Singh v TAC
[2019] VCC 800
•6 June 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-18-00334
| AVTAR SINGH | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE BOWMAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 April 2019 | |
DATE OF JUDGMENT: | 6 June 2019 | |
CASE MAY BE CITED AS: | Singh v TAC | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 800 | |
REASONS FOR JUDGMENT
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Catchwords: Transport Accident Act 1986 – s93 – rear end collision – injury to spine and left arm – previous injury to left arm in industrial accident – some psychological reaction to accident and injuries – Richards v Wylie – whether burden of proof satisfied – factors to be considered.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr V Morfuni QC with Mr A Newman | Slater & Gordon |
| For the Defendant | Mr P Elliott QC with Mr A Coote | Solicitor to the TAC |
HIS HONOUR:
General background
1 This matter comes before me by way of an application pursuant to s93(4)(d) of the Transport Accident Act 1986, (hereinafter referred to as “the Act”). In bringing his claim, the plaintiff relies upon paragraph (a) of the definition of “serious injury” found in s93(17) of the Act. Insofar as any psychological or psychiatric consequences of injury are concerned, the plaintiff does not rely specifically upon paragraph (c) of the definition, but asserts that such matters can be taken into account in the way employed in Richards & Anor v Wylie (2000) 1 VR 79. I would refer to Transcript (hereinafter referred to as “T”) 1.
2 The plaintiff relies upon injury sustained in a motor vehicle collision that occurred on 24 July 2016, when the vehicle which he was driving was struck in the rear by another vehicle. This shall hereinafter be referred to as “the transport accident”. There was no challenge in relation to the occurrence or nature of the transport accident. There are two injuries relied upon. One is the aggravation of pre-existing degenerative changes in the lumbar and cervical spines. This shall hereinafter be referred to as “the spinal injury”. The other is in essence a tear of the tendons, along with bursitis, in the left shoulder. This shall hereinafter be referred to as “the shoulder injury”.
3 The plaintiff had previously suffered injury to his left arm, and particularly to his left forearm, when he lacerated it whilst working in an abattoir in January 2012. This was quite a significant injury, requiring subsequent surgery. Given the left arm injury subsequently suffered by the plaintiff in the accident, this injury is of relevance and shall hereinafter be referred to as “the abattoir injury”.
4 The plaintiff is allegedly ambidextrous, although some confusion seems to exist concerning this. His treating general practitioner, Dr Aejaz Sheriff, has described him as being left hand dominant, as has Dr Zamil Karin, pain specialist, who treated him in relation to the abattoir accident and Mr Charles Flanc, vascular and general surgeon, who conducted a medico-legal examination of him in June 2013. Dr John Owen, consultant orthopaedic surgeon, who twice examined the plaintiff at the request of the defendant, in his earlier report referred to the plaintiff as being dominantly right handed, although also stating that the plaintiff described himself as right hand dominant, even though he is largely ambidextrous. Following his second examination of the plaintiff in March of this year, he referred to the plaintiff as being right handed predominantly, but ambidextrous; referred to the fact that the plaintiff considers himself as ambidextrous; but also referred to the left shoulder pain as being “a frequent pest” because it is on the plaintiff’s dominant side. The plaintiff told Dr Natalie Krapivensky, consultant psychiatrist, who examined him at the request of the defendant, that he was ambidextrous. Dr Joseph Slesenger, specialist occupational physician, who has seen the plaintiff at the request of his solicitors, describes him as being ambidextrous, as does Mr Garry Grossbard, who saw the plaintiff at the joint request of the parties. In his affidavit of 4 June 2018, and when describing interference with his recreational cricket, the plaintiff described himself as ambidextrous, but bowling with his left arm. I shall treat the plaintiff as being ambidextrous.
5 Mr V Morfuni QC with Mr A Newman of counsel appeared on behalf of the plaintiff. Mr P Elliott QC with Mr A Coote of counsel appeared on behalf of the defendant. The plaintiff gave oral evidence, including the adoption of three affidavits as being true and correct, and was cross-examined. The remainder of the evidence was documentary in nature and was tendered either by consent or without opposition.
Factual background
(a)The plaintiff’s background prior to the accident
6 The plaintiff is aged 38 years, he having been born in 1981. He was born in India and there completed secondary schooling. Subsequently, he qualified as an air conditioner mechanic, also attaining degrees as a Master of Arts and Master of Economics. He worked as an air conditioner mechanic in India for approximately nine years. He married whilst in India and his son, now a teenager, was born there.
7 In approximately 2009, the plaintiff and his family migrated to Australia. He applied to undertake a course at RMIT, as his qualifications as an air conditioner mechanic were not recognised here and he wished to continue working in that capacity. In order to obtain some money in the meantime, he obtained a job as a labourer, and then a night hand in an abattoir, in addition to obtaining a security licence and a taxi licence in order to give himself additional employment options if required. He performed some occasional weekend work as a taxi driver. In January 2012, he suffered the abattoir injury to the left forearm. I might add that the scarring from this is still visible. In any event, the abattoir injury was quite a significant one and the plaintiff makes no secret of the fact that he still has some ongoing symptoms and restrictions relating to it, despite the two surgical procedures that were undertaken. At the time of suffering the abattoir injury, he also experienced back pain. The abattoir injury and its sequelae shall be referred to in greater detail subsequently when the plaintiff’s state of health prior to the accident is being discussed.
8 In any event, after the abattoir injury, the plaintiff was absent from work for quite a lengthy period. He returned on lighter duties, never getting back to the work which he performed before the injury. In approximately August 2014, no further light duties were available and his employment was terminated – see T13. He then found work as a security guard, commencing in approximately September or October 2014 and was still engaged in that employment as at the date of the accident. As at that time, he was working as a patrolling security guard, working 12 hour shifts, three days a week. That work involved considerable driving and walking around checking the security of buildings and the like.
