Singh v Victorian WorkCover Authority
[2024] VCC 644
•29 May 2024
,
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-23-03515
| SANDEEP SINGH | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE MYERS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19, 20 and 23 February 2024 | |
DATE OF JUDGMENT: | 29 May 2024 | |
CASE MAY BE CITED AS: | Singh v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 644 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to the left shoulder – pain and suffering
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s325
Cases Cited:Ansett Australia Ltd v Taylor [2006] VSCA 171; Jayatilake v Toyota Motor Corporation Australia Ltd (2008) 20 VR 605; Meadows v Lichmore Pty Ltd [2013] VSCA 201
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R Stanley SC with Mr T Nathanielsz | Zaparas Lawyers |
| For the Defendant | Mr S A Smith KC with Ms V Katotas | Lander & Rogers |
HER HONOUR:
Introduction
1Mr Sandeep Singh, the plaintiff, is a thirty-eight-year-old former labourer. He claims to have suffered an injury to his left shoulder in the course of his work for Programmed Skilled Workforce Limited (“the employer”) between October 2019 and January 2021.
2Mr Singh applies for leave to bring a common law proceeding seeking pain and suffering damages pursuant to the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (“the Act”). He claims that he has a “serious injury” of his left shoulder.
3To succeed in his application for leave to claim pain and suffering damages, Mr Singh must establish that the permanent impairment consequences of his compensable left shoulder injury are “serious”, that is, that they can be fairly described as being more than significant or marked, and as being at least very considerable.
4The defendant, the Victorian WorkCover Authority (“the VWA”), accepted that Mr Singh suffered a compensable injury to his left shoulder. Senior Counsel for the VWA identified the principal issue in contention to be whether there is now a substantial organic basis for Mr Singh’s claimed left shoulder impairment consequences. In addition, there were issues as to Mr Singh’s reliability, the nature and extent of Mr Singh’s impairment consequences and whether they satisfied the statutory threshold.
5The issues for determination are:
(a) Was Mr Singh a reliable witness?
(b) What impairment consequences does Mr Singh claim as a result of his left shoulder condition?
(c) Is there a substantial organic basis for Mr Singh’s claimed left shoulder impairment consequences?
(d) If (c) cannot be answered “yes”, can Mr Singh’s physical left shoulder impairment consequences be separated from those referable to a psychological or non-organic response?
(e) Are Mr Singh’s claimed left shoulder impairment consequences permanent, in the sense that they are likely to last for the foreseeable future?
(f) Are Mr Singh’s claimed left shoulder impairment consequences “serious”?
6This was a difficult case. The principal issue for determination was significantly dependent upon medical evidence, much of which was unsatisfactory. Ultimately, I found the treating medical material from Mr Singh’s pain physician and long-term general practitioners to be of most assistance in my determination.
7For the reasons that follow, I find that:
(a) Mr Singh’s evidence was somewhat unreliable;
(b) Mr Singh has not satisfied his onus to establish that there is a substantial organic basis for his claimed left shoulder impairment consequences;
(c) I am unable to disentangle Mr Singh’s claimed left shoulder impairment consequences referable to physical impairment from those referable to a psychological or non-organic response. Consequently, I am unable to determine whether the impairment consequences referable to physical impairment of his left shoulder are “serious”.
8Mr Singh’s application must therefore be dismissed.
Background
9I believe the following matters of background are uncontroversial. To the extent that any are contested, these represent my findings unless otherwise stated.
10Mr Singh was born in the Punjab region of India. He was educated to the equivalent of Year 11. He is right handed.
11After leaving school in 2003, Mr Singh undertook farm work. He married in 2008 and migrated to Australia in 2009 when aged twenty-three years. He lives in suburban Melbourne with his wife and two young children, aged seven years and five years.
12Mr Singh had what his counsel described as a “rather patchy” work history between 2009 and 2019.[1] He worked as a cleaner in 2009 and 2010, and as a picker/packer during 2010 and 2012. Between 2013 and 2016, Mr Singh was employed as a dish-hand and cook at an Indian restaurant. In about 2014, Mr Singh obtained a Certificate III in cookery. Between 2016 and 2017, Mr Singh worked in a few jobs, cleaning, dishwashing, and pick/packing.
[1]Transcript (“T”) 72-73 (23 February 2024)
13On the evidence, it was not clear when or whether Mr Singh worked during 2017, 2018, and up to October 2019. For a time in this period, Mr Singh appears to have believed that he was unable to work due to health issues,[2] and there were also times when he did not work because of family responsibilities.[3]
[2]T16-17 (20 February 2024) and Amended Defendant’s Court Book (“DCB”) 81-83
[3]T18-20 (20 February 2024)
14In July 2015, Mr Singh began attending the Dandenong Superclinic for treatment for his health issues, and continues to do so.
15Mr Singh suffered from low-back pain for many years prior to 2015. His health complaints from 2015 included body aches, back pain, neck pain, knee pain, leg pain, wrist pain, right shoulder pain, vitamin deficiencies, fatigue, poor sleep and low mood.
16In October 2019, Mr Singh began working for the employer, a labour-hire company. He was placed at Ivan’s Pies. The work was casual and not always full-time hours. Mr Singh’s work included manoeuvring trays of pies, which weighed 7 to 10 kilograms.
17During 2020, Mr Singh said that he began to experience pain in his right shoulder while performing his work duties.
18On 28 January 2021, Mr Singh said that he felt pain in both shoulders while manoeuvring trays of pies at work. He described the pain in his left shoulder as worse than the pain in his right shoulder.
19Mr Singh ceased work on 28 January 2021. He began a return-to-work plan in about mid-2021. This involved two to three hours per week of light work. Mr Singh said that he struggled to perform this work.
20Mr Singh continued performing light duties and reduced hours of work until December 2022. After that, Mr Singh undertook some online modules from home for the employer until November 2023. The circumstances in which Mr Singh ceased work were not clear. In his second affidavit, Mr Singh simply said: “Since about November 2023, I have not done any online modules at home.”[4]
[4]Fourth Further Amended Plaintiff’s Court Book (“PCB”) 16
21Mr Singh has not worked in any capacity since November 2023.
22On 9 February 2021, Mr Singh submitted a WorkCover claim for a bilateral shoulder injury. That claim was accepted.
23Mr Singh has had conservative treatment for his left shoulder condition. This has included physiotherapy, chiropractic treatment and treatment from an exercise physiologist. He has consulted two orthopaedic surgeons and a pain specialist.
