.
42 The plaintiff felt a lot of pain when raising his arm at the physiotherapist on 25 February 2013. He saw Mr Lynch again the next day.
43 Dr Jain arranged a further ultrasound on 13 March 2013, and Mr Lynch referred the plaintiff to Dr Lim, a pain management specialist, in March 2013.
44 The plaintiff first saw Dr Lim on 12 April 2013, when he arranged an x-ray to check the location of the pin in the plaintiff’s shoulder. He commenced the plaintiff on Lyrica to see if it helped his pain, but it made him nauseous. He put the plaintiff on Seroquel, which improved his sleep.
45 Dr Lim arranged for the plaintiff to attend an inpatient pain management rehabilitation program held at North Eastern Rehabilitation Centre (“NERC”) in August 2013.
46 In that program, the plaintiff underwent a range of treatment. He felt better while having physiotherapy and hydrotherapy and learnt to do things, limiting stress on his right shoulder.
47 Physiotherapy was helping when it was being done properly. There were problems with communication between his doctor and those treaters.[11]
[11]T41
48 At the program, it was suggested the plaintiff might try some voluntary work. In December 2013, he went to Willowmeade Old Aged Centre seeking voluntary work but heard nothing further from Willowmeade despite his offer.
49 Dr Lim arranged a further fortnight of rehabilitation in May 2014, and then a further six sessions at NERC on a weekly basis in about June or July 2014. The plaintiff’s right shoulder discomfort improved slightly when attending the program, but symptoms returned when he arrived home.
50 The plaintiff last saw Dr Lim in November 2014.
51 The plaintiff commenced seeing psychiatrist, Dr Elliot, in August 2014 on a fortnightly basis.
52 As of January 2015, the plaintiff continued to see general practitioners at Kilmore. Dr Singh and Dr Elliot prescribed medication. The plaintiff was then seeing Dr Elliot about monthly.
53 The plaintiff was taking Advil for his right shoulder pain, three tablets in the morning and usually two further tablets during the day. He also took Cymbalta, 90 milligrams in the morning and night, having earlier been prescribed Lexapro. He took Seroquel, 25 milligrams in the morning and at night, to help him sleep. He also took Zoton for stomach upset. He had previously taken Celebrex, but it upset his stomach.
54 The plaintiff then had constant pain in his shoulder like a toothache and a 10-kilogram weight pulling down on his shoulder. The pain spread into his right upper arm and shoulder blade, and also his neck, causing headaches at least two or three times a day. At those times, he usually needed to lie down to alleviate his neck pain and headaches.
55 The plaintiff’s right shoulder pain was much worse when he moved his arm away from his body. He could only raise his right arm to about chest height when extended, and then had to stop because of pain. There seemed to be no coordination between his mind and arm if he tried to raise his arm above that height. He could get it out slightly higher at the front.
56 The plaintiff’s shoulder pain improved if his right arm was supported. When he was on his feet, he tended to put his right hand in his pocket and hook his right thumb on his belt to support his shoulder and limit movement.
57 When moving through doors or crowds, the plaintiff tended to lead with his left side to protect his shoulder, as a bump was likely to increase his discomfort. If he shook hands, he made sure his right elbow was next to his side and he braced his upper arm.
58 In his recent affidavit sworn 12 May 2016, the plaintiff confirmed his right shoulder remains constantly painful and it impacts greatly upon his activities of daily living. The pain fluctuates in severity and intensity, depending on his movement and how he uses his arm. Extreme movements of his right shoulder and arm result in extreme pain increases.
Left shoulder
59 In his affidavit of January 2015, the plaintiff described his heavy reliance on his left arm and shoulder because of his right shoulder pain.
60 In about late 2014, the plaintiff felt increasing left shoulder pain, like a burning or electric shock sensation. The pain lasted for about a minute and then spread from his left shoulder to his neck and head, causing headaches. The burning sensation also travelled from his left shoulder down his left arm towards the elbow, and the left side of his chest.
61 The plaintiff agreed he had had problems with his left shoulder but has no loss of function. He now “survives” with his left shoulder. He has left shoulder pain and sometimes has a problem using it.[12]
[12]T20
62 The plaintiff denied that he had had a full-thickness tear in his left shoulder. The major tear was in the right shoulder. The plaintiff agreed Mr Owen had told him his left shoulder problem was not connected to his right shoulder injury, but denied that is why he did not mention any left shoulder problem in his second affidavit.[13]
[13]T22
63 The plaintiff’s left shoulder has never been treated by anyone and he does not take any medication for it.[14] His left shoulder is workable. He gets pain in it, but his right is much worse and he has to lean on things to relieve the pressure. The plaintiff has constant right shoulder which worsens with activity, but he tries to keep reasonably fit.
[14]T23
64 The plaintiff cannot pick up anything with forward motion, side motion or backward with his right arm. He can pick up and do things with his left arm with pain, but can tolerate it. His right shoulder has limited movement and his left shoulder has all movement but with pain.[15]
[15]T69
65 The plaintiff has had no treatment from WorkCover whatsoever for his left shoulder or neck. He has not had a problem with his left hand, but had a right carpal tunnel issue during rehabilitation.[16]
[16]T25
66 The plaintiff has some neck pain, but does not take medication for it. He denied his neck became stiff and locked. He agreed he saw Mr Owen about his neck and left shoulder. The plaintiff denied ever having a back problem and he has never taken medication for his back.[17]
[17]T25
67 The plaintiff was unsure whether he told Dr Eaton that he had a generalised ache all over his body.
68 The plaintiff denied telling Dr Schutz that he had pain throughout his body.[18]
[18]T20
69 The plaintiff confirmed he told Mr Battlay, on average, his pain was five out of ten and went up to eight, and any movement of his right arm was painful, particularly elevation and reaching out sideways.[19]
[19]T9
70 The plaintiff did not recall telling Dr Doherty he had pain everywhere, but did tell him that his pain was due to being over-sensitised.[20]
[20]T10
71 As of January 2015, the plaintiff’s right shoulder was stiff in the morning and when he did not move it for a while, initial movements were then painful.
72 When the plaintiff got up, he gently rotated his right arm below waist height, which freed it up a little. He used a rubber band on a door handle, which he slowly pulled with his right hand. He also had a set of pulleys in his garage on which he could exercise. He also walked his fingers up walls, as his physiotherapist had shown him, and he could get his right fingers to just above head height with his elbow bent.
73 The plaintiff did exercises in the morning for about ten minutes and then had a hot shower, which helped. He found it hard to wash under his left armpit and had difficulty shaving with his right hand.
Personal hygiene tasks
74 Since the injury, the plaintiff wiped himself after the toilet with his left hand. When dressing, he puts tops on his right arm first, and pulls them on with his left arm.
75 In his recent affidavit, the plaintiff confirmed these problems continue. He has had lost a significant amount of strength in his right arm. His right shoulder pain is like a constant dull ache, which then results in sharp, shooting pains upon increasing activity and arm movement.
76 The plaintiff confirmed undertaking personal hygiene tasks cause an increase in pain. These are all very much right-sided activities, and cause him increased pain. It is hard to shave left handed, as he feels as if he has no control of the blade and he has to support his right arm with his left because he cannot not shave with his left hand.[21]
[21]T19
77 In January 2015, the plaintiff described how he found he tired easy and seemed to have no energy. He had always thought of himself as relatively fit, but now felt weak and slow. His weight had increased from 100 to 115 kilograms since the injury and he often felt hot, perspired easily and usually felt clammy.
78 Since swearing his first affidavit, the plaintiff has put on more weight. He feels deconditioned, sluggish, and his ability to do his work around the farm has been severely compromised. He does his best to try and keep mobile and active with stretching exercises. He tries to involve himself around the farm, such as feeding the animals or carrying out some fencing wire repairs, but he feels he is a burden to those around him.
Sleep
79 In his first affidavit, the plaintiff described how he tried to sleep on his left side or back. He could not put pressure on his right shoulder, particularly pushing it forward, because of increased pain. He woke several times a week because he put too much pressure on the shoulder. When that happened, he usually got up and watched television for a while, resting his right arm on the couch armrest. He usually stayed up for about half-an-hour to give his shoulder pain a chance to ease. He tried to avoid taking further medication because of a stomach ulcer.
80 In his recent affidavit, the plaintiff confirmed he continues to suffer from sleep deprivation. He has difficulty getting to sleep as a result of his pain and feels hot and clammy. When he falls asleep, his sleep is disturbed by rolling over onto his right shoulder, and he wakes in pain. That pain makes it difficult to get back to sleep because he tries to avoid taking any more medication in the middle of the night, and gets up and watches television to try and get tired again.
81 The plaintiff’s lack of sleep causes him to suffer from fatigue and he also lacks energy to get up and about in the morning. He takes naps and spends too much time just lying on the couch trying to catch up on the rest that he missed out after a poor night’s sleep.
Driving
82 As of January 2015, the plaintiff described he could drive for half-an-hour holding the steering wheel in a lower position with his right hand, than he used to, resting his right elbow on the windowsill in his wife’s Ford Fiesta and, on the door rest in his Ford Ranger.
