Silva v Lea Enterprises Pty Ltd
[2019] VCC 1491
•20 September 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No.CI-17-05955
| EDGAR SOUSA E SILVA | Plaintiff |
| v | |
| LEA ENTERPRISES PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE PILLAY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 September 2019 and 3 September 2019 | |
DATE OF JUDGMENT: | 20 September 2019 | |
CASE MAY BE CITED AS: | Silva v Lea Enterprises Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1491 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to the lumbar spine – injury to the left shoulder – injury to the right shoulder – whether consequences “very considerable”
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited:Humphries & Anor v Poljak [1992] 2 VR 129; Acir v Frosster Pty Ltd [2009] VSC 454; Ifka v Shahin [2014] VSCA 8; Jones v Dunkel (1959) 101 CLR 298
Judgment: Leave granted for the right shoulder injury in respect of pain and suffering damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr V A Morfuni QC with Ms M Tsikaris | Patrick Robinson & Co |
| For the Defendant | Mr A Saunders | Hall & Wilcox |
HIS HONOUR:
1 This is an application brought by Mr Silva for leave pursuant to s325(1) of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (“the WIRCA”). Mr Silva proceeds on the basis that he has sustained a serious injury within the meaning of paragraph (a) and paragraph (c) of the definition of “serious injury”.
2 At the commencement of the hearing, Mr Morfuni, who appeared with Ms Tsikaris for Mr Silva, abandoned reliance on the paragraph (c) claim.[1] Rather, Mr Morfuni relied on injuries to the lumbar spine, the right shoulder and left shoulder. It was put that Mr Silva’s injuries in relation to these three body parts, when considered individually and not aggregated, constituted a permanent serious impairment or loss of body function.
[1]Transcript (“T”) 8, Line (“L”) 23
3 Mr Saunders, who appeared on behalf of the defendant, put his client’s case in a number of ways. First, he asserted that there were no injuries to the lumbar spine, right shoulder and left shoulder caused at work.[2] He termed this his primary point on causation. In closing, he admitted, however, that there was reference to a fall at work occurring in 2011, at which time Mr Silva injured his left shoulder. He seemed to be accepting, by that submission, that the alleged left shoulder injury might have occurred in compensable circumstances. However, he then submitted that the injuries to the left shoulder did not meet the criteria required to be considered serious injuries in the sense of the term as expressed in Humphries & Anor v Poljak.[3]
[2]T84, L20
[3][1992] 2 VR 129
4 By reason of the way that the case has been put, the following issues arise:
(a) whether Mr Silva sustained an injury to his lumbar spine during the course of his employment with the defendant and, if so, whether the consequences flowing from the injury to his lumbar spine can be deemed serious;
(b) whether Mr Silva sustained an injury to his right shoulder during the course of his employment with the defendant and, if so, whether the consequences flowing from the injury to his right shoulder can be deemed serious;
(c) whether Mr Silva sustained an injury to his left shoulder during the course of his employment with the defendant and, if so, whether the consequences flowing from the injury to his left shoulder can be deemed serious;
(d) whether, when considering if Mr Silva has sustained a serious injury, the pain and suffering consequences arising from each of the injuries identified above, when considered separately, and when judged by comparison with other cases in the range of possible impairments or losses of body function, may be fairly described as being “more than significant or marked” and as being “at least very considerable”;
(e) whether, when considering if Mr Silva has sustained a serious injury, the loss of earning capacity consequence has resulted in a loss of earning capacity of 40 per cent or more when calculated in accordance with the statutory formula, taking into account Mr Silva’s pre-existing conditions and the impact it had on him, when considering the gross income that he was earning, or was capable of earning from personal exertion, or would have been capable of earning from personal exertion during that part of the period within the three years before and three years after the injuries, most fairly reflect his earning capacity had injury not occurred.
5 In summary, I have concluded:
(a) Mr Silva has not sustained a compensable injury to the spine;
(b)Mr Silva has sustained a serious compensable injury to the right shoulder by reason of its pain and suffering consequences only;
(c)Mr Silva has sustained a compensable injury to the left shoulder, but the consequences of such injury are not such as to make it a serious injury;
(d)Mr Silva’s pre-existing diabetic and spinal injuries meant that I find he had no capacity to earn by November 2016, such that he would not suffer greater than a 40 per cent loss of earnings by reason of his right shoulder injury.
Relevant background history
6 Mr Silva was born in April 1959 in Angola. He left his home country of Angola and went to Portugal at the age of eight. He completed two years of secondary school and left school at the age of fourteen.[4] He then qualified as a chef after serving an apprenticeship. In 1986, he came to Australia and began working with Ford for two years.
[4]Plaintiff’s Court Book (“PCB”) 7
7 In 1988, Mr Silva began working for Silcraft as a machine operator. This position lasted until about 2000. I assume that the work Mr Silva was engaged in was manual. It appears that in 1995 and again in 1997, Mr Silva complained of intermittent low back pain.[5] He was investigated with x-rays on 31 July 1995. It is reported that x-rays of the lumbar spine, pelvis and hips confirmed no fractures or dislocations and, further, no degenerative change. A further x-ray of the lumbar sacrum was taken on 5 August 1997, again confirming the lack of arthritic change.[6]
[5]PCB 72
[6]PCB 72 as recorded by Mr Ash Chehata
8 After ceasing work at Silcraft, Mr Silva then appears to have run his own fish-and-chip shop for a number of years.
9 On 24 March 2005, Mr Silva attended Mr Brett Leo, an acupuncturist. He recorded the following:
“Imp. ↓ in L/S px.
No px in R leg all central L3-L5.
… .”[7]
[7]PCB 111
10 This seems to indicate to me that there had been a period of lumbar spinal pain for which Mr Silva had seen Mr Leo prior to this attendance. It does seem to indicate that Mr Silva had a degree of spinal pain for which he had sought treatment prior to commencing work with the employer. I do note that Mr Silva’s first affidavit of 15 August 2017 makes no mention of the intermittent back pain in the mid-1990s, nor of the back pain he experienced at the beginning of 2005. This was unexplained.