24He is currently prescribed Celebrex, Voltaren, Endep and Tramadol.
Was Mr Singh a reliable witness?
25Mr Singh speaks fluent English. He swore his affidavits without the assistance of an interpreter.
26On the first day of hearing, Mr Singh gave evidence without the assistance of an interpreter. Although it was evident that Mr Singh understood and spoke English, I became concerned that Mr Singh may not have appreciated the nuance of the questions he was asked during cross-examination. Consequently, on the second day of the hearing, Mr Singh gave evidence with the assistance of a Punjabi interpreter.
27Senior Counsel for the VWA submitted that Mr Singh’s evidence was unsatisfactory in some respects:
(a) his accounts of his pain were inconsistent; and
(b) his account of daily use of Tramadol was inconsistent with his prescriptions.
28Senior Counsel for Mr Singh submitted that Mr Singh was “a simple man, with limited education and intellect”.[5] Senior Counsel acknowledged that Mr Singh’s answers were at times unresponsive but submitted that this was borne out of confusion rather than deceit.[6] He acknowledged that Mr Singh’s evidence about his ingestion of Tramadol was unreliable but submitted that the unreliability was due to confusion and memory issues. He submitted that any finding of unreliability should be “quarantined” to that issue.[7]
[5]T18 (23 February 2024)
[6]T19 (23 February 2024)
[7]T20 (23 February 2024)
Pain
29Mr Singh gave variable evidence as to the level of pain in his left shoulder on the first day of the hearing. Because of my concerns as to the extent of Mr Singh’s understanding of the questions he was asked, and his communication skills in English, I do not draw any adverse inferences from that variability.
30On the second day of the hearing, with the assistance of an interpreter, Mr Singh again gave variable evidence as to his levels of pain, saying:
(a) his left shoulder pain had only got worse since January 2021;[8]
(b) his pain levels fluctuated. He rated his pain at seven out of ten and said that it was always severe and distressing;[9]
(c) his pain was less severe than it had been when he was first injured.[10]
[8] T3 (20 February 2024)
[9] T3-4 (20 February 2024)
[10] T3 (20 February 2024)
Tramadol
31In his oral evidence, Mr Singh said that he had been taking Tramadol on a daily basis for about six months.[11]
[11]T5-6 (20 February 2024)
32The prescriptions given to Mr Singh for Tramadol from January 2023 to January 2024 were not in sufficient quantity for that medication to be taken daily.
33It was put to Mr Singh that he was not, and had not been, taking Tramadol daily given the quantity prescribed. Based on prescriptions for 20 tablets every 60 days or so, he could not have taken it more than every three days on average. Mr Singh then said that he took Tramadol as his GP prescribed it, but “at the moment” he used it daily.[12] Mr Singh said his general practitioner (“GP”) started him on less Tramadol tablets as he had not wanted him to become addicted to it. He then accepted that he had not taken Tramadol daily for six months.[13]
[12] T6 (20 February 2024)
[13] T7 (20 February 2024)
34When asked whether he was overstating his use of Tramadol to assist his case, Mr Singh said “No, it’s not such an issue”.[14]
[14]T7 (20 February 2024)
35I found Mr Singh’s evidence on this issue unsatisfactory. The objective evidence of the quantity prescribed, and the frequency of the prescriptions, does not support daily consumption of Tramadol since September/October 2023. Either Mr Singh took it every day at times and then not at all until the next prescription, or he took it less frequently than daily.
Findings as to reliability
36I found Mr Singh’s evidence about his ingestion of Tramadol and his levels of pain somewhat unsatisfactory for the reasons outlined above.
37The VWA admitted that it had undertaken surveillance of Mr Singh. There was no evidence or admission of when the footage was taken, how much of it there was, or what it showed.
38Senior Counsel for Mr Singh submitted that the VWA’s decision not to show surveillance footage “must bolster … [Mr Singh’s] credit”.[15] I was invited to draw inferences about what such footage showed. I do not do so as that would require speculation. I do, however, find that the surveillance footage would not have assisted the VWA’s case.
[15]T16 (23 February 2024)
39I acknowledge that English is not Mr Singh’s first language and accept his Counsel’s submission that he could be described as “unsophisticated”.[16] Nevertheless, the unsatisfactory aspects of Mr Singh’s evidence on matters such as his pain level and medication use cause me to approach his evidence with some caution. As the primary issue was whether there was a substantial organic basis for Mr Singh’s claimed impairment consequences, this finding is not of particular consequence to the outcome of this application. Of more relevance, is that Mr Singh impressed me as someone who was very focussed on his left shoulder injury and impairment.
[16]T18 (23 February 2024)
What impairment consequences does Mr Singh claim as a result of his left shoulder condition?
40In his first affidavit, sworn on 23 January 2023, Mr Singh deposed to experiencing constant pain in his left shoulder, aggravated by pushing, pulling, lifting and reaching overhead. He said that his pain was generally getting worse. He deposed to having a restricted range of movement of his left upper arm, and said that he avoided using his left hand as much as he possibly could.
41Mr Singh deposed that he was no longer able to play social cricket with his friends, with the consequent loss of that social connection. He deposed to being limited in the amount of housework and cooking he could undertake and said, “I struggle to perform any activity involving the use of my left hand”.[17] He said he sometimes struggled to undress using his left hand, generally drove only with his right hand, and struggled to hold and pick up his young children.
[17] PCB 11
42Mr Singh deposed to attending his GP fortnightly. He was prescribed Celebrex and Voltaren. He was also using massage cream and heat packs, and performing exercises daily as advised by his physiotherapist. He was attending physiotherapy twice a week. He was under the care of Dr Dan Bates, pain physician.
43In his second affidavit, sworn on 24 January 2024, Mr Singh deposed to his condition remaining “much the same”.[18]
[18] PCB 15
44Mr Singh deposed to taking Celebrex and Tramadol daily. He said that he stopped having physiotherapy treatment in mid-2023 because he did not feel it was helping much. He deposed to receiving a referral to a new physiotherapist “recently”. He said that he had significant issues with sleep “mostly because I am ruminating about my situation”.[19]
[19] PCB 16
45In his evidence-in-chief, Mr Singh said that very sharp shoulder pain interfered with his sleep, and he mostly did not sleep.[20]
[20]T29 (19 February 2024)
46Mr Singh kept his left hand in his jacket pocket throughout his oral evidence. He said that he generally walked with his left hand in his pocket to help with his left shoulder pain.
47Mr Singh’s evidence as to his level of pain between January 2021 and February 2024 was variable (as noted above), but the thrust of it was that his pain was overall worse than in 2021.
