Susnjara v Museums Victoria
[2022] VCC 1444
•8 September 2022
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-19-02646
| PAVO SUSNJARA | Plaintiff |
| v | |
| MUSEUMS VICTORIA | Defendant |
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JUDGE: | HIS HONOUR JUDGE FRAATZ | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 June 2022 | |
DATE OF JUDGMENT: | 8 September 2022 | |
CASE MAY BE CITED AS: | Susnjara v Museums Victoria | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1444 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Workplace injury – Serious injury application – Previous application under s134AB(4) of Accident Compensation Act 1985 for serious injury certificate in relation to injury to wrists – Second application in relation to shoulder injuries – Section 134AB(21) - worker must not make a further application under s134AB(4) in respect of same injury – Whether worker’s second application relates to injury suffered in different compensable circumstances
Legislation Cited: Accident Compensation Act 1985
Cases Cited:Susnjara v Museums Victoria [2020] VCC 1128; Museums Victoria v Susnjara [2021] VSCA 166; Georgopoulos v Silaforts Painting Pty Ltd (2012) 37 VR 232; Pearson v Fremantle Harbour Trust (1929) 42 CLR 320; Kavanagh v Cth (1960) 103 CLR 547; Bill Williams Pty Ltd v Williams (1972) 126 CLR 146; Popovski v Ericsson Aust Pty Ltd [1998] VSC 61; Zlateska v Consolidated Cleaning Services & Anor [2006] VSCA 141; Blatchford v Staddon and Founds[1927] AC 461; Connair Pty Ltd v Frederiksen (1979) 142 CLR 485; Jurukouski v Windsor Caravans Pty Ltd [2015] VCC 1800
Judgment: The plaintiff’s originating motion is dismissed
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms F Ryan SC with Ms L Burke | Adviceline Injury Lawyers |
| For the Defendant | Mr S Smith QC with Ms K Manning | Wisewould Mahony |
HIS HONOUR:
1This proceeding has been remitted to the County Court for rehearing and determination in accordance with the reasons in Museums Victoria v Susnjara,[1] following the decision of this Court in Susnjara v Museums Victoria.[2]
[1][2021] VSCA 166 (Beach, Kaye and Osborn JJA)(“Museums Victoria v Susnjara”).
[2][2020] VCC 1128
Overview
2The plaintiff, Pavo Susnjara, now 71 years of age, emigrated from Croatia to Australia in 1970. He was employed by the defendant as a painter between August 1992 and November 2012.
3In October 2015, Mr Susnjara made application under s134AB(4) of the Accident Compensation Act 1985 (“Act”) for leave to bring proceedings for pain and suffering damages pursuant to s134AB(16)(b) of the Act in respect of injuries he claimed were caused by the repetitive nature of his work in his employment with Museums Victoria (“first application”). The relevant body functions identified were the hands and upper limbs, with Mr Susnjara’s condition diagnosed as bilateral carpal tunnel syndrome.[3]
[3]Susnjara v Museums Victoria [2017] VCC 524
4On 9 March 2017, this Court dismissed the first application[4] on the basis that Mr Susnjara’s work duties were not a cause of his bilateral carpal tunnel syndrome;[5] and that if it was work-related, the consequences of any impairment resulting from the bilateral carpal tunnel syndrome were not ‘serious’ within the meaning of the Act.[6]
[4] Ibid
[5]Ibid [200]
[6]Ibid [252]
5On 26 October 2018, Mr Susnjara made a second application to the Victorian WorkCover Authority under s134AB(4) relying upon injuries to his right and left shoulders. The Authority was not satisfied that he had suffered a serious injury and did not issue him with a certificate under s 134AB(16)(a). Accordingly on 12 June 2019, Mr Susnjara filed a second originating motion in this Court, seeking leave pursuant to s134AB(16)(b) to commence common law proceedings (“second application”).
6In his affidavit of 3 April 2019 in support of the second application, Mr Susnjara deposed to injuries “... to [his] right shoulder and/or left shoulder and/or bilateral shoulders”.
7Upon the hearing of a preliminary question (raised by Museums Victoria) in June 2020 in relation to the second application, the issue between the parties was the proper construction and application of s134AB(21) of the Act (“preliminary question”).
8Section 134AB(21) prohibits the making of second and subsequent applications under s134AB(4) in respect of “an injury”. It provides:
“If a worker makes an application under subsection (4) in respect of an injury the worker must not make a further application under that subsection in respect of that injury.”
9In brief compass, Museums Victoria contended that s134AB(21) precluded Mr Susnjara from making the second application, and that Mr Susnjara could not commence an application under s134AB(16)(b) in reliance upon the first application because he is outside the 30 day time limit provided for in that section.
10On 31 July 2020, this Court ruled that s134AB(21) did not prevent Mr Susnjara from making the second application.[7] In conclusion, Judge Bowman stated:
“I am of the view that the plaintiff, having been unsuccessful in relation to the application based upon the wrist injuries, is entitled to make a further application based upon the injuries to the shoulders suffered as a result of the same work processes.”
[7]Susnjara v Museums Victoria [2020] VCC 1128
11Museums Victoria successfully appealed the 31 July 2020 ruling.[8]
[8]Museums Victoria v Susnjara [2021] VSCA 166
12In Museums Victoria v Susnjara, the Court of Appeal stated that:
“82.The trial of the separate question appears to have proceeded on an assumption that Mr Susnjara’s wrist injuries arose out of the same ‘relevant compensable circumstances’ as his shoulder injuries. The documentary material relied upon at trial, however, reveals that that assumption may not be correct, and that it is possible that, in truth, the wrist injuries may have arisen in different compensable circumstances from the compensable circumstances giving rise to the shoulder injuries.
83.At a very high level of generality, it might be said that repetitive work performed by Mr Susnjara as a painter caused him to suffer injuries to his wrists and shoulders. At a more precise level, it may be that Mr Susnjara suffered injuries to his wrists as a result of performing repetitive activities involving his hands and wrists; and that he suffered injuries to his shoulders when performing different activities which involved repetitive shoulder movements and/or overhead work. This scenario seems to us to be at least arguable; as is the possibility that the wrist injuries and the shoulder injuries, sustained in different specific circumstances, arise out of different compensable circumstances. The investigation of this issue is fact-specific, and has not yet been undertaken. The investigation of the issue may require the taking of evidence (although we say nothing about whether any particular evidence which either party may wish to adduce will be admissible). In any event, this Court is not the appropriate forum in which such a fact-specific inquiry should be undertaken at first instance.
84.It follows that the question of whether the second sub-s (4) application contravenes s 134AB(21) should be remitted to the County Court for rehearing and determination in accordance with these reasons. As we have said, the issue underlying the question of whether the second sub-s (4) application is invalid is fact-specific and will involve more detailed attention being given to the precise terms, and underlying basis, of each of the sub-s (4) claims, than has occurred to date.”