(b)The plaintiff as a witness
9 I found the plaintiff to be a credible witness. He gave evidence in a measured fashion, although he did become tearful towards the end of it. I did not gain the impression that he was deliberately exaggerating his symptoms and restrictions. It may well be that there has been some depression and other psychological or psychiatric sequelae resulting from the accident and the injuries sustained, but essentially credit was not a central issue. It was freely admitted by the defendant that there had been surveillance, the results of which had been made available to the plaintiff, but no such material was shown to the Court and there was no attack of magnitude upon the credit of the plaintiff.
10 I note that Dr Natalie Krapivensky, consultant psychiatrist, who examined the plaintiff at the request of the defendant (and who had earlier examined the plaintiff in relation to the abattoir injury, such examination being prior to the transport accident), described the plaintiff as being a pleasant and cooperative man on each occasion that she saw him. Dr Albert Kaplan, consultant psychiatrist, who examined the plaintiff at the request of his solicitors, described him as being quietly spoken, polite and direct in manner. Further, Dr Joseph Slesenger, specialist occupational physician, similarly examining, described the plaintiff as giving a clear and consistent account of his injuries. The impression formed by those medical examiners is similar to my own.
11 In short, I am of the view that the plaintiff was an honest witness who may have become a little emotional, particularly late in his evidence, but who was attempting to give accurate and reliable evidence.
(c)The state of the plaintiff’s health prior to the accident
12 Apart from an episode of kidney stones from which the plaintiff made a good recovery, his only prior health concerns of substance relate to the abattoir injury. The defendant has placed in evidence a considerable number of medical reports relating to that injury. These include reports from the plaintiff’s current treating general practitioner, Dr Aejaz Sheriff, who was first notified about the nature of the abattoir injury on 2 May 2012. The plaintiff also made Dr Sheriff aware of the spinal injury (apparently he jumped or moved rapidly when he lacerated his arm). A CT scan of the lumbar spine was carried out on 7 May 2012. Essentially this revealed a central and right paracentral disc protrusion at L4-5, causing impingement of the traversing right L5 nerve root. Earlier degenerative changes were also noted at other levels.
13 A report of Dr Sheriff of 13 May 2014 dealt more extensively with the injury to the left forearm, although repeating details of the radiology involving the lumbar spine. The report refers to the fact that the plaintiff had been admitted to Western Hospital and then transferred to Sunshine Hospital. He had undergone tendon and neurovascular surgery, as well as having a left carpal tunnel release performed. Dr Sheriff described the plaintiff as continuing to have neurological problems in the distribution of the left median nerve and left ulnar nerve, with poor gripping. He also referred to the plaintiff being unable to graduate to unrestricted work because of an inability to grip and the dropping of objects from his left hand. He had also slipped into depression. The situation was made worse by the plaintiff’s spinal disability and poor sleep. Dr Sheriff made the observation that the injury to the left arm had transformed the plaintiff’s life and had a tremendous impact upon him. Dr Sheriff also expressed the opinion that the lumbar disc lesion seen on radiology was a result of what had occurred.
14 In relation to the plaintiff’s mental condition at that time, Dr Sheriff stated that there was no doubt that the psychological impact of the abattoir injury had impacted upon the plaintiff, who had become frustrated, agitated, anxious and with anger problems. He concluded that the plaintiff remained depressed, in chronic pain and with a weakened left arm.
15 Also placed in evidence by the defendant were some comparatively brief reports from Dr Zamil Karim, pain specialist and anaesthetist, to Dr Sheriff. The earliest of these, being dated 28 November 2013, refers to the plaintiff having undergone two bouts of surgery and, since then, experiencing some degree of weakness with left hand flexion and extension, worse with the fourth and fifth fingers. Apparently the plaintiff was to perform some left hand exercises. A brief report of 13 February 2014 from Dr Karim to Dr Sheriff describes the plaintiff as experiencing significant impairment of the left hand. A subsequent report of 17 July 2014 refers to the fact that the plaintiff’s hand was improving “ever so slowly”, although there is also a reference to the plaintiff diligently continuing with his hand exercises and having significant improvement.
16 A considerable number of medico-legal reports relating to the abattoir injury and proceedings which must have resulted from it were also placed in evidence by the defendant. I shall refer only to those which are comparatively close in time to the accident.
17 Dr Clive Kenna, consultant in musculoskeletal pain management, and having earlier examined the plaintiff, re-examined him on 9 April 2014. He recorded that, upon clinical examination, the plaintiff demonstrated a surprisingly good range of movement of the left wrist, full movement of the left elbow and no muscle wasting of the left forearm. Muscle tone and power appeared better than expected. He thought that the plaintiff was able to work in a wide range of alternative duties. He did not think that treatment was required over and above that which the plaintiff was currently receiving and which essentially is recorded as being visits to his general practitioner.
18 Mr Charles Flanc, vascular and general surgeon, reported to the plaintiff’s then solicitors on 18 June 2013. Mr Flanc was of the opinion that, in relation to the left hand and arm, the hand grip of the ulnar side was considerably weaker than that using the thumb and index fingers. In relation to the ulnar nerve above the wrist, he stated that this had been repaired, but recovery had not been complete. The plaintiff still had mild weakness of the interosseous muscles and significant sensory change over the ulnar side of the hand. Mr Flanc was aware of the left carpal tunnel injury and the decompression surgery performed in June 2012. He expressed the opinion that the median nerve function seemed good. He considered that the abattoir accident and the circumstances of it had aggravated the degenerative condition of the plaintiff’s lumbar spine. As at the time of seeing the plaintiff, he thought that the lower back pain had improved, but still existed and was not stable. He noted that the plaintiff had returned to light full-time work.
19 I have set out this earlier medical material at some length, bearing in mind the existence of a previous left hand and lower arm injury of quite some significance and of a related lumbar spine problem. Based upon the material before me, the conclusion which I have reached is that, as set out above, the plaintiff suffered significant injury to the left lower arm and the aggravation of degenerative changes, predominantly in his lumbar spine. Thus, as at the date of the accident, he suffered from disabilities in these areas and particularly in the left lower arm. Without going through the psychiatrists’ reports in detail, I also accept that there had been some psychological or psychiatric reaction, as described by Dr Sheriff.