48During cross-examination, Mr Singh adopted the contents of a Croft Disability Questionnaire which he completed on 8 December 2023 for his physiotherapist. Mr Singh answered positively to sixteen of a possible twenty-two described limitations. That is, the restrictions that Mr Singh reported to his physiotherapist were in keeping with the very significant functional limitations which Mr Singh described in his oral evidence.
49Mr Singh said he had significant chest pain, which he linked to his left shoulder condition.[21]
[21]T29 and T36 (20 February 2024)
50If I were to find that the impairment consequences which Mr Singh claims have a substantial organic basis, there is little doubt that the consequences to him of his left shoulder injury reach the statutory threshold.
Is there a substantial organic basis for Mr Singh’s claimed left shoulder impairment consequences?
51As Mr Singh’s application relates to the pain and suffering consequences of a physical injury, I must exclude the psychological or non-organically based pain and suffering consequences of that injury.
52In Meadows v Lichmore Pty Ltd,[22] Maxwell ACJ approved a two-step approach to disentangle physical and psychological pain and suffering consequences.
[22][2013] VSCA 201, at paragraphs [21]-[22]
53The first step is to ask if there is a substantial organic basis for the pain and suffering consequences relied upon.
54There was no issue between the parties that Mr Singh had an organic injury to his left shoulder in January 2021. The issue is whether there is now, three years later, a substantial organic basis for Mr Singh’s claimed impairment consequences. That issue falls to be resolved by my conclusions as to the medical evidence.
Imaging
55On 5 February 2021, Mr Singh had an ultrasound of his left shoulder which was reported to reveal “a large full thickness irregular acute tear of the supraspinatus tendon anteriorly associated with prominent subacromial bursitis”.[23]
[23]PCB 40
56On 7 April 2021, Mr Singh underwent an MRI scan of his left shoulder. This scan was reported to reveal no abnormality.[24]
[24]PCB 43
57Several doctors have commented upon the significance or otherwise of the findings of that 2021 imaging of Mr Singh’s left shoulder (as discussed below).
58On 22 September 2023, Mr Singh had a further ultrasound of his left shoulder. This was reported to reveal:[25]
“The biceps tendon is intact with no increased fluid in the sheath. Infraspinatus appears intact. There is a 2mm calcification in the inferior aspect of subscapularis. The tendon is heterogeneous and the features may indicate calcific tendinosis.
There is a 5mm intrasubstance tear of [the] supraspinatus. The tendons are otherwise heterogeneous which may indicate tendinosis.
There is no fluid or thickening seen in relation to the bursa.
Movements were limited.”
[25]PCB 55
59Mr Singh’s GP, Dr Hill, commissioned the recent ultrasound. His clinical note of 25 September 2023 appeared to interpret it as follows:[26]
“US L shoulder
Subscapularis calcific tendinosis
Intrasubstance tear of supraspinatusNo bursitis.”
[26]PCB 105
60Save for the above entry, no treating practitioner or medico-legal doctor has been given or commented on the ultrasound of 22 September 2023. I am unable to make findings as to the significance, if any, of the reported findings of that imaging, absent expert opinion.
Treating medical practitioners
Dandenong Superclinic
61Mr Singh tendered clinical notes of the Dandenong Superclinic for the period 2015 to February 2024 inclusive.
Dr Xiao Jiang Yu, GP, Dandenong Superclinic
62Mr Singh tendered Dr Yu’s referral letter to Dr Bates dated 20 April 2021, and a referral letter to an exercise physiologist dated 18 November 2021. The VWA tendered a treating health practitioner questionnaire completed by Dr Yu on 9 February 2023.
63In responding to the treating health practitioner questionnaire, Dr Yu noted the work injury diagnosis was “left shoulder acute supraspinatus tendon tear with subacromial bursitis”. Dr Yu said treatment was mostly focusing on the left shoulder as Mr Singh still felt left shoulder pain at seven out of ten which caused insomnia and partial loss of left shoulder function such as lifting more than 3 to 5 kilograms above shoulder level.
64Dr Yu noted restrictions in Mr Singh’s ability to perform work involving above shoulder reaching, pushing more than 4 to 6 kilograms, and lifting more than 5 to 7 kilograms. He said Mr Singh could work as a receiving and despatch clerk, warehouse administrator, call or contact centre operator, retail sales assistant and light courier driver.
Dr Martin Hill, GP, Dandenong Superclinic
65Mr Singh tendered several referral letters and two reports from Dr Hill, and certificates of capacity signed by Dr Hill on 11 September 2023 and 15 January 2024.
66In his report dated 21 June 2023, Dr Hill opined as follows:[27]
“Right shoulder pain due to subacromial bursitis that has been treated by cortisone … [injections].
Neck pain and headache with mild C5/6 disc prolapse of uncertain clinical relevance.
Xiphisternal inflammatory chest pain treated by topical anti-inflammatories. Anxiety/depression managed by antidepressant medication.
… .”
[27]PCB 85
67There is no reference to a left shoulder condition in that report.
68The letter from Mr Singh’s solicitors seeking that report also asked Dr Hill for his “… opinion on anything further you consider relevant”.[28] In response, Dr Hill opined:
“There may be other psychological factors affecting his return to work capacity.”[29]
[28]PCB 108
[29]PCB 85
69In the certificate of capacity dated 11 September 2023, under the heading diagnosis, Dr Hill relevantly stated:
“… He reports that his left shoulder [is] anatomically higher than [his] right shoulder, proved by my physical … [examination]. Ve[r]y sensitive to pain on left … [trapezius]/ chest
[R]equired pain specialist opinion again.”[30]
[30]PCB 87
70Following receipt of the left shoulder ultrasound dated 22 September 2023, Dr Hill referred Mr Singh to Tony Davis, physiotherapist, “for an opinion and management of left shoulder pain due to tendinopathy”.[31]
[31]PCB 91
71In a certificate of capacity dated 15 January 2024, under the heading diagnosis, Dr Hill stated, “Left shoulder pain due to subacromial bursitis”.[32] I note that the reference to subacromial bursitis appears to be at odds with Dr Hill’s clinical note of 25 September 2023 of the ultrasound undertaken on 22 September 2023 where he noted “no bursitis”.