The issues
13The issue in dispute between the parties upon the re-hearing of the preliminary question before me remains the construction of the expression ‘an injury’ in s134AB(21), and the application of that subsection to the facts of this case.
14Ms Fiona Ryan SC, with Ms Lauren Burke of counsel, for the plaintiff identified the issue in these terms: did the subject injuries in the second application, being the injury to the shoulders, occur in different compensable circumstances as those claimed by the plaintiff in the first application with regard to the bilateral carpal tunnel syndrome injury?
15Mr Susnjara’s counsel submitted that the injury to the shoulders occurred in different compensable circumstances than those relevant to the injury to his wrists. Specifically, that the injury to the shoulders was the result of repetitive overhead work, as opposed to repetitive flexion and extension of the wrists, and in the particular circumstances of holding a paint tin in his left hand and painting with his right hand.
16Mr Scott Smith QC, with Ms Katie Manning of counsel, for Museums Victoria, in turn submitted that:
(a) the injury is to be understood in the same way as it was considered in the Court of Appeal’s decision in Georgopoulos v Silaforts Painting Pty Ltd;[9]
(b) the injury in the sense that it was used in 134AB(21) encapsulates any injury arising from the claimed “compensable circumstances”;
(c) the issue is whether there are different compensable circumstances – a separate cause of action – which give rise to the shoulder injuries;
(d) the injury to Mr Susnjara’s shoulders arose out of the same compensable circumstances as those to his wrists.
[9] (2012) 37 VR 232 (Osborn JA, J Forrest and Beach AJJA) (‘Georgopoulos’)
17At the outset of the hearing, I was advised by counsel for the parties that Museums Victoria accepted that if Mr Susnjara could proceed with his application under s134AB(4) in respect of his shoulder injuries, then it was conceded that his injuries were serious within the meaning of the Act.
18Accordingly, in order to determine the underlying question of whether the second application is invalid, I must consider two fact-specific principal issues:
(a) firstly, what work-related activities resulted in injury to Mr Susnjara’s—
(i)wrists;
(ii)shoulders; and
(b) secondly, whether “the wrist injuries and the shoulder injuries, [if] sustained in different specific circumstances, arise out of different compensable circumstances.”[10]
[10] Museums Victoria v Susnjara, at [84]
19In turn, this involves attention being given to the precise terms, and underlying basis, of each of the claims under s134AB(4) to determine whether or not the wrist injuries have arisen in different compensable circumstances from the compensable circumstances giving rise to the shoulder injuries.
Evidence
20The evidence in this Court relied upon by the plaintiff, in addition to various medical reports to which I shall return later, comprised his affidavits sworn 26 October 2018, 3 April 2019, 15 April 2020, 12 April 2022 and 6 June 2022.
21The plaintiff gave evidence, adopting his affidavits save that I granted leave for Ms Ryan SC to lead evidence by way of clarification that Mr Susnjara saw his general practitioner with respect to shoulder pain three to four years before he ceased work in 2012; and that due to his poor memory, Mr Susnjara would rely upon dates where they appear in his medical reports. He was cross-examined by Mr Smith QC. There was no re-examination. The plaintiff also tendered a draft statement of claim dated 18 October 2018, referring in terms to the injuries to the right and left shoulders, with associated organically based chronic pain syndrome, depression and anxiety; and transcript of the hearing of the first application before her Honour Judge Bourke on 9 March 2017.
22The defendant in turn tendered a number of medical reports, together with a draft statement of claim in relation to the plaintiff’s bilateral injury to the wrists, and Mr Susnjara’s affidavit sworn 22 October 2015. I have read all the tendered material.
Procedural history
23In addition to the summary above, I adopt the procedural history set out in Museums Victoria v Susnjara, at [11] to [40].
24At the outset, I observe that the injuries to the plaintiff’s wrists and shoulders arise out of or in the course of the same period of employment, with the same employer, and due to the nature of his duties as a painter. There is no specific incident(s) relied upon by Mr Susnjara: both draft statements of claim rely upon the nature of the repetitive work performed throughout the course of his employment with the defendant; and the affidavit material in support of both originating motions is consistent with this position. I return to both in more detail below.
Relevant principles
25Consideration of the expression “an injury” in s134AB(21) commences with an examination of certain provisions of the Act, and necessarily the interpretation of it by the courts.
26The Act provides, relevantly, as follows:
“82 Entitlement to compensation
(1)If there is caused to a worker an injury arising out of or in the course of any employment, the worker shall be entitled to compensation in accordance with this Act.
…
(6)Subject to subsections (2B) and (2C), if a worker suffers an injury which occurs by way of a gradual process over time and which is due to the nature of employment in which the worker was employed at any time before notice of the injury was given, the worker or the worker's dependants shall be entitled to compensation under this Act as if the injury were an injury arising out of or in the course of employment.
where —
injury means any physical or mental injury and, without limiting the generality of that definition, includes—
(a) industrial deafness;
(b)a disease contracted by a worker in the course of the worker's employment
(whether at, or away from, the place of employment);
(c)a recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease;
134AB Actions for damages
(1)A worker who is … entitled to compensation in respect of an injury arising out of or in the course of, or due to the nature of, employment on or after 20 October 1999 –
(a)shall not, in proceedings in respect of the injury, recover any damages for non-pecuniary loss except –
…
(iii) as permitted by and in accordance with this section; and
(b)shall not, in proceedings in respect of the injury, recover any damages for pecuniary loss except –
…
(ii) … as permitted by and in accordance with this section.”
(2)A worker may recover damages in respect of an injury arising out of, or in the course of, or due to the nature of, employment if the injury is a serious injury and arose on or after 20 October 1999.”
27Given the heavy reliance upon it by Museums Victoria, the Court of Appeal gave extensive consideration to Georgopoulos, including describing that decision in some detail.[11]
[11] Museums Victoria v Susnjara, [41]‑[53]
28The specific issue in Georgopoulos was whether ss134AB(1) and (2) permitted Mr Georgopoulos to claim common law damages in respect of injuries that had not been the subject of the s 134AB(16)(a)(ii) certificate nor the subsequent consent order which granted him leave to commence a proceeding in respect of psychological and/or psychiatric injuries.
29Georgopoulos establishes that the “injury” referred to in s134AB(1) and (2) is “the compensable injury in the sense of the total injury suffered in the relevant compensable circumstances”;[12] and Museums Victoria v Susnjara that the word “injury” in s134AB(21) must be given the same meaning.[13]
[12] Georgopoulos, 249–250 [79]
[13] Museums Victoria v Susnjara, [76]
30The Court in Georgopoulos considered the meaning of “compensable injury” at paragraphs [49]ff:
“49The potential breadth of the notion of ‘an injury’ under s82 is controlled by the causal connection stipulated. It is relevantly any physical or mental injury caused to a worker arising out of or in the course of any employment.