20 The case was opened by Mr Morfuni on the basis that the injuries relied upon were the aggravation of pre-existing degenerative changes in the lumbar and cervical spines and an injury to the left shoulder, manifesting as a tear in the tendons and bursitis. There is a clear distinction between the two. For the purposes of this application, the injury to the left shoulder has to be viewed separately from the spinal injury.
21 Against that background, I shall now deal separately with the injuries upon which reliance is placed.
(A)The injury to the left upper limb
(i)The injury, its treatment and diagnosis
22 The plaintiff’s first relevant attendance upon Dr Sheriff was on 25 July 2016, the day following the accident. The plaintiff was complaining of severe neck and bilateral shoulder pain. Severe neck spasm was noted. Dr Sheriff has also recorded a reference to a spinal spasm, along with neck pain and joint stiffness. He recorded the primary trauma as being to the neck, both shoulders and to the lumbosacral spine. In his report of 19 April 2017, and essentially confining the observations of Dr Sheriff to those containing references to the left upper limb, he recorded that, with time, the plaintiff’s shoulder symptoms worsened, the left being worse than the right. It is apparent that an MRI of the left shoulder was carried out on 24 January 2017. This revealed tendinosis of the left subscapularis and a small partial thickness articular side tear of the left posterior supraspinatus tendon. Mild left subacromial bursitis was also noted. There was a suspicion of a small partial tear related to the posterior mid-labral region.
23 In a report of 28 June 2017, Dr Sheriff recorded that the plaintiff had returned to work. However, he was unable to graduate to unrestricted work, due to persistent pain and difficulty abducting his left arm. As a result, his activities of daily living and driving were difficult. The suggestion of platelet rich plasma injections to the left shoulder was advanced by Dr Sheriff. In a report of 15 December 2017, Dr Sheriff again recorded that the plaintiff was struggling to graduate to unrestricted work. There is reference to ongoing neck and shoulder pain, and specifically to the left shoulder symptoms, with aggravated pain on abduction and rotation. Dr Sheriff also noted that the left shoulder remained “painfully restricted and interferes with his sleep”. Dr Sheriff reported again on 16 May 2018, making the same observation concerning painful restriction and interference with sleep resulting from the left shoulder condition. He stated that the plaintiff’s symptoms had become persistent and chronic. He also made the following general observation:
“There is no doubt that the trauma has had a tremendous impact on his life with his persistent headaches, neck pain, shoulder pain, spinal and leg pain. Unfortunately he will continue to suffer from these symptoms.”
24 A brief letter of 8 June 2018 is to the effect that the plaintiff was to have a further trial of Cortisone left shoulder injections. This course had apparently been suggested by Dr John Owen, consultant orthopaedic surgeon, who had examined the plaintiff at the request of the defendant.
25 In any event, Dr Sheriff reported to the plaintiff’s solicitors again on 26 November 2018. He set out a history of treatment, whilst also recording that the plaintiff had “a nasty left subacromial bursitis responding poorly to treatment”. Dr Sheriff reported as to the results of an ultrasound which had been carried out on the plaintiff’s left shoulder on 12 June 2018. The conclusion of the radiologist was that the plaintiff had subscapularis tendinopathy. There were two small articular surface supraspinatus tendon tears. The radiologist also referred to subdeltoid bursitis and a poor range of movement. This seems to have been followed by an ultrasound guided injection of the left subacromial bursa on 12 September 2018, a procedure that was well-tolerated by the plaintiff and without immediate complication. Dr Sheriff advised against surgery to the left shoulder, suggesting that a trial of platelet rich plasma injections should be attempted. He noted that the plaintiff had returned to work, but was unable to graduate to unrestricted work. Dr Sheriff thought that these restrictions would apply in the future, as the plaintiff had not achieved full left shoulder abduction and rotation.
26 Dr Sheriff had referred the plaintiff to Dr Steven Jensen, who specialises in musculoskeletal pain medicine. Apparently, Dr Jensen saw the plaintiff on three occasions, namely 23 September 2016, 21 October 2016 and 14 March 2017. In relation to the plaintiff’s current status when last seen on 14 March 2017, Dr Jensen recorded that the main reason the plaintiff had attended for review was to seek an opinion regarding his ongoing left shoulder problem. Dr Jensen noted a pain distribution consistent with intrinsic shoulder joint pathology. He was not of the view that surgical intervention was required for any of the plaintiff’s complaints, although referring to some secondary psychological issues. Mr Jensen thought that work as a security guard was suitable employment.
27 Dr Ales Aliashkevich, neurosurgeon and spinal surgeon, saw the plaintiff upon referral from Dr Sheriff on 29 September 2016. At the time, the plaintiff was working 36 hours per week as a security guard. Whilst the plaintiff also complained about stiffness in his neck and pain around his left shoulder, this does not seem to have been the centre of attention from Dr Aliashkevich, either initially or upon review on 6 March 2017. Indeed, his attention seems to have been directed almost entirely to the plaintiff’s spine. It may be that this is the area of speciality of Dr Aliashkevich.
28 In relation to his left shoulder condition, the plaintiff has also been seen for medico-legal purposes. Dr Joseph Slesenger, specialist occupational physician, has seen the plaintiff twice at the request of the his solicitors. The first such occasion was on 19 April 2018, Dr Slesenger reporting on 10 May. In relation to the left shoulder pain which the plaintiff was suffering as at 19 April 2018, I note that he described it to Dr Slesenger as being mild and intermittent. He also stated that he had no long-term sequelae of the left arm laceration suffered in the abattoir accident.
29 I also note that, upon examination, any differences in the range of movements between the plaintiff’s right and left shoulders were minimal and, indeed, the plaintiff had a greater range of extension and abduction on the left side, but slightly less flexion and with the same internal and external rotation. Any differences either way were small indeed. The measurement of biceps and forearms showed the left arm to be slightly larger. The plaintiff did complain of pain in the left shoulder being aggravated by over-shoulder reaching and lying on the left side, also noting that he tended to be more reliant upon the right side. The diagnosis of Dr Slesenger was of soft tissue injury to the left shoulder with bursitis and chronic left shoulder pain. He considered the plaintiff’s prognosis generally to be guarded. Dr Slesenger also placed various restrictions upon the type of employment in which the plaintiff should engage, some of these relating more to the plaintiff’s spinal condition, but including such matters as the avoidance of forward reaching, over shoulder reaching and prolonged static or awkward postures.
