Tawakuli v Victorian WorkCover Authority
[2019] VCC 354
•28 March 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-18-00088
| MOHAMMAD TAWAKULI | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
---
JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 and 27 November 2018 | |
DATE OF JUDGMENT: | 28 March 2019 | |
CASE MAY BE CITED AS: | Tawakuli v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 354 | |
REASONS FOR JUDGMENT
---
Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – right upper limb and in particular right shoulder – paragraph (a) of the definition of serious injury – leave sought for “pain and suffering” damages and “pecuniary loss damages” – whether plaintiff has ongoing physical injury – pain syndrome – abnormal illness behaviour – exaggeration – whether there is any physical basis for complaints
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Advanced Wire & Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170; Hunter v Transport Accident Commission [2005] VSCA 1; Meadows v Lichmore Pty Ltd [2013] VSCA 201; Yirga-Denbu v Victorian WorkCover Authority [2018] VSCA 35; Georgopoulos v Silaforts Painting Pty Ltd& Ors [2012] VSCA 179; Doolan v Rayners Sawmills Pty Ltd & Anor [2008] VSCA 219
Judgment: Application dismissed.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Mighell QC with Ms A Smietanka | Zaparas Lawyers |
| For the Defendant | Mr P D Elliott QC with Mr D O’Brien | Russell Kennedy Lawyers |
HIS HONOUR:
Introduction
1 By way of Originating Motion, Mr Mohammad Tawakuli (“the plaintiff”) seeks leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (as amended) (“the Act”) to bring common law proceedings for a right-shoulder injury (“the injury”) said to have occurred over the course of his employment with Raminti Services Pty Ltd (“the employer”).[1]
[1]In this matter, those acting for the plaintiff have named the defendant as “Victorian WorkCover Authority” although the affidavit material names the defendant to be “Raminti Services Pty Ltd”. I will refer to Raminti Services Pty Ltd as being the defendant
2 The plaintiff seeks leave to bring proceedings for “pain and suffering damages” and “pecuniary loss damages” within the meaning of s134AB(37) of the Act in respect of such injury.
3 The plaintiff was the only witness to give evidence and be cross-examined. Both parties tendered a large number of documents.[2]
[2]Refer to Annexure “A”
Relevant legal principles
4 The Court must not give leave unless it is satisfied, on the balance of probabilities, that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s134AB(37) of the Act.[3]
[3]See s134AB(19)(a) of the Act
5 The plaintiff only relies on paragraph (a) of the definition of “serious injury” contained in s134AB(37) of the Act. That paragraph reads:
“serious injury means—
(a) permanent serious impairment or loss of a body function; … .”
6 The part of the body said to be impaired for the purposes of paragraph (a) is the upper-right arm and, more particularly, the right shoulder of the plaintiff. Initially, the plaintiff also claimed a “serious injury” in relation to his cervical spine, but at the end of the evidence Senior Counsel for the plaintiff advised the Court that that aspect was withdrawn.[4]
[4]Transcript (“T”) 82, Line (“L”) 21-29
7 In order to succeed, the plaintiff must prove, on the balance of probabilities, that:
(a)The “injury” suffered by him arose out of, or in the course of, or due to the nature of, his employment with the defendant on or after 20 October 1999;[5]
(b)The “injury” and the resulting impairment under paragraph (a) must be “permanent”, that is, permanent in the sense that it is “likely to last for the foreseeable future”;[6]
(c)The “consequences” to the plaintiff of the injury in relation to “pain and suffering” and “pecuniary loss” must be “serious”. That is:
“… when judged by comparison with other cases in the range of possible impairments … as the case may be … [can be], fairly described as being more than significant or marked, and as being at least very considerable.”[7]
This is sometimes referred to as “narrative test”.
[5]See s134AB(i) of the Act and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at paragraph [11]
[6]See Barwon Spinners Pty Ltd & Ors v Podolak (op cit) at paragraph [33]
[7]See s134AB(38)(b) and (c) of the Act
8 Section 134AB(38)(b) of the Act provides that the consequences of an injury and impairment in terms of “pain and suffering” and “loss of earning capacity” are to be considered separately. In the event that a worker satisfies sub-paragraph (i) but not sub-paragraph (ii) of s134AB(38)(b) of the Act, the worker is entitled to have leave to bring proceedings for recovery of “pain and suffering damages” only. A worker who satisfies the loss of earning capacity requirements of s134AB is entitled as a “matter of statutory construction” to have leave to bring proceedings for “pain and suffering damages” and “pecuniary loss damages”.[8]
[8]See Advanced Wire & Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170 at paragraphs [60]-[64]; Acir v Frosster Pty Ltd [2009] VSC 454
9 In addition, in relation to “loss of earning capacity consequences”, the plaintiff has a specific burden[9] to establish:
(a)That as at the date of hearing, he has a loss of earning capacity of 40 per cent or more measured (subject to certain relevant exceptions) as set out in paragraph (f) of s134AB(38) of the Act;[10]
(b)That after the date of the hearing, he will continue to permanently have a loss of earning capacity which will be productive of a financial loss of 40 per cent or more.[11]
[9]See s134AB(19)(b) and s134AB(38)(e) of the Act
[10]See s134AB(38)(e)(i) of the Act
[11]See s134AB(38)(e)(ii) of the Act
10 In determining the application, the Court:
(a)Must not take into account psychological or psychiatric consequences of the “injury” for the purposes of paragraph (a) of the definition of “serious injury”. These can only be taken into account for the purposes for the disturbance or disorder within the meaning of paragraph (c) of the definition of “serious injury;[12]
(b)Must make the assessment of “serious injury” at the time the application is heard;[13]
(c)Must give reasons that disclose the pathway of reasoning in dealing with the evidence, and the issues raised by the application.[14]
[12]See s134AB(38)(h) of the Act
[13]See s134AB(38)(i) of the Act
[14]See Hunter v Transport Accident Commission [2005] VSCA 1 at paragraphs [23]-[36]
The issues
11 Senior Counsel for the defendant informed the Court – in part, in response to the Opening by Senior Counsel for the plaintiff and in part during his final address – that the issues were:
(a)although there was no issue that the plaintiff suffered a compensable physical injury to his right shoulder arising out of his employment with the defendant, there was “at this time” a “stark difference” between the findings of doctors who have examined the plaintiff on his behalf and those who have examined him on behalf of the defendant;
(b)Senior Counsel for the defendant stressed that the defendant’s doctors could not find any ongoing organic basis for the symptoms claimed by the plaintiff, which were described variously as either examples of exaggeration on examination, abnormal illness behaviour and the suggestion of a “Pain Syndrome”;
(c)The reliability and credibility of the plaintiff was brought into issue and it would be necessary for the Court to evaluate the complaints of the alleged pain in the shoulder by the plaintiff and the restriction of shoulder movement;
(d)In the event that the Court accepted that the plaintiff did experience pain in the shoulder region and/or restriction of that joint caused by a “Pain Syndrome”, such was brought about by psychological mechanisms rather than having any organic basis;
(e)In particular, in relation to any issue of the plaintiff establishing a right to claim pecuniary loss damages, it was alleged that the plaintiff had failed to discharge his onus in undergoing rehabilitation and retraining to fit him for suitable employment.
The evidence of the Plaintiff
12 The plaintiff relies on his affidavits affirmed on 8 September 2017 and 13 November 2018.[15] The plaintiff affirmed the affidavits through an interpreter and, indeed, an interpreter was present to assist him during the course of the proceeding. The plaintiff gave evidence that he had read these affidavits on the morning of the commencement of the hearing and that the contents were “true and correct”.[16]
[15]See exhibit 1 at pages 1-15 PCB
[16]T10, L24-25
13 I refer to the following salient evidence in the first affidavit:
·The plaintiff is now forty-two years of age, having been born on 1 January 1977 in Afghanistan. He is a married man with two children, all of whom live in Pakistan.
·He did not complete any formal primary or secondary school education, but has undertaken English classes in Australia and has also completed a Certificate I in EAL, an English course at Chisholm Institute, in 2015 as part of his involvement with WorkStreams.
·He came to Australia on or about 14 October 2012 by way of a boat that capsized in about mid-2012, resulting in a large number of deaths. He describes undergoing trauma counselling and mental health supports, which included counselling in detention.
·Prior to his arrival in Australia he worked as a panel beater in Pakistan for approximately twenty-seven years, although he had no formal training in such work and was self-taught.
·He commenced work with the defendant on or around 28 February 2013 as a fencing/factory hand, and such work was his first job in Australia. He generally worked on rotating shifts on different duties involving four machines, all involved in the process of making wooden lattices.
·Much of the work involved handling and manoeuvring large pieces of wood which would involve him using both hands. He is right-handed.
·Over the course of his employment he recalls feeling pain in his right shoulder which became progressively worse, and on or about 6 September 2013, when he was using a nail gun to make lattices, the pain became “unbearable”. He also recalls having some pain in his left forearm, however such pain has resolved.
·He ceased work with the defendant on or about 6 December 2013 and thereafter attempted returns to work as follows:
(a)On 4 March 2014, he returned to work for four hours a day, three days a week, however ceased on 14 March as he was unable to complete the full four hours of work on 12 and 14 March 2014 as he was feeling dizzy and sleepy because of the painkillers and because of the pain in his right shoulder. His duties at that time were cleaning duties, which involved sweeping the scrap wood from the floor with a broom, which does involve some shoulder force;
(b)On 10 June 2014, he returned to work for two hours a day, two days per week, but ceased work on 19 June 2014, as he felt “significant soreness” in his right shoulder because of the sweeping duties.