50In Barwon Spinners Pty Ltd v Podolak, the Court of Appeal stated of s134AB(1):
[10] In short, in subs(1) we see no reason at all to conclude that ‘injury’ is used in any sense other than that which is common or ordinary throughout the Act: it does not refer to the impairment of a body function which (at least in cases like the present) may be the basis for concluding that the injury is a serious injury. Subsection (1) speaks first and foremost of the plaintiff’s having (in substance) a compensable injury, a concept which surely derives from the preceding provisions of the Act.
51As such, ‘an injury’ is a compendious term. Thus, if a worker has both his hands crushed at work he suffers ‘an injury’ within the meaning of the Act, albeit that it may also be possible to describe specific components of injury or ‘injuries’ to particular bones, joints, tendons, nerves, vascular components, skin and nails of each hand.
52An injury in this comprehensive sense is commonly described as the ‘compensable injury’ as it was in Barwon Spinners and we shall adopt that term. It is the compensable injury which is the starting point for the interpretation of s 134AB.”
31I will adopt that analysis of the term “compensable injury” for the purposes of considering “compensable circumstances” in the interpretation of s134AB to the facts of this case.
32It is not in dispute that Mr Susnjara has suffered injury which occurred arising out of or in the course of his employment by way of a gradual process over time and which is due to the nature of employment.
33The meaning of these phrases has received attention throughout the history of judicial interpretation of workers’ compensation legislation:
(a) “The words ‘arising in the course of the employment’ describe a condition which is satisfied if the accident happens while the workman is doing something in the exercise of his functions although it is no more than an adjunct to an incident to his service”: Pearson v Fremantle Harbour Trust (1929) 42 CLR 320 at 329, 330; see Kavanagh v Cth (1960) 103 CLR 547 at 556–7; Bill Williams Pty Ltd v Williams (1972) 126 CLR 146; per Walsh J at 154;
(b) Ashley J in Popovski v Ericsson Aust Pty Ltd [1998] VSC 61 stated that the proper test as to whether injury “arises out of an employment” is that “the employment needed to be the real, the effective or the proximate cause of the injury”;
(c) the “arising out of” test will be satisfied if the employment is shown to have been a cause of the injury. It is not necessary to show that the employment was either the sole or the dominant cause of the injury: Zlateska v Consolidated Cleaning Services & Anor [2006] VSCA 141;
(d) “due to the nature of the employment” refers to results which are incidental to the class of employment by virtue of its tendencies, incidents or characteristics, and is not concerned directly with something arising out of the particular service of the particular employee. The leading case remains Blatchford v Staddon and Founds [1927] AC 461. The matter was also considered in detail by the High Court in Connair Pty Ltd v Frederiksen (1979) 142 CLR 485.
34In Jurukouski v Windsor Caravans Pty Ltd [2015] VCC 1800, his Honour Judge Jordan stated as follows:
“50Lu v Mediterranean Shoes Pty Ltd [2000] VSCA 65; (2000) 1 VR 511; (‘Lu’) concerning a shoulder and an elbow. Lu appears to allow permissible aggregation in certain circumstances involving the one cause of action from the one incident. Chernov AJ, as well as Buchanan AJ referred to such a situation. ((Supra) at paragraphs 4, 22, 23, 24, 27)
51For repetitive workers impaired over a period, there is no logical reason in industrial accident cases why ‘the one course of employment’ cannot be seen in this same context as one cause of action as it is when there is one single trauma or incident relied on. Both a single course of employment can cause two or more injuries, as can a single incident.”
The plaintiff’s work activities
a. The plaintiff’s evidence
35On 22 October 2015, the plaintiff swore an affidavit in support of his application pursuant to s134AB(4) of the Act for a ‘serious injury’ in relation to his bilateral carpal tunnel syndrome, which included his understanding of the nature of his work and the onset of symptoms in both his hands:
“My work over a period of some 20 years was very repetitive.
The areas I was required to paint were often huge, with gallery walls up to 4 metres high. I was regularly working to deadlines. I was overloaded with work. I had to perform my duties hurried and pushed. I performed the painting duties on my own. I had no assistance. I had to do the preparation work on my own, including setting out drop sheets. I would pain [sic] with paint brushes and rollers. I would have to carry tins of paint, sometimes up and down ladders.
…
As a result of the repetitive nature of my work I began suffering symptoms in both my hands.”
36During the course of his evidence in March 2017 at the hearing of the first application, the plaintiff gave evidence that holding a tin of paint with his left hand whilst he painted with his right hand put stress on his wrist and fingers.[14]
[14] Defendant’s Court Book (“DCB”) 175; Transcript (“T”) 7-8, 9 March 2017
37On 3 April 2019, Mr Susnjara swore an affidavit in support of his second application, on this occasion relying “on injuries to [his] right shoulder and/or left shoulder and/or bilateral shoulders”. As to his work duties and the circumstances in which he sustained injury, Mr Susnjara said:
“The areas where I had to paint were usually very large and required a lot of overhead work. I am right-handed so I would be painting with my right hand and holding the tin with my left hand. When using rollers I would usually use both hands. The work was repetitive in a sense that other than taking my breaks, I was mainly painting the whole working day.
…
I started to experience discomfort in my right shoulder for a few years prior to ceasing my work for [Museums Victoria]. As I continued working the discomfort got worse and progressed into a painful right shoulder. I had pain especially when doing my overhead painting work. Sometime after my right shoulder pain started, I started to experience pain in the left shoulder, however the right shoulder pain was always worse.”
38In a subsequent affidavit, sworn 15 April 2020, Mr Susnjara said:
“In my court application in 2017 [the first application], I thought I had to focus on my wrists and not talk about my shoulders.”
39In a further affidavit sworn 12 April 2022, Mr Susnjara said in relation to his work duties:
“As part of my work for Museums Victoria, I was responsible for maintenance of areas including the Exhibition Buildings, Science Works, the Immigration Museum and a number of storage facilities.
I was required to undertake maintenance work including painting and refurbishment of interior and exterior surfaces in the various buildings. The surfaces that I worked on were about four meters [sic] high and at times required patching, finishing, painting and general maintenance.
In particular, my work duties regularly involved repeated forceful pushing and pulling of long armed paint rollers. I was frequently required to work on ladders, and reach above head height for extended periods whilst using these extendable paint rollers. The long armed paint rollers were quite heavy, particularly after holding them in an extended overhead position for a long period of time. The surfaces which I was working on were often up to four meters [sic] away.
I often had to perform other heavy lifting tasks, and was required to move heavy furniture and other commercial equipment, at times without assistance. I was also required to squat, crouch and kneel for extended periods of time in awkward positions while performing some maintenance tasks.
My work hours were generally about 76 hours per fortnight, but I performed overtime occasionally.”
40In his final affidavit, sworn 3 June 2022, Mr Susnjara states:
“The worst part of my job for my shoulders was using a roller overhead for long periods and even hours at a time.