83 The plaintiff used the force of his left hand to turn the steering wheel. He had to use his right leg to help push the driver’s door open. He found that when driving he got an increasing ache in his shoulder. When opening the door, he used his left hand if any force was involved or if he had to reach up above waist height. He favoured his right arm as much as he could.
84 In his recent affidavit, the plaintiff confirmed he is still able to drive, he can push a trolley around the supermarket, he can still attach a horse float to the back of a car; however, he would rather be working, earning a living and contributing to his family and his farm. His concentration and attention to detail is poor, and he feels tired and lethargic.
The property
85 The plaintiff lives with his wife and son on a 10-acre property. The plaintiff had built a shed on the property in 2006. He also fenced the property in 2000 to 2001, and had maintained the fencing and put up outdoor decking and an overhead veranda in 2002. In 2010, he did most of the work to build an ensuite, including tiling, plastering and installing a spa. He also replastered the lounge room in 2001.
86 The plaintiff could no longer do these tasks. He could use a ride-on mower, mainly using his left hand for about 20 minutes at a time.
87 Prior to his injury, the plaintiff ran eight sheep and a ram, and six cattle, on the property. He had to sell these animals after he was injured. He could not shear the sheep, tag the cattle or maintain the fences. He could not afford to pay for these things to be done on his hobby farm.
88 The plaintiff used to have a mobile butcher come to the property and slaughter and butcher the cattle and keep them in three large freezers. The plaintiff’s family would eat the produce. They now have to buy meat.
89 The plaintiff was disappointed he had not been able to continue the hobby farm. It upset him to see neighbour’s and friend’s stock.
90 After the stock was sold, the plaintiff’s youngest son, who is a horse trainer, decided to put a harness track on the property with his three horses. As of January 2015, for something to do, the plaintiff fed and exercised the horses using a jogger attached to an old unroadworthy Commodore. He was able to take the horses’ rugs off using his left arm above waist height.
91 The large property requires a lot of maintenance. The plaintiff’s twenty-year-old old son, Mitchell, now lives at home and looks after the four trotting horses on the property. The horses require a lot of maintenance. The plaintiff, his wife and son all do their best to chip in with work, because if they do not do it themselves they have to pay someone else to do the work.
92 The plaintiff has most difficulty with his right shoulder with farm activities. He is able to feed the horses with a bucket and can carry items in both hands. The property has a lot of fencing around the perimeter that requires regular attention, a job he used to do pre injury. There is a lot of grass and bush that requires mowing and trimming, jobs the plaintiff previously undertook.
93 The plaintiff is still able to mow the grass while sitting on a ride-on mower. Doing so causes him increased pain and discomfort in his right shoulder along bumpy terrain; however, he has to put up with it. Most of the heavier property maintenance work is done by his wife, Karen, as well as their sons when they are around.
94 Although Karen works full time, she has really taken on so many of the heavier tasks, including driving a fence post with the rammer. She does the guttering and has removed brickwork around the property. She and the boys have taken on as much as they can.
95 The plaintiff and Mitchell built chook sheds for their forty odd chooks. The plaintiff would be unable to build anything like that now as the construction required a significant amount of strong and forceful arm use, including using a hammer and lifting and positioning timber beams.
96 The family have lorikeets. The plaintiff’s sons and a friend built the aviary. The plaintiff would normally have been involved in a task of this nature but he was unable to help because of his shoulder.
97 The property means everything to the plaintiff’s family. So many things have had to be changed as a result of his injury, including no longer keeping sheep or cows.
98 Prior to getting rid of the sheep, Karen did the sheep crutching, which was a job the plaintiff did prior to injury.
99 Those changes have had a negative impact upon the plaintiff because he feels as though he has lost control of how he wants his property to be run as a result of his physical restrictions.
100 The plaintiff took a lot of pride in his work and his ability to be a good husband and provider. He worked hard at home and at work, and believed he would have been a valued employee where he worked, and had made a worthwhile contribution. The value he placed on his strength, agility and dependability as a husband and provider had now been diminished, because he relied on others for help.
101 The plaintiff had been encouraged by his general practitioner to walk for his general health. The plaintiff did not swing his right arm when he walked. He could feel slightly off balance as a result.
102 For three years before his injury, the plaintiff was a voluntary trainer and runner for the under 16 at the Wandong Football Club, where his son played. The plaintiff had to stop this role after the injury because running jarred and hurt his shoulder.[22]
[22]T8
103 The plaintiff generally socialised less since his injury. He found crowds and seeing people he did not know tended to make him more anxious. He also worried about being bumped, and he preferred to be at home where he could move about as he liked.
104 In January 2015, the plaintiff described that generally, since the injury, he felt more on edge and seemed to be moody. He became teary and angered easily, and had little patience. His feelings seemed to get the better of him at times, which was not the case previously.
105 The plaintiff worried about the effects of his behaviour on his family relationships. Although Karen was understanding, he felt more emotionally dependant on her, which worried him. He would be lost if she left him. Sexual relations were now infrequent; the plaintiff seemed to have lost his libido.
106 The plaintiff worried about his future. His shoulder pain was not improving and he could not think of any employment he could do.
107 The plaintiff ceased his program with Dr Lim in late 2014, and has not had any active therapy since then, by way of physiotherapy or hydrotherapy. He does exercises at home every day in order to try and restore some function and movement to his shoulder.
108 Mr Owen suggested the plaintiff see another pain specialist, Dr Clayton Thomas, but WorkCover would not pay for it. The plaintiff had rung Dr Thomas’ rooms and was told he needed either a referral from his doctor or something from WorkCover.[23]
[23]T40
Current treatment
109 The plaintiff continues to see Dr Elliot approximately once a month. She controls his depression medication and mental illness. He takes Cymbalta three times, 60 milligrams per day. He takes one Seroquel, 25 milligrams, in the evening and Valium, 5 milligrams a day.
110 The plaintiff continues to take Advil, an over-the-counter medication, about six to ten tablets a day. This quantity has increased since January 2015. He believed he was taking Celebrex approximately a year ago; however, he ceased taking it because of gastrointestinal pain. The plaintiff takes a varying number of Advil to assist with pain management. It could be eight to twelve tablets a day.[24] If he is in pain, he takes extra tablets. Advil is the only medication which gives him relief.[25]
[24]T23
[25]T24
111 The plaintiff disagreed he had problems with all his treaters such as the physiotherapist and Dr Lim. That was not the case at all.[26]
[26]T42
112 The plaintiff’s mental state remains poor, thus he takes medication and continues psychiatric review. He feels down very frequently, and as though the wind has been knocked out of him in an important part of his life. He has worked really hard to get the farm, raise his sons and do his best, having worked hands-on all his life. He feels as though a lot of this has fallen away with Karen and the boys taking over from him, and that is not how it should be.
Video surveillance
113 The plaintiff was shown attending a trots night meeting at Kilmore on 7 July 2015.[27]
[27]Exhibit 1 – 13 minutes
114 On occasions during that film, the plaintiff agreed that he was shown standing leaning forward on the bar with both elbows and arms. He was also seen using a mobile telephone in his right hand.[28]
[28]T11
115 The plaintiff disagreed that leaning on the bar placed pressure on his right shoulder.
116 On 1 January 2016, the plaintiff was shown attending the Kilmore Pub Tab. Again, he was shown leaning forward supporting his arms on a bar.
117 The plaintiff disagreed he was putting pressure on his shoulders when leaning on the bar. Doing so relieves the pressure. Wherever he goes, he tries to take the pressure off his right arm by leaning on something.[29] He denied this was at odds with his claim that when he put pressure on his right shoulder he could not sleep. He was taking pressure off by leaning, otherwise he had pressure on the tendons as they dragged down when he was standing without any support. His right shoulder went up when he leant down and it went forward when he slept. He demonstrated that he had a problem with his shoulder moving it forward.[30]
[29]T17
[30]T18
118 There was further film of the plaintiff on 9 January 2016 at his property.[31]
[31]Ex 2 – 21 minutes on 1 January and 5 minutes on 9 January 2016
119 The plaintiff was shown standing at the back of a utility at 9.34am. He agreed that he had a bucket in his right hand, which would have contained feed for the horse. A minute later, he took the bucket out of the back of the utility with his left hand and transferred it to his right hand to feed the horse. The plaintiff thought the bucket weighed probably a third of a kilogram.
120 The two horses shown on the film were in work at the time Dr Lim discussed stable-hand work with the plaintiff.[32]
[32]T29
121 One horse at the property “Cotton Blossom Lombo” is currently racing and the plaintiff works it with the jogger attached to his old Commodore. He cannot drive in a sulky because, when holding the reins, it pulls on his right arm and he cannot take the pressure.[33]
[33]T29
122 The plaintiff attends trotting meetings all over Victoria when Cotton Blossom Lombo is running.[34] The plaintiff shares driving to trotting meetings with Karen and their son.[35] Karen and the plaintiff share the driving when he comes to Melbourne for medical appointments.[36]
[34]T30
[35]T31
[36]T32
Work future
123 The plaintiff has not returned to any form of employment. He has not done any retraining or had any assistance with alternative employment. He received WorkCover payments for 130 weeks, and also an impairment benefit.
