Simic v Coburg Super Finish Smash Repairs Pty Ltd
[2016] VCC 620
•5 May 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-14-06069
| JOVICA SIMIC | Plaintiff |
| v | |
| COBURG SUPER FINISH SMASH REPAIRS PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE TSALAMANDRIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 May 2016 | |
DATE OF JUDGMENT: | ||
CASE MAY BE CITED AS: | Simic v Coburg Super Finish Smash Repairs Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 620 | |
REASONS FOR JUDGMENT
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Subject: Accident Compensation
Catchwords: ACCIDENT COMPENSATION – serious injury – injury to the right shoulder – degenerative changes – rotator cuff tendonitis - Panel Beater – Foreman – s134AB – psychological stress –bilateral carpal tunnel syndrome – plaintiff’s credibility – loss of earning capacity – leave granted.
Legislation Cited: Accident Compensation Act 1985; Transport Accident Act 1986
Cases Cited:Barwon Spinners Pty Ltd v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd (2006) 14 VR 602; Barlow v Hollis [2000] VSCA 26; Franklin v Ubaldi Foods Pty Ltd [2005] VSCA 317; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Primary Health Care Ltd v Giakalis [2013] VSCA 75; Hughes v Ray Brooks [2007] VCC 1100; Ansett v Taylor [2006] VSCA 171; Ifka v Shahin Enterprises Pty Ltd [2014] VSCA 8; Advanced Wire & Cable Pty Ltd & VWA v Abdulle [2009] VSCA 170
Judgment: Application successful
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P O’Dwyer QC | Patrick Robinson & Co |
| Mr Richard Forsyth | ||
| For the Defendant | Mr D Masel QC Ms J Frederico | Wisewould Mahoney |
HER HONOUR:
Preliminary
1 The plaintiff commenced employment with the defendant in about 1996 as a panel beater and later as a foreman. The plaintiff claims he suffered injury to his right shoulder as a consequence of undertaking these panel beating duties in the course of his employment.
2 This is an application for leave to bring proceedings pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the ACA”). The application is made under sub-section (a) of the definition contained in s134AB(37) and the plaintiff seeks leave to claim damages for both pain and suffering and loss of earning capacity.
3 Mr Paul O’Dwyer QC and Mr Richard Forsyth appeared for the plaintiff and Mr Daniel Masel QC and Ms Julia Frederico appeared for the defendant.
4 The plaintiff claims he suffered injury to his right shoulder, with degenerative changes associated with rotator cuff tendonitis and impingement. The body function said to be impaired is the right shoulder.
5 He also claims consequential left shoulder pain, which he claims arose from its overuse due to his right shoulder injury. The impairment to his left shoulder is modest in comparison to the right shoulder, and he does not claim the left shoulder as a separate serious injury.
6 The plaintiff claims he suffered his injury over the course of his employment. In accordance with s134AB(1) of the Act, and the principles enunciated in Barwon Spinners Pty Ltd v Podolak[1] and Grech v Orica Australia Pty Ltd,[2] I must only have regard to injury referable to employment after 20 October 2009.
[1](2005) 14 VR 622
[2](2006) 14 VR 602
7 The matter is complicated as the plaintiff suffered increased pain in his right shoulder when reversing a car, during the course of his employment in February 2010. As this involved the driving of a motor vehicle, any common law entitlements arising from this incident are governed by the provisions of the Transport Accident Act 1986. (“the TAA”) In deciding this application under the ACA, I can only have regard for contribution from employment after 20 October 1999, and I must exclude any contribution from this driving incident. To do so, a close analysis of all of the evidence, in particular the medical evidence, before and after this driving incident, is required.
8 Only the plaintiff was called to give evidence and he was cross-examined. Also in evidence were affidavits from two of the defendant’s managers, together with medical reports and other material. I have read these tendered documents, together with the transcript of the proceedings. I shall not refer to all of that material in the course of this Judgment, but rather to those parts of the evidence and reports which I consider to be most relevant, and those which I have relied upon in coming to the conclusions referred to in this Judgment.[3]
[3]See Barlow v Hollis [2000] VSCA 26 per Chernov J at [14]-[16], and the “pathway of reasoning” per Ashley JA in Franklin v Ubaldi Foods Pty Ltd [2005] VSCA 317 at [38]
Relevant background
9 The plaintiff was born in the former Yugoslavia and is 56 years old. He is married and has three children aged 31, 27 and 14 years.