30 Dr Slesenger examined the plaintiff for a second time on 13 December 2018, reporting on 4 January 2019. Dr Slesenger repeated his earlier findings at some length. The plaintiff advised Dr Slesenger that there had been little improvement in his symptoms, and he was having ongoing left shoulder pain, which was mild and intermittent. The steroid injections which he had undergone had provided only short term relief and his symptoms soon recurred. Whilst portions of the report of Dr Slesenger contain generalised statements which do not distinguish between the injuries, he repeated the same diagnosis in relation to the left shoulder – a soft tissue injury with bursitis and chronic left shoulder pain. Again, the plaintiff’s range of movements of the left shoulder was almost identical with that of the right, save for the fact that flexion was 170 degrees on the left as compared to 180 degrees on the right. Dr Slesenger again thought that the prognosis was guarded and that the plaintiff’s residual functional limitations and domestic restrictions were likely to continue into the foreseeable future. Bearing in mind the plaintiff’s various complaints, Dr Slesenger thought that he could remain at work with some restrictions, including the avoidance of over-shoulder reaching.
31 Dr Anna Manolopoulos, consulting orthopaedic surgeon, has seen the plaintiff twice at the request of his solicitors. The earlier examination was on 26 April 2018. The plaintiff told Dr Manolopoulos that he was working as a security guard for 36-38 hours per week, with no restrictions. His left shoulder had some burning pain at the anterior aspect of the shoulder, this being different in quality to his neck pain. It was worse with extension, and he feels a “freeze” or stiffness in the shoulder if he sleeps on that side overnight. He denied upper limb weakness, but found overhead activity difficult and rotation of the shoulder more painful. The plaintiff was not taking any oral analgesia, but had a TENS machine which he used.
32 Upon examination, the plaintiff had no obvious wasting of the shoulder girdle. He had an active range of abduction of the left shoulder of approximately 120 degrees, which was limited by pain. There was no crepitus on movement. He had some positive signs of impingement with further abduction and internal rotation of the shoulder. His rotator cuff strength was normal, although he did have a positive O’Brien test, being positive for a SLAP tear. In terms of upper limb neurology, the plaintiff had no sensory deficits and his reflexes were symmetrical and present.
33 Dr Manolopoulos was not of the view that the plaintiff would require any surgery (for his injuries overall) in the future and that his prognosis was “pretty good”. She considered the plaintiff’s condition generally to be stabilised and that restrictions in relation to his social, domestic and recreational activities were likely to be long-term. She was also of the view that, and again apparently talking in terms of his overall physical condition, he would not be able to return to his original training as an air conditioner mechanic, but should be able to continue as a security guard.
34 Dr Manolopoulos saw the plaintiff again on 3 January 2019. She noted that the plaintiff had undergone two Cortisone injections to the shoulder, but these had provided only temporary relief. He was undertaking physiotherapy, although whether this was for all complaints, his back or his left shoulder is not entirely clear. The shoulder ultrasound of June 2018 had shown some articular surface tears in the supraspinatus tendon. The plaintiff had not been referred for any further surgical treatment or specialist review. He was finding it difficult to carry out some household duties, but was working 38 hours a week with no restrictions.
35 On examination of the left shoulder, he had an active range of abduction to 170 degrees, although it was painful throughout the range of motion from 90 degrees to 170 degrees. There was also pain on external rotation. The plaintiff had anterior shoulder tenderness, but no obvious crepitus or clicking on palpation. He had some very mild wasting of the supraspinous and infraspinous fossae of the left shoulder.
36 Dr Manolopoulos was aware of the conclusions arising from the ultrasound of the left shoulder. She diagnosed a soft tissue injury involving the rotator cuff. She considered the overall prognosis to be guarded, particularly referring to quite marked right sided radicular pain, apparently related to his back injury. She considered the plaintiff’s condition to be stabilised and did not feel that there was any prospect of further improvement or deterioration. He was not restricted in his earning capacity in regard to his present employment.
37 The defendant has also had the plaintiff examined for medico-legal purposes. Largely, I will leave to one side reports tendered by the defendant relating to the consequences of the abattoir accident. These are reports from Dr Malcolm Brown, occupational physician, of 12 April 2012 and 30 April of that year, the latter being in relation to a letter without there being a further examination, and from Mr Charles Flanc, vascular and general surgeon, of 18 June 2013. Suffice to say that Dr Brown was of the view that the plaintiff had suffered a significant laceration of the left forearm, he otherwise concentrating his attention substantially upon work capacity and a return-to-work plan. A considerable portion of Mr Flanc’s report relates to the lower back injury. Insofar as it concerns the injury to the left forearm, I have dealt with this in paragraph 18 above.
38 Turning to examinations of the plaintiff’s left upper limb after the transport accident, Mr Garry Grossbard, orthopaedic surgeon, appears to have originally seen the plaintiff at the joint request of both parties, although his report was tendered by the defendant. He carried out his examination on 20 June 2017, reporting two days subsequently. The plaintiff informed Mr Grossbard about the abattoir accident and its consequences, apparently also stating that he continued to have ongoing issues with the left arm. The plaintiff told Mr Grossbard that, whilst his low back pain had improved with conservative treatment, his neck and shoulder pain were no different. He told Mr Grossbard that there was no issue with the left shoulder at rest, but that there was pain when he extends his arm backwards in external rotation. He does have pain if he lies on his left side and he wakes four or five times each night. Intermittently, his shoulder gets stuck in one position.