124 The plaintiff confirmed there was a period where he was not receiving any benefits after weekly payments stopped in November 2014.[37]
[37]T64
125 The plaintiff had not applied for any work other than at Willowmeade.
126 The plaintiff has done nothing about work because he is not able to work. He has not applied because he is not fit enough to work. He has looked at hundreds of jobs, but he would not be able to do them.
127 The plaintiff knew from his previous job as a supervisor in the building industry that someone with a “crook shoulder” would not have a chance of a job on a building site.[38]
[38]T43
128 The plaintiff agreed he talked to Dr Lim about working somewhere like Bunnings. Dr Lim did not however advise the plaintiff to go and get such a job.[39] The plaintiff did not think he could work at Bunnings’ work because there is a lot of picking up boxes, stocktaking and reaching involved in that job.
[39]T26
129 The plaintiff denied he told Dr Lim he was well engaged in the role of acting as a stable hand for his son’s horses. Dr Lim’s comments in this regard were about what he wished the plaintiff would do and what he told the plaintiff.
130 The plaintiff agreed he told Dr Lim that working with horses was really good for him. The horses are his soul mates. In the morning, he feeds them from a bucket, as shown on the film. He then walks in the paddock, gets the horse on a lead and walks it to the back of the jogger. He hops in and drives around, and when he is finished, he hoses the horse and puts a towel over its rump, dragging the water off with his left hand.
131 Dr Lim had no compassion for the plaintiff whatsoever. The plaintiff let Dr Lim down by not coming good as he wanted him to. The plaintiff is not scared to say that Dr Lim put things in his report with which the plaintiff did not agree and did not recall discussing with him.[40] The plaintiff did not mention working in another stable and did not say he would be able to work as a stable hand.
[40]T39
132 The plaintiff found Dr Lim very difficult to work with. He related better to the staff who were dealing with him hands-on, rather than Dr Lim. Dr Lim had told him to toughen up, and that was not the advice he was given from the hands-on treaters.[41]
[41]T33
133 The plaintiff was having problems with his arm and he told Dr Lim he was unable to work as a stable hand. Dr Lim suggested he go and try, and had no compassion for the plaintiff whatsoever.[42]
[42]T34
134 The plaintiff confirmed that Dr Lim told him it was his choice to remain disabled waiting for the big WorkCover payout, and if that was the case, then there was not much more he could do to assist him.[43]
[43]T34
135 Dr Lim is definitely not right when he said the plaintiff was waiting for a big WorkCover payout. He and his wife had spoken “about one cent” because they did not know where they would end up with WorkCover.[44]
[44]T42
136 Dr Lim did not speak to the plaintiff about the various vocational assessments. He spoke to him about the horse industry, in relation to which the plaintiff told him he had no future. However, it did give the plaintiff an activity to “get off his backside” instead of lying around just putting on weight.[45]
[45]T35
137 The plaintiff went to the Men’s Shed, but could not handle it.
138 When the plaintiff spoke to a lady from Centrelink, the plaintiff told her he was fifty-six and quite disabled. She said: “Mate, see you later. We won’t be looking for work for you.”[46]
[46]T43
139 Dr Elliot has not spoken to the plaintiff at all about his capacity to return to work or what hours she thought were appropriate. This year, she actually discussed with him that he was significantly affected by his medication, and until that was under control, he would be unable to work.[47] However, she was supportive of the plaintiff having an activity.[48]
[47]T38
[48]T39
140 Dr Lim discussed with the plaintiff working as a speed camera operator. The plaintiff had not done anything to investigate that work. He does not know anything about what that job involves.
141 The plaintiff cannot write a full page because he has a lot of pain in his wrist, elbow and right arm. He has problems with repetitive work. He does not use a computer and his house is a computer-free zone. He denied he had used the computer to purchase livestock.
142 The plaintiff is “illiterate” with a computer and has never used one.[49] When he supervised on a construction site, he used a pencil and paper.[50] He had not done a computer course because his health was his priority.[51] The plaintiff is on Facebook, but his wife posts entries on his page. He can use an iPhone.[52]
[49]T61
[50]T61
[51]T63
[52]T66
143 The plaintiff agreed he was a construction supervisor for many years. He could get on with blokes very well and agreed he was responsible for organising different trades on a construction job.
144 The plaintiff could not work as a betting clerk because of his lack of computer skills and his difficulty using his right hand repetitively. He would have to be trained to use the terminal to get a ticket. The job would involve a lot of handling money and typing into a computer.[53]
[53]T50
145 This was a job the vocational assessor thought the plaintiff could do and she suggested it. It was not a job he thought he could do.[54]
[54]T51
146 The plaintiff had not made any approach to his wife about getting a job as a betting clerk at the Kilmore TAB.[55]
[55]T52
147 The plaintiff would not be able to work as a sales assistant given the amount of manual handling of stock which would be involved. He disagreed with Work Stream that such work did not involve overhead reaching or heavy use of his right arm.[56]
[56]T53
148 The plaintiff could not work as a bookmaker’s clerk, supporting a bag over his shoulder and dealing with money. He would have difficulty standing for prolonged periods without supporting his right arm. He would want to change his posture frequently and he had problems concentrating due to his medication.[57] He also had anxiety attacks. His mental health and his right arm, but not combined, stop him from doing that job. They are two individual things. His mind runs what he sees and does. His arm does the manual labour. Constantly doing things with his right arm puts him through “a hell of a time”.[58]
[57]T55
[58]T56
149 The plaintiff could not be a gaming worker because of he could not empty the hoppers, carry coins or move the chairs. The job would involve much more than walking around the TAB, as he was shown doing in the film.[59]
[59]T56
150 The plaintiff knew what an occupational health and safety officer was, but his mental health was “miles away” from a responsible job. He has not discussed this with his psychiatrist. He would need to be able to frequently rest and change his posture and not carry anything in his right hand. Being on his feet all day at a building site all day, without his arm being supported, would give him pain.[60]
[60]T58
151 The plaintiff has no idea what the job of welfare support worker involves. It would be a lot different to sitting around talking to old people at Willowmeade.[61]
[61]T59
152 There would not be much work as a ticketing or information officer at a railway station as there are ticket machines.[62]
[62]T60
153 The plaintiff was dismissive of the suggestion he was suitable for work in Kilmore as a tourism officer.[63]
[63]T62
Lay evidence
154 The plaintiff’s wife, Karen Shrimpton, swore an affidavit on 12 May 2016. She and the plaintiff have been together since about 1989 and married in 1991.
155 Karen is currently employed as a gaming manager with Kilmore Racing Incorporated. She has been with that employer for the past sixteen years.
156 Karen grew up in the country and has been raised by farmers, and lived on farms most of her life. When the plaintiff was injured, she took over a lot of his farm duties with the assistance of their two sons.
157 Pre injury, the plaintiff did a fair bit of construction work on the farm, including building walls, maintaining sheds, fencing and machinery. He had always been a big, strong man and knew the value of hard work.
158 Karen has had to do fencing since the plaintiff’s injury, including fitting new posts. She has had to lift and carry building material as well as work full time and look after the farm. They have had to get rid of the animals after the plaintiff’s injury. She took over the crutching, which was quite difficult and labour intensive. She and the plaintiff were both very upset about getting rid of the animals, but they were too difficult to maintain.
159 It has broken Karen’s heart to see the plaintiff in pain with his difficulties, such as using the ride-on mower. The plaintiff has trouble sleeping and wakes during the night if he has rolled on his shoulder. He stresses and worries all the time about his ability to care for his family.
160 The plaintiff did not come with her on her yearly holiday to Fiji because he had been a workaholic all his life. His work had been his identity.
161 Their relationship remains strong and Karen continues to support the plaintiff. She encourages him to stay involved with the boys, with the horses, and to come to her work at Kilmore Racing, from which she thinks he gets some enjoyment. The plaintiff helps by feeding the horses. He is able to drive the car with the float. However, she knows he would just rather be working and as he is not doing so, it is making him upset and frustrated.
162 The plaintiff has changed as a result of his injuries; he is down and upset, and he does not like to talk about it. He is a very proud man and husband. They have raised two big, strapping boys whom he relies on to do the farm work that he previously did easily. The plaintiff relies on her, and this upsets him. He has become withdrawn. He spends too much time inside, or on the couch, and he has lost interest in socialising. She encourages him as she can and she drags him along to the races to get him out of the house when she can.
163 Karen is happy to do more work around the farm with the boys’ help. They love the farm and the life they have built together. She does not like seeing the plaintiff the way he is, always in pain, feeling down and not being able to get himself motivated. His strength, his work and family have been his life and he is incredibly upset about his current situation after two operations and being unable to work.
Treaters
164 The plaintiff attended Kilmore and District Emergency on 8 February 2012. It was then noted that he injured his right shoulder at work that morning. He was complaining of pain across the shoulder and radiating down the arm.
165 In the most recent report from the practitioners at Kilmore Medical Centre dated 7 April 2016, a diagnosis of right rotator cuff injury was confirmed. Dr Singh stated there was no other organic cause of the plaintiff’s right shoulder problem.
166 Dr Singh thought the plaintiff would not be able to return to pre-injury duties and could not presently work, because any shoulder movement brought on the pain quickly and he got very distressed.
167 Dr Singh thought the plaintiff could not do any work in the foreseeable future and could not work in the job options suggested.