I refer to my affidavit sworn 22 October 2015 at paragraph 13 which says: ‘As a result of the repetitive nature of my work I began suffering symptoms in both my hands’. The main thing that hurt my wrists was using one hand to paint and the other hand to hold the paint tin.”
b. Cross-examination of the plaintiff
41The plaintiff was cross-examined carefully by Mr Smith QC, to the effect that his claim in relation to the wrists in 2017 concerned all of his duties as a painter.
42The plaintiff appeared to be to be a straightforward and honest witness who did his best to answer questions directly in the context of a marked difficulty with his hearing.
43During this process he specified that he hurt his wrists holding a paint tin in his left hand for eight hours day after day,[15] but agreed on a number of occasions that:
(a) all of his work as a painter was repetitive and all of it “caused the problem” to his wrists;[16]
(b) all the work he did as a painter was the cause of his wrist problem, including using paint brushes and rollers to paint walls up to 4 metres high.[17]
[15] T9, Line (“L”) 19
[16] T10, L15; T14
[17] T10‑11; T13
44The plaintiff identified his duties of painting ceilings using a roller as producing shoulder symptoms, and circumstances in his wrists suffered with painting:
“Q: And it’s that work, amongst other things, that work of having the roller above shoulder level that you say was a cause of your wrist problem. Correct?---
A: That’s my honest opinion, when you paint ceiling you’ve got to have roller and go eight hours like that. You suffer with your neck, you suffer with your shoulder, particularly you have to keep going with the roller.
Q: And you suffer with your wrists?---
A:No, wrist is painting, just holding. Mainly you put pressure on your shoulder, but wrist it’s a different story. You rolling paint and you’re just holding it steady on one spot for hours. It’s right wrist, it’s about flexibility, it’s a lot better.”[18]
[18] T11, L9‑21
45His evidence included that whether he was 4 metres high or standing, he still needed to hold onto the paint, and that’s what hurt his wrists,[19] and that when he started rolling the ceilings and walls that would hurt his shoulders.[20]
[19] T12
[20] T13
46In terms of his duties producing shoulder symptoms, he said:
“When you have walls 2 metres high, it's not much trouble. But when you start stretching up and putting pressure on your shoulders, that’s what – that’s what, ah - again, in my opinion, that’s – that’s what hurt me.[21]
[21] T14
…
It’s a simple – I get more pain if I use the roller on higher places, that’s what I’m saying to - more on the shoulders.”[22]
[22] T22
But ultimately his evidence was clear:
“Q: And you always understood and it has always been your position that your repetitive work, including working overhead using a roller, painting the walls up to 4 metres high - - -?
A: That’s correct.
Q: - - - that has been a cause of your injury to your wrists?---
A: That's correct.[23]
…
Q: And so your position has always been since 2015 that all of your work as a painter was the cause of the injury to your wrists, wasn’t it?---
A: All the work.
Q: Yes?
A: Correct.”[24]
[23] T14
[24] T16
47Mr Susnjara agreed that early complaints he was making to doctors in 2014 about the difficulties he was experiencing with his duties included painting the ceilings, which involved his arms above shoulder level using a roller.[25]
[25] T22
48The plaintiff pointed out that because he was not a doctor, he was “not qualified to” specify the reason he was hurt.[26] It is not in dispute, however, that Mr Susnjara sustained injuries to both shoulders in the course of, and due to the nature of, his employment.
[26] T10, L15‑22
49In order to consider whether his shoulder injuries were sustained whilst performing the same or different activities to those related to any putative injuries to the wrists the subject of the first application which was dismissed in 2017, it is relevant to consider relevant histories provided to various doctors over time.
c. Histories to doctors
50Dr Gary Davison is an occupational physician engaged by the claims agent. In his report dated 5 February 2013, Dr Davison included the history that:
“Mr Susnjara reported that he worked Monday to Friday at the Museum of Victoria, 8am to 4 pm/4:30 pm. He painted museum displays and this involved preparation using scrapers and filling knives as well as sanding. He would then undertake painting using a brush, roller or sprayer. He worked alone but had a supervisor.
Mr Susnjara recalled that four or five years ago, he began to experience sensory disturbance in both hands, mostly at night. He did not seek medical treatment, however, until about two years ago. He attended his GP and nerve conduction studies were apparently undertaken. He was seen by a neurologist and wrist splints were worn at night. This provided symptomatic benefit. There appears to have been no further change in his condition.”[27]
[27] DCB 34‑42
51Dr Roy Karna, a rheumatologist, recorded in his report dated 14 May 2014[28] to the defendant a history that:
“He was involved with painting for exhibitions as well as doing general maintenance painting at three museums including Scienceworks, Melbourne Major Museum and the Immigration Museum. He would paint walls, showcases and plinths and would generally hold the paint tin in his left hand and use his dominant righthand to either use a brush or roller. There was some overhead use of arms required in the context of painting ceilings.
In that context it was as far back as 2009 that he started to wake in the morning with tingling in his fingers particularly the 3rd, 4th and 5th finger of each hand. He would shake his hands and symptoms initially would last for some minutes and then he would proceed to work and he wouldn't feel the symptoms. This situation however progressively worsened in 2010 and then 2011 and he believes it was first in 2011 that he sought medical attention for the problem.”
[28] DCB 43‑47
52In his later report dated 8 February 2016, Dr Roy Karna stated:
“I noted he was a 63 year old, dominantly righthanded man who had worked at Museum Victoria as a painter. His work involved him holding a paint tin in his left hand using his dominant right hand to use a brush or roller and he did this for long periods at a time. He indicated that in 2011 he had pins and needles in his hands and his doctor suggested he had carpal tunnel syndrome.”[29]
[29] DCB 106–110
53Dr Ian Dickinson, orthopaedic surgeon, recorded in his report to the claims agent dated 27 June 2014[30] the history that:
“Mr Susnjara told me that he had pains from wear and tear in both his shoulders, more on the right than the left, his neck and his back. He said that his symptoms had come on over the last three or four years and he had found extreme difficulty with some of them.
He told me that he had been working as a painter and general repair man at the museum over 20 years and he had found that although he was employed as a display painter, he had been doing more and more things such as maintenance work and shifting furniture and display cases, often enough by himself rather than with help. He told me that he had had pain over the top of his right shoulder, particularly when using a roller on high ceilings and at that time he had also had trouble looking up, which caused pain in the back of his neck.”
[30] DCB 48‑54
54In a report to his previous solicitors dated 16 July 2014,[31] Mr Susnjara’s general practitioner Dr Shanaka Kodithuwakku reported that he first attended the clinic in relation to bilateral hand pain in April 2011, noting the history that he uses both of his hands extensively at work carrying out his employment as a painter. Dr Kodithuwakku did not have enough information on record to give an opinion regarding any injury to the left and right shoulders.
[31] DCB 111‑116
55Mr Kenneth Brearley is a general surgeon engaged by the plaintiff’s former solicitors. His report dated 3 October 2014[32] records:
“He says that some of the work was difficult; in particular painting the ceilings of the galleries. He says the buildings are very large and really too big a job for one person. He says there were always deadlines and the job was done under some pressure. He says there were no specific episodes of injury but the work being of a heavy and repetitive nature, he did sustain injuries to his hands and wrists, both shoulders, his back and his neck.