10 The plaintiff was educated to Grade 2 in Yugoslavia and immigrated to Australia at the age of nine.
11 He finished his schooling in Australia and then undertook and completed an apprenticeship in panel beating. He worked as a panel beater from that time[4] and loved his work as a panel beater.[5]
[4]Plaintiff’s Court Book (“PCB”) 9
[5]Transcript (“T”) 14, Line(s) (“L”) 1-2
12 For a period from 1979 to 1985 the plaintiff lived in Yugoslavia. While there, he spent his time working as a panel beater and visiting family.[6]
[6]PCB 9
13 Unrelated to this claim, the plaintiff suffered bilateral carpal tunnel syndrome from about 2007. He underwent surgery for this condition in September and October 2009.[7]
[7]PCB 10
14 The plaintiff has also suffered psychological stress which he related to his work with the defendant. It was alleged the plaintiff sent inappropriate text messages to a co-worker named George, who the plaintiff alleged, later assaulted him. The plaintiff subsequently lodged a WorkCover stress claim for which he provided certificates of incapacity, from 21 June 2010 until at least 20 October 2010.[8] This stress claim is relevant in the context of the plaintiff’s credibility, and I will detail to it more fully in that part of my Judgment.
[8]Agreed by the parties at T86, L23-31, T87, L1
15 Although this serious injury application was originally lodged in respect of a psychiatric injury under s134AB (37) (c), this was abandoned at the hearing.[9] No psychiatric evidence was relied upon in respect of the sub-s(a) application for the right shoulder.
[9]T33, L1-6
The injury and its consequences
16 The plaintiff commenced employment with the defendant in 1996. He initially worked as a panel beater, but was later promoted to foreman. In that role, he performed supervising duties, as well as hands-on panel beating work.
17 After recovering from the bilateral carpal tunnel surgery, the plaintiff returned to work in November 2009, doing light duties for four hours a day, three days a week. He was initially limited to lifting no more than 2 kilograms. His work involved stripping cars of bumper bars, headlights, mudguards, things underneath the car, plastic splash shields, rock shields, stripping doors, etc.[10]
[10]T67, L9-12
18 The plaintiff alleged he was pressured by the defendant into prematurely increasing his hours and his duties. Following this, the plaintiff claimed he developed pain and symptoms in his right arm and shoulder.[11]
[11]PCB 10
19 As part of his recovery from the carpal tunnel surgery, the plaintiff was treated by physiotherapist Ms Adele Chan at the Manning-High Physiotherapy Clinic in Doncaster. The plaintiff first attended there on 10 November 2009 and thereafter attended on numerous occasions until 23 March 2010.[12] His complaints predominantly related to his right and left hands, for which he was recovering from surgery. However, the Disability Index Questionnaire he completed at Ms Chan’s clinic on 10 November 2009 also identified muscle wasting in his left and right shoulders.
[12]Exhibit B, Clinical notes of the Manning-High Physiotherapy Clinic
20 On 2 January 2010 he consulted Ms Chan in relation to his right and left hands. During this attendance he also complained of ongoing weakness in the right shoulder and left shoulder.
21 On 5 January 2010 he was given strengthening exercises to improve his right shoulder.
22 On 14 January 2010 there is a further reference to his right shoulder, but the note is hard to decipher.
23 On 23 January 2010 the note recorded the plaintiff was “working hard even with pain and fatigue.”[13] Treatment was given to the right hand, right wrist, right forearm and right shoulder, including ultrasound, massage and home exercises. It is not clear from this note where the plaintiff’s pain was at this time. Treatment had previously been given in respect of right shoulder weakness. It is unclear whether the plaintiff expressly reported right shoulder pain on this day.
[13]Exhibit B
24 There are further references to the right shoulder on 28 January, 6 February and 15 February 2010. There is a reference to the left shoulder on 9 February 2010. These notes are scant, and include no detail as to the nature and extent of the shoulder complaints.
25 In a Pain Questionnaire completed on 13 February 2010, the plaintiff referred to his arm and hand, but made no reference to pain in his shoulders.[14]
[14]Exhibit 3, Pain Questionnaire dated 13 February 2010
26 The plaintiff’s work hours increased on 15 February 2010, and he was permitted to lift up to 5 kilograms. He then began doing light repairs, including ‘hands-on’ work using electrical tools. He would grind paint off cars, and then apply filler, and then sand off the filler.[15] In order to do this, the plaintiff said he needed to hold the sander, with his right arm outstretched to a near 90 degrees angle, with the left arm following behind in a bent position. He said his arms were sometimes above waist height and sometimes below.[16]
[15]T67-68, L30-2
[16]T68, L5-15
27 On a particular day in February 2010 the plaintiff was directed by the defendant to move a car within the workshop. He was required to move it from the paint area to the assembly area, a distance of 8 to 10 metres.[17] This involved forward driving and reversing. Whilst reversing, he looked over his left shoulder, and his right arm was on the top of the steering wheel. Whilst doing this he experienced pain in his right shoulder. (‘the driving incident”)
[17]T21, L9-23
28 The precise date of this driving incident is unclear. In his affidavit, the plaintiff stated it occurred on 7 February 2010.[18] In his claim form, he alleged it occurred on 17 February 2010. In his viva voce evidence, he said it was soon after returning to increased hours and increased lifting restrictions. The certificates of capacity indicate that it occurred on 15 February 2010. In cross-examination, the plaintiff accepted, and I agree, that the driving incident most likely occurred on 17 February 2010.[19]
[18]PCB 10
[19]T22, L20-25
29 On 17 February 2010, there is an attendance by the plaintiff on Ms Chan, but there is no reference to his right shoulder in this note.