168 Dr Singh considered the plaintiff’s pain restriction, disability and incapacity was caused by his right shoulder injury. He thought the plaintiff most probably would continue to suffer from the consequences of and incapacities of the right shoulder injury for the foreseeable future.
169 Dr Singh considered the plaintiff needed analgesics and anti-depressants according to his symptoms. He was not sure how long the plaintiff would need them.
170 Dr Singh thought the prognosis was uncertain, but, given the plaintiff’s history and progress, it did not look good.
171 Mr Lynch, orthopaedic surgeon, first saw the plaintiff on 17 July 2012, when he described doing heavy work in February 2012.
172 Mr Lynch organised a right shoulder MRI scan in August 2012. On review on 14 October 2012, the plaintiff had ongoing right shoulder symptoms, and Mr Lynch recommended surgery.
173 During that surgery, on 13 September 2012, partial thickness tearing at the anterior supraspinatus was noted, together with fraying of the superior labrum. The longhead of biceps was intact. The acromioclavicular joint was excised on the right. A right shoulder acromioplasty subacromial bursectomy and side-to-side repair of a split partial thickness tear of the anterior supraspinatus was performed.
174 The plaintiff was seen on 2 October 2012, and further reviewed on 13 November 2012. On the later date, Mr Lynch noted that the plaintiff had made some gains in his range of movement but had still significant pain coming down from full elevation. He had started exercises and a strengthening program. At that stage, the plaintiff was unable to return to light duties.
175 On review on 13 December 2012, the plaintiff had some painful episodes of giving way in the right shoulder, and he was tender over the biceps. His previous investigations were suggestive of longhead of biceps instability, but that was not demonstrated at the time of the surgery. Mr Lynch recommended a longhead of biceps tenodesis.
176 Because of the significant ongoing degeneration in the rotator cuff tendon, Mr Lynch did not think the plaintiff was able to return to labouring duties as a long-term option.
177 On 8 February 2013, the plaintiff underwent a right shoulder arthroscopy, debridement, and longhead of biceps tenodesis (“the second operation”). Degenerative partial thickness tearing of the articular surface of the rotator cuff was again seen. The longhead of biceps was resected from the superior labrum and tenodesed into the intertubercular groove.
178 On review on 26 February 2013, the plaintiff was doing well until the day before when he felt increasing pain with physiotherapy. On review on 19 March 2013, there was quite good elevation of the arm, but when attempting active unassisted forward reaching or elevation, the plaintiff’s right shoulder pain was reproduced.
179 Mr Lynch thought the plaintiff did have an ongoing Complex Regional Pain Syndrome (“CPRS”), and noted he was due to see Dr Lim in April 2013.
180 Mr Lynch noted the plaintiff’s right shoulder condition had been problematic since the work injury, and symptoms dated from that time. The plaintiff’s condition had been complicated by the development of a CRPS, and he had been unable to return to work, requiring the assistance of a psychiatrist and pain-management specialist.
181 Mr Lynch diagnosed right shoulder longhead of biceps instability, rotator cuff degeneration and partial thickness tearing, and arthropathy of the right acromioclavicular joint.
182 Mr Lynch felt the plaintiff was not going to return to labouring duties long term, and his fitness for light alternate duties would depend on his results from pain management. From a purely physical perspective, he thought the plaintiff would be able to perform duties with his elbow by his side so long as he avoided repetitive forward reaching or above shoulder level activity. Due to the development of a pain syndrome, Mr Lynch thought the plaintiff’s overall prognosis was now unpredictable.
183 Dr Riddle, psychologist, provided counselling for the plaintiff between December 2012 and early 2014, with one review session thereafter.
184 During counselling sessions, the plaintiff complained of feeling excessively helpless, on edge, irritable, and frustrated, with an inability to concentrate and make decisions about his life. Dr Riddle thought those symptoms were consistent with depression, secondary, due to chronic pain.
185 Dr Riddle noted the plaintiff felt extremely traumatised by the manner in which the defendant treated him. In particular, he felt he was forced back to work before a proper diagnosis was made. After returning to work, he was put in a position where he must “pull his weight”, which he believed caused further injury to his shoulder and contributed to strain on his uninjured left shoulder.
186 Dr Riddle diagnosed depression, chronic pain, and an Adjustment Disorder. He thought the plaintiff was incapable of returning to pre-injury duties because of the ongoing shoulder problem, and was unlikely to ever be able to return to heavy industry work. He thought the plaintiff then had no current work capacity because of the ongoing healing of the right shoulder and the additional left shoulder pain.
187 Dr Riddle noted the plaintiff responded very well to hypno relaxation therapy, and he had been instructed in meditation and self-hypnosis. He thought it was imperative the plaintiff continued to practise these sessions to promote physical healing and for pain management. If he could keep those practices up, it might help his physical improvement.
188 Dr Riddle noted that the plaintiff was making progress and expanding his view of himself to include other future occupational paths. The plaintiff had worked extremely hard in very physical labouring environments but was starting to realise he had some desire to use his mental skills going forward. Whilst his shoulder may never fully recover, Dr Riddle thought the plaintiff had a moderate chance of recovering psychologically and regaining some occupational and emotional purpose for his life.
189 Margaret Perrott, physiotherapist, from Kilmore Physiotherapy Centre first saw the plaintiff in October 2012, treating him until August 2013, when he was going to pain management.
190 Ms Perrott thought the injury sustained was consistent with the stated cause, with the plaintiff’s employment being a major contributing factor. She diagnosed right shoulder rotator cuff injury, biceps injury, bursitis, and central pain sensitisation. She considered there was an organic basis for the plaintiff’s pain. There were ongoing mechanical changes with the post-surgical ultrasound, demonstrating bunching of the bursa. She noted central sensitisation was also a well-known organic basis for the plaintiff’s severe pain, with changes occurring within the central nervous system.
191 Ms Perrott did not think the plaintiff could return to work in his pre-injury duties, and when last seen, had no capacity in that regard. Even if he made a good recovery from the injury, she thought it would be unwise to return to heavy physical labour in the presence of compromised tendon structures.
192 When last seen, the plaintiff had such significant pain that affected his ability to carry out activities of daily living and drive, that she did not consider he had a capacity for modified alternative duties.
193 Ms Perrott commented that it was difficult to see the plaintiff developing a work capacity to be able to do the WorkStreams jobs if, as the WorkStreams assessor stated, the pain caused him to be exhausted and aggravated with activity. That happened with limited physical activity like walking a dog, so it was hard to see him developing a work capacity.
194 Ms Perrott thought it would be expected the plaintiff would need to continue to consult with his general practitioner and may benefit from further assistance with pain management. It was possible he may regain some work capacity if he was able to access some physiotherapy to try and restore mobility, strength and endurance.
195 Dr Lim first saw the plaintiff in April 2013 as part of supervising his engagement in the NERC pain rehabilitation program. He last saw him on 18 November 2014, the program having ceased in January 2014.
196 On the first presentation, the plaintiff was suffering from chronic right shoulder pain exacerbated by activity and restricted range of motion caused by the incident and due to evidence of persistent muscular irritability as a reflection of the development of central sensitisation. That condition was due to scientifically proven organic changes that occur in the pain pathways of the central nervous system, a consequence of having at least suffered an episode of acute or nociceptive pain caused by an initial injury.
197 The plaintiff was commenced on Lyrica, aimed at reducing the amplification of pain due to the development of his condition, as well as improving the quality of his sleep. As well, the plaintiff was referred to the NERC pain rehabilitation program.
198 Dr Lim reviewed the plaintiff on 2 May and 9 May 2013.
199 The plaintiff was assessed in June 2013 by the NERC pain rehabilitation program team. He attended in a residential stay capacity from mid-August 2013 for five weeks in total.
200 Dr Lim noted that in the initial phase of the program, the plaintiff was extremely positive in progress.
201 There were subsequent reviews in October and November 2013. Dr Lim noted the plaintiff’s understanding of the concept of central sensitisation was less than optimal. The plaintiff was still focused physically, and Dr Lim recommended to his NERC pain team that this needed additional attention.
202 The plaintiff was encouraged to accompany his son, who trained trotting horses, to take his mind off focusing on the persistence and severity of his pain. As well, he would explore attending voluntary organisations like the Men’s Shed, with the aim of getting him out of the house.
203 As there was ongoing pathology affecting his right shoulder, Dr Lim recommended a referral to a shoulder surgeon, Mr Chehata.
204 On review on 12 December 2013, Dr Lim noted the plaintiff had misunderstood his instructions and had been seeking voluntary work in a commercial setting, which he was clearly not ready to pursue.
205 As of 30 January 2014, the plaintiff’s condition had deteriorated – the persistent pain, as well as emotional perspective – and Dr Lim assessed him as being back to where he had been when the course started.
206 Dr Lim thought the contributing factors were, not surprisingly, complex, with multiple contributing factors, including the plaintiff’s ongoing WorkCover dispute; the plaintiff having to come to terms with having to live with his changed circumstances, for example chronic pain disability; a large amount of time on his hands to focus on pain and negative events rather than on more positive aspects of life, and having to pursue an alternate vocation. Dr Lim then thought the plaintiff would benefit from revisiting the NERC planned rehabilitation program.