39 Upon examination, Mr Grossbard found that the plaintiff’s left shoulder was not tender. There was no muscle wasting and he had a full range of motion of the shoulder. Power of the shoulder abductors was normal. Mr Grossbard did not believe that there was any significant injury to the left shoulder, but thought that ongoing shoulder issues were largely referred from the cervical spine and may to some extent be associated with subacromial bursitis. However, he did not believe that there was a measurable impairment of the left shoulder (this being in the context of the AMA Guides). He considered the plaintiff’s situation to be stable and unlikely to change significantly in the foreseeable future. It is apparent that at least part of Mr Grossbard’s attention was directed to an assessment pursuant to the Guides.
40 As referred to earlier, the plaintiff has also been seen at the request of the defendant by Dr John Owen, consultant orthopaedic surgeon. Initial examination took place on 22 May 2018 and he reported one week later. In relation to the plaintiff’s left shoulder, Dr Owen commented that there was no obvious deformity. The plaintiff was tender over the insertion of the rotator cuff into the greater tuberosity, but had an excellent range of elevation and rotation. He had lost full internal rotation. Dr Owen commented that the MRI of 21 January 2017 showed a small amount of fluid in the subacromial space and a small partial thickness tear in the subscapularis, but a normal glenohumeral joint and normal AC joint.
41 Further, Dr Owen reported that the MRI of the left shoulder does show a mild rotator cuff problem, but excludes any other major injury at the time of the transport accident. As earlier stated, he encouraged the undergoing of the performance of an ultrasound guided injection into the subacromial space with local anaesthetic and steroid. Dr Owen felt that such an injection should be done up to three times. He did not believe that the plaintiff needed operative intervention. He thought that the plaintiff’s general condition resulted in impediments to daily living that were relatively mild. He referred to an impact on the plaintiff’s ability to use his left shoulder in his work, but also pointed out that the plaintiff had learned to work around any disabilities. He concluded that the plaintiff’s overall condition did affect his capacity to work, but is relatively minor. He considered the prognosis to be good.
42 Dr Owen examined the plaintiff again on 5 March 2019, reporting one week later. Dr Owen noted that the plaintiff had undergone two injections of steroid into his left shoulder. On each occasion there had been relief for two or three weeks, but then the shoulder pain had returned. The plaintiff referred to his inability to sleep on his left side, a problem with swimming, and a further problem in relation to playing cricket with his son.
43 Upon examination, Dr Owen noted that the plaintiff had left shoulder movements which he described as “… interesting in that he had reasonable active elevation and abduction but quite slow and laborious”. The plaintiff had only weak impingement signs and there was what Dr Owen described as an “illness sign of global weakness” upon testing of the rotator cuff muscles. He diagnosed a subacromial impingement in the left shoulder. He thought that there was some illness behaviour, but not of a major nature. He viewed the prognosis as being favourable, specifically referring to the left shoulder and noting that the rotator cuff had shown some improvement. He referred to the shoulder injury as being soft tissue in nature. He repeated that the prognosis should be one of improvement. He considered that there was a problem in relation to tasks that involved the use of the arms overhead. He was also of the view that the shoulder problems do impact upon the plaintiff’s conditions of daily living, as earlier described.
44 At this stage, I shall not deal with reports from consultant psychiatrists. I turn now to my conclusions as to diagnosis, features of the left upper limb injury relating to aggravation of a pre-existing condition, whether consequences are long-term and the like.
45 In relation to the left upper limb, I am of the view that the injury suffered by the plaintiff was soft tissue in nature involving, as stated by Dr Owen, a subacromial impingement and with bursitis. The MRI of 24 January 2017 referred to a small partial thickness articular side tear of the left posterior supraspinatus tendon; tendinosis of the left subscapularis; and mild left subacromial bursitis. The radiologist also reported suspicion of a small partial tear related to the posterior mid-labral region. In the opinion of the radiologist, the ultrasound of 12 June 2018 revealed subscapularis tendinopathy; two small articular surface supraspinatus tendon tears; and subdeltoid bursitis.
46 Dr Owen saw the imaging taken in January 2017, stating that what was shown was a small amount of fluid in the subacromial space, a small partial thickness tear in the subscapularis, but a normal glenohumeral joint and normal AC joint. He expressed the opinion that the MRI supported the existence of a mild rotator cuff problem and excluded any other major injury. In his subsequent report of 12 March 2019, Dr Owen diagnosed the injury as being a subacromial impingement in the left shoulder, although still referring to it as a soft tissue injury.
47 Essentially, I accept his diagnosis, he being an orthopaedic surgeon who has viewed the radiology and come to a conclusion which seems to be based upon and consistent with it. It is also consistent with the diagnosis of Dr Manolopoulos, also an orthopaedic surgeon and examining on behalf of the plaintiff, who has described the injury as a soft tissue injury involving the rotator cuff.
48 I am satisfied that the consequences of the left shoulder injury are long-standing within the meaning of the definition. Dr Manolopoulos has referred to the plaintiff’s condition, apparently including his shoulder injury, as being stabilised and with no prospect of any further improvement or deterioration. Dr Slesenger has described the prognosis as being guarded and listed some negative prognostic factors. Whilst Mr Grossbard described the plaintiff’s ongoing shoulder issues as being largely referred from the cervical spine, although to some extent associated with subacromial bursitis, he described the plaintiff’s situation as stable and unlikely to change significantly in the foreseeable future. The treating general practitioner, Dr Sheriff, whilst not specifically making a statement in relation to prognosis, has described the plaintiff’s work restrictions as applying in the future.
49 I also note that Dr Manolopoulos was prepared to make an assessment of left upper limb loss pursuant to the AMA Guides, an ingredient of which is permanence of the relevant impairment. In summary, I am of the opinion that the consequences of the plaintiff’s left shoulder injury are long-term within the meaning of the definition.
50 While not specifically raising the issue of long-term consequences in his closing address, Mr Elliott did refer to the prognosis as being good – see T64. That was not specifically in relation to the shoulder injury, but was more in the nature of what could be described as a global comment concerning the plaintiff’s condition. However, bearing in mind the medical opinions to which I have referred, I am of the view that the consequences of the left shoulder injury are long-term within the meaning of the Act.