[32]PCB 99
72Dr Hill’s report of 13 February 2024 was provided in response to a request from Mr Singh’s solicitors dated 4 December 2023. The letter of request included Mr Singh’s affidavit sworn on 23 January 2023 “by way of background as to our client’s injury and resulting consequences”.[33]
[33]PCB 116
73In his report dated 13 February 2024, Dr Hill identified the injury Mr Singh sustained to his left shoulder during his employment and in the incident of 28 January 2021 as a “full thickness tear of [t]he supraspinatus tendon, with associated capsulitis and subacromial bursitis”.[34]
[34]PCB 20
74Dr Hill described the symptoms arising from the left shoulder injury as pain and “Limited external and internal rotation on the left shoulder”.
75Dr Hill opined that:
(a) Mr Singh’s employment may be restricted in relation to activities involving pushing or pulling, lifting, or carrying, and reaching overhead, but considered “that these restrictions should improve in the foreseeable future”.
(b) Mr Singh had capacity for all the roles noted in the Transferable Skills Analysis dated 18 May 2022 on a full-time basis;
(c) Mr Singh was not restricted in activities of daily living or recreational activities by reason of the physical injuries to his right and left shoulders;
(d) He expected further improvement in Mr Singh’s left shoulder function in the foreseeable future.
Dr Dan Bates, pain physician
76In April 2021, Dr Yu referred Mr Singh to Dr Dan Bates.
77Mr Singh tendered eight letters from Dr Bates to the Dandenong Superclinic dated between June 2021 and June 2022.
78On 18 August 2021, Dr Bates performed a diagnostic left-sided subacromial injection. Dr Bates described the result of the injection as negative.
79On 5 October 2021, Dr Bates performed a diagnostic left-sided acromioclavicular joint injection. Dr Bates described the result of the injection as negative.
80In his letter to Dr Yu dated 19 October 2021, Dr Bates said:[35]
“… With 2 negative diagnostic injections about the shoulder, and worsening headaches, this does raise the possibility that his neck is driving the majority of his head and shoulder pain.”
[35]PCB 68
81Dr Bates subsequently referred Mr Singh for an MRI scan of his cervical spine to assess for a C4, C5 or C6 nerve root compression.[36]
[36]PCB 69
82On 25 January 2022, Dr Bates reported to Mr Singh’s GP, Dr Yu, as follows:[37]
“Last time we spoke Sandeep was complaining about neck pain and headaches greater than his shoulder. His Cervical MRI … showed no significant pathology other than a small C6/C7 disc protrusion. Today he described his pain predominantly over his anterior chest wall region along the sternocostal junction. This was exquisitely tender on palpation and reproduced the pain that is concerning him today.
His neck pain was als[o] still something of a problem. It is located in a C5/6 facet joint distribution with pain on extension positive left sided quadrant test, and tenderness over his lower cervical facets. That said his only rating his pain is 3-4 out of 10 (sic).
At this time I feel our best move is to continue with rehabilitation via his exercise physiologist to address his anterior chest wall pain we will utilise topical anti-inflammatory gel. Hopefully this will avoid any systemic side effects of the NSAIDS. If he is failing to progress I will refer him to the Melbourne shoulder group physiotherapist’s (sic) to further assist with his rehabilitation.”
[37]PCB 71
83The most recent report from Dr Bates was dated 27 June 2022. In it, Dr Bates noted that Mr Singh had “recently started his physiotherapy for his shoulder”. Dr Bates encouraged this, as he did not believe that he would make a substantial difference “interventionally”.[38]
[38]PCB 72
84It appears that Mr Singh did not consult Dr Bates after June 2022.
85On 31 May 2023, Dr Hill referred Mr Singh back to Dr Bates “for ongoing review of management of his left shoulder pain which he says is escalating”.[39] It appears that Mr Singh has not consulted Dr Bates since that referral, although the clinical records referred to an appointment scheduled in October 2023.[40]
[39]PCB 73
[40]PCB 105
Mr Gayan Padmasekara, orthopaedic surgeon
86On 17 March 2021, Mr Singh consulted Mr Padmasekara.
87Mr Padmasekara was of the view that, clinically, Mr Singh had a supraspinatus tendon tear in the left shoulder with likely some capsulitis and subacromial bursitis. He noted that his clinical view was in keeping with the ultrasound findings.
88Mr Padmasekara recommended Mr Singh undergo an arthroscopic capsular release, rotator cuff repair and subacromial decompression to his left shoulder.
89Mr Singh decided not to have the recommended surgery as he was afraid of the prospect of surgery, and Mr Padmasekara could not guarantee that his pain and restriction would improve.
Dr Selina Lim, general practitioner
90Mr Singh tendered a referral letter dated 24 March 2021 from Dr Lim (a GP at Valewood Clinic) to a Fong Yang therapist. Dr Lim noted in the letter that there was pain and restriction from a bilateral shoulder injury, with a full-thickness supraspinatus tear in the left shoulder.
Mr Soong Chua, orthopaedic surgeon
91Mr Singh consulted Mr Chua in April 2021 on referral from Dr Selina Lim at the Valewood Clinic. This appears to have been for a second opinion.
92On examination, Mr Chua found mildly positive clinical tests for impingement; specific tests for rotator cuff and AC joint pathology were negative. Supraspinatus activation had preserved power and only mild discomfort.
93He opined that Mr Singh had symptoms from his left shoulder, subacromial bursitis and impingement. He was of the view that the supraspinatus tear was not causing significant symptoms.
94Mr Chua recommended conservative management in the form of physiotherapy and a corticosteroid injection into the subacromial space. He recommended that an MRI scan be undertaken, and then he would review Mr Singh again.
95On the evidence, it is not clear whether Mr Singh consulted Mr Chua again. There was no subsequent report from him in evidence.
Xavier Paredes, exercise physiologist
96The VWA tendered a report from Mr Paredes dated 12 May 2022. The period during which Mr Singh consulted Mr Paredes is not clear from that report.
97Mr Paredes said that he had completed his consultations with Mr Singh. He said that he had not been able to significantly improve Mr Singh’s condition “due to low adherence to his independent exercise rehabilitation”. He said that despite the exercises being basic, Mr Singh “reported a high amount of pain during recovery and thus did not continue independent exercise”.
Tony Davis, physiotherapist
98Mr Singh tendered two letters from Mr Davis dated 8 December 2023 and 11 January 2024, a Croft Disability Questionnaire completed by Mr Singh on 8 December 2023, a physiotherapy management plan dated 8 December 2023 and client attendance notes for treatment by Mr Davis on five occasions between 8 December 2023 and 7 February 2024. The goals of the physiotherapy treatment were described as “dress pain free” and “sleep through night”.