207 At that stage, Dr Lim thought the plaintiff would not be fit to do pre-injury duties as a labourer in the construction industry, but he would have a fitness to return to part-time light duties at some stage in the future, including a return to work in his previous employment as a construction industry supervisor.
208 Dr Lim thought the plaintiff’s prognosis would be determined by how the chronic pain sufferer was able to accept and adjust to living with a change in circumstances. The plaintiff was then struggling to come to terms with his chronic pain condition and its consequences.
209 Dr Lim noted the plaintiff reported he found volunteering to care for his son’s horses, and preparing them for trotting races, significantly meaningful. It was clear, the way he was describing this, that the plaintiff was passionate about his newfound vocation.
210 On review in June 2014, there was discussion in regard to the plaintiff participating in voluntary work with the aim of becoming increasingly meaningfully occupied in something like Bunnings, where he could use his building industry experience with a view to seeking part-time work. Dr Lim noted the other option was for the plaintiff working as an attendant in a speed-camera vehicle, noting the plaintiff reported he apparently enjoyed sitting in a car.
211 There was a further review on 1 July 2014.
212 On 15 July 2014, Dr Lim noted the plaintiff was well engaged in the role of acting as a stable hand, caring for his son’s horses.
213 Dr Lim noted he agreed with the IME recommendation that the plaintiff be referred to a vocational provider because he did have a work capacity, demonstrated by working as a stable hand for his son. Dr Lim noted there was also an opportunity to work for an additional stable. He thought the plaintiff was fit for part-time light duties.
214 Dr Lim noted it was agreed that the plaintiff would go away to consider this as his future vocational option, and he would be discussing the legal implications with his solicitors in a week.
215 Dr Lim also told the plaintiff that if his choice was to remain disabled, waiting for the big WorkCover payout, then there was not much more he could do to assist him with that, and that he would have to accept suffering severe persistent pain and being disabled and miserable as his definitive prognosis.
216 On review in August 2014, the plaintiff said he was unable to perform work as a stable hand and that was an unrealistic job.
217 The plaintiff was last reviewed on 18 November 2014, and an agreement made for a review in about two months, but the plaintiff had not seen Dr Lim since.
218 Dr Lim considered there was an organic basis to the plaintiff’s condition, namely central sensitisation. The plaintiff could not do his pre-injury duties but he had a light part-time duty capacity such as for office-based duties. He did demonstrate a capacity for light part-time duties, commencing four hours twice a week and increasing to a maximum of 20 hours.
219 Dr Lim thought that the plaintiff physically could work as a sales assistant, occupational health and safety officer, welfare support officer, enquiry clerk/information officer, tourism and travel officer. Dr Lim noted, however, these employment options would require specific training. The issue would be whether the plaintiff was able to participate competently in the specific training, and effect the lessons learnt, including using a computer competently.
220 Dr Lim suggested the plaintiff explore the specific practice requirements for each of the job options, as well as the minimal requirements to commence the specific training; for example, the aforementioned computer skill, ideally working four hours a day to a maximum of 20 hours a week.
221 Dr Lim thought the plaintiff may require ongoing psychological/psychiatric follow-up, given his history of issues related to a highly-charged emotional state in reaction to his chronic pain and change in circumstances. He confirmed the plaintiff’s prognosis would be determined by his ability or inability to accept and adjust to living with changed circumstances.
222 Dr Naomi Elliot, consultant psychiatrist, saw the plaintiff on referral from Dr Lim for the first time in August 2014.
223 In her report of 10 February 2016, Dr Elliot set out details of all appointments and the plaintiff’s complaints on those occasions.
224 Dr Elliot thought the plaintiff had developed Major Depression in the setting of chronic pain, which was consistent with the stated cause. She considered his employment was the cause of his chronic pain condition, and his depressive illness had developed as a direct consequence of living with chronic pain.
225 Dr Elliot diagnosed a major depressive episode of moderate severity and central sensitisation.
226 Taking only into account the psychological and psychiatric consequences of his physical injury, Dr Elliot thought the plaintiff was unfit for full-time work, though was likely to be able to manage part-time hours of 15 to 20 hours a week. She noted keeping meaningfully occupied was essential to the plaintiff’s wellbeing. The limiting factor in his work capacity was his chronic pain from which the psychiatric condition could not be isolated.
227 From a psychiatric perspective, Dr Elliot thought the plaintiff required ongoing psychiatric review to ensure the anti-depressant medications continued to work; for example partially reduce his depressive symptoms to a level that made life worth living. She thought that as chronic pain was likely to continue indefinitely, it was also highly likely that some degree of mood disturbance would continue.
228 Dr Elliot thought the plaintiff met the criteria for a moderate degree of depression, so therefore the psychiatric condition of itself was not severe.
Investigations
229 Dr Jain organised an ultrasound of the plaintiff’s right shoulder on 9 February 2012. It was reported there was tendinosis of scapularis and supraspinatus. There was subacromial bursitis with bursal bunching.
230 Dr Tunaley organised a right shoulder ultrasound on 18 June 2012.
231 It was reported there was moderate subacromial bursitis with bursal impingement. There was possible adhesive capsulitis. It was suggested the plaintiff may benefit from ultrasound-guided steroid injection to the right subacromial bursa.
232 Mr Lynch organised an MRI scan of the right shoulder and x-ray of the orbits on 10 August 2012.
233 It was reported there was pronounced infra-supraspinatus tendinopathy and focal posterior supraspinatus delamination. There was extensive deep surface partial thickness tearing scapularis, with focal biceps tendinopathy and mild medial subluxation. There was low-grade active glenohumeral capsulitis. There was mild to moderate AC arthropathy with pronounced hypertrophy distal clavicle.
234 Dr Jain organised a left shoulder ultrasound on 2 February 2013.
235 It was reported there was focal calcific tendinitis within the supraspinatus tendon insertion without evidence of rotator cuff tear or bursitis.
236 Dr Jain organised a right shoulder ultrasound in March 2013.
237 It was reported there was rupture of the longhead of biceps tendon, and the tendon sheath appeared enlocated within the bicipital groove. There was abnormal echotexture of the rotator cuff tendons consistent with previous surgery and tendinopathy. There was bursal bunching with dynamic scanning.
Medico-legal examiners
238 Mr Michael Polke, orthopaedic surgeon, examined the plaintiff on behalf of Allianz in November 2013.
239 At that stage, the plaintiff continued to complain of right shoulder pain and limitation of movements.
240 Mr Polke then thought the plaintiff would be able to undertake the activities of daily living, but not return to work. He recommended a hydrodilatation to the shoulder to bring about some pain relief.
241 Mr Polke thought the plaintiff suffered soft tissue injury to the right shoulder that included rotator cuff tendinopathy, subluxation of the longhead of biceps, rotator cuff degeneration and partial thickness supraspinatus tear and arthropathy of the right acromioclavicular joint.
242 The cause, thereof, was probably the heavy lifting at work.
243 Mr Polke then thought the plaintiff would not have the capacity for modified or alternate duties hours with his current or another employer. He had no capacity for modified pre-injury duties with tasks involving his right shoulder, including repetitive above-shoulder height activities, lifting, pushing or pulling.
244 It was suggested a review of the plaintiff’s work capacity could be undertaken within twelve months. There was nothing other than the right shoulder that affected the plaintiff’s recovery, including return to work, although he suffered from some psychological issues.
245 The plaintiff was examined by Dr Umberto Boffa, occupational physician, on behalf of Allianz in July 2014.
246 The plaintiff then complained of pain “everywhere”, continuing right shoulder pain estimated at four to five out of ten. He had problems with sleeping.
247 Dr Boffa thought the plaintiff developed chronic central pain sensitisation following work-related right shoulder injury and surgery, but he did not believe he fitted the criteria for CRPS Type 1. The plaintiff had then made a partial return to work on his property.
248 Dr Boffa believed the plaintiff’s condition was still materially contributed by the incident injury. He thought the plaintiff was able to graduate to modified and alternative duties that did not require prolonged standing, bending or walking, or repetitive reaching or carrying, or lifting more than 5 kilograms. He thought a review in twelve months was appropriate regarding work capacity if there had not been a return to part-time employment by then.
249 Dr Boffa thought there was nothing other than the shoulder injury affecting the plaintiff’s recovery, including return to work. He thought the plaintiff had a work capacity but did not think he could work full time in the roles suggested in the January 2014 Vocational Assessment Report.
250 The plaintiff relied on the first report from Dr Wood, sports physician, who examined the plaintiff on the defendant’s behalf in October 2014.
251 The plaintiff then reported being in pain every day in his shoulder, and the pain had also spread to other parts of his body, including his neck, lower back and legs.
252 The plaintiff had a problem of becoming unbalanced and falling over. He had also developed significant secondary psychological issues and had become very depressed.
253 Dr Wood thought the plaintiff had developed a Chronic Pain Syndrome involving his right shoulder following the incident. He considered the plaintiff needed both Dr Lim, psychological and psychiatric support during the next few months, as he determined what employment options there were and tried to pursue them.
254 In terms of treatment, Dr Wood thought fortnightly physiotherapy to reduce any stiffness in the shoulder would be reasonable for six months, and the plaintiff’s medications were reasonable.