30 From this time, the plaintiff claimed his right shoulder got worse, and that it was particularly painful when he was required to perform overhead tasks with his right arm.[20]
[20]PCB 10
31 The plaintiff first complained of his shoulder pain to his General Practitioner, Dr Kirmos, on 25 February 2010. Dr Kirmos noted the following:
“…quite increased right shoulder pain. He was at that time recovering from left-handed carpal tunnel syndrome. He had complained that the right shoulder was giving discomfort when using/lifting objects. There was no formal injury that could be pointed to as the cause, and the symptoms had occurred about one week prior to seeing me. He had symptoms and signs of a rotator cuff injury to his right shoulder, which we surmise could be from overcompensating with use due to his left carpal tunnel…”[21]
[21]PCB 40
32 Dr Kirmos referred the plaintiff for an ultrasound and x-ray of his right shoulder. These showed subacromial bursitis, with supraspinatus tendinopathy.[22]
[22]PCB 62
33 On 9 March 2010, the plaintiff had an ultrasound-guided steroid injection into his right shoulder. He said it did not provide him with much benefit.[23]
[23]PCB 11
34 In April and May 2010 the plaintiff travelled to Serbia.
35 On 23 June 2010, the plaintiff was referred to see orthopaedic surgeon, Mr Francis Lyons. Mr Lyons took a history that upon returning to work after carpal tunnel surgery, the plaintiff felt pressured to prematurely increase the number of days and hours that he worked. In his report dated 21 December 2012, Mr Lyons noted:
“Although there did not appear to be a single specific injury as such, he believed that this sequence of events accounted for the fairly rapid onset of symptoms in his right shoulder during the course of a single day at work. However, once again, there appears to have not been a single isolated significant trauma to the shoulder as such.
He described ongoing symptoms in his right shoulder in the form of pain, particularly when trying to perform overhead tasks with his right arm. He also noticed aching in the shoulder at the end of the day. The right shoulder had also become sore to lie on at night.”[24]
[24]PCB 36
36 Mr Lyons noted that the plaintiff’s shoulder symptoms had eased somewhat whilst he was overseas for two months. Upon his return to work in June 2010, however, he noted the plaintiff complained that his right shoulder symptoms recurred and that he experienced fluctuating levels of soreness in his shoulder, depending upon the sort of physical tasks he performed.[25]
[25]PCB 36
37 On 25 June 2010 the plaintiff lodged a WorkCover claim in relation to his right shoulder injury. The claim form referred to the driving incident. On the same day, he also lodged a WorkCover claim in relation to his stress condition arising from the alleged assault by George.
38 Mr Lyons arranged another injection into his right shoulder on 21 July 2010, but the plaintiff felt this did not give him much relief.[26]
[26]PCB 11
39 The plaintiff also tried physiotherapy, but he gained little benefit from it.[27]
[27]PCB 11
40 On 16 September 2010, the plaintiff underwent an arthroscopy of his right shoulder, performed by Mr Lyons. The procedure involved decompression of the subacromial space in his right shoulder, as well as a Cortisone injection. Following surgery, the plaintiff had some further physiotherapy of his right shoulder.
41 On 4 April 2011, the plaintiff underwent a further procedure at the Mercy Private Hospital involving a manipulation of his right shoulder under anaesthetic, at which time a further Cortisone injection was also given.