He has not worked since then.
·When he first arrived in Australia after the capsizing of the boat, he was involved with a number of community health services, including Cardinia-Casey Community Health Service and the Refugee Health Clinic at Dandenong Hospital. Initially he had suffered an injury to his right heel when the boat capsized, but this resolved.
·Among other things, he was initially treated for sore feet, kidney stones and dental issues, and also underwent treatment in relation to bilateral leg pain in late 2012. He was treated with Panadol and also trialled with Mobic. He found that this pain improved after his release from detention.
·On release from detention, he was also engaged with a refugee health nurse, Ms Ellen Rugara.[17] The plaintiff notes that he did have an appointment with her on 10 January 2014, but did not attend as he was “focused on finding work” and did not feel he needed the support. He did attend an appointment on 22 January 2013, but has not attended that service any further as his focus was on finding work.
[17]See her reports and correspondence – exhibit “E” at pages 113-114 DCB
·In particular, he was anxious about finding a job so that he would be able to support his wife and children back home in Pakistan and he notes that he did become emotional at the last appointment with Ms Rugara, thinking about his family back in Pakistan.
·He commenced to experience pain in his right shoulder in approximately 2013, and thereafter the following has occurred.
– he underwent an ultrasound to his right shoulder on 26 March 2013
– he underwent an injection to his right shoulder on 9 April 2013
– on 6 September 2013, he attended at Dandenong Super Clinic as the pain in his right shoulder had become unbearable, and he was advised to take Ibuprofen and Panadol, as well as to use Deep Heat.
– because the pain did not subside he again attended on 29 September 2013 and was referred to physiotherapist, Mr Simon Li at the Dandenong Clinic, but found physiotherapy treatment increased his pain.
– a few weeks later he again attended his then general practitioner and was referred to have an ultrasound of his right shoulder and an x-ray of his left elbow, after which he was prescribed Voltaren tablets.
– he started to see the general practitioner, Dr Martin Hill, who referred him to Mr Patrick Byrne, an orthopaedic surgeon. He continued to see Dr Hill every week or so to manage the pain and began to trial different medications including Mobil, Tramadol and Panadeine Forte.
– on 30 October 2013, Dr Hill injected cortisone into his right shoulder, which did provide some short-lived relief of his pain symptoms.
– he underwent a guided right-shoulder injection on 10 January 2014, but consider this did not provide any pain relief, save for a minimal period of time.
– he underwent one acupuncture session with Dr John Mok on 17 January 2014.
– he attended physiotherapy treatment from Dandenong East Physiotherapy in approximately January 2014, but found the physiotherapy treatment aggravated the pain.
·On 26 April 2014, he changed general practitioners and commenced to consult with Dr Anthony Karantonis at the Dandenong City Clinic, who has continued to treat him to date. In particular, Dr Karantonis has:
– referred the plaintiff to the orthopaedic surgeon, Mr Christopher Pullen, who initially consulted with him on 6 February 2014. On 25 September 2014, Mr Pullen performed an arthroscopy, decompression and debridement of his right shoulder, and thereafter continued to consult with the plaintiff for post-operative appointments
– Mr Pullen also performed a right-shoulder hydrodilatation to assist the post-operative frozen right shoulder
– referred the plaintiff to the pain specialist, Dr Clayton Thomas, in July 2015, who consulted the plaintiff on a number of occasions.
·The plaintiff also independently attended the Dandenong Hospital Emergency Department on 10 October 2014 and 20 November 2014 due to his pain being so bad, and he was given painkillers.
·He attended the Victorian Rehabilitation Centre for assessment on 6 January 2016 on referral from Dr Thomas. He attended one appointment and an Outpatient Pain Management Program, however felt he did not obtain any benefit from the program and did not continue.
·At the time of the swearing of his first affidavit, the plaintiff was taking the following medication in relation to his right shoulder and psychological injury:
§Panadol Osteo – four to five a day
§Gabapentin – one in the morning, one at night
§Panadeine Forte – one in the morning, one at night
§Endone – one tablet a day
§Somac – one tablet a day
§Nexium – one in the morning, one at night
§Anaprox – one in the morning, one at night
§Deep Heat – at night as requested
§Mylanta – at night as requested.
He used to see his general practitioner for treatment and prescriptions approximately once a week.
·At the time of swearing his first affidavit, the plaintiff deposed that:
– he currently feels pain in his right shoulder, which radiates into the right side of his neck and down his right shoulder into the arm
– using his shoulder aggravates the pain and he feels a burning-like pain in his right shoulder all the time
– he struggles to lift anything more than approximately 2 kilograms as it aggravates his pain, and as much as he can he tries to avoid lifting anything heavy
– he finds using his right hand to write difficult, and can only write one to two sentences before the pain is aggravated
– he has not cooked a lot since the injury because he finds such movements involved in cooking, such as stirring and chopping, aggravate the pain in his right shoulder. He tries to use his left hand as much as possible, but being right-hand dominant this is awkward and difficult
– he can raise his right arm to just below shoulder height but tries to avoid raising it any higher as this aggravates the pain. He now generally relies on his left hand to wash his hair and wash himself in the shower
– he finds that taking off a jumper can sometimes cause pain if he accidently moves his right shoulder quickly
– he tries to drive using only his left hand, as using his right hand and shoulder can cause right-shoulder pain
– he finds that sleeping is difficult because of the constant pain in his right shoulder. He often wakes up in the middle of the night with pain shooting through the shoulder and a feeling of numbness if he has actually slept on his right shoulder
– he has stomach reflux because of the painkillers that he takes
– he is constantly depressed about the pain.
·He notes that prior to the injury he had lots of friends, would attend barbeques on weekends, played soccer with his friends once or twice a week and spent time with friends in parks, again, once or twice a week. He no longer does this because he does not enjoy anything anymore because of the Depression and does not want to do anything.
·He feels that because he is constantly depressed he has a short fuse and temper, and he tends to fight more with his friends.
·In relation to rehabilitation, he was involved with WorkStreams, as requested by the insurer, and WorkStreams told him to apply for jobs, and they assisted him to prepare a résumé.
·He does not believe he is capable of manual work anymore because of his right-shoulder pain and psychological injury. He would go back to work if he could as he has noted that not working has resulted in financial difficulties for his wife and children living in Pakistan, which makes him upset and angry.
14 In his second affidavit, the plaintiff gives the following salient evidence:
·He lives in a share house with a number of other men, continues to see his general practitioner and also engages in physiotherapy treatment.
·Currently he takes the following medication:
– the anti-inflammatory – Feldene – a 120-milligram tablet twice a day
– the painkiller – Panadeine Forte – 500 milligrams tablets at night (to assist with pain during sleep)
– Gabapentin – a 100-milligram capsule in the morning and two at night
– he is also prescribed Dencorub pain-relieving heat patches as and when needed, and also has developed constipation from the pain medication, causing him to take Movicol sachets each day, and also takes Zoton Fas Tabs, because of reflux.
·Since his first affidavit, he has undergone an assessment with the Victorian Rehabilitation Centre to determine whether a pain management program was appropriate for him. He understands that the recommendation was that “[He] would not gain much from the program” because his English is so poor and he struggled to understand most of what was happening in the assessment.
·He continues to experience the symptoms and consequences as set out in his first affidavit. In particular, he continues to experience daily and significant pain in his right shoulder, which radiates to the right side of his neck and down the arm.
·In about March 2018, he travelled to Iran for three months to see his family and continued with the medication when overseas.
·He has not received any income from physical exertion and has been unable to work since ceasing with the defendant.
·He currently receives approximately $600 a fortnight by way of a Centrelink payment, and as a condition of having received Centrelink benefits he is required to apply for a number of jobs, but does not believe he has the capacity to undertake any job – notwithstanding he has applied for a number of jobs to continue to receive the benefit.
·He has lived his entire life in Afghanistan and Pakistan, and his English “is very poor” and he does not believe he would be able to do a job which requires English-language skills. He accepts he has very basic spoken English, but relies on interpreters for most medical appointments.
·He is unable to read and write in English, except for some very basic words, like his name.
·His entire working life has been involved in physical work and he does not have any administrative or clerical skills, including the use of a computer, and no experience in this type of work. Furthermore, he believes that using a computer would irritate his right-shoulder pain, in the same way that writing does.
·The daily pain is in itself distracting and makes it difficult to focus and, furthermore, makes him irritable and angry.
·Because of the daily pain that he experiences, he takes strong pain medication each day to manage the pain and such medication makes him “drowsy and dizzy”, which in itself would make it difficult for him to return to work.
·In about mid-2018, he applied for a licence to drive a taxi because he was told by Centrelink that he had to do that to avoid his special benefit being cut off. He did obtain a licence to drive a taxi about three or four months ago, but has not engaged in any employment or taxi driving because he does not believe that he could drive for more than twenty to thirty minutes because of the pain, and tends to drive one-handed or relying on his left hand, which would not be safe.
·He believes that he would not be able to undertake any pre-injury duties or suitable employment because of his injuries. He also believes he would struggle to engage in any further retraining because of the medication that he takes and the daily pain that he experiences.