255 Dr Wood believed the plaintiff had the capacity to explore some part-time employment options in occupational health and safety or as a speed-camera operator. He thought none of those jobs required significant physical use of the right arm, and up to twenty hours’ employment, initially, for the first six months would be reasonable. There should be, then, a review in a year.
256 Dr Wood noted there were significant secondary psychological factors that had developed since the injury. He thought the plaintiff had a current work capacity from a physical perspective to do jobs such as an occupational health and safety or speed-camera operator.
257 Dr Wood noted the most recent vocational report from July 2014 came up with possible employment options as sales assistant, betting clerk, gaming work, information officer and tourism travel adviser. Dr Wood did not believe any of those employment options were within the physical capacity of the limited use of the plaintiff’s right arm, and other more suitable employment options had been mentioned in the report. He did not believe the plaintiff had a capacity for full-time employment in any of the suitable employment options identified in the Vocational Assessment.
258 The plaintiff was examined on the defendant’s behalf by psychiatrist, Associate Professor Doherty, in February 2014.
259 The plaintiff told Professor Doherty sleep was not good because of pain in his neck, shoulder and head. The plaintiff reported that he experienced pain everywhere that was due to being over sensitised. He had been told minor use of any parts of his body created pain.
260 The plaintiff told Professor Doherty he was bad tempered and uptight. He could be abrasive and brush people away. He described himself as inattentive and forgetful and he worried all the time about the property.
261 Based on the history, the findings of mental state examination and a review of the documents supplied, Professor Doherty thought the plaintiff had a Chronic Pain Disorder; that is, he had pain in excess of that expected from his physical injuries. The pain was located in various parts of his body unrelated to physical injury or a physical condition. The pain experienced was modulated by the plaintiff’s emotional state and psychological factors contributed to its onset and maintenance.
262 Professor Doherty thought the plaintiff had some adjustment features with mood symptoms. He thought there was no diagnosable Adjustment Disorder with the Depressed Mood. It appeared the cause of the development of the Chronic Pain Disorder was injuries at work, and that the work-related psychiatric condition of Chronic Pain Disorder had not resolved, and was not in remission.
263 From a psychiatric viewpoint, solely, Professor Doherty thought the plaintiff had a current work capacity. The Chronic Pain Disorder and associated adjustment issues did not incapacitate him for work in its own right. The plaintiff could return to work in modified pre-injury duties and hours.
264 There required no recommendations from a psychiatric point of view with regard to alternative work. Professor Doherty noted the plaintiff had made some general comments with regard to anxiety when mixing with other people, and feeling anxious in public, but these were not clinically significant and did not incapacitate him.
265 Professor Doherty concluded, from a psychiatric point of view, the plaintiff had a capacity for suitable employment, and would so in the foreseeable future. There were no psychiatric contraindications of the plaintiff undertaking the listed suitable employment options and he should be able to psychologically perform them.
266 Dr Schutz, psychiatrist, examined the plaintiff on 21 March 2016.
267 Dr Schutz noted on mental state examination, the plaintiff presented as irritable, sullen and depressed. He thought that the plaintiff had developed a psychiatric condition which impacted on his functioning and occupational capacity.
268 Dr Schutz considered the plaintiff had developed a chronic psychiatric condition as per a recognised classification list in DSM‑V. That was most likely to be a moderate to severe Adjustment Disorder with Anxious and Depressed Mood. In terms of differential diagnosis for his depressive symptoms, Dr Schutz thought it possible that the plaintiff at times met the criteria for a moderate Major Depressive Disorder (the diagnosis of his treating psychiatrist).
269 Noting the diagnosis by Dr Lim of central sensitisation, Dr Schutz commented that was not, in itself, a psychiatric condition as such, and the plaintiff did not, in his opinion, meet the criteria for a psychiatric Pain Disorder. However, in his opinion, the plaintiff had an additional psychiatric diagnosis of psychological factors affecting other medical conditions.
270 When asked to comment on the suggested jobs, Dr Schutz thought it was a speculative question, in that the plaintiff’s psychiatric state and Chronic Pain Syndrome were inextricably linked, and each substantially impacted on the other. If one assumed that his Chronic Pain Syndrome was a physical injury, that appeared to have a substantial impact on his work capacity. However, even disregarding this, the plaintiff had a range of psychological and psychiatric consequences to his Pain Syndrome which would impact on his capacity for pre-injury duties and/or alternate duties.
271 Dr Schutz thought symptoms of poor concentration, irritability, panic attack and perception of pain as being disabling (Adjustment Disorder and psychological factors) affecting a medical condition were of such a severity that they would preclude the plaintiff from realistically being able to attain or sustain any employment at present. Dr Schutz did not concur with Professor Doherty’s conclusion that, from a psychiatric point of view, the plaintiff had a work capacity.
272 Professor Doherty thought that the plaintiff would benefit from ongoing treatment, and his prognosis was somewhat guarded.
273 Mr Chehata, orthopaedic surgeon, examined the plaintiff in March 2016.
274 On examination, the plaintiff was barely able to take his shirt off. There was wasting of the right deltoid musculature. There were no features indicative of CRPS. The shoulders would not have any element of abduction, as this would cause a severe sudden spasm in the shoulder.
275 Mr Chehata diagnosed a right pseudo paralysis of the right shoulder with a limited range of movement, to the point where most of the elevation was driven by the deltoid rather than any depressing effect of the rotator cuff. In his view, clearly the condition was work related.
276 Mr Chehata noted the plaintiff had been diagnosed with CRPS and although he did not have the classic features of that syndrome, he certainly had severe pain out of proportion to the injury.
277 Given the diagnosis, Mr Chehata wondered whether or not a cortisone injection into the subacromial space with or without a hydrodilatation would be of benefit. In his view, clearly, it was likely the pain was emanating from a multifactorial element, with both a physical and mental component, but he hoped that a more anatomical approach could be useful in delineating the plaintiff’s pain.
278 Mr Chehata considered there was an organic basis for the pain. That was potentially related to the biceps tenodesis and the excision of the AC joint, as well as the rotator cuff tear, but unfortunately this was superimposed on a well-established CRPS which heightened the effect of the overall pain.
279 Mr Chehata thought the plaintiff would never return to pre-injury duties or any form of alternate duties involving manual labouring. Noting the suggested jobs, he thought it was quite surprising, as the plaintiff was literally one-handed, and he also had problems with his left arm, due to lack of use of the right, and neck pain, and because of all these he did not foresee the plaintiff would be ever able to perform any of the suggested duties.
280 Mr Chehata thought that cortisone injections may help. Obviously the prognosis was very poor, and there was no doubt, although that may not deteriorate necessarily, unfortunately this had taken a severe toll on the plaintiff’s physical and mental health.
281 Dr Eaton, specialist occupational and environmental physician, examined the plaintiff in April 2016.
282 Dr Eaton noted that the plaintiff reported a very profound level of disability. He considered the plaintiff’s statements about his function were consistent with the effects of his right shoulder condition and the secondary Chronic Pain Disorder and significant generalised deconditioning.
283 Dr Eaton diagnosed surgically-treated aggravation of right shoulder, degenerative pathology affecting the rotator cuff, longhead of biceps tendon, glenohumeral joint and acromioclavicular joint, with residual dysfunction, a Chronic Pain Disorder characterised by general pain, avoidance of activity, and secondary deconditioning, and a secondary psychological reaction characterised by low and anxious mood, loss of interest, and inability to motivate himself.
284 In Dr Eaton’s opinion, there was no suitable employment the plaintiff could perform on a consistent basis, and he had no current work capacity. This situation was likely to continue indefinitely. In his opinion, none of the options suggested were suitable for the plaintiff for the reasons he specified.
Claim documents
285 The plaintiff lodged a Claim for Compensation dated 24 February 2012, in which he set out he suffered injury on 7 February that year, lifting steel plates and cleaning waste cement from BiDi machines. As a result, he suffered injury to his shoulder ligament and swelling.
286 At the time of that claim, the plaintiff was earning $19.10 per hour. His usual pre-tax weekly earnings were $969.30. These details were confirmed on the Employer’s Form.
287 The plaintiff lodged a Claim for Impairment Benefits on 6 March 2014 in relation to his right shoulder and psychiatric condition. The injury was described as having occurred lifting a steel plate cleaning a BiDi machine.
288 By letter dated 23 January 2015, Allianz advised the plaintiff that his Claim for Impairment Benefits had been accepted in relation to the right shoulder and psychiatric condition, based on reports from Mr Battlay and Dr Tagkalidis.
The Defendant’s medical evidence
289 The plaintiff was referred by Dr Singh to Mr Owen, orthopaedic surgeon, in May 2015, and was examined on 6 May 2015.
290 Examination showed the plaintiff was hyperpathic widely over the left shoulder with a limited range of movement and a positive painful arc, a positive impingement sign but good external rotation strength. His right shoulder had quite limited range of movement still actively, passively it was a little bit better, and he still had a drop arm sign on that side.
291 Mr Owen wrote to the plaintiff’s doctor advising he found the plaintiff a very complicated man. He thought the left shoulder did have reasonable signs of a rotator cuff impingement, and he injected the subacromial space with local anaesthetic and steroid.
292 On review on 20 May 2015, the plaintiff said the injection had helped for nine hours in his left shoulder, but he was back in agony, the pain had deteriorated, and he was now worse.