99Mr Davis initially noted that Mr Singh was referred regarding his left supraspinatus changes and “consequent highly dysfunctional shoulder complex”. He noted that Mr Singh had a degree of hyperalgesia and lacked significant mobility, control and strength/stability.[41]
[41]PCB 94
100In his second letter, Mr Davis said that Mr Singh’s program had gradually progressed without aggravation, but Mr Singh felt “much the same and on an objective measure little has changed”.[42]
[42]PCB 95
Stefan Urosevic, clinical psychologist
101Mr Singh tendered an amended report from Mr Urosevic dated 5 February 2024.[43] Mr Singh was referred to Mr Urosevic by his GP in March 2022. Mr Singh attended eight sessions of therapy. It is not clear from the report when Mr Urosevic last saw Mr Singh.
[43]PCB 17
102Mr Urosevic diagnosed an Adjustment Disorder with Mixed Anxiety and Depressed Mood of moderate to severe level.
Medico-legal reports
Dr Sachin Khuller, sports and exercise physician
103Mr Singh tendered a report of Dr Khuller, who conducted a permanent impairment assessment on 19 July 2022 at the request of the VWA. Dr Khuller assessed Mr Singh’s right and left shoulders.
104Mr Singh reportedly told Dr Khuller that he was not having problems with his right shoulder but was continuing to have pain and restriction in the range of motion of his left shoulder, which varied in severity and frequency. Mr Singh reported sleep disturbance, but an ability to perform activities of personal care and daily living. He reported taking Celebrex and Voltaren intermittently.
105On examination, Dr Khuller noted no muscular atrophy. There was mild ill-defined soft-tissue tenderness in the left shoulder girdle. There was no tenderness on either AC joint, and a negative test for pain on loading the AC joints. Dr Khuller noted some reduced range of motion in the left shoulder on flexion, adduction, abduction and internal rotation. Strength testing of the rotator cuff, pectoralis and biceps tendon showed a weakness, with pain on the left side. There were no signs of subacromial impingement, but deranged scapulohumeral rhythm which was more profound on the left side.
106Dr Khuller’s impression was that Mr Singh had intermittent symptoms related to left rotator cuff tendinopathy compounded by deranged scapulohumeral rhythm and an element of disuse capsular tightness. Based on range of movement restriction, Dr Khuller assessed a ten per cent impairment of the left upper extremity, resulting in a six per cent whole person impairment in accordance with the AMA Guides.
Mr Darren Webb, orthopaedic surgeon
107Mr Singh tendered a report of Mr Webb dated 27 September 2023. Mr Webb examined Mr Singh that day. It was not clear from his report if he was provided with the actual images or the reports of imaging undertaken of Mr Singh’s left shoulder in 2021. He was not provided with the ultrasound images or report dated 22 September 2023.
108Mr Webb noted that Mr Singh complained of constant pain, “approximately 6-7 out of 10, but it worsened with any overhead activity of moving the arm too much, and the pain can go up to 8 or 9 out of 10”. He said that Mr Singh often took Tramadol to help ease his symptoms, and pain reportedly affected Mr Singh’s sleep. Mr Singh reported left shoulder pain limited his driving tolerance. His left shoulder felt stiff. Mr Singh reported an inability to play cricket or soccer with his children, and a reduced capacity to cook. Sitting and standing for prolonged periods caused an increase in left shoulder pain. Mr Singh said that he was unable to push or pull with his left hand at all.
109On clinical examination, Mr Webb noted:
(a) that Mr Singh removed his jacket with difficulty and was clearly grimacing while doing so;
(b) that Mr Singh did not raise his left arm above 30 degrees abduction;
(c) there was no muscle wasting;
(d) there was asymmetry, in that the left shoulder sat higher than the right;
(e) there was significant tenderness over Mr Singh’s trapezius muscle, greater tuberosity, long head of biceps, and there was some mild spasming of the left lateral trapezius muscle;
(f) there was significant tenderness over the coracoid;
(g) a reduced range of motion and scapular dyskinesis;
(h) tenderness to light touch over the entire left shoulder.
110Under the heading diagnosis, Mr Webb opined:[44]
“… Mr Sandeep Singh presents with the following: left shoulder chronic pain with likely bursitis and capsular tightness.”
[44]PCB 25
111Mr Webb was asked whether the diagnosed left shoulder injury “has an organic basis”. He opined:[45]
“Yes, in my opinion, there is an organic basis to Mr Singh’s left shoulder pain. He has scapular dyskinesis and spasm over his left trapezius muscle.
There is also likely a component of capsular tightness leading to decreased range of motion and pain. Chronic pain symptoms are also present.”
[45]PCB 27
Dr Anthony Menz, orthopaedic surgeon
112The VWA tendered two reports of Dr Anthony Menz, dated 12 April 2022 and 17 June 2022. Dr Menz examined Mr Singh on 12 April 2022.
113On examination, Dr Menz found a restriction in range of motion of Mr Singh’s left shoulder.
114Dr Menz was not provided with the imaging or report of the ultrasound of Mr Singh’s left shoulder dated 5 February 2021, nor the MRI dated 7 April 2021 for the purpose of his first report. Instead, Dr Menz was provided with the ultrasound report dated 9 February 2021 which was of Mr Singh’s right shoulder.
115Dr Menz noted that the ultrasound showed very little pathology in Mr Singh’s shoulder joint and he continued to complain of significant pain in the context of not undertaking any repetitive duties since January 2021.
116Dr Menz diagnosed mild subacromial bursitis in the left shoulder. He believed there was a significant functional component to Mr Singh’s pain.
117Dr Menz did not re-examine Mr Singh for the purpose of his supplementary report dated 17 June 2022. He was provided with the report of the ultrasound of Mr Singh’s left shoulder dated 5 February 2021. He was not provided with the imaging or report of the MRI scan of Mr Singh’s left shoulder undertaken in April 2021.
118Dr Menz said that the left shoulder ultrasound noted a large tear of the supraspinatus, and subacromial bursitis. He said that he strongly believed that the rotator cuff tear was pre-existing, as the claimed mechanism of injury “would not have torn a normal rotator cuff”.[46]
[46] DCB 32
119In his supplementary report, Dr Menz diagnosed an aggravation of a pre-existing rotator cuff tear and subacromial bursitis.
Dr Majid Rahgozar, occupational physician
120The VWA tendered a report of Dr Majid Rahgozar dated 30 November 2022. Dr Rahgozar examined Mr Singh on 29 November 2022.