The medical treatment of the Plaintiff
15 The plaintiff relies on medical reports from his current treating general practitioner, Dr Karantonis, situated at the Dandenong City Clinic. Dr Karantonis records that the plaintiff first attended that practice on 26 April 2014, requesting that the practice take over his care and treatment of the shoulder injury. At that time, the plaintiff advised that his local doctor had been a Dr Hill and that he had been referred to a surgeon, Mr Patrick Byrne, for assessment and advice.
16 I was informed by the parties that there had been attempts to subpoena the earlier records, but this had been unsuccessful. However, several documents were available, which were tendered. These included:
(a) A report from Marina Radiology, wherein it is recorded that Dr Duleep Mendis arranged for the plaintiff to undergo a right-shoulder ultrasound on 26 March 2013. In the report dated 27 March 2013,[18] the radiologist concludes:
[18]See exhibit 3 at page 95 PCB
“Mild right subacromial bursitis with impingement. Intact rotator cuff tendons.”
(b)A report from Marina Radiology, wherein it is recorded that Dr Duleep Mendis arranged for the plaintiff to undergo an ultrasound-guided right subacromial bursal injection on 9 April 2013;[19]
[19]See report of same date, exhibit 3 at page 96 PCB
(c)A report from Capital Radiology, wherein it is recorded that Dr Danushi Ganegoda arranged for the plaintiff to undergo an MRI scan of his right shoulder on 8 October 2013.[20] The radiographer reports his “impression” as:
[20]See MRI report of same date, exhibit 3 at page 97 PCB
“1.Intrasubstance partial thickness tear within the posterior aspect of the supraspinatus tendon. Further tendinosis noted in more anterior aspect of supraspinatus tendon. Subacromial bursitis. Spurring of outer margin of acromion and thickening of coraco acromio ligament. Mild degenerative lipping of margins of acromio clavicular joint.
2. Small superior labral tear conforming to a SLAP type II lesion.”
(d)A report from Capital Radiology dated 17 December 2013, wherein it is recorded that the surgeon, Mr Byrne, arranged for the plaintiff to undergo an ultrasound of his right shoulder on 17 December 2013.[21] The radiologist concluded:
[21]See report of same date, exhibit 3 at page 98 PCB
“No rotator cuff tendon tear is demonstrated. Supraspinatus tendinosis is demonstrated.
Subscapularis insertional enthesopathy is demonstrated.
The long head of biceps, infraspinatus and teres minor tendons are normal.
The glenohumeral and acromioclavicular joints are sonographically normal.
Significant subacromial bursitis is demonstrated, with bursal impingement upon the acromion on dynamic examination, associated with pain.
… .”
(e)A further report from Capital Radiology dated 10 January 2014,[22] recording that Mr Byrne performed a right-shoulder injection under ultrasound control;
(f)A report from Capital Radiology dated 28 February 2014,[23] recording that Dr Hill arranged for the plaintiff to undergo an MRI scan of the right shoulder. The radiologist reported, in part:
“There has been a slight improvement in the appearance of the shoulder compared to October 2013. Both the supraspinatus tendon and the SLAP tear have shown some signs of repair. No new pathology seen.
… .”
[22]See report of same date, exhibit 3 at page 99 PCB
[23]See report of same date, exhibit 3 at page 100 PCB
17 The plaintiff relies on the reports of his current treating doctor, Dr Karantonis, from the commencement of his treatment on 26 April 2014. Such reports are dated 30 November 2014, 16 February 2016, 21 April 2016, 14 November 2016 and 25 October 2018.[24] At the time of the initial examination on 26 April 2014, the plaintiff advised Dr Karantonis that since injuring his shoulder in 2013, he had had various modalities of treatment without any improvement. Dr Karantonis also had available the MRI investigation undertaken on 9 October 2013.
[24]See exhibit 2 at pages 47-66 PCB
18 Over time, Dr Karantonis referred the plaintiff to the orthopaedic surgeon, Mr Pullen, who ultimately performed surgery on the right shoulder and later, in May 2015, underwent a shoulder hydrodilatation in respect of right-shoulder capsulitis (that is, frozen shoulder). Dr Karantonis also referred the plaintiff to the pain specialist, Dr Thomas, who saw the plaintiff on several occasions.
19 In his final report, dated 25 October 2018, Dr Karantonis was posed a variety of questions, some of which related to the right-shoulder condition of the plaintiff. I summarise his opinions as to the right-shoulder condition as follows:
·There is an organic basis for the right-shoulder symptoms based on the clinical presentation, ongoing findings associated with radiological tests confirming tendonitis and adhesive capsulitis.
·The right-shoulder injury is directly related to the employment of the plaintiff by the defendant and the nature of his work.
·As a result of his right-shoulder injury, there are significant and ongoing restrictions in his ability to perform activities that involve lifting, pushing, pulling or overheard work. Such injury also limits the plaintiff’s ability to manage his day-to-day tasks and although the plaintiff is able to drive, it is the “understanding” of his treating doctor that due to pain this activity is limited.
·As a result of his right-shoulder injury the plaintiff cannot perform his pre-injury duties, and in the opinion of Dr Karantonis would be unlikely to be able to be realistically employed in other areas. In particular, in relation to the right shoulder, he believes that he would be unemployable on the open market.
·Dr Karantonis does not believe that “occupational rehabilitation services” would be useful and productive.
·The incapacity suffered by the plaintiff in relation to his right shoulder is unlikely to alter in the foreseeable future.
·His overall prognosis is poor, and that the injury and surgery to his right shoulder would likely place the plaintiff in a high-risk category for further shoulder degenerative changes.
20 The plaintiff relies on the following reports from his earlier treating orthopaedic surgeon, Mr Christopher Pullen:
§ 6 June 2014
§ 24 July 2014
§ 25 September 2014 (Post-Operative Report)
§ 25 September 2014
§ 2 May 2015; and
§ 6 May 2015.[25]
[25]See exhibit 2 at pages 70-79 PCB
21 Mr Pullen first examined the plaintiff on 6 June 2014, at which time he gave a history that he had right-shoulder pain both at night and when reaching, and recently had felt a cracking sensation in his right arm when lifting. The plaintiff also informed Mr Pullen that he had already received physiotherapy treatment, Cortisone, Panadol and anti-inflammatory medications, without benefit.
22 Examination at that time revealed that the right shoulder had a full range of passive motion, but experienced pain when actively lifting the arm above shoulder height. The plaintiff also had a positive right-shoulder impingement sign and a mildly positive Speed’s test. Review of the plaintiff’s right shoulder MRI scan suggested a type II SLAP lesion and a possible intrasubstance tear of the rotator cuff. Mr Pullen discussed various options with the plaintiff on that occasion.
23 When reviewed on 24 July 2014, the plaintiff indicated that he was keen to undergo surgery and, indeed, he underwent a right-shoulder arthroscopy, subacromial decompression and debridement on 25 September 2014. Mr Pullen reports that at operation, partial thickness tears of the supraspinatus and subscapularis tendons were seen and the biceps tendon showed evidence of mild tendinopathy and a Type I SLAP lesion in the subacromial space, and subacromial spur was resected.
24 At that time, Mr Pullen was of the view that the plaintiff would require four to six weeks off work and then would be fit for light duties and fit to return to pre-injury duties in sixteen to twenty-four weeks.
25 Mr Pullen reviewed the plaintiff on 9 October 2014 and considered, at that time, he was progressing well following the surgery and the plaintiff was encouraged to start mobilisation. Mr Pullen noted that the plaintiff, at this time, was very pain focused and he was encouraged to take adequate analgesia in order to be able to move the right shoulder and reduce the risk of adhesive capsulitis.
26 When again reviewed on 4 December 2014, Mr Pullen noted that the plaintiff was having persistent problems with his right shoulder pain and had a restriction in range of motion. Examination suggested that the plaintiff may have developed a post-surgical adhesive capsulitis and it was suggested that a further MRI scan be undertaken to exclude any other intraarticular pathology.
27 At the time of his review of the plaintiff on 4 December 2014, Mr Pullen considered that he was suffering from a right-shoulder post-operative adhesive capsulitis and that he may also have developed a “Chronic Pain Syndrome”.
28 The plaintiff underwent a further MRI scan of his right shoulder on 15 April 2015.[26] Mr Pullen reports that the radiologist reported that the MRI scan showed “[l]ikely adhesive capsulitis” and there was “[s]upraspinatus tendinosis/tendinopathy without a full thickness tear”.
[26]See exhibit 3 at page 102 PCB
29 Mr Pullen subsequently reviewed the plaintiff on 6 May 2015, on which date he gave the plaintiff a referral for a hydrodilatation, given the MRI finding of adhesive capsulitis. On that date, Mr Pullen considered the plaintiff was unfit for a return to his present employment at that time, but would be fit to perform light duties involving no lifting, no working above shoulder height and no repetitive work, and the need to commence on limited hours. There are references in various medical reports that the hydrodilatation was undertaken shortly after that consultation with Mr Pullen.
30 The plaintiff relies on the medical reports from the consultant in rehabilitation and pain medicine, Dr Clayton Thomas, dated 10 November 2015 and 8 February 2017.[27]
[27]See exhibit 2 at pages 81-88 PCB
31 Dr Thomas consulted with the plaintiff, initially on 23 July 2015, when he complained of constant pain in the right-shoulder girdle, away from just the right shoulder itself, with the pain being anterior and posterior. It involved his chest wall in his right-shoulder-girdle region. Such pain stopped him sleeping on his normal right side.