11 On 11 May 2005, Mr Silva commenced employment with the defendant.
The work duties
12 There is some real dispute as to the exact work Mr Silva was required to perform when employed with the defendant. Mr Silva, in his first affidavit, dated 15 August 2017, provided the following evidence:
“I delivered chicken product to a number of different customers of the Defendant around the Dandenong, Lilydale and Springvale areas. The work involved a lot of heavy lifting and bending to load and unload the truck. The chicken products were packed in plastic tubs and polystyrene boxes. More often than not, I loaded and unloaded the boxes manually. I would also use a trolley loaded with boxes to deliver the chicken into the customers' premises.
When working in the factory, I also performed heavy and repetitive lifting and bending to lift tubs onto pallets. I also hung the chickens up on one of the machines which required repetitive lifting above shoulder height.”[8]
[8]PCB 8
13 In his second affidavit, dated 27 July 2018, Mr Silva provided further details of his work in the following terms:
“… when working on the process line I packed chicken into plastic tubs. Each tub weighed 2kg. The tubs were generally filled with 20kg of chicken meat. In a shift I would pack around 3 tonne of chicken meat into the tubs, and occasionally into smaller boxes. I would lift each tub to weigh it, so I know they were 22kg when full. Most of the tubs were full. I would then lift the tub and place it on a pallet. I lifted each tub of meat at least twice to do this process. It put strain on my back and shoulders as I had to reach out and bend while lifting and holding the tubs to place than on the pallet.”[9]
[9]PCB 16
14 Mr Silva went on to give evidence as to how he performed his delivery run and that this required him to remove tubs which were stacked on pallets in the rear of his truck. He gave evidence that this work also put strain on his arms and back.
15 Mr Silva’s evidence as to his work duties was supported by an affidavit of Mr Carlos De Jesus, sworn 28 May 2019.[10] He stated in his affidavit, at paragraph 5, that Mr Silva’s affidavit, dated 26 June 2018, particularly in those paragraphs at [2](a)-(f), had been read to him, and he agreed with Mr Silva’s description of the work duties.
[10]PCB 25
16 The defendant provided an affidavit of Mr Andre Maudier, sworn 17 April 2018.[11] He was the Mr Silva’s supervisor at the relevant time. Importantly, this exhibited a statement provided by Mr Maudier, dated 11 June 2015. I mention the date the statement was sworn, as I consider it important that statements and recollections given closer to the actual date of the alleged occurrences are likely to be more accurate than those taken a substantial time later. His evidence was that Mr Silva was employed as a relief driver, filling in and otherwise working in the factory, hanging products. He considered that Mr Silva worked about 50 per cent of his time split between those two duties. He confirmed, at paragraph 3 of his statement, that the tubs of chicken required to be lifted were about 15 kilograms in weight.[12] Mr Maudier provided a second statement, dated December 2017. In that second statement, he confirmed that the weights required to be lifted were between 10 to 15 kilograms and that Mr Silva worked both in the factory on a machine and also doing deliveries.[13]
[11]Defendant’s Court Book (“DCB”) 11
[12]DCB 38
[13]DCB 42
17 In a further affidavit sworn on 7 August 2019,[14] Mr Maudier corrected the statements he had made earlier that the tubs required to be lifted were up to 15 kilograms. Rather, he deposed that the tubs would weigh between 18 and 20 kilograms.[15] Mr Maudier also disputed that Mr Silva would have to move 3 tonnes of chicken meat per day. He noted that there were other employees working on the line with Mr Silva completing packing and weighing duties. Mr Maudier admitted that Mr Silva had a forklift licence, and that this could be used to assist in loading the truck, however, it seems, from his affidavit, that there was hand loading into and out of the back of the truck.[16]
[14]DCB 30
[15]DCB 30 at paragraph 3
[16]DCB 30 at paragraph 6
18 The defendant also relied on the affidavit of Anthea Tracey (who I assumed changed her name to Anthea Lewis), sworn 18 April 2018.[17] Ms Tracey is the operations manager of the defendant. She exhibited to her affidavit signed statements dated 11 June 2015 and December 2017.[18] She confirmed that Mr Silva was employed for twenty-five hours per week from 7.00am to 12 noon, Monday to Friday. She confirmed that he was employed as a delivery driver. She confirmed that boxes of product that he was required to move weighed between 10 to 15 kilograms. She was unable to say how many boxes Mr Silva would lift each day, as it varied. She recalled that Mr Silva had an appendix operation and also a hernia. The tendered Southern Cross Medical Centre records confirm that Mr Silva had an appendectomy on 30 January 2009. He also had his gallbladder removed in early 2008. Ms Tracey stated[19] that the first one to two hours of each shift were devoted to hanging chickens on hooks. Thereafter, he would do deliveries. Ms Tracey stated that Mr Silva had a trolley to assist with moving boxes into the truck and then to each customer site.
[17]DCB 20
[18]DCB 27
[19]DCB 32 at paragraph 16
19 Ms Tracey swore a further affidavit in this matter on 13 August 2019.[20] In that affidavit, she takes issue with Mr Silva’s assertion that he packed 3 tonnes of chicken per shift and states, rather, that this might have been spread through numerous staff working alongside Mr Silva. She gives evidence that the machine Mr Silva had to work on was known as the cone line and was 135 centimetres high, and does not involve repetitive action above shoulder height. She also noted that Mr Silva’s duties were rotated every thirty minutes in the factory. She gives evidence that, at most, Mr Silva would load six to eight tubs of chicken meat per day. She denies, categorically, that Mr Silva would have lifted one hundred tubs per day. I infer, from her evidence, that she would assume most of the truck tubs were loaded by forklift, and only some loaded by hand.