42 He attempted a return to work in June 2011.
43 In about November 2011, the plaintiff started developing pain and stiffness symptoms in his left shoulder.[28]
[28]PCB 12
44 Around this time, in November 2011, the plaintiff ceased employment with the defendant.[29]
[29]PCB 13
45 In about January 2012, he saw his general practitioner, Dr Kirmos, in relation to his left shoulder. He arranged for him to have an x-ray and an ultrasound.[30]
[30]PCB 12
46 In February 2012, he was referred to see Mr Lyons in relation to his left shoulder.[31]
[31]PCB 12
47 Around this time, in February 2012, the plaintiff obtained employment managing a panel beating shop. It was subsidised employment and did not involve panel beating work.[32] At the end of the 12 months, the subsidy ended and his employment was terminated.[33]
[32]T56, L21-22
[33]T56, L20
48 In April 2012, the plaintiff received an ultrasound-guided cortisone injection into his left shoulder, and this gave him some limited relief.[34]
[34]PCB 12
49 The plaintiff has not seen Mr Lyons since February 2012. Mr Lyons left open the possibility that the plaintiff may undergo surgery on his left shoulder sometime in the future.[35]
[35]PCB 12
50 In July 2013, the plaintiff obtained employment with Rescue Force Security. He remains in this employment. His role involves the sale and servicing of security systems. The plaintiff said while he is able to cope in this role, he does have difficulties when required to reach above shoulder height, in order to check an alarm system. He said this can sometimes happen daily.[36]
[36]T13, L14-15
51 The plaintiff had been prescribed Panadeine Forte in the past, but did not like taking it.[37]
[37]PCB 13
52 The plaintiff sees his masseuse, Kate Darcy, when he can afford it. The sessions cost approximately $80.[38]
[38]T12, 24-28
53 He now takes one to two Panadol Osteo each day for his shoulder pain.[39]
[39]T14, L20
54 The plaintiff continues to experience pain and stiffness in his right shoulder. He suffers the pain constantly, and he described it as being low to medium. He suffers increased pain on a weekly basis.[40] The plaintiff stated that this pain occurs any time he has to use his arm above shoulder height.[41]
[40]T12, L16-21
[41]PCB 15
55 The plaintiff’s sleep is adversely affected by the right shoulder pain. He finds it difficult to get comfortable in bed at night and tends to toss and turn. Because of this, he struggles to remain asleep at night.[42] The plaintiff estimated that every second night he was not able to get a good night’s sleep, and that this situation had persisted for five years since the injury.[43]
[42]PCB 15
[43]T58, L15-21
56 The plaintiff is also restricted in what he can do around the home, due to his right shoulder pain. He avoids activities that may make his shoulder pain worse. He avoids cleaning, vacuuming and gardening.[44]
[44]PCB 16
57 Prior to the right shoulder injury, the plaintiff enjoyed playing golf. He used to play with the Serbian Social Golf Club. He stated that since suffering his injury he tried to play, but has not played at all since 2014 or 2015.[45]
[45]T51, L25-26
58 The plaintiff stated that he is reluctant to have surgery on his left shoulder, because he considers the surgery on his right shoulder did not help him much. He described his left shoulder pain as mild in comparison to his right shoulder pain.
Medical evidence
59 The doctors were largely in agreement as to the nature of the plaintiff’s injury, and its impact upon his ability to work as a panel beater. The key issue in dispute, was the cause of the plaintiff’s current injury and, in particular, whether it related to his employment with the defendant, excluding the car incident.
60 Dr Kirmos did not obtain a history of the driving incident. He assumed the plaintiff’s injury occurred from overcompensating, due to the previous carpal tunnel surgery.[46]
[46]PCB 34
61 Mr Lyons also did not obtain a history of the driving incident. He did not consider the injury was suffered in a single, isolated significant trauma to the shoulder.[47] He referred to a rapid onset of symptoms during the course of a single day, which I accept was most likely the day of the driving incident.
[47]PCB 36
62 On 1 July 2010, Mr Lyons wrote to Dr Kirmos about the plaintiff.[48] He was aware of the stress claim following the incident at work with George, and he felt there may be some abnormal illness behaviour. However, in circumstances where Mr Lyons went on to perform two surgical procedures, and made no further reference to abnormal illness behaviour, I am of the view it is unnecessary for me to disaggregate the plaintiff’s psychological condition from his physical condition.
[48]PCB 29-30
63 Mr Lyons has not seen the plaintiff since February 2012. At that time, he considered the plaintiff’s prognosis for the right shoulder to be favourable, given the plaintiff had commenced less physical employment. He considered the prognosis for his left shoulder to be guarded.[49]
[49]PCB 39
64 The plaintiff’s solicitors arranged for him to be examined by general surgeon, Mr Kenneth Myers, in April 2016. Mr Myers obtained a history from the plaintiff that upon his return to work following carpal tunnel surgery, he progressively developed problems in his right shoulder and later his left shoulder,. The plaintiff attributed these problems to excessive strains placed upon his shoulders in the course of his employment as a panel beater.[50] Mr Myers diagnosed the plaintiff as suffering degenerative and inflammatory changes in the rotator cuff of the right shoulder, with probabilities of capsulitis, due to excessive strains placed upon his shoulder in the course of his employment.
[50]PCB 43
65 Mr Myers did not obtain a history of the driving incident.
66 In demonstrating the insignificance of the driving incident, the plaintiff then relied upon numerous medical reports obtained by the defendant.