32 Examination at that time found the plaintiff to be “quite deconditioned”, having very poor musculature in his upper back on the whole, with both shoulders included. Dr Thomas found the plaintiff to be “diffusely tender” over the right-shoulder girdle over the clavicle and the posterior behind the shoulder, and there did seem to be some evidence of hyperalgesia, but no dynamic allodynia.
33 Shoulder movements were mildly limited passively, but actively were quite limited secondary to pain. The shoulder was diffusely weak non-specifically, and neurologically the upper limbs presented as being otherwise normal.
34 On the first consultation, Dr Thomas formed the “impression” that the plaintiff suffered a “chronic pain syndrome” involving the right-shoulder girdle, secondary to the original right-shoulder injury. Dr Thomas prescribed Pregabalin, 75 milligrams, increasing each fortnight, and that he be referred to the Victorian Rehabilitation Centre for consideration for a multidisciplinary pain-management program. Apparently the plaintiff accepted this recommendation.
35 Dr Thomas reviewed the plaintiff on 4 September 2015 and obtained a history, in part, that the plaintiff was now “homeless living in his car and had been so for the last week”. The plaintiff gave a history that he was told to leave the house as he could not contribute to the running of the house because of his residual problems. Dr Thomas also noted at that time that the Lyrica that had been prescribed did not provide any benefit, and it was ceased. Furthermore, he noted that the plaintiff had obtained approval to commence a pain-management program at the Victorian Rehabilitation Centre.
36 After those two examinations, Dr Thomas opined that the plaintiff was partially incapacitated and noted that, nonetheless, the loss of the dominant right upper limb use does create “significant issues for him”.
37 Dr Thomas next reviewed the plaintiff on 9 February 2016, at which time Dr Thomas had been advised that the rehabilitation team, although noting the plaintiff to be somewhat resistant, considered that he warranted a trial of rehabilitation.
38 Dr Thomas noted that on 9 February 2016 the plaintiff engaged more, and at that time was living in a share-house arrangement, which Dr Thomas thought would contribute to a better overall mental-health state.
39 At that time, Dr Thomas noted that the plaintiff had irritability in the right shoulder with a lot of tenderness and he considered, also, weakness stemming from the pain. Range of movement was well preserved in external rotation, limited in flexion and abduction, predominantly suggesting this was very much part of a pain syndrome. At that time, Dr Thomas considered the plaintiff should undergo formal rehabilitation and be reviewed after that.
40 When reviewed on 28 June 2016, Dr Thomas noted that the plaintiff’s right shoulder remained “very irritable and stiff” and there were residual signs of capsulitis. Dr Thomas obtained a history that the plaintiff had attended the Victorian Rehabilitation Centre for an outpatient pain-management program, but he only attended on one occasion, became very distressed, irritable and angry and subsequently left.
41 The plaintiff also informed Dr Thomas that he was still in a state of homelessness as the share-house arrangement with some friends was only for a temporary period of time.
42 When again reviewed on 4 October 2016, Dr Thomas thought it appropriate for the plaintiff to undergo a further MRI scan of the right shoulder, which would give some indication as to whether there was a true capsulitis as opposed to a functional frozen shoulder. In this respect, he did note that a right-shoulder ultrasound had been requested and undertaken on 19 September 2016.[28] I refer to that ultrasound, wherein the radiologist, Dr Simon Morley found:
[28]See exhibit 3 at page 104 PCB
“A solitary moderate-sized chronic partial-thickness tear of the bursal surface and anterior supraspinatus tendon is demonstrated, measuring 13mm x 10mm axially.
All other rotator cuff tendons are normal.
The glenohumeral and acromioclavicular joints are sonographically normal.
Mild subacromial bursitis demonstrated. If there is continued clinical concern, this would be amenable to ultrasound-guided cortisone and Marcaine injection.
On dynamic examination, there is a significant globally restricted range of motion, without impingement, consistent with early/mild adhesive capsulitis/frozen shoulder.
… .”
43 The plaintiff was later reviewed on 29 November 2016 by Dr Thomas, with the plaintiff having undergone an MRI scan of his right shoulder on 5 October 2016.[29] I refer to such examination and note that the radiologist, Dr Timothy Hooper, states:
“No significant interval change relative to the prior MRI examination of 2014. In particular, no features of subacromial bursitis. Insertional subscapularis tendinopathy again noted. No features of glenohumeral instability. No labral tear or chondral abnormality.”
(My emphasis).
[29]See exhibit 3 at page 105 PCB
44 Dr Thomas noted that the MRI scan made no reference to capsulitis. Ultimately, he stated:
“His shoulder I did not think did have a true capsulitis as external rotation with some encouragement was almost full.
He had global restriction of movements secondary to pain but I did not think this was due to underlying problem with the shoulder per se.
Given that he was unsuccessful in engaging in the rehabilitation process, given that he did not know his current medications and given all the psychosocial issues that he was dealing with, I was not certain that there was much more we could do to help him outside of general support.
…
a) …
b) Diagnostically, [the plaintiff] suffers from a chronic pain syndrome involving the right shoulder girdle secondary to the original right shoulder injury.
c) My understanding is that the injury occurred in the context of work.
Confirmation by those who saw him at and around the time of the onset of his condition would be appropriate here.
I accepted the history that I received from him.
d) The injury [the plaintiff] sustained was to his right shoulder.
However, I have not been privy to any of the investigations of his shoulder per se to get an understanding of the underlying nature of the pathology here.
His shoulder I did not think did was a true capsulitis as his external rotation with some encouragement was almost full.
e) He has global restriction of movements secondary to pain but I did not think this was due to an underlying problem with the shoulder per se.”[30]
(sic)
(my emphasis).
[30]See exhibit 2 at page 88 PCB
The medico-legal material
45 It is convenient to refer to the medico-legal material relied on by the parties. Those acting for the plaintiff rely on the following material:
(a)Reports from the pain specialist, Dr Peter Blombery, who seemingly examined the plaintiff on or about 20 September 2016 and again on 16 October 2018;[31]
(b)Report of the orthopaedic upper limb surgeon, Mr Ash Chehata, who examined the plaintiff on 2 October 2018;[32]
(c)The report of the pain physician and specialist anaesthetist, Dr Meena Mittal, who examined the plaintiff on 15 October 2018.[33]
[31]See exhibit 4 – report from Dr Blombery dated 20 September 2016 at pages 116-122 PCB and report dated 22 October 2018 at pages 124-131 PCB
[32]See exhibit 4 – report dated 9 October 2018 at pages 132-146 PCB
[33]See exhibit 4 – report of same date at pages 147-157 PCB
46 It is to be noted, that each of these medico-legal specialists were also requested to examine and give opinions in relation to any cervical injury that the plaintiff may have suffered. As I have already recorded, the neck, although originally said to be a “serious injury”, was not persisted with at the conclusion of the evidence.
47 Seemingly, when Dr Blombery initially examined the plaintiff in or about September 2016, he was supplied by those acting for the plaintiff most of the medical reports from treating doctors, the various radiological reports and, indeed, a number of other medico-legal reports.
48 Dr Blombery obtained a history of the occurrence of the right shoulder injury and the various treatments undertaken by the plaintiff over the years. At the time of examination, the plaintiff complained of “ongoing pain in the right shoulder, radiating down the right arm to the hand” which was present “all the time” and that he could only sleep for one or two hours because of the severity of the pain.
49 The plaintiff also rated the pain as “ten out of ten” and that it had become gradually worse over the passage of time. He had also noted paraesthesia in his right hand and occasionally some numbness in the right arm at night if he was lying on the arm.
50 The plaintiff also had symptoms in the right side of his body and also his right leg that had been present for some months, and also had developed abdominal discomfort, which was thought to be as a result of the use of anti-inflammatory medications. Furthermore, the plaintiff had been “quite depressed” and he occasionally had suicidal thoughts.
51 On examination, Dr Blombery noted the plaintiff tended to hold his right arm relatively immobile against his upper abdomen with his elbow fixed at 90 degrees. After removal from his jacket, the plaintiff was diffusely tender on pressure around the shoulder girdle and down the right arm, but that did not follow any particular structures, but generally, and also over the medial aspect of the scapula, he could abduct his right shoulder to 60 degrees, flex to 70 degrees and internal and external rotation was markedly reduced. Dr Blombery also noted a similar range of the right shoulder movement when he was undressing himself.
52 On that occasion, Dr Blombery opined that the plaintiff had suffered a tear of the supraspinatus tendon, as well as subacromial bursitis, causing him to undergo conservative treatment with a series of cortisone injections and physiotherapy, with little response. Later he was referred to an orthopaedic surgeon, undergoing surgery on 25 September 2014, again, with little response and ultimately referred to the pain management physician, Dr Thomas, who has given him some treatment, but was unable to do a pain management course.
53 In particular, Dr Blombery states:
“In regard to the ongoing pain that he complains of in his right shoulder, it is my opinion that Mr Tawakuli has features of a non-specific pain syndrome present in the affected area, where there is sensitisation of pain nerve pathways, both in the periphery as well as the brain and spinal cord, such that non-painful stimuli become interpreted by the cerebral cortex as being painful. This process is also termed central sensitisation.
Management of that should be multidisciplinary therapy including the use of analgesic, antidepressant, anti-neuropathic and other drugs. In addition management should include, physiotherapy, behavioural therapy, occupational therapy as well as other techniques such as TENS and acupuncture. These are often best provided in the setting of a pain management clinic … .