[20]DCB 39
20 The defendant has also provided an affidavit of Mr Andrew Lea, sworn August 2019.[21] Mr Lea is a director of the defendant employer company. That affidavit exhibits a statement made by Mr Lea, dated 11 June 2015. Mr Lea disputes that Mr Silva’s work in the factory was above shoulder height, rather, stating his work in the factory was below shoulder height. I note that Mr Lea has seen Mr Silva’s further affidavit referred to above from 2018, in which he details his work duties. Mr Lea does not take issue with the other matters as to the weight and frequency of loading that Mr Silva deposed to. None of these witnesses were required for cross-examination.
[21]DCB 32
21 Having regard to this evidence, I find that the tub weights were around 20 kilograms, as Mr Maudier, Mr De Jesus and Mr Silva asserted. I accept the preponderance of evidence on that point. I also accept that Mr Silva had the task of unloading and loading, on occasions, up to one hundred tubs of chicken meat into the back of the truck. It might be accepted that a forklift was used at the factory to load the back of the truck for the majority of these tubs. However, the unloading into client premises, I accept, was done predominantly by hand. While I can accept that there was a trolley to be used, and a step to assist drivers getting in and out of the back of the truck, this does not alleviate the worker from lifting tubs out of the back of the truck at delivery sites onto trolleys, and from there, unloading the trolley into a client’s premises. Given those findings, I find that Mr Silva was engaged in repetitive manual handling tasks during his employment with the defendant of weights around 20 kilograms. I find that he did this on a regular basis during his course of employment with the defendant.
The back injury
(i) a frank February 2006 back injury – fall on oil
22 Mr Silva asserts that he sustained a back injury via two mechanisms. The first is that he slipped on some oil at work and suffered from back pain in February 2006.[22] In support of this contention, Mr Silva calls in aid a note from Mr Brett Leo.[23] That note records the following: “slipped on oil and fell onto back at work”.
[22]PCB 8
[23]PCB 111
23 Mr Leo records that Mr Silva should avoid lifting and increase his walking and stretch.
24 Mr De Jesus states in his affidavit[24] that he believes that he took Mr Silva home after this fall.
[24]PCB 26 at paragraph 6
25 I do not accept his evidence on this point for the following reasons. First, I consider it highly unlikely that he would recall such an event some thirteen years after its occurrence. Secondly, he is not firm in his recollection, stating, simply, that as the event was a long time ago he “believes” it related to the oil spill incident. Thirdly, the sick leave records do not have any additional days off on 7 February 2006. It is unclear how Mr Silva coped with the alleged back pain then, if it was as severe as it was described.
26 At this point, mention must be made of Dr Gayle Troedson. She is Mr Silva’s treating doctor, and it appears had been for a very considerable period of time – since at least 2004. She was certainly his treating doctor in 2006. There is no evidence that he consulted her about this back injury and fall at work, despite the allegation he was in a great deal of pain after the fall. Her clinical notes are silent as to any back complaint from 2006 to 2011. In her report of 14 July 2017 to Mr Silva’s lawyers,[25] she makes no mention of the fall in February 2006 and back pain thereafter.
[25]PCB 28
27 The defendant’s lay witness evidence of Ms Tracey, Mr Maudier and Mr Lea categorically deny that there was ever any notification to them of a fall at work in February 2006, and a consequent back injury. Similarly, there is no incident notification or WorkCover claim form made in respect of the alleged debris 2006 fall on oil. In fact, when Mr Silva’s claim form was ultimately submitted in 2015, it nominated the year 2011 as the year of the fall in oil. This is a matter which I consider seriously impacts the reliability of Mr Silva’s evidence. At the time of submitting the claim form, he had legal advice, had ample time to recall events and was being asked to accurately record events. He did not do so.
28 Despite the lack of reporting and the defendant’s categorical denials, I am persuaded by the contemporaneous note of Mr Leo. I consider this good evidence that Mr Silva did sustain a back injury in a fall at the defendant’s premises in February 2006. However, for the reasons outlined above, I find that the injury was self-limiting, in keeping with his past history of intermittent back pain, and resolved quickly. While Mr De Jesus was not called to be cross-examined in the context of this particular case, and given my earlier comments as to the evidence which points against a persisting back injury after the fall in oil, I do not accept his recollection of events as accurate.[26]
[26]Ifka v Shahin [2014] VSCA 8 at paragraphs [44]-[48]
(ii) injury to the back – throughout the course of employment
29 The second limb of Mr Silva’s case in relation to his back injury alleges that he sustained back injury throughout the course of his employment by reason of his heavy and repetitive manual duties. As I have set out above, I consider that Mr Silva did perform manual tasks, which involved repetitive lifting and handling of tubs of chicken meat weighing around 20 kilograms, on a very regular basis.
30 The defendant alleges that, first, there was no real heavy and repetitive work. For the reasons which are set out above, I do not accept that contention. I am fortified in this view by the entry into the clinical notes of Dr Troedson on 20 August 2010, which refers to Mr Silva telling her he repeatedly lifted 20 kilograms at work.
31 Secondly, the defendant argues that there is no evidence of ongoing injury to the lumbar spine caused by Mr Silva’s work duties. In particular, the defendant’s counsel, Mr Saunders, put that if there was any accepted injury which occurred in February 2006 to Mr Silva’s back, it was self-limiting. He posited that, with treatment by Mr Leo, there were no further complaints of back pain either to Mr Leo or to Dr Troedson, which suggests that Mr Silva’s condition very quickly healed. The defendant pointed very strongly to the notes of Dr Troedson which, it was argued, show almost no reference to back pain between February 2006 and the time when Mr Silva ceased work with the defendant in November 2011. The defendant argued that the absence of recording of back complaints in this period of time indicated that there was, in fact, no work-related back injury which could be said to have been caused or aggravated by work duties as I have found them.
32 When regard is had to the medical records from Dr Troedson’s clinic, the Southern Cross Medical Centre, they begin at 25 September 2006. From that time to November 2011, there is only one reference to lumbar pain. That occurs at a consultation on 24 May 2011. When looked at closely, that lumbar pain is associated with investigations for left loin and internal organ pain as well. Cross-referencing that entry with Mr Silva’s sick leave records,[27] it can be seen that Mr Silva had time off from 23 May 2011 until 30 May 2011. In this time, Dr Troedson was investigating an endocrine cause for the problems, as Mr Silva had pain on passing urine. A referral was made to Dr Wischusen for an endocrine assessment.[28] This does not indicate an ongoing spinal problem.