He says the first complaint which took him to his doctor was his hands. He was complaining of numbness and pins and needles in the fingers which was worse at night.
…
He also gradually developed pain in both shoulders, worse on the right.”
[32] DCB 72‑78
56Mr Damian Ireland, orthopaedic hand surgeon, records in his report to the claims agent dated 9 April 2015[33] the following history:
“The symptoms commenced on the right hand and followed on the left hand approximately 10 months later. Mr Susnjara attributed these symptoms to his work as a painter employed by the Museum Victoria claiming that he had to hold a paint can in his left hand for six hours at a time while painting with his right hand.”
[33] DCB 98‑105
57Mr Graham Lowe, another consultant orthopaedic surgeon engaged on behalf of the defendant, includes this history in his report dated 2 June 2019:
“His job required preparation of display and exhibition settings, which would involve painting out walls and ceilings, and shifting material and objects around to do so. At times this would require painting at a significant height where he used a mechanical lift, and a roller, and worked overhead. The work involved considerable manual work, often with arms elevated, using power sanders, manual scraping, and painting, which was done physically either with a roller or a brush. His estimate is that approximately 50% of his work was above his head. He was also required to help with maintenance work in the buildings, and being the only painter available, when repairs or maintenance was required he was required to do the painting jobs.
Paul describes the gradual onset of increasing symptoms in both shoulders, over approximately 5 or 6 years prior to him discontinuing work. He found increasing pain working with his shoulders elevated using a roller above his head, and the power equipment and manual chores required. Over time the symptoms increased and after a heavy days work he describes having pain in the shoulders and this increased over time…”[34]
[34] DCB 120‑122
58Mr Susnjara’s treating general practitioner since 21 September 2016, Dr Daniel Lajoie, records in his report dated 8 November 2018[35] that he does not have a great deal of information regarding his bilateral shoulder injuries. In his later report dated 27 January 2022,[36] Dr Lajoie records obtaining the following history from Mr Susnjara:
“In 2007 diagnosed wear and tear of both shoulders from painting in Museum.
Many tasks involved height and overhead works to be attended.”
[35] PCB 51‑52
[36] PCB 55
59Consultant orthopaedic upper limb surgeon, Mr Ash Chehata, in his report to the plaintiff’s solicitors dated 12 June 2019 in relation to “Injured Body Part: Bilateral shoulders”,[37] recorded the following history:
“Mr Susnjara has worked as a painter and maintenance worker with his employer, Museums Victoria, for many years. Rather than a specific incident he developed bilateral shoulder pain after working and performing repetitive, heavy and awkward work over a long period of time.
…
[37] PCB 58
The buildings that he was required to work on were tall, large and awkward and the exhibitions that he was responsible for, were approximately 4.5 metres high. During the periods of time when the exhibitions were on, he would work overtime, additional hours through the night, and weekends in order to complete the work.
In order to paint corridors, walls and roofs, he would be reliant on utilising both shoulders and at the end of each day would often return home with severe bilateral pain. This would slowly improve with time and analgesics. Eventually, his pain levels peaked in and around 2014, and he stopped work. He was retrenched by his employer after being unable to perform his normal duties, including hold paint brushes or screwdrivers with any confidence due to the bilateral shoulder pain, as well as residual carpal tunnel symptoms.”
d. Medical evidence (causation)
60In summary and by way of diagnosis relevant to this application, Mr Susnjara suffers from work-related bilateral rotator cuff tearing that failed both conservative and operative intervention, with an inability to repair the rotator cuff tendons.[38]
[38] Chehata, 12 June 2019, PCB58
61Radiology confirms Mr Susnjara developed bilateral supraspinatus complete full-thickness tears in the presence of the development of prominent superior marginal osteophyte spurring on the background of bilateral acromioclavicular joint arthropathy, which was subsequently treated with bilateral subacromial decompression and a rotator cuff repair (left shoulder in January 2018, and right shoulder in June 2018). His work over the 20 years accelerated the degenerative process in his rotator cuffs, such that post-operatively, he suffered bilateral acute rupture of the long head of biceps tendon. On review in 2018, there was recurrent full-thickness tears of the supraspinatus with subacromial bursitis and symptoms of impingement on abduction, where further surgery was regarded as contraindicated, leaving Mr Susnjara with a permanent and severe impediment to shoulder function.[39]
[39] Middleton, 30 December 2019, PCB75
62Based on the history set out at paragraph 57 above, Mr Graham Lowe in his report dated 2 June 2019 opines:
“Relationship of Current Medical Condition to his work:
This man had symptoms of rotator cuff impingement and secondary bursitis causing significant shoulder disability, and bilaterally associated ruptures of long head of biceps tendon. The rupture of the longhead of biceps tendon does not cause a significant functional disability, it does present a modest cosmetic disability. It is commonly associated with degenerative and overuse trauma in the shoulder, when impingement due to overhead work is involved. As such, the description this man gives of the type of work he was doing is consistent with the development of bilateral shoulder symptoms.”
63In relation to the relationship of employment to injury, Mr Chehata opined in his 12 June 2019 report[40] that:
“There is a significant contributing factor of his work, which involve repetitive overhead activity for many years, as a cause for the ongoing tearing of the rotator cuff.”
[40] PCB 58-64
64The report of David Middleton (Occupational Physician) dated 30 December 2019[41] records the following opinions:
“MECHANISM OF INJURY:
Mr Susnjara states that a significant amount of his work was above shoulder and head height, where the ceilings of the buildings he was caring for were 4 to 6 metres in height for which he would use an extended handle roller brush and scrapers to 6 metres height/length. Working ergonomically, this results in a significant increase in the effective weight and forces required and, in my opinion, is clearly not a safe manual handling procedure. Noting that Mr Susnjara was the only painter for these buildings, the volume of work he was expected to do by supervision was never satisfied, where he states that he was always working to deadlines, requiring him to work day and night shifts.
Mr Susnjara stated that he was expected to move heavy commercial furniture and other equipment without assistance; however, being dedicated to his job, he forced himself to achieve the deadlines, which were set by management, which he stated was never appreciated by his bosses.
Besides supporting the museum exhibitions, he was also expected to cover routine maintenance, including toilets, hallways, kitchens and social areas, including meeting rooms. Mr Susnjara pointed out that Museums Victoria employed five carpenters, of which three were allocated to maintenance alone, but he was expected to do all of the painting, both maintenance and exhibition work by himself.
Mr Susnjara states around 2014, he found that he was suffering with a painful right shoulder initially and, subsequently, the left shoulder became painful so that he was then always working in some degree of pain, which initially he managed, but eventually became unmanageable, at which time he was forced to take medication or use his sick, holiday and other leave to recover, choosing not to put in a Workers Compensation claim.