Mr Tawakuli has also developed significant secondary depression and anxiety but it is outside my area of expertise to comment on that. However, this is compounding his experience of pain.”[34]
(My emphasis).
[34]See exhibit 4 at page 120 PCB
54 Dr Blombery also comments that from a practical point of view the plaintiff had little use of his dominant right arm and would not be able to perform any manual tasks with his right arm to a significant degree.
55 Ultimately, his diagnosis was of a tear of the right rotator cuff, subacromial bursitis and a labral tear, complicated by a pain syndrome.
56 When again seen in 2018, Dr Blombery obtained a history that the plaintiff complained of ongoing pain in his right shoulder (and neck and arm), but it was less severe before he rated it 4-6/10. However, the pain could wake him from sleep and was associated with numbness.
57 Examination at that time revealed the plaintiff to have strapping over his right shoulder. There was no difference in temperature or colour between the two hands, but tenderness over the right shoulder and right trapezius relating to the neck and over the neck itself. The pain in the right arm extended to the mid upper arm but not distal to that. There was also tenderness over the right scapula.
58 Movement of the right shoulder was 70 degrees of abduction, 70 degrees of flexion and no internal rotation. External rotation was normal. Dr Blombery noted that when the plaintiff dressed and undressed, there was still no more than 70 degrees of abduction present.
59 Dr Blombery considered that there had been a slight improvement in his right arm pain over the two years since his last examination, but not to the point where he was able to use his arm in any gainful employment. He noted that the plaintiff is right-hand dominant and has very little, if any, education, and absent the right shoulder injury, would not be able to do any job apart from manual work.
60 Dr Blombery again confirmed his diagnosis in relation to the right shoulder and also noted that the development of a pain syndrome is an organic disorder of pain nerve pathways. He also noted that pathology of the shoulder no longer needs to be present in such a situation. He did stress that the symptoms in the right shoulder do originate from the pathology in the right shoulder. In particular, he stated:
“We must look at the injury to the right shoulder in terms of the patient experience of pain as contributed to by two separate components – the original injury to the right shoulder for which he had surgical treatment complicated by the development of a pain syndrome with pain pathway sensitisation, superimposed on that. Both of these factors need to be taken into account in terms of whether the injury has resolved – even if the structure of the right shoulder had been returned to a pristine condition, in the presence of pain pathway sensitisation and amplified pain pathways, the patient still experiences pain and this is on an organic basis … .”[35]
(My emphasis).
[35]See exhibit 4 at page 127 PCB
61 Dr Blombery expressed the opinion that the plaintiff had significant functional limitations with a reduced range of movement of the right shoulder and difficulty in using his dominant right arm. It was his opinion that his pain, restriction, disability and incapacity are derived from the organic injury to the right shoulder. Furthermore, it was Dr Blombery’s opinion that the plaintiff will continue to suffer the consequences and incapacities of the physical right shoulder injury into the foreseeable future.
62 When Mr Chehata examined the plaintiff on 2 October 2018, he also obtained a history of the circumstances giving rise to the right shoulder injury and the various treatments undertaken by the plaintiff. At the time of the examination, the plaintiff complained of ongoing and unremitting constant pain in the right shoulder with radiation up into the trapezial musculature and into the cervical spine. The plaintiff also described a “deterioration in his mental state”.
63 On examination, Mr Chehata noted that the plaintiff had normal muscle bulk with no signs of wasting of the supraspinatus and infraspinatus. Furthermore, he had normal tone and reflexes, although he was unable to relax the right shoulder due to the ongoing pain.
64 After taking a history and making an examination, Mr Chehata expressed the opinion that the diagnosis is that of partial tearing of the supraspinatus, and subscapularis (as diagnosed on arthroscopy by Mr Pullen), coupled with subacromial bursitis and the development of adhesive capsulitis and a chronic pain syndrome.
65 When queried about taking the organic effects of the right-shoulder injury, whether the plaintiff had any capacity for employment, Mr Chehata expressed the opinion that the plaintiff would have little opportunity to gain employment in the open market.
66 When examined by Dr Meena Mittal on 15 October 2018, the plaintiff gave a history of his onset of right-shoulder injury and the treatment that he has undertaken to that date. At the time of the examination, he complained of right-shoulder pain to be constant and burning in nature and rated it 6/10 on most occasions. He was unable to lie on his right-hand side and the pain increased with increased activity and utilisation of the right shoulder. In particular, he reported the entire right upper limb would go numb at night, which would then wake him up. He did not report any weakness in the right hand, but he was unable to lift more than 2 kilograms due to right-shoulder pain. Dr Mittal detailed the various investigations undergone by the plaintiff and the various radiological studies.
67 On examination, Dr Mittal considered the affect of the plaintiff was flat, although she considered all questions were answered appropriately. Although there was no obvious muscle wasting in the upper limbs bilaterally, there was decreased utilisation in the right upper limb.
68 General examination revealed obvious muscle spasm of the right trapezius and the right shoulder was slightly elevated in comparison to the left. The right shoulder was taped and there was no obvious Complex Regional Pain Syndrome of the right shoulder on removal of the tape.
69 Range of motion was restricted to active abduction of 80 degrees and forward flexion of 80 degrees. Passive movements beyond this were difficult to perform due to severe pain. External rotation was painful and restricted, and there was diffuse tenderness in the entire region of the right shoulder, particularly on the anterior aspect.
70 Upper-limb neurological examination was normal.
71 After outlining the treatment that the plaintiff has undertaken, Dr Mittal notes that the plaintiff continues to struggle “with ongoing right shoulder chronic pain due to the development of a chronic pain syndrome”. He notes that, as a result, the plaintiff has had significant decrease in function and is psychologically distressed.
72 Dr Mittal diagnosed the plaintiff to be suffering from an initial shoulder injury, and from post-surgery he has been suffering from a chronic pain syndrome, ongoing adhesive capsulitis and also supraspinatus tendinosis, confirmed on radiological examination, including MRI scans.
73 In particular, Dr Mittal states:
“I note the Medical Panel Opinion dated 6 December 2016 where they opine that ‘the worker is suffering from a persistent right shoulder dysfunction following a soft tissue injury of the right shoulder, surgically treated and now substantially resolved, relevant to the accepted right shoulder injury’.
Firstly, Mr Tawakuli sustained a right shoulder injury for which he underwent surgical treatment. Unfortunately the surgical treatment was complicated by post operative adhesive capsulitis that resulted in a limited range of motion of the right shoulder. In addition, there is evidence of supraspinatus tendinopathy with incomplete supraspinatus tendon tear as indicated by follow up investigations. This would mean that the initial injury is not substantially resolved secondary to the surgery.
In addition, Mr Tawakuli has also developed a chronic pain syndrome, secondary to persistent post-surgical pain which is a process of sensitisation of the pain pathways. This is a neurological process which is organic in nature and is well identified post-surgery. Due to ongoing neuropathic pain post-surgery, I do not believe that Mr Tawakuli’s right shoulder dysfunction and pain have substantially resolved. This is in addiction to no substantial resolution of his initial injury despite surgical treatment.”[36]
(my emphasis).
[36]See exhibit 4 at page 152 PCB
74 When asked to comment on the consequences of physical limitations of his right shoulder injury, Dr Mittal states:
“Taking in to consideration Mr Tawakuli’s right shoulder injury, he has significant functional limitations as indicated in the body of my report. Although Mr Tawakuli is able to engage in personal activities of daily living but this is slowed He (sic) struggles with domestic activities of daily living given the fact that he is right hand dominant particularly washing, doing the dishes, grocery shopping, lifting any items more than 5 kg using his right upper limb and gardening. He has difficulty with range of motion of his right shoulder which makes it difficult for him to utilise his arm for forward reaching and also lifting his right upper limb above shoulder height. This has significantly affected Mr Tawakuli’s day to day activities and lifestyle with poor function and poor quality of life. Mr Tawakuli struggles to drive long distances since he is right hand dominant and utilises his left upper limb to drive. There is also the compounded effect of medications and side effects of sedation and drowsiness which makes it dangerous for him to engage in driving.”[37]
[37]See exhibit 4 at page 153 PCB
75 Dr Mittal also expressed the opinion that the organic consequences suffered by the plaintiff in relation to his right shoulder will continue into the foreseeable future. Furthermore, he considered that such consequences of his right shoulder injury has rendered him having no work capacity, and that is likely to continue indefinitely into the foreseeable future.
76 Before referring to the medico-legal material relied on by the defendant, I do refer to two documents relied on by the defendant:
(a) Medical Panel Certificate and Reasons for Opinion dated 6 October 2016;[38] and
(b) The reports and correspondence from Ms Ellen Rugara from the Cardinia-Casey Community Health Service dated 7 November 2012 and 13 November 2012.[39]
[38]See exhibit A at pages 43-55 DCB
[39]See exhibit “E” at pages 113-114 DCB
77 Various questions were referred by a WorkCover agent to the Medical Panel on 2 November 2016 pursuant to the relevant legislation. The Panel was comprised of the following members:
§ Dr Judith Hammond, a general practitioner;
§ Dr Steven Adlard, psychiatrist; and
§ Mr Damian Ireland, orthopaedic surgeon.
78 In particular, one of the questions posed was as to what was the worker’s degree of permanent whole person impairment resulting from the accepted injury/s as assessed in accordance with s91 and is the impairment permanent.