[27]DCB 75
[28]PCB 186
33 In her report off August 2019, Dr Troedson does not mention Mr Silva’s alleged back injury at all. In her later report of 2 June 2019, she mentions only that Mr Silva was seen in August 2014, and only then gave a history of intermittent back pain over the last few months.[29] In that report, she confirmed that she has no documentation regarding a fall in February 2006.
[29]PCB 32
34 It is said by Mr Silva that Dr Troedson supported the allegation that work has caused, or at least aggravated, Mr Silva’s lumbar spinal condition. Mr Silva’s case is really that, prior to employment with the defendant, his scanning results for 1995 and 1997 were clear; he gave evidence that back problems did not stop him working prior to commencing with the defendant and yet, after he ceased employment with the defendant, a CT scan of the lumbar spine performed on 14 October 2014,[30] showed a moderate posterior disc bulge present at L5-S1, and at L4-L5 there was a mild disc bulge. Mr Silva alleged that work must have been the factor causing an aggravation, at least of the lumbar spine, which has resulted in his current spinal condition. He called, in aid, the medico-legal opinion of Dr Pathak and the report of Mr Ash Chehata, who opines[31] that MRI scanning on 8 December 2018 confirms L5 nerve root impingement with changes at the level of the left S1 nerve root. Mr Chehata confirmed his opinion that the changes in the lumbar spine related to Mr Silva’s employment.[32]
[30]PCB 85
[31]PCB 73
[32]PCB 78
35 The defendant primarily relied on the opinion of Mr Simm, in a medico-legal report dated 11 December 2017. I find that report to be very comprehensive in its examination of the material that was provided. His opinion is that Mr Silva’s condition was degenerative in nature. Of particular importance to his findings, was the fact that Mr Silva had made no complaints of pain at work to his treating doctor over a period of some five years. This is despite the fact that Mr Silva had been engaged in at least some heavy manual repetitive work. It does seem to me there is some force in this argument, particularly when regard is had to the fact that Mr Silva sustained the fall in February 2006 and complained then of at least some pain. It would be expected that if his work was to act on his degenerative back condition, there would be at least some flare-ups of his condition after that time, or at least time off work around that incident. It seems incongruous that Mr Silva could hurt his back and then immediately resume his manual work, as I have found. Further, given how often he saw Dr Troedson, it would be expected that he would have relayed some of his spinal complaints. He does not seem to have. These further matters, in my opinion support, the defendant’s case.
36 Mr Silva alleged that he informed his employer of his back condition.[33] In response to his complaints of low back pain, he alleged his employer placed him on light duties, provided him with money to buy a lumbar brace, and provided him with a jockey to assist with the deliveries. All these matters are denied by the defendant. I find that Mr De Jesus confirmed Mr Silva’s allegations only in part. Specifically, Mr De Jesus confirmed that he worked with Mr Silva on only fifteen to twenty occasions as a jockey. This seems a very short number of times for Mr De Jesus to provide assistance if Mr Silva had complaints and was on light duties for as long as he claimed. I also consider that Mr De Jesus’s evidence may well be affected by the length of time since the relevant events, which occurred around 2010, almost a decade ago. For these reasons, I prefer the evidence of the defendant’s witnesses, that there was no complaint of low back pain, no provision of money for a lumbar brace, and no provision of a jockey for Mr Silva to perform light duties on account of his lumbar spine condition. My view of this is fortified by the lack of any records in Dr Troedson’s notes.
[33]PCB 16-17
37 Mr Silva argued that the heavy and repetitive work that he did was a cause of the pathology seen on the CT scan dated 14 October 2014.[34] In furtherance of this argument, Mr Silva relied on the opinions of Mr Barmare, Mr Chehata, Mr O’Brien and Mr Pathak.
[34]PCB 85
38 I note that Mr O’Brien took a history[35] that after Mr Silva fell in February 2006, he saw his treating doctor and underwent several sessions of massage over the next few weeks. I note that this is not corroborated by the treating doctor’s notes, and neither are there any records of a massage therapist tendered. This, in my view, affects the ultimate opinion of Mr O’Brien.
[35]PCB 45
39 Mr Arshad Barmare, consultant orthopaedic surgeon, provided a report dated 28 March 2018. His reporting as to the back injury, is that Mr Silva sustained a lumbar injury at work.[36] He diagnosed a lumbar canal stenosis. He had the reports of Dr Troedson and Ms Feletar, but not the radiology dealing with the back. This limits the value of his opinion as to the causation of Mr Silva’s back injury, and, in addition, I note he does not, in express terms, link the canal stenosis to work, or rule out the fact the February 2006 injury was self-limiting.
[36]PCB 56
40 Dr J S Pathak, provided a report dated 15 June 2015.[37] He viewed the 2014 CT scan of the lumbar spine. It showed a posterior disc bulge at L5-S1. [38] He was of the view that the lumbar problems were caused by work,[39] in answer to question 4. He did not have access to Ms Feletar’s report at the time he saw Mr Silva.
[37]PCB 35
[38]PCB 42
[39]PCB 42
41 The defendant relies on the opinions of Mr Simm, Mr Barton, and also Mr Silva’s treating rheumatologist, Ms Feletar. She opines that Mr Silva’s condition, as seen on the CT scan dated 14 October 2014, can be explained by age and weight-related problems. The defendant places great weight on this opinion, given its temporal connection to Mr Silva’s condition, and the fact that it was by a treating specialist.