51 I am not of the view that the consequences of the injury to the left upper limb result from the aggravation of a pre-existing condition. I appreciate that the plaintiff had suffered a very nasty injury to the lower left arm at the abattoir and that some consequences of this were persisting as at the time of the accident. However, the injury to the shoulder and left upper arm seems to me to be quite distinct from the laceration injury to the lower part of that limb.
52 Further, I am of the view that, for the purposes of Richards v Wylie, there are consequences of the left upper limb injury which are of a psychological or psychiatric nature and which can be taken into account.
53 Dr Albert Kaplan, consultant psychiatrist, has examined the plaintiff at the request of his solicitors on two occasions. His earlier report is dated 27 April 2018. Dr Kaplan has expressed the opinion that the plaintiff probably developed an adjustment disorder with mixed anxiety and depressed mood and with some traumatisation features following the abattoir injury. He thought that the plaintiff had gradually recovered from that condition, referring to his return to work. Dr Kaplan believed that the plaintiff became anxious and depressed as a result of the accident and the injuries sustained. He considered that what the plaintiff suffered from was an adjustment disorder with mixed anxiety and depressed mood with associated traumatisation features. Although the plaintiff’s depression and anxiety had improved, his condition had not resolved and he continues to experience traumatisation features. There is also a loss of confidence and enjoyment of life, with the plaintiff’s social life being much reduced.
54 Dr Kaplan noted that the plaintiff also suffers from insomnia, had diminished libido and had difficulties with memory and concentration. In addition, he still experienced intrusive thoughts relating to the accident and was hypervigilant. Further, Dr Kaplan considered that the plaintiff continued to experience a mild adjustment disorder for as long as the pain persists. Whilst he thought that the plaintiff was unlikely to benefit from psychiatric intervention, Dr Kaplan also expressed the opinion that the plaintiff’s psychiatric condition has had a substantial impact upon his social and recreational activities, as well as his relationships within his family.
55 It should be pointed out that the observations of Dr Kaplan are somewhat global in relation to the injuries. Whilst he refers to both the back injury and to the injury to the left shoulder, he does not attempt to distinguish between them in relation to psychiatric consequences. He does observe that the plaintiff experiences a constant burning pain in his left shoulder and that the pain is aggravated if he extends his arm backwards or holds a weight above shoulder height. However, his discussion of psychiatric sequelae is based upon both physical injuries suffered.
56 Dr Kaplan reported again to the plaintiff’s solicitors on 31 January 2019, having re-examined him on the previous day. Again, Dr Kaplan expressed his opinion on the basis of the physical injuries sustained and without attempting to distinguish between them. His conclusion was that the plaintiff continues to experience some residual symptoms of an adjustment disorder with mixed anxiety and depressed mood and traumatisation features. His condition did not appear to have improved since the earlier examination. Dr Kaplan’s conclusions remained much the same. Dr Kaplan’s opinion as to prognosis, namely that the plaintiff was likely to continue to experience a mild adjustment disorder as long as his pain persisted and as long as he was unable to resume his normal lifestyle, also remained the same.
57 Dr Don Senadipathy, consultant psychiatrist, had examined the plaintiff on 15 May 2012 following the abattoir injury. This appears to have been at the request of the employer’s insurer at that time. The opinion of Dr Senadipathy was that the plaintiff had an adjustment disorder with mixed emotions, but that there was no need for significant medical and psychological input. He described the plaintiff as being highly motivated, also pointing to the benefits of a meaningful rehabilitation plan. He does not seem to have viewed the plaintiff’s condition as being of significant gravity, expressing the opinion that, from a mental health point of view, the plaintiff was capable of performing his pre-injury duties and hours.
58 Thus, the evidence of Dr Senadipathy would indicate that, after the abattoir injury but before the accident the subject of this application, the plaintiff’s mental health was not a major concern.
59 Dr Natalie Krapivensky, consultant psychiatrist, saw the plaintiff at the request of the insurer involved in the abattoir injury on 12 March 2014. She expressed the opinion that the plaintiff did not have a current psychiatric injury or medical condition and that, from a psychiatric perspective, the plaintiff had a current full work capacity. Thus, her opinion is, if anything, even more forthright than that of Dr Senadipathy to the effect that, well prior to the transport accident, the plaintiff suffered from no psychiatric condition of any great moment.
60 Dr Krapivensky examined the plaintiff again, this time for the present defendant, on 7 May 2018. Again, she was of the view that, whilst the plaintiff described some mild symptoms, he did not suffer from any current psychiatric injury.
61 I also note that, in his most recent report of 26 November 2018, the plaintiff’s treating general practitioner, Dr Sheriff, having referred to the plaintiff’s ongoing neck and shoulder pain, stated that this condition does impact upon the plaintiff’s psychological health. He has seen the plaintiff on a number of occasions and, whilst he may not be a psychiatrist, he seems to me to be in a good position to comment in broad terms concerning his patient’s mental health.
62 I prefer and accept the opinion of Dr Kaplan that the plaintiff’s psychiatric condition has had a substantial impact upon his social life, recreational activities and family relationships. As earlier stated, I appreciate that Dr Kaplan is speaking of the injuries generally and not just the left shoulder injury. His opinion seems to me to be logical and consistent with the view of Dr Sheriff, who has treated the plaintiff for some time.
63 The overall conclusion which I have reached is that, for the purposes of Richards v Wylie, there are some psychological or psychiatric sequelae relating to the left upper limb injury which are to be taken into account, even if these on their own would appear to be insufficient to form the basis of a claim based purely upon paragraph (c) of the definition.