79 The answer to such question was that the plaintiff had a zero per cent whole person impairment resulting from the accepted right shoulder injury when assessed in accordance with s91 of the Act. The Panel also found that there is zero per cent psychiatric impairment resulting from the accepted psychiatric injury when assessed in accordance with s91 of the Act.
80 One of the documents ultimately sought to be tendered by those acting for the defendant was the “Reasons for Opinion” given by the Medical Panel. At the time of such tender I raised with the parties whether the “Reasons for Opinion” were admissible.[40] Reference was made by Senior Counsel for the defendant to the decision of Yirga-Denbu v Victorian WorkCover Authority[41] and in particular paragraphs [41]-[60]. It was submitted by Senior Counsel for the defendant that, as a matter of practice, reasons are now frequently admitted. When queried about the situation, Senior Counsel for the plaintiff said that in his experience sometimes the reasons were admitted with the huge “rider” that of course the members cannot be cross-examined, which affects the weight of the evidence, and, furthermore, many times such Certificate only relates to permanent impairment assessment. Senior Counsel for the plaintiff ultimately stated that he did not propose “agitating it further at this point but would address it later”. No more submissions were made on that point.
[40]See T87, L27 – T89, L28
[41][2018] VSCA 35
81 The Panel took a history from the plaintiff and also made an examination of, in particular, his right shoulder. The Panel reported:
“The Panel noted that the worker had normal upper limb girdle contours with well developed shoulder musculature bilaterally and no evidence muscle spasm, atrophy or wasting. Examination of the right shoulder revealed well healed arthroscopy scars on the lateral and anterior aspects of the shoulder joint, each measuring 1 cm in length. The worker had widespread pain to palpation at randomly selected points in a non-anatomical distribution throughout the right upper extremity. Assessing the range of movement at the joints of the right upper limb was difficult due to significant variation in both active and passive assisted movements. The Panel elicited a full range of passive movement at the right wrist and elbow joints. The Panel noted that the worker demonstrated substantially greater ranges of motion of the right shoulder incidentally during his time spent with the Panel, compared to those specifically elicited during goniometric measurements. The Panel formally measured right shoulder movements of: flexion 90 degrees, extension 50 degrees, abduction 110 degrees, adduction 70 degrees, internal rotation 80 degrees and external rotation 70 degrees. The Panel considered the reduced range of flexion and abduction measured with the goniometer were not due to physiological factors as a full range of flexion and abduction at the right shoulder joint was witnessed at other points in the examination. There was sensory loss to light touch circumferentially throughout the right arm in a non-anatomical pattern. Power in the right upper limb, although difficult to assess due to variable collapsing weakness, appeared to be within normal limits. There was no wasting of the of forearm musculature on formal measurement. Grip strength testing was limited by collapsing weakness and therefore unreliable. At the conclusion of the examination, the worker was observed in a mirror to put his T-shirt back on using a full range of abduction and flexion at the right shoulder joint.”[42]
(My emphasis).
[42]See exhibit “A” at page 46 DCB
82 The Panel had available various radiological material and ultimately concluded that the plaintiff was suffering from “persistent right shoulder dysfunction following a soft tissue injury of the right shoulder, surgically treated and now substantially resolved relevant to the accepted right shoulder injury”.
83 The Panel also concluded that the plaintiff was suffering from an Adjustment Disorder with Depressed Mood and a Chronic Pain Disorder associated with psychological factors and a general medical condition, partly arising from his workplace injury. The Panel did consider that there was evidence of a pre-existing Adjustment Disorder and a pre-existing Pain Disorder in relation to the circumstances of the plaintiff’s arrival in Australia in 2012.
84 I should add that the medico-legal specialists retained by the plaintiff – that is, Dr Peter Blombery, Mr Ash Chehata and Dr Meena Mittal – expressed disagreement with the opinion of the Medical Panel in relation to his present medical status.
85 In a letter dated 7 November 2012, Ms Ellen Rugara, a refugee health nurse at the Asylum Seeker and Refugee Clinic, Cardinia Casey Community Health, sought to refer the plaintiff for counselling at Foundation House, noting that:
· He was a thirty-five year old from Afghanistan
· He had been released into the community on 14 October 2012 on a bridging visa
· He was a survivor of a boat crash that resulted in one hundred and thirty lives being lost, which included three of his friends
· During his appointment with her, the plaintiff presented as agitated and angry at times and had multiple complaints of non-specific pain, including leg pain, finger pain and kidney pain. Such pain had been investigated in detention, with nil medical cause noted
· The plaintiff spent fifteen hours in the water post the boat crash and he alleges his pain is related to this event
· Ms Rugara noted that the pain “disappears” when he is distracted, such as when shopping
· Ms Rugara noted that the plaintiff was seen daily by counsellors in detention, which he found helpful, and agreed for a referral; however, the plaintiff became agitated when it was suggested that his physical pain may be related to the trauma he has experienced and apparently felt that he was not being taken seriously.
86 In a later letter by Ms Rugara to the Australian Red Cross, she noted that during an interview with the plaintiff on 1 November 2012, there was a lengthy discussion about his mental health. She expresses the opinion that the plaintiff is suffering from Depression and Post-Traumatic Stress Disorder which gave rise to her referral to Foundation House for counselling.
87 The defendant relies on the following medico-legal material:
(a)reports of the orthopaedic surgeon, Mr Peter Boys, who examined the plaintiff on 24 February 2015[43] and on 30 October 2015;[44]
(b)the report of the rheumatologist, Mr Roy K Karna, who examined the plaintiff on 11 October 2016.[45] Such report was obtained for the purposes of an AMA Impairment Assessment in relation to “an accepted right shoulder injury with a designated date of injury of 6 September 2013”;
(c)the reports of the orthopaedic surgeon, Mr Michael Dooley, who examined the plaintiff on 25 October 2017[46] and on 14 November 2018.[47] Mr Dooley also supplied some supplementary reports dated 15 January 2018 and 20 November 2018;[48]
(d)the reports of the consultant occupational physician, Dr David Barton, who examined the plaintiff on 17 November 2017.[49] Furthermore, Dr Barton also forwarded a letter dated 16 January 2018 to those acting for the defendant;[50]
(e)the report of the consultant psychiatrist, Dr Timothy Entwisle, who assessed the plaintiff on 28 November 2017.[51]
[43]See exhibit “A”, report of same date, at pages 3-11 DCB
[44]See exhibit “A”, report of same date, at pages 22-31 DCB
[45]See exhibit “A”, report of same date, at pages 32-42 DCB
[46]See exhibit “A”, report dated 31 October 2017, at pages 56-60 DCB
[47]See exhibit “A”, report dated 19 November 2018, at pages 74-78 DCB
[48]See exhibit “A” at pages 72 and 78A-78B
[49]See exhibit “A”, report dated 21 November 2017, at pages 61-65 DCB
[50]See exhibit “A” at page 73 DCB
[51]See exhibit “A”, report dated 11 December 2017, at pages 66-71 DCB
88 When the orthopaedic surgeon, Dr Peter Boys, initially examined the plaintiff on 24 February 2015, the plaintiff described suffering constant pain around the right anterior shoulder, upper arm, trapezius, scapula and base of the neck. The plaintiff stated that such pain limits overhead use of the right arm. Apparently he related occasional crepitation in the shoulder but would not appear to be describing significant mechanical instability symptoms. At that time, he was living with friends in a home unit and primarily did his own housework working at bench level, hanging washing on a low line but was not involved in garden duty.
89 Dr Boys opined that the plaintiff described diffuse non-specific right pectoral girdle pain and exhibited evidence of abnormal pain behaviour at the time of examination. He was also of the opinion that the plaintiff’s history would suggest symptomatic tendinosis of the right shoulder and subsequent arthroscopic surgery for impingement on 25 September 2014.
90 Dr Boys considered that the pain behaviours exhibited by the plaintiff made assessment difficult and the true nature of his functional capacities were unknown at that time. He suggested independent observation of day-to-day activities, but went on to state that on the basis of physical examination on that day, he believed the plaintiff was capable of resumption of employment – initially on a modified program of duties to resume normal duties after a period of approximately four weeks of work, hardening in a factory involving lifting or carrying activities of the right hand.
91 At that time, Dr Boys also noted that the extent to which psychosocial factors were impacting upon the plaintiff’s presentation are unknown, notwithstanding the plaintiff manifesting a conscious or unconscious desire to project disability.
92 Dr Boys further consulted with the plaintiff on 30 October 2015, at which time the plaintiff complained of diffuse pain involving the right neck, right forequarter, right anterior chest and right upper arm, and also complained that such pain was “worse after the operation”. In particular, the plaintiff asserted that his level of pain had deteriorated, that he experiences more pain at night and that his right shoulder movements are “worse”. In particular, he stated: “I have severe pain. I can’t use my hand to do anything.” At that stage, the plaintiff was living alone in a single room, is independent with self-care activities, although he rarely cooks and gets foods from outside.
93 Ultimately, Dr Boys was of the opinion that the plaintiff would appear to suffer from an Adjustment Disorder with Depression in the context of complaints of chronic non-specific right forequarter pain following the subacromial decompression performed on 25 September 2014.