42 I note that between November 2011 and October 2014 there had been a number of different matters which affected Mr Silva’s health. First, he had attempted to return to work as a security guard. At the time he made application for work as a security guard and he filled in an application form which asked whether he had any pre-existing medical conditions. He answered that he did not. In cross-examination, he confirmed that while he was suffering from back pain at the time of completing that form, he did not wish to jeopardise his employment chances, and so lied. Second, Mr Silva was taken to Centrelink records,[40] specifically to entries for 13 January 2012, 6 July 2012, 12 September 2013 and 21 August 2014, none of which recorded complaints of back pain. These are, I consider, good contemporaneous records as to Mr Silva’s back condition. Further, Mr Silva, throughout this period of time, had been suffering from a worsening diabetic condition. That had severely hampered his physical state and led to him being much more sedentary. This is reflected in the Centrelink notes.[41] The treating doctor’s notes indicated that from 16 September 2011, when Mr Silva was about to be terminated, he weighed 93 kilograms. On 10 October 2014, he weighed 110 kilograms, according to the notes of Dr Troedson. This is a weight gain of some 17 kilograms, and I consider, significant. When taken together, these factors all seem to support Ms Feletar’s contention that the back injury which occurred, and is seen on the scan 14 October 2014, had occurred due to weight and age-related factors. I note Dr Pathak, Mr Barmare and Mr Chehata did not have access to, or knowledge of, this material. I consider this undermines their findings and is my basis for preferring the opinions of Ms Feletar, Mr Barton and Mr Simm.
[40]PCB 123-174
[41]PCB 123-145
43 For all the above reasons I do not consider that Mr Silva has made out his case that his low back injury was caused or aggravated by his employment duties.
The right shoulder injury
44 Mr Silva alleged that in December 2007 he had a fall from his work truck onto his right shoulder.[42] On 28 December 2007, he attended Dr Troedson, reporting a fall at work two weeks prior, causing pain into his right shoulder.[43] It is consistent with Mr Silva’s allegation of workplace injury. Though that note refers to an ultrasound which was requested, there has been no corresponding ultrasound tendered. Thereafter, there is no record in Dr Troedson’s notes that Mr Silva complained of ongoing right shoulder problems.
[42]PCB 28
[43]PCB 28
45 In his affidavit, dated 15 August 2017,[44] Mr Silva simply notes that he fell in 2007, and thereafter had physiotherapy to his right shoulder in May 2010. There is no corresponding note or report of the physiotherapist who is alleged to have provided this physiotherapy to the right shoulder.
[44]PCB 9 at paragraphs 18-19
46 In his second affidavit, Mr Silva deposed that his fall off the truck in 2007 was witnessed and, further, he told Andre Maudier about the fall. He then stated:
“… it then continued to worsen as I continued to perform my usual duties. Overall, I felt the lifting work was the main problem in causing my shoulder problems;”[45]
[45]PCB 17
47 I have difficulty accepting Mr Silva’s evidence on this point. In particular, I note that he was consulting with Dr Troedson regularly over this period from 2007 to the time when he ceased work in November 2011, and yet made no complaint as to any right shoulder pain. I consider this absence of reporting to be significant contemporaneous evidence that Mr Silva’s right shoulder condition was of little moment. This is particularly so where there is no physiotherapy report relating to treatment that he had in May 2010. The defendant’s witnesses, Mr Maudier, Ms Lewis and Mr Lea, denied the incident occurred. There is no incident notification report and, further, no WorkCover claim form.
48 On 24 August 2012, Mr Silva saw a treating orthopaedic surgeon, Mr Trung Nguyen, in relation to a fall he had had in August 2011 (in which he injured his left shoulder).[46] Mr Nguyen took a history that, prior to the August 2011 incident, Mr Silva had not had “any shoulder problems prior to this fall”.[47] This comment may be related specifically to problems with the left shoulder, but it does seem strange Mr Silva did not also tell Mr Nguyen about the problems he had been having with his right shoulder.
[46]PCB 34
[47]PCB 34
49 Ultimately, in June 2015, Mr Silva had an MRI scan performed on his right shoulder, which showed a partial thickness tear of the rotator cuff. He was subsequently placed onto the public waiting list and had surgery on 19 April 2016, being a right shoulder arthroscopic decompression and rotator cuff repair. He deposed and gave oral evidence that this did not alleviate his right shoulder complaints.
50 The reliability of Mr Silva’s evidence was squarely put in issue by the defendant. Mr Silva freely admitted that he was unreliable as to dates and times,[48] for example, when discussing the incorrect claim form he had submitted. After watching Mr Silva in evidence closely and listening to his responses in cross-examination, in particular, I formed the view he was an honest witness who tried his best but had, at times, become confused by the multiplicity of his problems over the very long course of his complaints.
[48]T64, L22-25
51 Mr O’Brien, in his report of 10 April 2018, took a history from Mr Silva that after the fall he consulted his treating doctor and also had some physiotherapy treatment.[49] As I have noted, there is no ultrasound in evidence and there are no records from the physiotherapist in evidence to support Mr Silva’s version of events. The evidence of Mr De Jesus is silent on this fall from the truck and alleged right shoulder injury. This was an unexplained absence from Mr De Jesus’s affidavit, given he could have given evidence on this issue.
[49]PCB 46
52 Mr Barmare, in a medico-legal report dated 26 March 2018, is extremely brief in outlining the circumstances of the right shoulder injury and, thereafter, Mr Silva’s complaints of pain. He made a comment as to causation,[50] which is cursory at best. I can draw little use from this report. The report of Mr Chehata, dated 17 April 2019, helpfully outlined his view on causation by reference to the repetitive nature of Mr Silva’s employment, coupled with the fall, causing partial articular surface tearing, as well as full-thickness rotator cuff tearing that ultimately required operative intervention.
[50]PCB 57
53 As noted above, when considering Mr Silva’s lumbar back condition, he signed a security licence declaration dated 23 August 2012, certifying that his general health and physical capabilities allowed him to perform the duties involving security and crowd control. It was put to him that he signed this form because, in truth, he was fit to work as a security guard at this time. Mr Silva denied this.[51] As noted above, Centrelink records between 13 January 2012 and 24 May 2013, make no reference to the right shoulder problem.[52]
[51]T48, L8-31 and T49, L1-6
[52]PCB 123-164
54 Mr Rodney Simm, in his report dated 11 December 2017,[53] opined that Mr Silva suffered from degenerative rotator cuff pathology by reason of his obesity. He considers that the rotator cuff surgery performed by Mr Tran was straightforward and that the symptoms Mr Silva complained of were an exaggeration. Mr Barton, in his report of 31 July 2019,[54] adopted the opinion of Ms Feletar, in relation to the lumbar spine, that the injuries are related to age and weight factors.