67 Dr Michael Bloom, occupational and environmental physician, examined the plaintiff on behalf of the defendant, on 25 February 2010. The purpose of the appointment was to assess the plaintiff’s return to work plan, in respect of his carpal tunnel injury. Dr Bloom concluded that the plaintiff had been left with some residual mild symptoms in his hands, which were likely to resolve over the next few months. He considered that he was fit to resume full-time work immediately, with appropriate constraints.[51]
[51]Exhibit C
68 There is no mention of the plaintiff’s shoulder condition in Dr Bloom’s report.
69 Dr Philip Mutton, consultant occupational physician, examined the plaintiff on behalf of the defendant on 29 July 2010. In his report dated 4 August 2010, he referred to the plaintiff’s right shoulder injury occurring in his first week back at increased duties. Dr Mutton recorded:
“He indicates there was no particular car that he was driving, but noted increasing pain over the tip of the right shoulder. He denies prior history in relation to the right shoulder. He worked through to the end of the day. He reported the injury. The next day he was worse and there was a further episode of pain.”[52]
[52]Exhibit D
70 Dr Mutton concluded that his right shoulder injury “appears to have occurred in the course of his general work activities as a panel beater.”[53] He noted “there has been a change in work activities; “up until recent times he was involved in a lot of assessment in quoting, but thereafter he is return to general hands-on physical work.”[54]
[53]Exhibit D
[54]Exhibit D
71 Dr Chris Baker, specialist in occupational medicine, examined the plaintiff on behalf of the defendant on 15 November 2011 and 3 May 2012. Dr Baker obtained a history from the plaintiff that whilst reversing a car, he was pulling on the steering wheel, when he felt a sharp pain in his right shoulder. He considered that his work place activities resulted in the injury developing.
72 When Dr Baker saw the plaintiff again in May 2012, he considered that contribution from employment had diminished with time, and felt that employment had ceased to be a material contributing factor.
73 The defendant’s solicitors arranged for the plaintiff to be examined by orthopaedic surgeon, Mr Rodney Simm, in August 2014 and March 2016. Mr Simm obtained a history from the plaintiff that whilst reversing a car at work, he experienced sharp and excruciating right shoulder pain.
74 Mr Simm diagnosed degenerative supraspinatus tendinitis, with associated subacromial bursitis. He did not accept Dr Kirmos’ hypothesis that the right shoulder symptoms arose from overcompensation following the left carpal tunnel surgery.[55] He concluded that the plaintiff developed the spontaneous onset of symptoms in February 2010. He felt that the driving incident was “responsible for the initiation of symptoms from underlying pathology and not a cause of that pathology, or an aggravating factor that altered the pathology.”[56]
[55]Defendant’s Court Book (“DCB”) 15
[56]DCB 15
75 Mr Simm commented:
“It could be argued that over the many years he has worked as a panel beater, using his arms the strenuous and repetitive activities away from his body and in the overhead position, there has been some degree of acceleration of the constitutional degenerative pathology in the rotator cuff mechanisms both shoulders. This contribution would be small and impossible to quantitate.”[57]
[57]DCB 15
76 In March 2016, Mr Simm considered the plaintiff’s right shoulder pathology as constitutional age-related degenerative pathology. He felt the symptoms were initiated in the workplace, more by coincidence rather than causation.[58]
[58]DCB 21
77 The defendant’s solicitors also arranged for the plaintiff to be examined by occupational physician, Dr Michael Baynes, in March 2016. He also obtained a history of the driving incident.
78 The defendant also relied upon histories given by the plaintiff to psychiatrist, Dr Chris Grant, in July 2010 and Dr Michael Bowles in May 2011, regarding the driving incident.
Plaintiff’s credibility
79 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:
“…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.”[59]
[59](2010) 31 VR 1 at [12]
80 For most parts of his evidence, I accepted the plaintiff as being reliable and creditworthy.
81 I had some reservations as to his candour when cross-examined, especially in relation to his involvement in gardening. In his affidavit, he claimed that while he previously enjoyed gardening, he was now very limited in it because of his shoulders.[60] However, in cross-examination when asked if he enjoyed gardening, the plaintiff responded “no one enjoys gardening.”[61]
[60]PCB 16
[61]T46, L6-7
82 More significantly, the defendant showed surveillance film of the plaintiff undergoing extensive gardening tasks, with his wife, in a neighbour’s home in August 2014.[62] He unloaded two trailer loads of tan bark and then spread it in the garden. He used a shovel, a rake and a hoe. He laid edging along the garden bed, and placed some medium sized volcanic rocks in the garden. The footage covers a period of approximately 2¼ hours. Whilst undertaking the gardening tasks the plaintiff used both his left and right arms. There were no tasks in which his arms were outstretched for an extended period, and no time where his arms were above shoulder height.