94 Although, Dr Boys accepted that the plaintiff’s history would suggest symptomatic tendonitis of the right shoulder and subsequent arthroscopic surgery for impingement on 29 September 2014, and in this context the employment of the plaintiff would be considered to be causative of his current presentation, he goes on to say that his presentation would appear to have been a secondary psychological condition related to his physical complaints. In particular, Dr Boys did note that the effects of depression are ongoing at this time and it is impossible on clinical examination to evaluate specific ongoing right shoulder dysfunction because of inappropriate pain behaviours. At that time, the plaintiff was using Panadeine Forte and anti-depressant medication supplied by his general practitioner which was considered to be appropriate by Dr Boys. At the time of that examination, Dr Boys was of the opinion that the plaintiff was totally incapacitated for pre-injury hours and duties of employment because of entrenched perceptions of disability which would preclude any attempt at meaningful rehabilitation in the workforce. In this respect, Dr Boys also noted that the chances of successful rehabilitation to the workforce would have no prospect of success in the context of the plaintiff’s established perceptions of disability.
95 The rheumatologist, Dr Roy Karna, examined the plaintiff on 11 October 2016 and at that time, the plaintiff was complaining of continuing pain, such that he was unable sleep on the right side, and also limited movement of his right upper limb. In particular, he asserted that he does not use his right arm, even to attend to aspects of personal hygiene, and instead uses his left arm.
96 Examination at that time revealed a full range of neck movements, preserved muscle bulk around the shoulder girdles, upper arms and good muscle definition. Furthermore, the state of his hands clearly indicated ongoing use of his hands and use of the right upper limb.
97 Although alleging he had no movement in any plane at the right shoulder, that passively (using his left arm to lift his right arm), he was able to achieve 60 per cent of abduction (enough to reveal that there had been some shaving in his right axilla), the lightest of touch was one thing that produced a pain response over the anterior, posterior and lateral aspects of the right shoulder. Left shoulder examination was normal and his right upper arm and right forearm were of equal dimensions to that on the left and there was no features of autonomic dysfunction. Sensory examination was normal.
98 Dr Karna noted that the history involves the plaintiff describing a gradual onset injury with initial MRI scans suggesting some element of rotator cuff tendinosis, subacromial bursitis and possibly a SLAP lesion which were initially treated conservatively and then surgically. Furthermore, post-operatively, he had continuing pain and had a hydrodilatation which was of no benefit.
99 In particular, Dr Karna stated:
“For diagnosis purposes I would suggest that he presents with symptoms but no objective physical findings of a soft tissue injury, treated surgical[ly] that has now substantially resolved.
…
… There were significant features of abnormal illness behaviour and as such I am unable to identify any reproducible, objective, verifiable signs of ongoing structural physical injury. (There were no features of disuse, signs of ongoing use and a discrepancy between spontaneously observed and actively allowed movements).
On that basis wherein he has symptoms but no signs he effectively presents with features of a chronic pain syndrome.”[52]
[52]See exhibit “A”, report dated 11 October 2016 at page 34 PCB
100 The orthopaedic surgeon, Mr Michael Dooley, initially examined the plaintiff on 25 October 2017. He obtained a history of the treatment undertaken by the plaintiff and also noted that at the time of the initial consultation, the plaintiff was complaining of constant ongoing right shoulder girdle pain for which he was taking Panadol, Panadeine Forte and Tramadol – which made him feel unwell and dizzy. At the time of that first consultation, he had moved out of a share house and was living out of his own car. In particular, the plaintiff informed Mr Dooley that he had been reviewed by his treating orthopaedic surgeon but said that no other treatment was suggested. He underwent physiotherapy in July 2017 but this did not help him, as did not one injection undertaken post operatively. He also complained that in the middle of the night he could wake and would note numbness of the whole right side of his body.
101 Apparently towards the completion of the history presentation, the plaintiff became somewhat agitated and when it was explained to him that the doctor would need to examine the shoulder, he would not accept this, complaining of attending medical appointments where people assess him and no advice is given regarding treatment options. It was agreed that Mr Dooley could look at the shoulder but could not physically examine it.
102 Mr Dooley also obtained the history of the traumatic circumstances of the plaintiff arriving from Pakistan by boat in 2012 and in particular, whereas two-hundred-and-twenty of those died in transit, with the plaintiff ultimately being detained, initially at Christmas Island. He was then placed on a three-year protection visa.
103 After that consultation, Mr Dooley stated:
“Mr Tawakuli reports the gradual onset of right shoulder girdle pain during the course of his employment carrying out fencing type work. He said that he carried out this type of work for around ten months. Mr Tawakuli described ongoing pain that did not respond to injections and physiotherapy. It is stated that on clinical examination of the right shoulder in June of 2014 Mr Tawakuli noted pain with active abduction. There was a positive impingement test. Options of treatment were discussed. It is said that Mr Tawakuli was advised that the chances of surgical success were fifty to seventy percent. He was advised that there was a chance that surgery could worsen his symptoms. Mr Tawakuli chose to proceed with surgery. It was felt that he would need around six weeks off work before returning to light duties and that ultimately he would be fit to return to preinjury duties in sixteen to twenty-four weeks. Mr Tawakuli described that his surgery did not alter his symptoms.
Based on Mr Tawakuli’s description of his work and onset of pain, I believe that during the course of his work he sustained a soft tissue injury to his right shoulder that involved some aggravation of underlying degenerative rotator cuff disease. Ultrasound assessment reported no obvious rotator cuff tears but evidence of degeneration of the supraspinatus tendon. MRI scanning noted probable partial thickness tearing of the supraspinatus and subscapularis tendon. In my view, this partial thickness tearing is part of the natural evolution of degenerative rotator cuff disease. Mr Tawakuli underwent clinically successful surgery. He reports no improvement in his pain and function and in fact worsening pain and function in time. Following this sort of surgery, postoperative adhesions can occur. Occasionally patients can require hydrodilatation treatment, manipulation under anaesthetic etc. In my view the constancy and intensity of Mr Tawakuli’s ongoing pain and his described disability are greater than one would expect to see for his organic condition. I believe that his psychological condition does influence his ongoing symptoms.
…
Clearly, Mr Tawakuli’s current personal circumstances are not ideal. At present essentially he is homeless. His wife and children are in Pakistan with no prospect of coming to Australia. Mr Tawakuli is in the latter phases of a three year protection visa and his future in this regard is uncertain. It would be an understatement to say that any of us in this situation would be significantly stressed.
Taking all of the information into account, it is my overall view that Mr Tawakuli has naturally occurring degenerative rotator cuff disease of his right shoulder. This is in part age related and probably also in part related to his smoking. He has previously worked as a panel beater. As outlined above, I accept that the type of work he did when employed in a fencing company could have aggravated underlying degenerative rotator cuff disease. We have however a situation where, with the passage of time, his symptoms did not improve. We have a situation where what would be considered to be standard conservative treatment, e.g. physiotherapy, cortisone injections etc did not help him. We have a situation where a standard surgical procedure has not helped him. A postoperative injection has not helped him. Postoperative physiotherapy has not helped him. He describes worsening pain and function in time. There might be those who would say that Mr Tawakuli has just been unlucky and that all of the treatments and the passage of time have not helped him. I accept that this is a possibility. In reality, this sort of scenario only unfolds when symptoms, injuries etc are alleged to have developed in a compensable environment. There will be a range of views as to why this is the case. I understand why Mr Tawakuli became upset today. He wants his problem and pain ‘fixed’. When practitioners have tried to discuss with him that pain can be influenced by factors other than the physical, understandably he has not been responsive to these suggestions. … In my view, Mr Tawakuli’s overall presentation at present is dominated by his psychological condition. I accept that there will be factions who state that such a suggestion is not valid. I will be told that Mr Tawakuli’s ongoing pain relates to central sensitisation, neuroplasticity etc. It will be suggested that Mr Tawakuli has increasing doses of analgesics and antineuropathic pain medication. He will be advised to have various injections including ketamine infusions etc. Ultimately there will be talk of spinal cord stimulators etc. My view is that continuing to treat Mr Tawakuli’s ongoing pain as though it is organically based only will lead to ongoing disappointment as it misses the crux of his presentation and pain.”[53]
[53]See exhibit “A” at pages 58 and 59 PCB
104 Mr Dooley also opined that from an orthopaedic viewpoint only, he would have expected the plaintiff to have a physical capacity to carry out at least light physical work and clerical duties. Return to this sort of work would need to be on a graduated basis but ultimately, the plaintiff would have a physical capacity to work full time. He also noted that the prognosis of the plaintiff essentially depends on that of his psychological condition.
105 In a subsequent letter dated 15 January 2018 to the solicitors for the defendant, Mr Dooley advised that he had read an attached vocational assessment report from Recovre dated 19 December 2017. In particular, Mr Dooley noted that the employment placement consultant and an occupational therapist considered that the plaintiff had the potential to work as a packer, courier, meter reader and or forklift driver.
106 Mr Dooley went on to say that based on the description of the duties involved in these various employment options, the plaintiff did have a capacity to perform such work from an orthopaedic point of view – although any return to suitable employment would need to be on a graduated basis over which the hours would be increased to full time.
107 Mr Dooley again consulted with the plaintiff on 14 November 2018. At that consultation, the plaintiff reported that his symptoms had remained the same since the last review. He informed Mr Dooley that he had travelled to Pakistan and Iran earlier that year (2018) and in February 2018, he had undergone further MRI scanning of his right shoulder in Iran. He also stated that there were discussions about having a further operation, that currently he is not having any active treatment. He also advised Mr Dooley that his general practitioner advised him to consider an injection to the shoulder and to undergo a pain management program.