[53]DCB 54
[54]DCB 58
55 Having regard to all of the evidence above, and particularly my finding in relation to the nature of the work that Mr Silva performed, which was heavy and repetitive work involving both arms over a considerable period of time, I prefer the opinion of Mr Chehata.
56 I note that Mr Chehata took a history that, at the consultation on 28 December 2007, Dr Troedson requested an ultrasound of Mr Silva’s right shoulder. It appears, from Mr Chehata’s report, that he looked for the ultrasound images and report but was unable to find them. As I have noted, no ultrasound images of the right shoulder from 2007, or reports, were tendered. This is, despite the fact that large volumes of material from the treating doctor were tendered. It does not appear that Mr Silva sought to tender that particular ultrasound, or explain its absence. In that circumstance, I consider it necessary to draw an inference that the ultrasound would not have assisted Mr Silva’s case.[55] This is significant, as Mr Chehata opined that some damage, at least, was done to the right shoulder tendons by reason of the fall in 2007, and was then worsened by the repetitive strenuous nature of Mr Silva’s work. Having drawn that inference, I am left to consider whether, in the absence of evidence, there was damage caused to the right shoulder tendons in the fall in December 2007. Whether Mr Silva’s general duties caused injury to the right shoulder, as opined by Mr Chehata, or to accept the evidence of Mr Simm and Dr Barton. Having regard to all the above matters, I find that Mr Silva’s right shoulder injury was caused by the repetitive nature of the strenuous manual work that he was performing during the course of his employment with the defendant. I make this finding on the basis that Mr Silva’s work duties involved the repetitive use of his arms lifting tubs weighing some 20 kilograms on a repetitive basis. In keeping with Mr Chehata’s opinion, I find that this is consistent with the type of injury sustained by Mr Silva and further consistent with the report of Mr O’Brien. I also draw support for this conclusion from the clinical notes of Dr Troedson,[56] dated 20 August 2010, in which she took a history of right arm pain caused by lifting 20-kilogram boxes repetitively. I consider the fact that he sustained injury to the left shoulder in August 2011 in a frank incident and experienced more immediate problems in that year, and 2012, overwhelmed his consideration of his right shoulder problems. In part, I find this explains his answers to Mr Nguyen, the other part of the explanation being that Mr Silva answered this question, believing it related to pre-existing problems with his left shoulder, being the shoulder he had been referred to Mr Nguyen in respect of.
[55]Jones v Dunkel (1959) 101 CLR 298
[56]PCB 189
Consequence of the right shoulder impairment
57 I now turn to consider whether the consequences of Mr Silva’s right shoulder impairment could be considered serious. In considering this issue, I must not aggregate consequences caused by other injuries, such as Mr Silva’s back injury, left shoulder injury, diabetes or heart condition.
58 Mr Silva deposed, in his affidavit of 26 June 2018 at paragraph 8, that his left shoulder problem is not as bad as the impairment to his right one. At paragraph 7, he sets out, in specific detail, the way that his right shoulder impairment impacts his life. I note that he is right-hand dominant and has always worked manual factory jobs, or as a chef. He deposed that he has difficulties with activities of daily living, such as clothing himself or toileting himself. For example, he finds it difficult to reach behind him with his right arm to clean himself on the toilet.
59 He deposed that lifting his arms to reach the tools on the garage wall causes pain.
60 Chores around the house, such as lawn mowing or whipper-snipping, or making beds, are restricted, by reason of his right arm problems.
61 As to pain and its consequences, Mr Silva deposed that the medication he takes for his back also covers him for his right shoulder pain. Specifically, Mr Chehata took a history of Mr Silva taking Endone, Panadeine Forte, Pregabalin and Targin, all to reduce his right shoulder pain, at least in part. This is a substantial amount of medication being taken over a long period of time. When considering the fact that Mr Silva’s right shoulder surgery took some time to arrange because he was on the public waiting list, I consider it important that he had to endure pain prior to surgery for a long period of time. Further, he stated that his response to the surgery has not been favourable, thus necessitating his ongoing need for medication. This has been the case for at least the last three years. He deposed, and I accept, that his right shoulder pain is chronic and aggravated with movement. The pain consequences, then, are in my opinion sufficient to find that he has sustained a serious injury. It is likely they will persist into the foreseeable future.
62 Mr Silva deposed that he still attends physiotherapy every few months and pool therapy three times a week, in part, for his right shoulder problems.
63 I will deal with the effect of his right shoulder injury on his loss of earnings later in this judgment. I do note, however, given Mr Silva’s occupational background history, the injury to his right-dominant arm significantly affects the types of work that he was able to perform immediately after ceasing with the defendant. For example, he gave evidence that he sought to change to security guard work as it involved less repetitive lifting, bending or overhead work.[57] He could certainly not work in his trade as a chef. This loss of vocational options is a significant factor to be weighed in the balance.
[57]PCB 23
64 For the reasons set out immediately above, and considering the evidence as a whole, it is my finding that Mr Silva has suffered a serious impairment to the right arm, which consequences can be described as being more than “significant or marked” when assessed against the range of possible cases.