83 The plaintiff said that after doing that gardening job he was “buggered”.[63]
[62]Exhibit 2
[63]T58, L1-4
84 I consider the footage to be inconsistent with what the plaintiff stated in his affidavit sworn 28 January 2014, and which he adopted at the commencement of his viva voce evidence. However, the footage is not inconsistent with the plaintiff’s claim that he cannot work as a panel beater, as the tasks performed did not involve overhead arm work.
85 The defendant also sought to challenge the plaintiff’s credit in respect of an alleged threat by him to lodge a WorkCover claim in June 2010. This followed a disagreement with his work colleague George. The plaintiff alleged he was assaulted by George and requested that his employer provide him with a letter acknowledging the assault, together with an apology.[64]
[64]T36, L29-31 and T37, L1-3
86 The defendant relied upon affidavits from the defendant’s managers Peter and Tim Iliopoulous. Both said they refused the plaintiff’s request for such a letter, and that in response to that refusal, the plaintiff then threatened to lodge a WorkCover claim.[65]
[65]DCB 3 and 7
87 The plaintiff initially denied he made such a threat,[66] although upon further cross-examination, he seemed to concede that he did say in those circumstances he would claim for stress leave.[67]
[66]T37, L5-6
[67]T37, L14-15
88 I note that the plaintiff had consulted Mr Lyons about his right shoulder two days prior to lodging the WorkCover claim for his shoulder injury. The timing of him also lodging the stress claim seems to have been coincidental. It may be that the WorkCover claim for his stress condition arose as a consequence of the defendant’s refusal to provide a letter of apology, but the relevance of that is marginal to this claim. I do not consider the plaintiff’s threat to lodge a stress claim, impacts upon his credibility in respect of this shoulder claim.
What is the significance of the driving incident?
89 The plaintiff cannot rely upon the driving incident, in this serious injury application under the ACA. Section 134AA and s134ABA(1) of the ACA, together with s93 of the TAA, exclude the application of s134AB of the ACA, in the event that a worker suffers injury in a transport accident in the course of the workers’ employment.[68] Mr Masel submitted that the driving incident was causally significant, and productive of the plaintiff’s injury. He suggested the plaintiff consider making an application under the TAA.
[68]Per Kaye, J in Primary Health Care Ltd v Giakalis [2013] VSCA 75 at [35]
90 Mr Masel referred me to this Court’s decision in Hughes v Ray Brooks.[69] In that case, the plaintiff suffered injury to his spine, when his truck seat “bottomed out” as he drove along a rough section of roadway. His Honour Judge Higgins held that this incident was directly caused by the driving of a motor vehicle and was therefore a transport accident, within the meaning of the TAA. He concluded the application was wrongly made under s134AB of the ACA, and the application therefore failed.
[69][2007] VCC 1100
91 Mr Masel submitted the plaintiff’s injury was directly caused by the driving of a motor vehicle. He relied upon the medical reports in which the plaintiff gave a history of the driving incident. He also relied upon the following extract of the plaintiff’s cross-examination:
Q: And then something happened on the day you were driving the car which was dramatic and different to what had happened before, wasn't it?
A: Yes.[70]
[70]T71, L21-23
92 Mr O’Dwyer submitted the driving incident did not cause the plaintiff’s right shoulder injury. He relied upon the clinical records of Ms Chan, which demonstrated complaints of bilateral shoulder weakness prior to the driving incident. He said that the medical evidence supported it being a progressive injury. He emphasised the driving incident is not referred to in any of the treating practitioner’s clinical notes.
93 The plaintiff did not complain to Dr Kirmos, Ms Chan or Mr Lyons about the driving incident. Of significance, the plaintiff saw Ms Chan on 17 February 2010, and there is no mention of it or right shoulder pain. I also note that it is not referred to in the plaintiff’s attendance upon Dr Bloom the week following the driving incident.
94 The plaintiff claimed that he had complained about his right shoulder pain to the defendant before the driving incident. His two managers, Peter and Tim Iliopoulous denied this.[71]
[71]DCB 3 and 8
95 The only possible reference to right shoulder pain prior to the driving incident is in Ms Chan’s record of 23 January 2010. However, the clinical note lacks detail, and I am not satisfied there was a complaint of right shoulder pain at that time. However, it is clear from Ms Chan’s clinical notes that the plaintiff suffered bilateral shoulder weakness from at least November 2009.
96 I therefore conclude that there was bilateral shoulder weakness prior to the driving incident. However, there is insufficient evidence for me to accept the plaintiff suffered right shoulder pain prior to the driving incident. Given he was seeing Ms Chan at least once a week, I consider it likely that if the plaintiff had suffered right shoulder pain at that time, he would have complained about this to Ms Chan and she would have recorded it in her notes. Without contemporaneous medical records to support him on that, I am not prepared to accept his evidence on this.
97 Having found that he suffered weakness in his shoulders before the driving incident, I must now consider the significance of the driving incident.