[41] PCB 75-92
…
2. Your diagnosis of our client’s injury and/or conditions?
As a result of many years of prolonged forceful and repetitive overhead work in his role as a painter for Museums Victoria, Mr Susnjara suffered the premature development of degenerative disease of both right and left rotator cuffs…
His work over the 20 years had accelerated the degenerative process in his rotator cuffs….
In 2013 again as a result of his work as a painter for Museums Victoria, and in noting the forceful, repetitive and prolonged use of roller paint brushes and scrapers above shoulder and to heights 4 or 5 metres, he developed bilateral carpal tunnel syndrome, for which carpal tunnel release proved relatively successful in the left wrist, awaiting further a carpal tunnel release in the right.”
(my emphasis)
65As at the date of the hearing of the second application, the medical evidence indicated that whilst repetitive overhead activity was a cause of the rotator cuff injuries, all of Mr Susnjara’s duties as a painter contributed to his wrist injuries.
66Both parties obtained medical evidence after the 2021 decision of the Court of Appeal in Museums Victoria v Susnjara.
67Following his examination of Mr Susnjara on 11 November 2021, Dr Khayyam Altaf (Occupational Medicine Consultant), in terms of injury and diagnosis, reported to the plaintiff’s solicitors:[42]
[42] Report dated 15 November 2021, PCB 93
“Your client reports after 14-15 years in his job as a painter (so around 2006 or 2007) he developed shoulder pain on the right side after working and performing repetitive, heavy and awkward tasks over a long period of time. Around two years later he developed pain in the left shoulder. Over time he also developed worsening symptoms in his right wrist which he relates to his carpal tunnel.
The locations he was required to work on were tall and awkward exhibitions (approximately 4.5 m height). He relied on utilising both upper limbs in order to paint corridors, walls and ceilings.
Your client was the only painter for these buildings.
He was required to work to deadlines on a regular basis which required him to work day and night shifts. At the end of each day, he would often return home with severe bilateral pain.
He was expected to move heavy furniture and other commercial equipment without assistance. His pain levels peaked in or around 2014 when he ceased work as he was struggling to even hold paintbrushes and screwdrivers due to worsening pain and residual carpal tunnel symptoms.
…
In my opinion, as a result of the course of your client’s employment as a painter while also undertaking maintenance worker duties at Museums Victoria, which required repetitive heavy and awkward duties over long hours, your client is now suffering with bilateral rotator cuff tears with surgical intervention has improved some of his pain symptoms but not resolved his functional impairment. He is suffering with ongoing bilateral shoulder joint dysfunction with a rupture of the long head of the biceps tendon in both upper limbs.”
(my emphasis)
68Dr Altaf’s report is general in nature, and beyond identifying heavy, repetitive and awkward tasks involved in Mr Susnjara’s work as a painter and undertaking maintenance work, he does not identify different specific activities resulting in separate injuries to the wrists and shoulders.
69Mr Susnjara’s general practitioner, Dr Lajoie, accepts that an injury to his left shoulder is work-related, but his report dated 27 January 2022[43] does not otherwise assist in the disposition of this application.
[43] PCB ## [?]
70Museums Victoria in turn arranged for the plaintiff to be examined by orthopaedic surgeon, Associate Professor Max Esser on 7 April 2022. His report includes the following history and opinions:[44]
“Details of Accident/Injury
Mr Pavo Susnjara had been employed at the Melbourne Museum. His job included painting, helping to move and rearrange exhibitions, as well as general maintenance of the building.
His painting duties included painting walls, ceilings, toilets and corridors. He also was required to put up cabinets display units needed by the museum. He was often working as a painter in various different departments within the museum. When working he had to carry paint for up to six hours with his left hand, and paint with his right hand. He thinks the activities of carrying the paint exacerbated his left wrist pain.
This man complains of pain and discomfort in both shoulders. He has been aware of pain and discomfort for the last 10 to 12 years. The right shoulder was more of a problem than the left, he was aware of this when carrying paint. … It was particularly exacerbated by carrying heavy tins of paint.
He said he first was aware of pain and discomfort in his left wrist eight to ten years ago. He said he was also aware of pain and discomfort when holding objects when working. At that time, he was holding paint in his left hand and using his right hand to paint.”
(my emphasis)
[44] Report dated 26 April 2022 (DCB 123-129)
71The opinion relevant to this application is expressed by Associate Professor Esser in brief terms, on a single page:
“4. Please give your opinion as to whether work has contributed to the development of problems in his:
I think the work he was required to do contributed to his problems.
4.1.1. Wrists?
Repetitive movement of his hands, wrists and forearms, resulting in synovial swelling that has compressed the median nerve and the flexor retinaculum.
4.1.2. Shoulders?
A lifetime of bilateral rotator cuff pathology caused by painting and use of both limbs abducted to 120 to 160 degrees, with flexion of approximately 150 degrees. This has resulted in attritional tears of both rotator cuff tendons.”
72His opinions do not expose the connection between specific activities required of Mr Susnjara in his employment with Museums Victoria, and injury, other than in a general sense.
73All painting activity, using a brush or roller, requires repetitive movement of the hands, wrists and forearms; and it may be accepted that overhead painting work over 20 years is likely to result in rotator cuff-type shoulder injuries.
74In using the phrase “caused by painting”, Associate Professor Esser implicates Mr Susnjara’s general painting duties – which must include those referred to in section 4.1.1 of his report – as contributing to the shoulder injuries sustained by Mr Susnjara. In expressing the opinions at section 4 of his report, in particular a “lifetime of bilateral rotator cuff pathology caused by painting and use of both limbs abducted to 120 to 160 degrees, with flexion of approximately 150 degrees”, Associate Professor Esser identifies Mr Susnjara’s general painting duties of “painting walls, ceilings, toilets and corridors” – which would include overhead shoulder work – and other heavy repetitive work as activities contributing to injuries to both the wrists and the shoulders.
75Following his examination of Mr Susnjara on 30 November 2021, in a “History of Incident” in his report dated 2 December 2021,[45] Mr Chehata records that:
“Mr Susnjara was working for Museums Victoria as a painter from 1992. He was responsible for the exhibition buildings, the science works and immigration museum, as well as a number of storage facilities. His sole occupation was driven by undertaking maintenance work. The specific issues here surround the idea of a very tall, large and awkward area in the exhibition area that he was required to work, in excess of four metres high. When the exhibitions were about to open, he was often assigned extra hours, night shifts and would work on the weekends in order to complete the work.
Unfortunately, throughout this period of time, the excessive hours of work became too much …. he continued to work and ultimately developed severe significant bilateral shoulder pain due to the heavy and awkward nature of his work.”
(my emphasis)
[45] PCB66
76He goes on to opine that the plaintiff “has bilateral cuff disease that has been significantly aggravated by his overhead activity as a maintenance worker”; and that “his work was a significant contributing factor to at least aggravating the likely degenerative nature of the rotator cuff tearing.”[46]
[46] PCB68
77In a further report dated 18 January 2022,[47] intended to be read in conjunction with his previous report dated 2 December 2021, Mr Chehata opines in response to certain specific questions:
[47] PCB 72-73
“1. Do you consider that the work duties described above under the work duties – bilateral shoulder claim subheading were a significant contributing factor to his bilateral shoulder injury and/or condition?