121Mr Singh reported ongoing severe pain in his left shoulder which was aggravated by heavy lifting or overhead activity, sleep disturbance, and weakness in his right arm. Mr Singh told Dr Rahgozar that he could manage his personal care, and small chores. He favoured his right hand. Driving for more than 30 minutes and walking for more than 15 minutes caused increased pain in his left shoulder.
122On examination, range of motion of the left shoulder was restricted in all planes. Mr Singh reported tenderness to fine touch on palpation of the medial margin “scapula, spine of scapula, lateral third of clavicle, subacromial space and proximal and distal arm”. Mr Singh reported pain on resisted pronation of the left elbow, and upon resisted abduction, adduction, internal and external rotation of the left shoulder. Neurological examination was normal.
123Dr Rahgozar was provided with the reports of imaging of Mr Singh’s left shoulder, the ultrasound of 5 February 2021, and the MRI scan of 7 April 2021.
124Dr Rahgozar opined that:
(a) It was possible that Mr Singh suffered a musculoligamentous injury to his left shoulder while manually handling trays of pies;
(b) The MRI of Mr Singh’s left shoulder was essentially normal;
(c) Diagnostic injections into the left shoulder were negative;
(d) Mr Singh’s pain was mostly non-specific;
(e) There were four concurrent psychosocial risk factors;
(f) Mr Singh was not incapacitated for activities of daily living, leisure and work.
125Dr Rahgozar concluded that Mr Singh had likely developed an opioid dependence and a Chronic Pain Syndrome. He suggested Mr Singh be referred to a pain management program. Dr Rahgozar does not specifically identify whether he is referring to an organic or non-organic Chronic Pain Syndrome. In context, I read it as a reference to a non-organic pain syndrome.
The VWA’s acceptance and payment of an impairment benefit
126The VWA admitted that it had made an impairment benefit payment to Mr Singh for his left shoulder condition.
127Senior Counsel for Mr Singh submitted that the acceptance and payment of Mr Singh’s permanent physical impairment claim was a matter that supported the presence of a substantial organic basis for Mr Singh’s claimed impairment consequences.
128I find that the acceptance of Mr Singh’s impairment claim is a factor to be considered as part of the whole of the evidence.[47] The examination findings of Dr Khuller provide support for the existence of an organic injury to Mr Singh’s left shoulder productive of impairment consequences.
[47]Ansett Australia Ltd v Taylor [2006] VSCA 171 [2] at paragraph [40]
129I do not place significant weight upon Dr Khuller’s report or the payment of an impairment benefit given that the report is somewhat dated, the product of a single examination, and the impairment consequences Mr Singh complained of were in some contrast to the extent of consequences claimed in this application.
The relevance of the right shoulder condition
130Senior Counsel for Mr Singh submitted that when considering the issue of whether the claimed left shoulder symptoms were substantially organically based, a factor that weighed in favour of that conclusion was that despite Mr Singh suffering a compensable injury to his right shoulder, he had “reported a full recovery”, or that he had “recovered and recovered fairly well”.[48]
[48]T46-47 (23 February 2024)
131I am not willing, in the circumstances of this case, to place any significant weight on the extent of recovery that Mr Singh has experienced from his right shoulder injury to support a finding that the impairment consequences claimed from his left shoulder injury are substantially organic. The right shoulder symptoms have consistently been of a lesser magnitude. Further, Mr Singh has continued to complain of impairment consequences in his right shoulder.
Findings
132Mr Singh carries the onus of establishing that there is currently a substantial organic basis for the claimed impairment consequences of his left shoulder condition.
133The medical evidence supports the contention that Mr Singh suffered an organic injury to his left shoulder in the course of his work, and in particular on 28 January 2021. There are conflicting medical opinions as to the current diagnosis and the cause of Mr Singh’s impairment consequences.
134Senior Counsel for Mr Singh submitted that “a finding that the Plaintiff does not have a substantive organic basis for his claimed consequences would be … [u]nsupported by any psychiatric opinion that the Plaintiff has a chronic pain syndrome or somatoform disorder.”[49] There was no psychiatric opinion in evidence that Mr Singh suffers from such a condition; however, the absence of such opinion does not assist me to determine whether there is a substantial organic basis for Mr Singh’s claimed left shoulder impairment consequences.
[49]Outline of submissions on behalf of the plaintiff, paragraph [37](iii)
135The reports from the treating orthopaedic surgeons, Mr Padmasekara and Mr Chua, support a finding that in early 2021, Mr Singh was suffering from an organic injury to his left shoulder productive of impairment.
136Senior Counsel for Mr Singh submitted that the diagnostic tests that Dr Bates performed were examining for organic pain in the left shoulder. Further, by encouraging Mr Singh to continue physiotherapy, it was submitted that this weighed in favour of there being a substantial organic basis for Mr Singh’s left shoulder impairment consequences. On that issue, I find that I can conclude no more than that as the diagnostic tests were negative, Dr Bates recommended conservative treatment.
137There was no report from Dr Bates after June 2022. His treatment and reports do not provide a diagnosis of Mr Singh’s left shoulder injury. Indeed, the diagnostic injections into the acromioclavicular joint and bursa were negative. Dr Bates appears to have been unable to diagnose the injury or injuries which were producing Mr Singh’s impairment consequences.
138Senior Counsel for Mr Singh placed significant reliance upon the opinion of Mr Webb. I find that there are difficulties with Mr Webb’s opinions.
139First, Mr Webb did not sufficiently articulate his path of reasoning in arriving at his opinions. He did not canvass how and why the various examination findings he made informed his opinion. He noted the normal MRI findings but did not state why Mr Singh had such significant symptoms in the context of those findings. Mr Webb referred to the two corticosteroid injections performed by Dr Bates and the fact that they were of “no benefit for Mr Singh’s pain, movement or function”. He did not acknowledge that they were diagnostic investigations, nor did he outline the importance, or otherwise, of the negative findings. Mr Webb stated that there was asymmetry of the shoulders but did not articulate whether or why that was significant, or its cause. Mr Webb noted on examination that there was no muscle wasting in the periscapular, pectoral or deltoid muscles but did not comment on the significance of this finding in the context of Mr Singh’s description of his level of left shoulder dysfunction and disuse. Mr Webb noted “tenderness to light touch” over the entire left shoulder but did not comment on or explain the significance of that finding.
140Second, Mr Webb’s diagnosis was not clear. At one point in his report, he noted “left shoulder chronic pain with likely bursitis and capsular tightness”. Later, the diagnosis was “left shoulder chronic pain and scapular dyskinesis, with a likely component of capsular tightness”. No explanation was articulated by Mr Webb for the difference between the apparent diagnoses. Further, Mr Webb did not appear to diagnose a chronic pain condition, but rather he described chronic pain as a symptom.