98 Mr Lyons, Mr Myers and Mr Simm, as orthopaedic surgeons, are those most qualified to comment on the cause of the plaintiff’s right shoulder injury. Mr Lyons did not consider his right shoulder injury was related to a single, isolated traumatic event.
99 Mr Myers who was aware of the driving incident, considered the injury is related to the nature of the plaintiff’s duties as a panel beater.
100 Mr Simm referred to the driving incident as a spontaneous event and said that the minor degree of mechanical loading of the right shoulder to undertake the turning of a motor vehicle, is such that he considered the connection to the workplace a coincidence.[72]
[72]DCB 23
101 Mr Simm accepted that work over many years as a panel beater, using his arms for strenuous repetitive activities away from his body and in the overhead position, could have caused some degree of acceleration of the constitutional degenerative pathology in the rotator cuff mechanisms. He considered contribution would be small and impossible to quantify.
102 From 20 October 1999 until February 2010, the plaintiff worked for the defendant as a panel beater. I do not accept Mr Simm’s opinion that contribution to the plaintiff’s degenerative condition over this period would be small. There are no other known factors contributing to the onset of his degenerative condition. I prefer the opinion of Mr Myers, as I consider it is a more realistic acceptance of the nature of the plaintiff’s work duties over a 10 year period.
103 Mr Simm is also of the opinion that the right shoulder injury is now constitutional and no longer work-related. In circumstances where the plaintiff’s symptoms have continued since 2010, and have never ceased, I accept it is improbable that work is no longer a cause of his condition.
104 I accept the driving incident was most likely the time when the plaintiff first experienced shoulder pain. However, I consider the action of turning a steering wheel as so modest an action, that any connection with the onset of pain is coincidental.
105 I consider the driving incident assumed unrealistic significance, both by the plaintiff referring to it in his claim form, in his reporting it to numerous medico-legal doctors and in his evidence to the court. In considering the evidence as a whole, I conclude that the driving incident was an innocuous event, and was not a cause of the plaintiff’s injury and impairment.
106 In reaching this conclusion, I have considered Mr Masel’s submission that I should draw an adverse inference from the plaintiff’s failure to exchange a report from Ms Chan. Mr O'Dwyer said the clinical records were very supportive of the plaintiff's claim, as they supported his allegation that the injury was progressive.
107 I agree with Mr O'Dwyer’s submission that Ms Chan's records help the plaintiff's case. They record weakness in the shoulders before the driving incident and contain no reference to the driving incident. The importance of these clinical records and the likely benefit to be gained from obtaining a medical report from Ms Chan seems to have been overlooked by the plaintiff's solicitors, as the records were not even in the court book. In those circumstances, I am not prepared to draw such an inference.
108 The plaintiff sought to rely upon an Ansett v Taylor[73] admission, in that the insurer had paid statutory benefits for the claimed right shoulder injury. Mr Masel objected to this, in part as the plaintiff was late in giving notice of his reliance on Ansett v Taylor. He also submitted the admission was of diminished value in circumstances where the plaintiff's claim form referred to the driving incident. In Ifka v Shahin Enterprises Pty Ltd,[74] the Court of Appeal said:
“Conventionally, Ansett v Taylor is relied upon as authority for the proposition that, by paying compensation, a party (absent some other evidence) may be taken to have made an admission that the relevant worker suffered compensable injury involving the affected body parts in respect of which compensation was paid. However, questions of the extent to which the acceptance of liability to make a payment might constitute an admission as to the full nature or effect of an injury can be problematic.”[75]
[73][2006] VSCA 171
[74][2014] VSCA 8
[75]Ibid at para [57]
109 Given the claim form referred to the driving incident, I consider it would be problematic to attach anything more than minimal weight to an Ansett v Taylor admission.
Permanent
110 In order to satisfy the definition of serious injury, the plaintiff must prove the injury and its consequences are both serious and permanent. The authorities have defined the latter to mean “likely to last for the foreseeable future”.[76] I am satisfied that the plaintiff’s injury and the consequences which flow are permanent. He has had two surgical procedures to his right shoulder. He takes painkilling medication on an ongoing basis. There is no evidence that any further medical treatment will lead to an improvement in his condition.
[76]Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at [34]
111 Having thus accepted that his injury is permanent, I must now consider whether the plaintiff’s right shoulder impairment satisfies the serious injury threshold.
Loss of earning capacity
112 To succeed in his application, the plaintiff has the onus of satisfying me that as at the date of hearing, he has sustained a loss of earning capacity of 40 per cent or more; and that he will continue permanently to have a loss of earning capacity which produces a financial loss of 40 per cent or more. In assessing this, I must consider what the plaintiff is capable of earning, whether in suitable employment or not.