I do consider that the work duties described above are certainly very likely to be a significant contributing factor to the bilateral shoulder injuries and conditions.
2. Do you consider that the work duties described above under the work duties– bilateral carpal tunnel claim subheading were a significant contributing factor to his bilateral carpal tunnel injury and/or condition?
The idea of performing repetitive duties working 72 hours per fortnight with frequent overtime of up to 15 hours per day, performing repetitive maintenance work above shoulder height, is certainly also a very likely significant contributing factor to the development of bilateral carpal tunnel syndrome.
3. Based on the work duties described in both sections above, do you consider it is reasonable to conclude that Mr Susnjara suffered injuries to his wrists as a result of performing repetitive activities involving his hands and wrists?
Based on the work duties described above, I think it is very reasonable to assume that he has suffered at least some component from a significant contributing factor perspective, of injuries to the carpal tunnel as a result of the repetitive activity utilising both shoulders, hands and wrists.
4. Based on the work duties described in both sections above, do you consider it is reasonable to conclude that Mr Susnjara suffered injuries to his shoulders when of [sic] performing different activities involved repetitive shoulder movements and/or overhead work?
Based on the work duties described above in great detail, it certainly would make very reasonable sense that the repetitive overhead activity over a long period of time would certainly be a very significant contributing factor to development of his ongoing shoulder pain. It is reasonable to conclude that the various manual work duties he was performing are very likely to have contributed to the development of significant shoulder pathology as a result of the painting, but also the varied and different activities that he had performed since 1992.”
(my emphasis)
78In a further report dated 3 June 2022,[48] intended to be read in conjunction with his previous reports dated 2 December 2021 and 18 January 2022, Mr Chehata opines:
“1. Please identify the work activities that you consider contributed to his bilateral shoulder condition.
The work activities, especially any above shoulder activity when he was employed to reach above head height for extended periods of time whilst using extendable paint rolls, as well as the long arm pain rolls that are quite heavy, particularly holding them in an extended overhead position for a very long time, can certainly be the standard explanation for any shoulder pathology. Whenever the hand is moved away from the body, especially above shoulder height, all of the rotator cuff muscles are on stretch and loaded. This is often the prime time when either injuries with partial tearing and impingement and the various pathological processes that do occur with shoulder pathology, occur and are at the highest risk.
2. Please identify the work activities that you consider contributed to his bilateral wrist condition, as distinct from activities that contributed to his shoulder condition, including whether as identified by Mr Susnjara the activity of using one hand to paint and the other to hold the paint tin contributed to his wrist condition.
With regard to the specifics of the bilateral wrist conditions, the idea of a wrist is more likely the opposite, where it is the repetitive flexion and extension or loaded positions, or jerking sensations at the level of the wrist, such as when using a paint roller or using a paint brush in one hand where there is a repetitive flexion to extension and this can certainly be a significant contributing factor. Certainly the idea of loading through the paint tin for prolonged periods of time or even the jerking sensation of either lifting the paint tins up and down, can certainly be more a contributing factor, specifically at the level of the wrist.”
(my emphasis)
[48] Supplementary PCB 4-6
The pleadings
79In the first application, Mr Susnjara specified the injury or injuries relied upon as:
“Bilateral carpal tunnel syndrome requiring decompression;
Production, aggravation, acceleration and/or exacerbation of osteoarthritic changes in of [sic] both hands;
Consequential psychological injury.”
80In the relevant statement of claim alleging bilateral wrist injuries,[49] Mr Susnjara pleaded that:
“Throughout the course of his employment with [Museums Victoria] [Mr Susnjara] was required to perform work as a painter which was repetitive, heavy and awkward and as a result of which excessive strain and pressure was placed on his upper limbs and hands (‘the duties’).”
[49] Draft dated 18 October 2018 (PCB 38-43)
81Particulars of Injury dated 2 March 2020 and filed with the Court in the second application assert that:
“In the course of his employment with the Defendant the Plaintiff suffered injury including:
(a)premature development of degenerative disease of both right and left rotator cuffs;
(b)bilateral supraspinatus complete full-thickness tears in the presence of the development of prominent superior marginal osteophyte spurring on the background of bilateral acromioclavicular joint arthropathy - subsequently treated with bilateral subacromial decompression and a rotator cuff repair.
(c) acute rupture of the long head of biceps
(d)recurrent full-thickness tears of the supraspinatus with subacromial bursitis and symptoms of impingement on abduction.”
82In his statement of claim related to the second application (shoulder injuries),[50] Mr Susnjara pleaded that:
“Throughout the course of [his] employment, [Mr Susnjara] was required to perform repetitive painting work and overhead work, such work put unreasonable strain on [his] shoulders (‘the work’).”
[50] Draft, undated (DCB 25-27)
83Additional particulars of negligence included:
“Requiring the Plaintiff perform work above head height for prolonged periods of time.
Failing to take the necessary measures whether by supplying staff to assist the Plaintiff or by supplying an effective mechanical means to assist the Plaintiff to otherwise prevent him from being injured while performing his work duties.”
84The additional allegation in the second statement of claim that the plaintiff was “required to perform repetitive painting work and overhead work” seems to add little to the debate, as plainly the original pleading was sufficiently broad to encompass overhead duties. In terms of material facts alleged, it includes repetitive (general) painting work as putting unreasonable strain on the shoulders. It also – like its predecessor – includes particulars of negligence such as “Requiring the Plaintiff to perform work which required awkward postures and strained use of his upper limbs”.
85Both statements of claim allege a failure to comply with the Occupational Health and Safety Regulations 2007 (Vic), without specific reference to the wrist or shoulder injuries. Neither specify a particular incident resulting in injury, or a particular period of employment; instead pleading that throughout the course of his employment Mr Susnjara was required to perform work, as a result of which he suffered injury.
Defendant’s submissions
86Mr Smith submitted that:
(a) no new duties have been disclosed in the recent affidavit material, or any new facts such as to differentiate the two compensable injuries in terms of each having separate compensable circumstances;
(b) various histories in the reports of Drs Davison and Brearley, and Mr Karna indicate the plaintiff’s first application for serious injury encompassed the same activities – repetitive shoulder movements and/or overhead work – the subject of the second application. As Mr Smith put it, “It serves the plaintiff nothing to say, ‘I hurt my shoulders by using a roller overhead’ when his previous claim was, ‘I hurt my wrists from a range of activities including using a roller overhead’”;[51]
(c) the two statements of claim essentially contain the same allegations, indicative of the same underlying facts being the material facts establishing the same cause of action;
(d) the duties that Mr Susnjara performed as a painter for 20 years caused injury both to his wrists and his shoulders, and the claim in respect of the entirety of those duties back in 2015 has been determined by this Court in 2017.