Other developments since the transport accident
64 At the time of the transport accident, the plaintiff was employed by Victorian Protection Security Services, his work being that of a patrolling security guard. In approximately November 2016, he also commenced working on a casual basis for ProForce Security, essentially installing security equipment. In his affidavit of 27 September 2017, the plaintiff swore as to difficulties which he was encountering when performing the patrol work for Victorian Protection Security Services. This was because performance of certain duties caused an increase in his neck, lower back and left shoulder symptoms. By the time he was swearing his second affidavit (4 June 2018), he was no longer working for Victorian Protection Security Services and was employed full-time with ProForce Security. That work involves the installation of equipment such as CCTV cameras. The plaintiff was finding that squatting and bending aggravated his lower back pain, but he also specifically swore as to the fact that climbing ladders and working overhead aggravated his left shoulder pain, as did carrying equipment. As at the date of his third affidavit (13 March 2019), he was continuing to work for ProForce Security and, whilst the work was generally light, some aggravation of his condition was occasionally caused by heavy lifting, the use of ladders, crawling into awkward spaces and the like. He has sworn that he would be unable to return to air conditioning mechanic work, as this involves significant heavy lifting of air conditioning units.
Ruling
65 In relation to the plaintiff’s left upper arm injury, I am satisfied that he has discharged the burden of proof. Coming to a conclusion as to the impact of the consequences of the left shoulder injury has not been assisted by the lumping together of the injuries suffered in the accident by some medical examiners and, to a limited extent, by the same occurring in the affidavit material. I have attempted to isolate and identify the consequences of the left upper arm injury and their impact and, having done so, I have reached the conclusion set out above for the following reasons, which are not listed in order of significance or priority:
(a) The plaintiff has sworn as to ongoing pain and restriction of movement in the left shoulder, describing shoulder rotation as being particularly difficult and painful – see his affidavit of 27 September 2017. In his report of 26 November 2018, Dr Sheriff has noted that the plaintiff has painful abduction of the left shoulder to 70 degrees and, beyond that, movements are very painful and restricted. The plaintiff has sworn that, prior to the transport accident, he did not have a problem raising his arm.
In his report of 16 May 2018, Dr Sheriff recorded that the plaintiff’s left shoulder remained painfully restricted and interfered with his sleep, repeating this in his report of 26 November 2018, along with the observation referred to above. The plaintiff had sworn as to his difficulty to perform his work duties, referring inter alia, to the increase in left shoulder symptoms which he suffers. Further, it is to be remembered that his left shoulder is “problematic” when he moves it.
When seen by Dr Kaplan on 17 April 2018, the plaintiff stated that he experienced a constant burning pain in his left shoulder and that this was aggravated when he extended his arm backwards or held a weight above shoulder height. When seen again on 30 January 2019, he told Dr Kaplan that his physical condition had not improved since the last examination. I appreciate that Dr Kaplan is a consultant psychiatrist, but he has taken a detailed history and from a plaintiff whom I regard as being a credible, reliable witness.
Dr John Owen, consultant orthopaedic surgeon examining on behalf of the defendant, initially took a history that the plaintiff’s left shoulder was “problematic” when he moves it and when he sleeps on it (I shall deal with the latter complaint subsequently) and in his more recent report of 5 March 2019, recorded that the plaintiff’s shoulder pain was very much dependent on what he does with it and “is a frequent pest”.
I appreciate that there are other examiners who are not particularly impressed in relation to the level of pain which the plaintiff is suffering. However, I regard him as a witness of truth and I regard his treating general practitioner, Dr Sheriff, to be in a good position to comment upon the pain and restrictions suffered by his patient.
The plaintiff denied he had “good days and bad days” in relation to pain, stating that it occurred “All the time you have to use your arm above your shoulder, is [sic] hurt me a lot and that’s where my problem …”- seeT33.
The level of pain suffered by an injured plaintiff understandably has been treated by the Court of Appeal as a matter of importance. As was said in Tatiara Meat Company Pty Ltd v Kelso [2010] VSCA 12:
“The endurance of permanent daily pain requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a “very considerable” consequence.”
(b)I accept that the plaintiff’s left shoulder condition causes frequent interruption to his sleep. I would refer to the remarks of Dr Sheriff above. Mr Garry Grossbard, orthopaedic surgeon, examined the plaintiff at the request of both parties. When recounting the history given to him by the plaintiff in regard to the left shoulder, he noted that the plaintiff has pain “if he lays on his left side and wakes four to five times each night”. In his affidavit of 4 June 2018, the plaintiff swore that he was continuing to experience a burning sensation in his shoulder and it freezes up or stiffens if he sleeps on that shoulder overnight. In his most recent affidavit of 13 March 2019, he has sworn that his sleep has been quite broken and disturbed since the accident, going on to swear that it is difficult to sleep on his left shoulder. In his wife’s affidavit, she has sworn that he tosses and turns in bed at night, referring to the fact that it is difficult to get comfortable with his back pain, but also swearing that his shoulder pain is aggravated by lying on his left side. To Dr John Owen, who examined him recently on behalf of the defendant, the plaintiff said that he cannot sleep on his left side. In Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69, Maxwell P stated as follows:
“It is, in my view, a matter of great significance for a person to be denied, seemingly for the rest of his life, the ability to enjoy uninterrupted sleep.”
(c)It is to be remembered that the plaintiff is ambidextrous and apparently used his left hand and arm for a variety of tasks and leisure activities, such as bowling when playing cricket. As has been discussed, prior to the transport accident, the plaintiff had already damaged his lower left arm and was still suffering symptoms and restrictions in relation to it. I would refer, for example, to his affidavit of 27 September 2017. To employ what is almost a legal truism, the defendant must take the plaintiff as it finds him. Immediately prior to the transport accident, the plaintiff was suffering from a loss of strength in the left hand, some numbness and loss of sensitivity, and difficulty in handling small or delicate objects. To a left arm already damaged below the elbow there were added, as a result of the transport accident, further difficulties, restrictions and symptoms. Dr Owen, recently examining on behalf of the defendant, referred to the transport accident as impacting upon the plaintiff’s ability to do tasks overhead. It may be that this is because of a combination of shoulder and neck symptoms, although, in his earlier report, Dr Owen recorded that the plaintiff’s left shoulder was problematic when he moved it. It is to be remembered that, when discussing his left shoulder, the plaintiff has sworn that he struggles to hold items above that level. In short, the plaintiff who previously had a set of symptoms and restrictions emanating from problems in the lower arm, now has added to them problems emanating from the upper arm.