113 The definition is an objective test which looks at the worker’s current suitability for work, taking into account matters such as the plaintiff’s age, education, experience and whether the work is a reasonable distance from the plaintiff’s place of residence.[77]
[77]Barwon Spinners Pty Ltd & Ors v Podolak at [25] and [28]
114 In undertaking this task, I must compare what the plaintiff is currently earning, or capable of earning in suitable employment, with his pre-injury earning capacity. To determine his pre-injury earning capacity I must decide which of the following scenarios most fairly reflects the plaintiff’s earning capacity, had he not suffered the injury:
a.the gross income that the plaintiff earned (or was capable of earning) from personal exertion in the three years before the injury;
b.the gross income the worker would have earned (or was capable of earning) from personal exertion in the three years after the injury, if the injury did not occur.[78]
[78]s 134AB(38)(f)
115 Determining the plaintiff’s pre-injury earning capacity is complicated as he was recovering from bilateral carpal tunnel surgery at the time he suffered his right shoulder injury.
116 I am satisfied that he was likely to make a full recovery from the carpal tunnel surgery, such that he would have returned to normal panel beating duties soon after February 2010. Dr Bloom considered this to be the case when he examined the plaintiff on 25 February 2010. The further medical material provided by both the plaintiff and defendant does not refer to any significant ongoing problems with his carpal tunnel symptoms.
117 Therefore, in determining the plaintiff’s pre-injury earnings, I can disregard any interruption caused by the carpal tunnel surgery. In the three years before and after his right shoulder injury, the plaintiff’s gross income was as follows:
2007: $67,751
2008: $68,208
2009: $71,832
2010: $52,026
2011: $54,418
2012: $40,646[79]
[79]PCB 14
118 I consider that the figure from the 2009 financial year most fairly reflects his pre- injury earning capacity, as it was the year closest in time to when he was injured, without interruptions by irrelevant events. The subsequent financial year was interrupted, as he had significant time off work when recovering from the carpal tunnel surgery, and also travelled overseas for two months.
119 Accepting this sum of $71,832 as his pre-injury earning capacity, the average weekly wage is therefore $1,381.38 gross per week. Applying the statutory test, I must be satisfied the plaintiff is incapable of earning no more than $828.83 per week, and that such a restriction on his earning capacity will be permanent.
120 All of the doctors agree that the plaintiff cannot return to his pre-injury work as a panel beater. The issue for me to determine is what the plaintiff is capable of earning in suitable employment.
121 The plaintiff gave evidence, which I accept, that any position as a panel shop manager or foreman would require some panel beating work. The job he obtained in February 2012 managing a panel shop was subsidised employment, and he was terminated when the subsidy ran out.
122 In his present employment with Rescue Force Security, the plaintiff works in a security and sales position. His annual salary is approximately $35,000, which equates to a weekly gross wage of $673.07 per week.
123 Dr Baynes considered the plaintiff was fit for full-time alternative duties, provided there was no lifting greater than 5 kilograms and no lifting above head height. Further, he considered the plaintiff should not work with his arms in an outstretched posture and that he should not be involved in forceful pushing or pulling with either arm. He considered the plaintiff would be fit to work as a panel shop manager and foreman but that he is not fit to work on the tools. Alternatively, he considered he would be fit to work as a sales assistant, in light production work or in light delivery driver work. Dr Baynes considered his current employment as “ideal.”[80]
[80]DCB 28
124 I am satisfied the plaintiff’s current employment is suitable. Given he earns less than $828 per week, he is presently suffering the requisite loss of 40 per cent.
125 I must also be satisfied that this loss will be permanent. The plaintiff has been in this role for almost three years. He is 56 years of age. He has only ever worked as a panel beater. He has some difficulties in his current position when he has to reach for a security alarm above shoulder height, but otherwise he is able to cope in this job.
126 I am satisfied that into the future he will continue to suffer the requisite loss of 40 per cent.
127 Once the threshold of 40 per cent reduction in capacity has been met, it is still necessary for me to consider whether the consequences for the plaintiff meet the “very considerable” test.[81] Given my findings that the plaintiff suffers an income loss in excess of $30,000 per annum, this pecuniary disadvantage is so great that I consider his loss of earning capacity can be described as very considerable.
[81]s134AB(38)(c)
Conclusion
128 As the plaintiff has satisfied me that he suffers a serious injury in respect of loss of earning capacity, it is not necessary for me to consider separately his pain and suffering consequences.[82]
[82]Advanced Wire & Cable Pty Ltd and VWA v Abdulle [2009] VSCA 170 at [63]
129 I am satisfied that the plaintiff suffers a serious injury to his right shoulder, arising as a consequence of his employment with the defendant and the consequences are such that he should be granted leave to commence proceedings for pain and suffering and pecuniary loss damages.
130 I shall make the consequent orders.
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