293 Mr Owen noted the MRI scan of the left shoulder showed focal damage to the rotator cuff in the area of the infraspinatus, and there was mild bursitis. There was a similar pathology in the right shoulder, but this time the radiographer was of the opinion the tendon problem in the infraspinatus had resolved.
294 Mr Owen arranged for an MRI scan of the cervical spine because of the plaintiff’s symptoms, and it showed multi-level degenerative changes in the neck with severe left-sided foraminal stenosis.
295 Mr Owen thought the plaintiff would be a poor candidate for any surgical intervention, and that a spinal surgeon would be appropriate for those troubles. He was firmly of the opinion the plaintiff should go back for more pain management, and, given that he had had a falling out with Dr Lim, that he see another pain-management specialist such as Dr Clayton Thomas.
296 Mr Owen thought the plaintiff did have significant pain and loss of functioning in his left shoulder. Some of that was undoubtedly due to low-grade rotator cuff pathology. Because of the overlying anxiety, chronic pain problems and cervical spine problem, Mr Owen thought any intervention in the left shoulder would be fraught with failure, and he would not recommend it on this patient. He thought it likely the plaintiff’s symptoms would persist, and he imagined, with this degree of symptomatology in both shoulders and neck, it would be very unlikely the plaintiff would ever return to gainful employment as a labourer.
297 In his report of 10 September 2015, Mr Owen advised that there was a low probability likelihood that the plaintiff’s symptoms in his left shoulder were a result of having to overcompensate for the loss of use of his right shoulder. Those conditions were generally degenerative. There was a provocation sometimes of the symptoms by doing particular tasks repetitively. As the plaintiff had been off work for some time, Mr Owen thought it unlikely the left-sided symptoms were provoked or indirectly attributed to by some overuse pathology.
298 In his report of 8 October 2015, Mr Owen confirmed he did not think the symptoms in the plaintiff’s left shoulder were as a result of increased use of the right.
299 Mr Owen noted it was a very common proposition put by a patient that because they had loss of function on one side of the body, that symptoms then appeared on the other side as a result of the increased use of that side. Mr Owen did not think there was any evidence to support that conclusion. It was basically something that had cropped up in folklore. He thought pathology in the plaintiff’s left shoulder was essentially a degenerative condition, and it was as likely to become symptomatic through time, as it was with any serendipity with his right shoulder pathology.
Medico-legal examiners
300 Mr Polke provided a supplementary report in April 2014.
301 Mr Polke thought, as the plaintiff still suffered from right shoulder pain, the recent x-rays taken in April 2013 post examination, showing acromioclavicular subluxation, an up-to-date assessment was warranted to investigate any residual pathology with respect to the ACJ subluxation. That should be carried out before any consideration of approving extra sessions at the pain clinic.
302 On re-examination on 8 December 2014, the plaintiff then described a continuous pain anteriorly over the right shoulder and spreading over the deltoid area. To a lesser extent, there was pain through to the back of the shoulder blade. On average, that was five out of ten, but on bad days, eight out of ten. Elevation was particularly painful, as was reaching out sideways.
303 Mr Polke concluded, presumably the plaintiff sustained a right shoulder injury, and as a result of his subsequent surgical treatment and efforts at rehabilitation, there was a stabilised permanent impairment resulting from his injury. Mr Polke diagnosed repeated right shoulder surgery for rotator cuff and biceps tendon tear.
304 Mr Polke thought the plaintiff’s prognosis was stable and he did not see the plaintiff predisposed to any specific long-term complications.
305 In his report of 19 May 2014, Dr Wood noted there was no specific mention of the left shoulder or arm during examination, and he could not remember whether he specifically examined the plaintiff’s left shoulder. The plaintiff did mention his neck, and his neck was certainly stiff. Dr Wood considered that any pathology seen in the cervical spine CT scan was unrelated to the incident.
306 Dr Wood’s report of 15 July 2015 followed examination of that date.
307 The plaintiff then still had ongoing right shoulder problems and limited use of his right arm. He used his left arm still, but experienced pain in certain positions, which could be relieved with pressure on different muscles.
308 Dr Wood noted the MRI scan of the left shoulder showed some degeneration of the subscapularis and supraspinatus tendons and some signal change in the subacromial bursa.
309 On examination, there was restriction of cervical movement. Active left shoulder movement was accompanied by grimacing and pain with collapsing.
310 Dr Wood thought the default diagnosis, currently, was a Pain Syndrome, noting physical examination did not give any clear correlation between multiple pathologies shown on the MRI scan of the neck and left shoulder and the plaintiff’s current symptoms.
311 Dr Wood thought the changes on the MRI scan of the neck and shoulder were constitutional and not caused by any particular incident, particularly at work. He did not believe the neck or left shoulder had become sore due to the right shoulder injury.
312 Dr Wood did not believe employment was the cause of any pathology identified in the neck, left shoulder or the plaintiff’s current pain.
313 Dr Wood noted the plaintiff continued to be under considerable stress, with allegations from his previous employer that he was currently contesting.
314 In Dr Wood’s view, the plaintiff’s claim for the left shoulder injury was not an injury sustained, or a medical condition directly related to the compensable injury.
315 Dr Wood did not believe an appointment with another pain specialist, Dr Clayton Thomas, was advisable, noting the plaintiff had done an eight-week pain management course and Dr Wood did not believe any further treatment for his physical conditions were required.
316 Dr Wood did not comment on the plaintiff’s work capacity.
317 The plaintiff was examined by Dr Tagkalidis, psychiatrist, in December 2014.
318 The plaintiff then described ongoing frustration with pain and resultant limitation. He currently felt “shit”, and sad, and flat much of the time. He was tearful up to two times a week in private and was uncharacteristically irritable, and shouted and screamed, but did not act out. He was intermittently anxious and had minor panic attacks lasting up to two minutes, including shortness of breath, heart racing and excessive sweating. He described moderately low energy levels, and feeling tired and lethargic, and having reduced motivation and reduced libido. He had disrupted sleep, mainly due to pain, stress and worry. He struggled to remain hopeful about the future.
319 Dr Tagkalidis concluded the plaintiff was currently suffering from an Adjustment Disorder with Mixed Anxiety and Depressed Mood, relevant to the accepted injuries. It was not possible to definitely diagnose a Chronic Pain Disorder, given the diversity of medical opinions. He thought the plaintiff’s current functioning and coping had not been compromised by any personality-based factors. He thought the psychiatric condition had stabilised and was unlikely to remit with further treatment.
320 Dr Tagkalidis suggested further treatment should include ongoing regular sessions with a treating psychiatrist and that further alterations in the plaintiff’s psychotropic medication should be at his psychiatrist’s discretion.
321 Dr Tagkalidis did not comment on the plaintiff’s capacity for work.
322 Mr Michael Dooley, orthopaedic surgeon, examined the plaintiff in September 2015.
323 The plaintiff told him of constant ongoing right shoulder pain, and for the last two months, electric shock sensations in his left upper limbs. The plaintiff also said he had become significantly depressed.
324 On examination of the right shoulder, there was tenderness anteriorly, and some restriction of movement.
325 Mr Dooley thought the plaintiff aggravated underlying degeneration of the right rotator cuff. His ongoing pain in time following that injury related to the organic injury itself and to the plaintiff’s psychological reaction.
326 Mr Dooley noted the plaintiff underwent the initial surgery, in which recovery was painful and slow. There was then a decision to proceed to further surgery, after which recovery was again painful and slow. The plaintiff was then referred for pain management and advised he had chronic pain secondary to sensitisation.
327 Mr Dooley noted, while he had no trouble accepting that theoretical concept, neuropathic pain, et cetera, his view was that it was often used to try and provide a further diagnosis of organic pain when, most commonly, the ongoing pain disproportionate to the organic situation was psychologically based.
328 Mr Dooley thought the plaintiff had had an understandable and significant psychological reaction to his situation. It developed, in the initial stages, post injury, when there was disagreement about diagnosis and treatment and, in time, the physical and psychological issues became intertwined.
329 It was not a matter of simply teasing one out from the other. Mr Dooley noted, in association with a significant psychological reaction, patients often decompensate in many aspects of their lives, struggling to carry out simple activities at home.
330 In Mr Dooley’s clinical experience, if one discussed the situation with the patient openly and advised in relation to maintaining general activity and beginning regular exercise, then inroads could be made. In those circumstances, there was a potential to significantly improve when provided with a routine and timetable, and often doing voluntary work helped esteem.
331 Mr Dooley thought what was clear, that continuing to treat the plaintiff’s ongoing pain as though it was organically based only, would lead to ongoing disappointment.
332 Mr Dooley noted, if one looked at the plaintiff’s overall presentation, that it would be difficult for him to be gainfully employed. If he looked at the plaintiff’s orthopaedic condition alone, then he would have a capacity to carry out some basic light physical work and clerical type duties. From an orthopaedic point of view, Mr Dooley would expect the plaintiff to note ongoing intermittent pain in his right shoulder girdle, and would expect him to note some restriction of movement. He noted the plaintiff’s underlying degenerative rotator cuff disease of the shoulder would continue to evolve naturally in time.