(d)Whilst the plaintiff is employed on a full-time basis with a security company and is not asserting that he suffers any drop in income, he now has restrictions upon his employability that result from the left arm injury suffered in the transport accident. Dr Owen, examining on behalf of the defendant, has stated that the problems from the transport accident do impact upon the plaintiff’s ability to work, in particular referring to tasks involving the use of arms overhead. However, earlier in the same report, Dr Owen has recorded that the plaintiff cannot do his normal work without the shoulder and neck annoying him, having recorded in his earlier report that the left shoulder was problematic when the plaintiff moved it. A problem working overhead certainly sounds like one that would at least partly emanate from the shoulder injury. Indeed, Dr Slesenger, who is an occupational physician, specifically recorded that the plaintiff’s left shoulder pain is aggravated by over-shoulder reaching and listed it, as well as sustained forward reaching, amongst the working restrictions. In his more recent report of 4 January 2019, Dr Slesenger effectively listed the same restrictions, including sustained forward reaching and over-shoulder reaching, as part of his overall opinion that the plaintiff may have difficulty finding similar employment, given his current functional limitations, if he should lose his present job.
In his closing address, Mr Morfuni directed my attention to the decision of the Court of Appeal in Abbas v TAC [2015] VSCA 217 and particularly to paragraphs [36] and [37]. I would refer to the following extracts:
“While it is true … that the applicant is well-educated, and that ultimately he may obtain employment in the field of accountancy, there is force in the applicant’s submission that his injuries have caused a loss of flexibility in the workforce, which loss of flexibility relevantly satisfies the description ‘pecuniary disadvantage’. …
… pecuniary disadvantage is not to be overlooked, in applications of this kind, merely because what would be assessable as the loss of earning capacity over an applicant’s life, is not presently productive of actual loss of income at the time of the application. … To dismiss the issue of pecuniary disadvantage by reference to the fact that the applicant’s income had increased in each year between 2010 and 2012, was to disregard the totality of the applicant’s circumstances and, in the circumstances of this case, constituted specific error on the part of the judge. The fact that the applicant might always be able to find and hold down employment notwithstanding his injuries does not preclude proper consideration of the issue of pecuniary disadvantage caused by a real limitation that has been imposed upon the applicant in respect of other employments for which has demonstrated suitability.”
In O’Dea v Transport Accident Commission [2017] VCC 1208 his Honour Judge Dyer referred to the decision in Abbas and, in relation to the matter before him, pointed out that the plaintiff had suffered a loss of flexibility of employment which constituted a “pecuniary disadvantage”.
This approach seems to me to be applicable in the present case. The plaintiff now has suffered a loss of flexibility in relation to employment. For example, he is well familiar with work as an air conditioning mechanic and was hoping to obtain the necessary qualifications to perform such work in this country. However, as he has sworn in his affidavit of 13 March 2019, he would be unable to return to such work as it involves significantly heavier lifting than his present occupation. He would not be able to work on a prolonged basis due to his back and his left shoulder pain in particular. In short, it seems to me that the approach taken in Abbas is applicable in the present case. The injury to the plaintiff’s left upper limb has resulted in a real limitation in respect of possible employments being imposed upon him. A loss of flexibility in the workforce has resulted.
(e)The injury to the left upper limb has also impacted adversely upon the plaintiff’s everyday life and his enjoyment of certain activities. He has sworn as to how cricket has been a passion for him. He enjoyed practising with his son. He was a left arm bowler. He now effectively has to use a type of side arm motion, relying on his wrist. He is no longer playing cricket. There has also been interference with his reading, this principally being due to pain which develops in his neck. Whether this is radiating from his left shoulder or is spinal pain, is not altogether clear. Certainly the shoulder pain interferes with his ability to do such things as mowing the lawns, digging in the garden and the like. I would refer, for example, to the affidavit of his wife.
66 In summary, I am of the opinion that the consequences of the plaintiff’s left upper arm injury are of sufficient magnitude to satisfy the test set out in Humphries v Poljak [1992] 2 VR 129. They could fairly be described as being “very considerable” and certainly more than “significant” or “marked”.
(B)The spinal injury – the aggravation of pre-existing degenerative changes in the lumbar and cervical spines
67 Given the conclusion at which I have arrived in relation to the plaintiff’s left upper arm injury, it follows automatically that the plaintiff will also have leave in respect of the injury to the cervical and lumbar spines. However, I might add that, were it necessary, I would have found that the plaintiff discharged the burden of proof in relation to the spinal injury.
68 I accept that his back injury would prevent him from undertaking work that involves a lot of bending, lifting and squatting. The observations made above in relation to the decision in Abbas are again applicable. An MRI scan of his lumbar spine has revealed L4/5 and L5/S1 disc degeneration, along with a significant right paracentral disc bulge at L4/5, causing compression of the right descending L5 nerve root. Without going into these matters in great detail, Dr Manolopoulos, who is an orthopaedic surgeon, whilst diagnosing soft tissue injuries to the cervical spine, has expressed the view that it is probably right sided radicular pain affecting the lumbar spine around the region of L5/S1 that is the probable cause of the plaintiff’s low back pain. There are some consequences flowing from this which are principally independent of the consequences resulting from the shoulder injury. The plaintiff has sworn as to how there has been interference with his religious life as a Sikh. He has referred to how the sitting on the hard pews at Temple aggravates his back pain and the embarrassment and self-consciousness which he feels as a result. Home maintenance tasks such as cleaning overhead gutters are now difficult because climbing the ladder hurts the plaintiff’s back. It is apparent from his evidence generally that back pain, and particular lower back pain, is something from which he suffers frequently. It is also to be remembered that Mr Gary Grossbard considered that the plaintiff’s left shoulder issues were largely referred from the cervical spine.
69 As stated, I will not go through the various symptoms, complaints and restrictions from which the plaintiff suffers as a result of the spinal injury, this being unnecessary as a result of my ruling in relation to the left shoulder.
Conclusion
70 The plaintiff is successful. He has discharged the burden of proof. I shall hear the parties as to any further orders that are required.
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