The left shoulder injury
65 On 7 February 2011, Mr Silva had consulted his treating doctor, complaining of left elbow pain for a few months. Mr Silva alleged that he suffered injury to his left shoulder in mid-2011.[58] He deposed, in his affidavit, that he fell on a footpath at work and suffered injury to his left wrist and left shoulder. On 8 August 2011, his treating doctor noted[59] that he was walking on an uneven footpath and fell to the ground. The note stated that he had wrist pain, though it is not clear which wrist was injured. Mr Silva deposed that this was to his left wrist. On 15 August 2011, he returned to his treating doctor with wrist discomfort, worse when lifting at work, which was noted on the recent x-ray. The note recorded that work was very heavy and that he needed to come home early as his pain was worse with lifting. Thereafter, Mr Silva seems to have returned to work and worked on until he was terminated on 7 November 2011. On 12 December 2011, he consulted his treating doctor complaining of left shoulder pain since his fall two to three months ago. She took a history that his range of motion in the left shoulder had decreased after he landed on his shoulder. An ultrasound of the left shoulder was ordered. Ultrasound of 16 December 2011 was tendered.[60] It showed only mild thickening of the bursa and bunching on abduction. It was otherwise unremarkable. Mr Silva underwent a left shoulder x-ray on 30 January 2012.[61] He then had steroid injections into the left shoulder on 20 February 2012, and again on 4 May 2012.[62] He was then referred to Mr Nguyen.
[58]PCB 10
[59]PCB 184
[60]PCB 80
[61]PCB 81
[62]PCB 83
66 Mr Nguyen provided a report dated 15 July 2015.[63] In that report, he confirmed that he saw Mr Silva on 24 August 2012, on referral from Mr Silva’s treating doctor, regarding the left shoulder problem. The history given to Mr Nguyen was of the fall in August 2011 at work. Clinical examination at that time demonstrated significant tenderness. Testing revealed positive signs for rotator cuff pathology. He then recommended, and Mr Silva took up the recommendation, for surgery to be performed to decompress the left rotator cuff. At that time, in August 2012, Mr Silva was placed onto the public waiting list for surgery. On 25 August 2014, Mr Silva had left shoulder surgery,[64] performed by Mr Nguyen. Mr Nguyen believed, at the time of the consultation in August 2012, that the surgery should have a good result. According to Mr Silva, surgery was not curative and he remains significantly disabled by reason of his left shoulder. By his own admission, as set out above, Mr Silva’s left shoulder impairment is not as serious as his right shoulder impairment.
[63]PCB 34
[64]PCB 84
67 Mr Silva’s claim in relation to his left shoulder rests on a frank incident occurring in the fall of August 2011 and, further, that there was injury to the left shoulder caused by heavy and repetitive work throughout the course of his employment with the defendant. The defendant’s position was that there was no fall at work in August 2011. The defendant relied on the lay evidence referred to above from its three witnesses, the lack of incident notification reports and the lack of any WorkCover claim form. However, in closing addresses, Mr Saunders, for the defendant, properly conceded that the contemporaneous record taken by Mr Silva’s treating doctor stood as good confirmatory evidence to support Mr Silva’s assertion of a frank incident involving the left shoulder occurring in August 2011. Mr Saunders denied the second limb of Mr Silva’s left shoulder case that the work he was required to perform throughout the course of his employment was often of a heavy and repetitive nature. As to whether or not Mr Silva suffered from a frank left shoulder injury on August 2011, I find that, consistent with Mr Silva’s evidence, he did sustain a fall at work in August 2011 onto his left shoulder for the reasons set out above.
68 As set out above in my findings, I find that Mr Silva’s work was of a heavy and repetitive nature, and contributed to the injury of the left shoulder sustained in August 2011.
69 Mr Silva asserted that I should accept the weight of the medico-legal opinion, and particularly the opinion of Mr Chehata, that his work duties were consistent with his ultimate left shoulder injury, which first showed on an ultrasound dated 16 December 2011,[65] with some mild thickening of the subacromial bursa. This led to two steroid injections, the first on 20 February 2012[66] and then again on 4 May 2012. Mr Silva asserts that these are good contemporaneous records that the problems with his left shoulder arising from the August 2011 fall were persistent and entrenched at a time contemporaneous with his work. As I have set out above, Mr Nguyen took a history that Mr Silva presented with left shoulder problems related to the fall in August 2011, and denied any previous left shoulder problems. This is consistent with the fact that the notes of the treating doctor do not show any reporting of left shoulder problems prior to August 2011. Mr Nguyen diagnosed left shoulder impingement and subacromial bursitis. He recommended surgery and Mr Silva was placed onto the waiting list at Monash Health. It can be seen from that brief history that, from the time of the fall in August 2011 to the time that Mr Silva saw Mr Nguyen on 24 August 2012, he had not had resolution of his problems, radiological investigations had revealed a problem, two rounds of steroid injections had failed, and he had been diagnosed with an impingement problem which warranted surgery.
[65]PCB 80
[66]PCB 82
70 Mr Silva ultimately had surgery to his left shoulder on 25 August 2014.[67] He deposed that the surgery did not assist him and he then had left shoulder hydrodilatation for adhesive capsulitis[68] on 5 February 2015. Mr Silva’s evidence is that this has not resolved his left shoulder difficulties. The defendant’s case is that the left shoulder problems are constitutional in nature (including the impact of his diabetes) and rely, for this assertion, on the reports of Mr Simm and Dr Barton.
[67]PCB 84
[68]PCB 86
71 In assessing this case, I place great weight on the report of Mr Nguyen, who performed the initial consultation with Mr Silva at a time close to the initial fall and the onset of his symptoms. This report and opinion, I view as more illuminating and helpful than the medico-legal opinion which occurred well after the events. In keeping with that, and for the reason set out above, I find that Mr Silva did suffer from an injury occurring in August 2011, which ultimately necessitated surgery, and which has led to his current left shoulder condition.
Consequences of the left shoulder injury
72 I now turn to consider the consequences of the impairment arising from Mr Silva’s left shoulder injury. Mr Silva admitted, in his affidavit, that his left shoulder condition is not as significant as that of his right. This is consistent with the history given to Mr Barmare in his report of March 2018.[69] In fact, when Mr Silva saw Mr Barmare in March 2018, he reported to him that in the immediate post-surgery period his left shoulder was improving well and produced no symptoms. When Mr Silva saw Mr O’Brien on 10 April 2018, he reported to him that the severity of his left shoulder pain was to 3/10. However, Mr O’Brien, on that date, took a history that Mr Silva had difficulty using his left arm to carry any object. The history was that occasionally Mr Silva would lose grip in the left hand and he would occasionally experience numbness which can affect the whole of the left arm. By the time Mr Silva came to see Mr Chehata, he reported that his left shoulder remained sore, painful and weak.