Vocational evidence
333 There was a 130-week Vocational Assessment Report dated 22 January 2014. The author of that report, Monica Hanai, thought suitable employment options for the plaintiff were sales assistant, betting clerk, gaming worker, occupational health and safety work and welfare support worker. The weekly wages for those positions were $790.00 ($20.70), $636.00 ($17.00), $1,016.00 ($26.70), $1,959.00 ($51.00), $1,100.00 ($29.00), $1,049.00 ($27.60) and $845.00 ($22.00).
334 Ms Hanai set out the various tasks involved in those positions.
335 In an NES subsequent Vocational Assessment Report of July 2014, Ms Hanai confirmed the suitability of sales assistant, betting clerk and gaming worker for the plaintiff. She added enquiry clerk/information officer and tourism and travel advisor to the list and deleted occupational health and safety work and welfare support worker.
Overview
336 There is no dispute that the plaintiff suffered a compensable injury to his right dominant shoulder as a result of undertaking manual handling duties.
337 Weekly payments were made for 130 weeks and the plaintiff was paid an impairment benefit.[64]
[64]Ansett Australia Ltd & Anor v Taylor [2006] VSCA 171
338 The diagnosis of the plaintiff’s right shoulder condition is somewhat complex, with operating surgeon, Mr Lynch, diagnosing right shoulder longhead of biceps instability, rotator cuff degeneration and partial thickness tearing and arthropathy of the right acromioclavicular joint. In addition, central sensitisation was diagnosed by both Dr Lim and Dr Boffa. Mr Chehata thought the plaintiff was suffering from CRPS.
339 Whilst some medical practitioners considered that there are elements of a Pain Syndrome present,[65] in my view, the plaintiff’s shoulder condition has a substantial organic basis.[66]
[65]See Mr Chehata, Mr Dooley and Dr Wood
[66]Meadows v Lichmore Pty Ltd [2013] VSCA 201; T95
Credit
340 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[67]
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
[67](2010) 31 VR 1 at paragraph [12]
341 I found the plaintiff to be a very truthful witness who gave a straightforward account of his post-injury situation. There was nothing in the surveillance film that showed a level of activity inconsistent with the plaintiff’s evidence.
342 Counsel for the defendant did not address pain and suffering, leaving that issue to the Court.[68] It was therefore submitted that if serious injury in relation to pain and suffering was accepted, the application ought to be dismissed in relation to pecuniary loss.
[68]T78
343 As I indicated during the hearing, in my view, the organically-based consequences of the plaintiff’s right shoulder condition alone are “serious”. I accept that since the injury, the plaintiff has experienced significant, constant right shoulder pain and restriction which has had a serious effect on his enjoyment of life and precluded him from engaging in unrestricted manual work.[69]
[69]T97
Loss of earning capacity
344 Having satisfied the narrative requirements to obtain leave in relation to loss of earning capacity, the plaintiff must also establish that –
(a) at the date of the hearing, he has a loss of earning capacity of 40 per cent or more – s134AB(38)(e)(i); and also
(b) after the date of hearing, the relevant loss of earning capacity will continue permanently – s134AB(38)(e)(ii).
345 The measurement of loss of earning capacity is set out in paragraph (f) which requires a comparison between:
(i) “without injury” earnings; and
(ii) “after injury” earnings.
346 The former must be calculated by reference to the six-year period specified in s134AB(38)(f).
347 “Without injury” earnings consist of the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion had the injury not occurred.
348 It is to be calculated by reference to that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity.
349 The plaintiff carries the onus of proof in relation to economic loss and particularly in establishing satisfaction of the criteria in paragraphs (e), (f) and (g) therein. See Barwon Spinners Pty Ltd & Ors v Podolak.[70]
[70](supra) at paragraph [70]
350 I am therefore required to determine a “without injury” earnings figure, and submissions were made by counsel in this respect.
351 The parties agreed on a “without injury” earnings figure of $822.00, sixty per cent of which is $493.20.[71]
[71]T77
352 I accept that the plaintiff does not have the capacity to perform his pre-injury duties or any other similar heavy manual work. The preponderance of medical opinion is to this effect.
353 However, counsel for the defendant submitted the plaintiff has a residual capacity such that he could earn more than $493.00 per week and that he is a suitable candidate for rehabilitation.
354 Counsel for the plaintiff submitted the plaintiff did not have a capacity for suitable employment and that he had discharged the onus pursuant to clause (g).
355 In my view, the plaintiff has a very limited capacity for suitable employment.
356 Whilst his report was brief and made some reference to the plaintiff becoming very distressed with the onset of pain,[72] I accept that Dr Singh is of the view that the plaintiff does not have a capacity for suitable employment due to his right shoulder condition and that this situation is permanent.
[72]T85
357 Shoulder specialist, Mr Chehata, shared Dr Singh’s view, describing the plaintiff as literally “one handed” – a description I accept.
358 Dr Eaton also concluded that as a result of the residual effects of the right shoulder injury, the plaintiff has no current work capacity and there is no suitable employment that he could perform on a consistent basis.
359 There is no unqualified support by the defendant’s doctors for the jobs suggested by the vocational assessor in January and July 2014.
360 Dr Boffa did not think the plaintiff had the capacity for full-time work in the jobs suggested in January 2014.[73] Dr Wood thought the plaintiff was unsuitable for five jobs referred to in the July 2014 assessment – namely sales, betting, gaming, information officer and tourism and travel – none of which he considered within the plaintiff’s physical capacity given the limited use of his right arm.[74]
[73]T102
[74]T102
361 The vocational assessor slightly changed the range of suitable jobs in her later 2014 report, deleting two roles from her January 2014 report – occupational health and safety officer and welfare support officer, and adding enquiry clerk and tourism officer.[75]
[75]T102
362 Whilst Dr Lim treated the plaintiff for some time, I do not accept he had any real understanding of the plaintiff’s ongoing difficulties. Clearly, the plaintiff does not have the capacity to work as stable hand, as Dr Lim opined. He is the only practitioner of this view and this employment option was not suggested as being suitable by the defendant.
363 Further, there is no information about the duties involved in being a speed-camera operator role mentioned by Dr Lim and Dr White. In any event, that job was not suggested as suitable by the vocational assessor.[76]
[76]T105, T98
364 At the age of fifty-six, the plaintiff would not be able to cope physically with a number of the suggested jobs and he does not have the necessary training or clerical/administrative experience to do so.[77]
[77]T103
365 The plaintiff would not be able to work in sales because of the manual handling involved. He would have similar difficulties as a betting or gaming clerk, having to empty hoppers, handle money, operate terminals and use computers
366 At the age of fifty-six, the plaintiff is of an age far in excess of the median age of thirty-five for role of an enquiry officer and thirty seven as a travel agent. Obviously, he has had no experience working in either field, nor does he possess the necessary computer skills to do so.[78]
[78]T105
367 Whilst Mr Dooley considered the plaintiff has a capacity to carry out some basic light physical work and clerical type duties, and Dr Boffa thought he was suitable for some of the suggested roles, I do not accept that the plaintiff could undertake such duties on a regular and consistent basis.
368 Other than the lightest use of his right arm causes the plaintiff significant pain, as is evidenced by his difficulties performing simple personal hygiene tasks. At work, the plaintiff would require regular breaks and change of posture during the day. He would have problems with his concentration due both to lack of sleep and also the effects of his painkilling medication which he regularly takes.
369 In any event, if the plaintiff worked 20 hours, he would still suffer the requisite loss of earning capacity in the roles of sales assistant, betting clerk and tourism travel advisor.[79]
[79]T104
370 Taking all the evidence into account, I am satisfied the plaintiff does not have the capacity to earn in excess of $493.00 per week and, accordingly, has suffered the requisite loss of 40 per cent.
371 I am also required to consider issues of retraining and rehabilitation pursuant to ss(g).
372 In light of my findings as to the plaintiff’s impairment and his incapacity for employment, I am satisfied there is no rehabilitation or retraining that would be appropriate to be undertaken by the plaintiff which would alter the situation that he has a permanent loss of earning capacity of 40 per cent or more. As rehabilitation and retraining have nothing to offer the plaintiff in terms of his capacity for employment, the plaintiff has satisfied the requirements of s134AB(38)(g).
373 Despite his relatively good communication skills,[80] I accept the plaintiff would have difficulty undertaking any retraining because of his ongoing right arm pain and related concentration problems and his lack of computer and clerical skills.
[80]T92
374 Even if he successfully completed retraining in a field such as tourism, I am not satisfied that the plaintiff would ultimately have a capacity for suitable employment where he would not suffer the requisite loss of earning capacity – see Aluthgamage v Select Care Personnel Pty Ltd.[81]
[81](2012) 35 VR 494
375 In my view, this situation is permanent and the plaintiff has discharged his onus in this regard – see Doolan v Rayners SawmillsPty Ltd & Anor.[82]
[82][2008] VSCA 219
376 Accordingly, I grant leave to the plaintiff to bring proceedings for damages for pain and suffering and loss of earning capacity.
Psychiatric
377 Having granted leave in relation to the clause (a) application, it is unnecessary to decide whether the plaintiff has a severe psychiatric impairment pursuant to clause (c).
378 However, as I indicated during the hearing, in my view, any psychiatric impairment is not severe and that application must fail.[83]
[83]T107
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