[51] T26
Plaintiff’s submissions
87Ms Ryan’s submissions in summary were as follows:
(a) Mr Susnjara has given a consistent account of the activities that caused him pain or discomfort, including in histories to doctors since 2015 and at the hearing of the previous application in 2017, with regard to his wrist symptoms – that he had to hold a paint tin with his left hand for a number of hours, which stressed his wrist and fingers, and he did so while painting with his right hand;
(b) the mechanism of the bilateral wrist injury/condition was repetitive flexion and extension or loaded positions, such as when using a paint roller or using a paintbrush in one hand;
(c) a different activity – overhead work – was more likely than not to have caused the bilateral shoulder condition and particularly the impingement condition;
(d) Mr Esser and Mr Chehata distinguish the movements and the mechanism of injury for both wrists and shoulders; and
(e) very limited assistance can be gleaned from the two draft statements of claim because there is no pleading connecting, in terms, the particular activities with injury.
Findings
88Whilst the medical evidence establishes that the musculoskeletal component of the task in handling paint brushes and rollers for sustained periods above shoulder height has the propensity to cause supraspinatus injuries of the type sustained by the plaintiff in this proceeding, none of the medical evidence extends to an opinion that painting activity over a period of 20 years which is likely to result in shoulder pathology – including overhead work – would not result in any wrist pathology. Rather, it was all of the work activities the subject of the first application which contributed to Mr Susnjara’s shoulder pathology. Further, the evidence establishes that overhead work was a contributing factor to injury at the level of the wrist.
89Taken as a whole, the medical evidence does not specifically isolate one particular task that might be said to be capable of producing injury in a different compensable circumstance to another.
90In the circumstances of this case, the underlying basis of both injuries appears to be the general duties of a painter as described by the plaintiff, with substantial crossover between the duties giving rise to the wrist injuries and the shoulder injuries. It is not open to Mr Susnjara to distinguish duties with a paint brush or roller above the shoulder from duties with a paint brush or roller below the shoulder when all of the work activities, as considered by the medico-legal experts, have likely been “a cause” of both injuries.
91In my view, the facts demonstrate that it is artificial to identify separate compensable circumstances within Mr Susnjara’s overall duties. This is because the same tasks relied upon in relation to the wrist injuries, on the updated evidence, are also a cause of the shoulder injuries sustained in the course of and due to the nature of Mr Susnjara’s employment.
92Based on the totality of the evidence before me, I find that:
(a) the injuries Mr Susnjara suffered due to the nature of his employment as a painter between 1992 and 2012 to:
(i)his wrists were as a result of a combination of performing repetitive activities involving his hands, wrists, arms and shoulders, including painting and maintenance activities which involved repetitive shoulder movements overhead, sanding and other heavy tasks;
(ii)his shoulders were as a result of a combination of performing activities involving repetitive shoulder movements overhead, and painting and maintenance activities which involved other repetitive activities involving his arms including sanding and other heavy tasks;
(b) the injuries to his wrists and shoulders were sustained in the same compensable circumstances.
93There was no precise attempt by Mr Susnjara to formulate the “separate compensable circumstances” resulting in injury to his shoulders; rather the submissions were directed to identification of the likely different mechanisms of injury. The two seem to me to be related, but involving different considerations.
94The principal cause of action and the constituent elements in both draft statements of claim relate to the duty of an employer to exercise reasonable care to provide a safe work environment. The fact that different particulars of negligence attend to one but not the other injury might indicate that there are separate causes of action in respect of injuries to separate body parts. This scenario is more likely to be apposite if frank injuries were relied upon; but here in a nature of employment case, the distinction sought to be drawn between the separate but related duties of painting and maintenance activities r’below and above head height seems to be too fine a one to make.
95The authorities referred to above in relation to the interpretation of s82 of the Act also support the view that this distinction is too fine a one to support the submission that the shoulder injuries were sustained in separate compensable circumstances to those involving the wrists. In a nature of employment case, a single course of employment can cause two or more injuries, as can a single incident. The temporal connection of injury within the course of employment is established; and the full range of painting and maintenance duties, both below and above head height, are considered by various doctors, as set out above, to be causally related to both injuries. Whilst Mr Susnjara relied upon all of his duties in the first application in relation to his wrist injuries, in fact multiple injuries had been sustained in the course of his employment.
96Mr Susnjara under cross examination in this proceeding himself conceded that all his painting duties were the subject of the first application. This followed his evidence in the first application in relation to his shoulder injuries:
“Q:So even if your wrists improved, say there you have the surgery and it’s successful, your shoulders will still prevent you from going back to work as a painter, won't they?---
A: Yes. Yes.”[52]
[52] T36, hearing before Judge Bourke on 9 March 2017, DCB 204
97The fact-specific enquiry anticipated by the Court of Appeal reveals that the course of Mr Susnjara’s employment over 20 years involved painting and maintenance work, and the nature of that employment involved painting with both rollers and brushes, above and below shoulder height, and other heavy repetitive work. This employment comprises the relevant compensable circumstances, even though particular activities within the employment if undertaken in isolation might be productive of injuries to different body parts.
98Unfortunately for Mr Susnjara, the delineation between the activities which were productive of injury is not clear cut.
99I accept Mr Chehata’s opinion that repetitive maintenance work above shoulder height was a significant contributing factor to the development of both the bilateral carpal tunnel syndrome, and shoulder injuries. Further, that the various repetitive manual work duties Mr Susnjara was performing relied upon in relation to his wrist injuries, including general painting duties, also contributed to the development of his significant shoulder pathology.
100I do not accept the submission that the wrist and shoulder injuries were sustained in separate compensable circumstances. This is so notwithstanding that one specific component of his duties – overhead work – was a likely mechanism of injury to the shoulders. The medical evidence does not support a submission that it was only that type of activity which was productive of injury, or that the mechanism of injury to the shoulders involving overhead work did not also contribute to the injury to the wrists.
101If injuries to separate body parts are sustained by way of a process and due to the nature of the same employment, as discussed above, then having regard to my findings above there is no warrant for a finding that Mr Susnjara’s injuries to his shoulders arise out of separate compensable circumstances to those concerning his wrists.
102As an aside, I observe that if the Court had granted the plaintiff leave to bring proceedings for the recovery of damages in respect of injury to his wrists in 2017, Mr Susnjara would no doubt have sought, and been permitted, to recover damages for all injuries (in the sense considered in Georgopoulos) arising out of or in the course of his employment with Museums Victoria, including the injuries to his shoulders.
103The injury referred to in ss134AB(1) and (2) is the “compensable injury in the sense of the total injury suffered in the relevant compensable circumstances”, which in this instance includes both injuries.
Conclusion
104I find that the alleged injuries to the wrists and the shoulders arose in the same compensable circumstances and are merely different components of the same total injury. For this reason, the second application contravenes s134AB(21).
105The plaintiff’s originating motion is dismissed.
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