141Third, Mr Webb is the only medical practitioner who noted spasm.[50] Whilst that is likely an objective finding, its significance in circumstances where it had not been noted by other examining doctors is not articulated.
[50]There was a clinical note in the GP records dated 29 November 2022 of “? muscle spasm”, DCB 123, but neither party addressed the Court on the entry
142Fourth, Mr Webb was asked whether there was an organic basis for Mr Singh’s left shoulder injury. His affirmative answer to that question is of only limited assistance to the issue I must determine.
143Fifth, Mr Webb’s views as to Mr Singh’s capacity for limited part-time suitable employment considering his left shoulder condition is contrary to the views of Dr Hill and Dr Yu.
144In relation to Dr Menz, I do not accept the opinions expressed by Dr Menz in his first report given they were at least partially based on radiology of Mr Singh’s right shoulder not his left shoulder.
145Senior Counsel for Mr Singh submitted that Dr Menz’s supplementary report supported Mr Singh’s case because he diagnosed an aggravation of a pre-existing rotator cuff tear and subacromial bursitis and did not re-state his opinion that there was a significant functional component.
146I do not find that Dr Menz arrived at the conclusion that Mr Singh had a substantial organic basis for his claimed impairment consequences because I do not accept that is the more likely inference from the absence of further mention by him of a significant functional component to Mr Singh’s ongoing symptoms.
147I do not find Dr Menz’s opinions of particular assistance in circumstances where he saw Mr Singh once, did not have all the relevant radiology, and mistakenly referred to radiology of the right shoulder when opining as to a left shoulder condition. However, I find that Dr Menz provides some support for the contention that Mr Singh was suffering from an organic injury in his left shoulder in mid 2022.
148Dr Khuller’s opinion provided support for the presence of an organic injury to Mr Singh’s left shoulder in July 2022, being “rotator cuff tendinopathy compounded by deranged scapulohumeral rhythm and an element of disuse capsular tightness” productive of intermittent symptoms. It is important to note that the symptoms reportedly provided to Dr Khuller by Mr Singh were of pain and restricted range of motion which varied in severity and frequency, requiring intermittent Celebrex and Voltaren, and an ability to perform activities of personal care and daily living.
149Senior Counsel for Mr Singh submitted that Dr Rahgozar’s opinion ought not to be accepted because:
(a) Dr Rahgozar was an outlier in opining that Mr Singh “does not suffer a compensable organic injury”;
(b) Dr Rahgozar is an occupational physician, not an orthopaedic surgeon, and was “therefore limited when compared to an Orthopaedic Surgeon as to his understanding of the anatomy of rotator cuff tears and the prospects for recovery”;[51]
(c) Dr Rahgozar’s psychosocial risk factors lacked an evidentiary basis;
(d) There were unexplained and conflicting aspects to his report;
(e) Dr Rahgozar saw Mr Singh just once, sixteen months ago. After that, Mr Singh has had further radiology and been referred back to a physiotherapist and pain specialist.
[51]Outline of submissions on behalf of the plaintiff dated 23 February 2024, paragraph [32]
150I find that Dr Rahgozar acknowledged the possibility of an initial organic injury in his report. Indeed, the VWA accepted an initial compensable injury.
151I have no proper basis to question Dr Rahgozar’s understanding of the anatomy of rotator cuff tears or the prospects of recovery.
152I find that Dr Rahgozar’s identified psychosocial risk factors were not adequately explained. There was no evidence that Mr Singh had developed an opioid dependence. Whilst there was evidence that Mr Singh had a concurrent mental health condition, took Tramadol regularly, and had care requirements for his young family, Dr Rahgozar does not adequately explain how those factors affected Mr Singh’s perception of his pain and disability.
153I am not persuaded that there were conflicting aspects to Dr Rahgozar’s report. His notation that there was no abnormal behaviour is not inconsistent with his opinion that the physical injury had resolved, and Mr Singh had developed a Chronic Pain Syndrome. In my view, Dr Rahgozar’s suggestion that Mr Singh undergo a multidisciplinary pain management program is not at odds with his diagnosis.
154I do, however, find that there are some limitations with Dr Rahgozar’s report. First, his assessment was fifteen months ago, and on a single occasion. Second, his opinion that Mr Singh had completely recovered from a physical left shoulder injury is an outlier and his path of reasoning for that conclusion was not clearly set out.
155Senior Counsel for the VWA referred to two particular aspects of the clinical records in support of a submission that Mr Singh’s claimed impairment consequences did not have a substantial organic basis:
(a) the clinical records revealed a “pattern of this sort of presentation which dates back well before the incident in 2021”.[52] I took that to mean that the VWA asserted this revealed a pattern of some sort of illness behaviour primarily based on the clinical record dated 16 January 2017;
(b) the reference in Dr Yu’s clinical record dated 23 October 2022 regarding Mr Singh’s pain in his left shoulder, “I am not sure why the pain is so severe … suggests pain amplification beyond the bounds of anything that one could anticipate on an organic basis”.[53]
[52]T61 (20 February 2024)
[53]T61 (20 February 2024)
156Senior Counsel for Mr Singh submitted that:
(a) if there was any merit to the pattern of illness behaviour submission, Dr Yu and Dr Hill would have commented upon it. Further, that the submission ignored the fact that Mr Singh worked for the employer between October 2019 and January 2021;
(b) Dr Yu’s comment on 23 October 2022 was open to several interpretations. The fact that Dr Yu prescribed strong analgesia and referred Mr Singh for physiotherapy, supported a finding that Dr Yu held the opinion that Mr Singh’s symptoms had “an organic basis”.[54]
[54]Outline of submissions on behalf of the plaintiff dated 23 February 2024, paragraph [42]
157In Jayatilake v Toyota Motor Corporation Australia Ltd,[55] the Court of Appeal considered the issue of disentangling physically and psychologically-based pain and suffering consequences. Ashley JA said:
“It is impossible to specify a ‘one size fits all’ template of circumstances which a judge might find useful in determining a particular serious injury application. To take a single example, it could be that the judge hearing a particular application would consider himself or herself assisted by evidence that the applicant had a sound work record, or that the applicant had previously sustained injury but had recovered and got back to work. … The fact that a person had coped with injury in the past, but not with injury now, might suggest, together with other circumstances, the likelihood that symptoms attributed to the present injury had a substantial organic basis – at least sufficient to satisfy the serious injury threshold. But whether such a conclusion should be drawn would depend upon consideration of all the evidence.”