[69]PCB 54-55
73 While Mr Silva, in his affidavit material, has sought to isolate the effects of the right shoulder injury and set out its consequences, he has not gone to the same detail when dealing with his left shoulder. After perusing his affidavit and reviewing the history as given to various medical practitioners, I find it very difficult to isolate the effects of the left shoulder injury to determine its consequences. Given this, I am not able to make the findings that I am required to make in order to properly assess whether or not he meets the necessary standard on the balance of probabilities. For this reason, I am unable to determine that he has sustained a serious injury arising from his left shoulder impairment.
Mr Silva’s loss of earnings claim
74 In assessing Mr Silva’s application for a serious injury certificate, he claims not only for the pain and suffering consequences associated with his physical injuries, but also that the loss of earning capacity consequence is serious in that the loss of earning capacity is 40 per cent or more.
75 Given my findings above, that Mr Silva suffers from a serious injury to the right shoulder, it now falls to assess whether or not that serious injury in respect of physical consequences also extends to a finding that, by reason of his right shoulder injury, he has lost more than 40 per cent of his earning capacity. Much attention was focused on the interpretation of that section as it related to supervening events. Mr Silva and the defendant both relied on the decision of Acir v Frosster Pty Ltd.[70] Particularly, both parties took me to paragraph 175, where his Honour Forrest J said:
“… It follows, I think, in the context of s 134AB (38) (f) that the question to be answered is not what would the injured worker have earned taking into account the supervening event, but rather, what was the worker’s ability to earn money in the workforce, taking into account his pre-injury state of health, level of employment and career opportunities as at the time of injury. The consideration of the period of the three years after the injury is confined to these matters. On this analysis a court would be entitled to look at a worsening of a pre-injury condition affecting a worker’s capacity before the injury, but not to an independent supervening medical condition which would be a consideration solely at the damages trial.”
[70][2009] VSC 454
76 Given my findings above, the relevant injury is to the right shoulder. The supervening events are the low back injury and his diabetes. His left arm injury and ischaemic heart condition, I consider to be injuries which meet the definition of being independent supervening medical conditions, and not pre-injury conditions.
77 Both parties accepted that the relevant date of injury for the right shoulder should be the date of resignation, being 7 November 2011. Both parties accept that the relevant period of three years before begins on 7 November 2008 and ends on 7 November 2014. The period from 7 November 2008 to the date of injury is a period when Mr Silva was working on a part-time permanent basis with the defendant. His duties were as a delivery driver and manual process worker at the factory.
78 Mr Silva swore, in his first affidavit, that his earnings in 2007-2008 were $20,175, in 2008-2009 his earnings were $17,171, in 2009-2010 his earnings were $20,696 and in 2010-2011 his earnings were $21,175. He then worked only for a few more months with the defendant before resigning in November 2011. He then did some part-time security guard work, but ceased that by the middle of 2012. His earnings in 2011-2012 were $8,043.
79 Mr Silva swore, at paragraph 2l) of his second affidavit, that in November 2011, he was asked to do delivery work for the defendant. He swore that he ceased work because his back and his shoulder were not up to it. This seems strong evidence that his back was playing a significant role in his inability to work as of November 2011. He went further, at paragraph 10 of that affidavit, where he stated that it was his back problem that was the main thing that stopped him doing his work with the defendant and also security work. In his affidavit,[71] he stated that he was unable to stand as was required by his security work and hence ceased that job. Given my findings in relation to his back injury, I find that by November 2014 Mr Silva’s back condition had seriously impacted on his capacity for work.
[71]PCB 19
80 Mr Silva’s diabetic condition was also worsening during this time, and up to November 2014. Mr Silva’s evidence was that his diabetes was under control, and was not a cause of him ceasing work in 2011. It was then put to him that shortly thereafter, his condition began to worsen and impacted on his work. Counsel for the defendant put the following to Mr Silva:
Q:“Do you agree that your diabetes is something that’s affected your capacity for work since as early as 2013?---
A: No, I don’t believe so.”[72]
[72]T24, L8
81 When regard is had to the Centrelink documents at page 159, which is a Job Capacity Assessment Report, dated 24 May 2013, the primary impairment condition is listed as Diabetes. The report makes clear that his diabetes was having a “mild functional impairment on activities requiring physical exertion or stamina”[73] and the main symptoms Mr Silva reported were mild exertional problems, but he was otherwise able to perform most work-related tasks other than tasks involving heavy manual labour.
[73]Footnote [?]
82 Coming, then, to a synthesis of all the factors over the relevant six-year period to arrive at a figure which Mr Silva was capable of earning from personal exertion which most fairly reflects his earning capacity had the injury to the right shoulder not occurred, I find that by November 2014, his back injury, and to a lesser extent his diabetes, had completely eliminated his earning capacity. The impact of his right shoulder injury, then, had, on my findings, no effect, and could not be said to have reduced his earning capacity by more than 40 per cent. For this reason, I find that he has not satisfied the test required to demonstrate a serious injury by reason of loss of earning capacity consequences.
83 In considering these matters as to economic loss, I find that Mr Silva’s evidence was, at times, unreliable. While there did not seem to be any deliberate attempt to mislead, quite clearly Mr Silva is confused about the timing of certain events and the emphasis on the importance of certain matters at certain points in time.
84 For all the above reasons I find, in summary, the following:
(a) Mr Silva has not suffered a compensable injury to the low back;
(b) Mr Silva has suffered a serious injury to the right shoulder in compensable circumstances in respect of its pain and suffering consequences, but not in respect of its loss of earnings capacity consequences;
(c) Mr Silva has suffered a left shoulder injury in compensable circumstances but the consequences of that injury are not serious.
85 I shall hear the parties on the question of costs.
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