[55](2008) 20 VR 605 at paragraph [29]
158I am effectively asked by the VWA to apply the reverse of the example given by Ashley JA. The difficulty with that course is that it requires me to draw conclusions about the medical basis for Mr Singh’s prior health complaints where no doctor has commented on them. I am unable to do that on the evidence before me, and do not do so.
159Dr Yu’s comment recorded on 23 October 2022 must be considered in its context and in the context of the evidence as a whole. Doing so, I consider that the preferable inference is that Dr Yu considered the extent of Mr Singh’s pain was more than Dr Yu expected for Mr Singh’s left shoulder injury. That is a piece of evidence that might tend against a finding that Mr Singh’s impairment consequences have a substantial organic basis.
160I place the most weight on the evidence of the treating GP, Dr Hill. Dr Hill is Mr Singh’s current GP and has seen him frequently since April 2023. I find that he is best placed to opine as to Mr Singh’s current impairment.
161In his report dated 21 June 2023, Dr Hill suggested the presence of “other psychological factors” impacting upon Mr Singh’s return to work capacity.
162Dr Hill’s most recent opinion was provided in response to a detailed request from Mr Singh’s solicitors dated 4 December 2023.[56] That letter contained a relevant summary and enclosed Mr Singh’s affidavit sworn on 23 January 2023.
[56]PCB 116
163Dr Hill was “uncertain” whether Mr Singh would have the capacity for full pre-injury duties in the foreseeable future. However, he was of the view that Mr Singh was fit for full-time suitable employment in the “non-physical” roles of receiving and despatch clerk, warehouse administrator, call or contact centre operator, retail sales assistant and light courier driver. Dr Hill opined that Mr Singh was restricted in relation to employment activities involving pushing or pulling, lifting or carrying, and reaching overhead due to his left shoulder condition but said those restrictions “should improve in the foreseeable future”.
164Senior Counsel for Mr Singh submitted that Dr Hill’s opinion that Mr Singh was not restricted in activities of daily living or recreational activities by reason of the physical injury to his left and right shoulder was a “harsh” conclusion that was contradicted in part by the fact of a prescription for Tramadol on 15 January 2024.[57] Further, on 15 January 2024, Dr Hill provided Mr Singh with a certificate of capacity diagnosing “left shoulder pain due to subacromial bursitis”.[58] He submitted the Court should approach Dr Hill’s opinions with caution.
[57]T11 (23 February 2024)
[58]PCB 99
165Having received Dr Hill’s report dated 13 February 2024, it was open to Mr Singh’s solicitors to ask Dr Hill for clarification of his opinion. There was no evidence of such request.
166I accept that Dr Hill is prescribing Tramadol, and in September 2023, referred Mr Singh for physiotherapy again, for treatment of his left shoulder condition. Those are matters which weigh in favour of a finding that there is an organic injury to Mr Singh’s left shoulder. That finding is not at odds with the opinions expressed by Dr Hill in his report dated 13 February 2024 regarding Mr Singh’s current impairment consequences from the physical injury to his shoulders.
167The most recent certificate of capacity Dr Hill provided, dated 15 January 2024, identified the injury as “subacromial bursitis”.[59] The contrast between that diagnosis and Dr Hill’s clinical note of 25 September 2023 (extracted above) of “no bursitis” was not explored by the parties. I note that Dr Hill’s referral to Mr Davis following that ultrasound identified a diagnosis of “tendinopathy”.
[59]PCB99
168Dr Hill’s opinion and treatment is supportive of an ongoing organic injury to Mr Singh’s left shoulder’ however, the issue I must determine is whether there is a substantial organic basis for Mr Singh’s claimed left shoulder impairment consequences.
169I accept Dr Hill’s opinions that Mr Singh is fit for full-time suitable employment, and that he is not restricted in relation to activities of daily living or recreational activities by reason of the physical injury to his left shoulder.
170I find that Dr Hill’s opinion is that the organic injury to Mr Singh’s left shoulder does not restrict Mr Singh’s activities of daily living or recreational activities.
171I accept Dr Hill’s opinions because I find that Dr Hill is best placed to opine as to Mr Singh’s status in his role as his current treating GP at a clinic that Mr Singh has been attending on a regular basis for many years.
172Dr Hill’s opinions as to the level of Mr Singh’s impairment by reason of his left shoulder condition are in marked contrast to Mr Singh’s claimed impairment consequences.
173The medico-legal reports of Dr Khuller, Mr Webb and Dr Menz provide some support for an organic injury, but each of them has limitations. As outlined above, the tendered medico-legal evidence does not directly address the issue the Court must determine. The medical practitioners have not provided an opinion that the impairment consequences Mr Singh claims by reason of his left shoulder condition have a substantial organic basis.
174Although Dr Rahgozar’s report does address the issue the Court must determine, I have concerns as to aspects of Dr Rahgozar’s report as outlined above.
175I prefer the treating medical evidence from Dr Hill, Dr Yu and Dr Bates, given that those doctors have consulted with Mr Singh on multiple occasions and are best placed to opine as to his condition/s and impairment. In particular, the more recent evidence from the treating GPs does not provide support for the very considerable impairment consequences claimed by Mr Singh being attributable to the organic injury to his left shoulder.
176Accordingly, Mr Singh has not satisfied his onus to establish that the impairment consequences he claims by reason of his left shoulder injury have a substantial organic basis.
Can Mr Singh’s claimed left shoulder impairment consequences referable to physical impairment be disentangled from those referable to a psychological or non-organic response?
177Having determined that I am unable to answer the first question in the affirmative, I must consider whether I am able to disentangle the claimed left shoulder impairment consequences referable to physical impairment from those referable to a psychological or non-organic response.
178Neither counsel addressed this issue.
179The medical evidence does not enable me to disentangle the claimed left shoulder impairment consequences referable to physical impairment from those referable to a psychological or non-organic response.
180Given that I am unable to determine which of Mr Singh’s claimed impairment consequences are referable to his physical impairment, I cannot assess whether they satisfy the statutory threshold.
Conclusion
181For the reasons articulated, Mr Singh has not satisfied his onus to establish that there is a substantial organic basis for his claimed impairment consequences.
182I am unable to identify which impairment consequences are referable to an organic left shoulder injury.
183Mr Singh’s application is therefore dismissed.
184I will hear the parties on the issue of costs.
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