108 He confirmed that his wife and two children, aged twelve and ten, remained living in Pakistan and that he lives with friends and does not have to carry out any particularly heavy household chores. Examination at that time revealed him to be well muscled, with no wasting of the shoulder girdle or musculature, although there was tenderness generally in that area. At that time, the plaintiff was wearing a tape/strapping over the region of his right shoulder.
“From an orthopaedic viewpoint only, I would expect Mr Tawakuli to have a physical capacity to carry out at least light physical work and clerical duties. Return to this sort of work would need to be on a graduated basis but ultimately Mr Tawakuli would have a physical capacity to perform full time.”[98]
Of course, Mr Dooley later re-examined the plaintiff on 14 November 2018, at which time he did perform a physical examination of the right shoulder;
(d)Senior Counsel then submitted that the plaintiff did not present as an “invalid” or “totally functional”, nor did he say that he does not use the right arm at all. Indeed, I have made earlier comments about that and I accept that submission in general terms;
(e)Senior Counsel for the plaintiff also submitted that the plaintiff did show some degree of motivation to return to work since suffering his injury, as evidenced by his two attempts to return to work, and also to participate in an English course in 2015. I accept such submission, although as I have already noted, the evidence before this Court from the plaintiff was that he could not perform any work and he should be allowed time for his injury to recover before contemplation be given to him returning to work;
(f)Senior Counsel for the plaintiff also submitted that part of the case against the plaintiff by the defendant was that he failed to complete the pain-management course or courses. I need not say anything further about that submission, as I would not be prepared to find that the plaintiff refused to undergo rehabilitation – I tend to the view that those failed attempts at rehabilitation more reflected his psychological state and what he believed about his injury, rather than a conscious desire to refuse treatment that would improve his condition.
[98]See exhibit “A” at page 60 DCB
211 Senior Counsel also submitted that the Court should find that the plaintiff has suffered a partial thickness tear and a Type 1 SLAP lesion and, indeed, as I have already recorded in this judgment, I accept that the compensable injury is that which was described by the MRI scans and, indeed, the findings of the orthopaedic surgeon, Mr Pullen, at surgery.
212 Significantly, in highlighting the difference between the parties, Senior Counsel for the plaintiff then submitted that the plaintiff continues to suffer from the effects of the organic traumatic injury to the right shoulder and subsequent surgery. In support of this overarching submission, reference was made to:
(a)The evidence of the treating orthopaedic surgeon, Mr Pullen, and, indeed, I have already referred to his opinion, when he last saw the plaintiff on 6 May 2015;
(b)The plaintiff attended the Dandenong Hospital on 20 November 2014 for chronic shoulder pain following the right shoulder surgery some two months earlier. At that time, he was treated with pain medication. He has been prescribed strong pain relief, including Feldene, Panadeine Forte and Gabapentin;
(c)That the general practitioner, Dr Karantonis, who commenced the treatment of the plaintiff in 2014 and, in particular, reference was made to his report dated 25 October 2018, wherein he says, among other things, that there is an ongoing organic basis for the right shoulder symptoms suffered by his patient based on clinical presentation, ongoing findings associated with radiological tests, confirming tendinitis and adhesive capsulitis;
(d)Reference was also made to the reports of Mr Chehata, Dr Blombery and Dr Mittal. Furthermore, it was submitted that the final opinion of Dr Thomas that the plaintiff is suffering a chronic pain condition fits with the diagnoses of Dr Mittal and Dr Blombery, although it was accepted that Dr Thomas, as I have already noted, does not articulate that it is general sensitisation (as do Dr Mittal and Dr Blombery);
(e)Mr Mighell also stressed that Mr Dooley acknowledges the concept of neuropathic pain and central sensitisation and that the evidence of Dr Mittal and Dr Blombery are to be preferred over that of Mr Dooley, as the former two are experts in the area, whereas Mr Dooley is an orthopaedic surgeon;
(f)Senior Counsel for the plaintiff submitted that the evidence of Dr Barton, the occupational physician who examined the plaintiff on 17 November 2017 should, “simply put … to one side”.[99] In support of such submission, Senior Counsel for the plaintiff made the following points:
(i)Dr Barton does not proffer a diagnosis other than the plaintiff developed “not-specific right shoulder symptoms”;
(ii)He does not comment upon the radiology (either pre- or post-surgery);
(iii)Dr Barton notes that the plaintiff’s condition has worsened, but that is “not physically based”. He forms the opinion that the plaintiff’s reduced right-arm weakness was “clearly feigned”. He was said to be the only medical practitioner to make such an observation, and it is against the weight of the medical evidence;
(iv)Dr Barton does not comment about the concept of chronic pain or central sensitisation. He finds no evidence of ongoing shoulder impairment or dysfunction and was of the opinion that the plaintiff could return to normal hours and normal duties. It was submitted that this opinion is against the weight of the medical evidence and should not be accepted.
[99]T163, L15
213 Ultimately, Senior Counsel for the plaintiff submitted that given the restricted movement in his right arm and shoulder, together with the associated pain, all brought about by an organic impairment of the right shoulder following the work injury, the plaintiff is incapable of returning to his old work or, indeed, any suitable employment. He submitted that it is also relevant that the plaintiff can neither read nor write in his native language, Dari, or English, and his only employment in Australia was for a period of seven months with the defendant, prior to which he had only ever worked as a panel beater in Pakistan, with no formal training. There is significant medical support that he is incapable of any work and could not be realistically employed in other areas. Reference was made to the treating general practitioner, Dr Karantonis, the medico-legal specialists, Dr Blombery and Dr Mittal, and Mr Chehata, in support of such submission.
214 After a consideration of all the evidence, I am not satisfied that the plaintiff has established, as a matter of probability, that the compensable right shoulder injury suffered by him has produced, in consequence, an organic impairment of the right shoulder with organic consequences.
215 Indeed, on the evidence before me, I consider the plaintiff has developed a significant chronic pain syndrome mitigated by psychological mechanisms contributed to by his tumultuous experiences in coming to Australia, his ongoing concerns as to his status in this country, and the undoubted concerns he would have about his family back in Pakistan. All these matters were referred to in the unchallenged evidence of Dr Entwisle.
216 If I be wrong, and there is some organic impairment in the right shoulder, I consider, consistent with the evidence of Mr Dooley, the development of a chronic pain syndrome (a psychological condition) dominates his clinical presentation (see generally Meadows v Lichmore Pty Ltd[100]).
[100][2013] VSCA 201
217 It must be understood that the occurrence of an organic injury does not necessarily result in an organic impairment. I refer to the Court of Appeal decision of Georgopoulos v Silaforts Painting Pty Ltd & Ors,[101] wherein the Court of Appeal (consisting of Osborne JA and J Forrest and Beach AJJA) stated at paragraph [49]ff:
[101][2012] VSCA 179
“49. The potential breadth of the notion of ‘an injury’ under s 82 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.”
50.In Barwon Spinners Pty Ltd v Podolak,[citation omitted] the Court of Appeal stated of s 134AB(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 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.’
51.As 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.
52.…
53.…
54.…
55.…
56.…
57.Section 134AB(37) provides:
serious injury means—
(a) permanent serious impairment or loss of a body function; or
(b) permanent serious disfigurement; or
(c) permanent severe mental or permanent severe behavioural disturbance or disorder; or
(d) loss of a foetus.
58.It can be seen that, in the first instance, serious injury is constituted by permanent serious impairment or loss of a body function. Such impairment or loss of a body function is not the same thing as impairment of a person as a whole. As the Full Court held in Humphries v Poljak in respect of the parallel provision in the Transport Accident Act 1986, the definition requires the identification of a body function and the assessment of the extent to which the body function has been affected … .
59.It follows that it is not the character of the injury itself which determines whether it is a serious injury but its consequences.[102] Section 134AB(38) then goes on to make ‘elaborate provision’[103] for the assessment of those consequences.”
(Footnotes omitted).
[102]Reference was made to Doolan v Rayners Sawmills Pty Ltd & Anor [2008] VSCA 219 at paragraph [71]
[103]Reference was made to Barwon Spinners Pty Ltd & Ors v Podolak (op cit) at paragraph [20]
218 Obviously, although a compensable injury is a necessary component to establish a “serious injury”, it does not follow that a compensable injury has the consequence of an organic impairment – although in some cases, say for example, an amputated leg – one could anticipate that the compensable injury (the loss of the leg) immediately gives rise to impairment.
219 I set out the following reasons for reaching the decision that I have in relation to any impairment that the plaintiff presently suffers:
(a)I again refer to the evidence of Dr Thomas, the consultant in rehabilitation and pain medicine, who consulted with the plaintiff on six occasions, commencing on 23 July 2015 and, lastly, on 29 November 2016. At his last consultation, Dr Thomas had what would seemingly be the last MRI scan of the right shoulder of the plaintiff, undertaken on 5 October 2016. That MRI scan records that there are no features of subacromial bursitis, no features of glenohumeral instability and no labral tear or chondral abnormality. It does record insertional subscapularis tendinopathy. Furthermore, Dr Thomas also noted that the MRI scan made no reference to capsulitis and, indeed, it was his opinion that he did not consider that the plaintiff had a true capsulitis, as external rotation, with some encouragement, was almost full. Furthermore, and in particular, Dr Thomas notes that the plaintiff had global restriction of movements in his shoulder secondary to pain, but he did not think this was due to any underlying problem with the shoulder per se – but, rather, was as a result of a chronic pain syndrome;
(b)The plaintiff underwent examination by the following doctors:
(i)The orthopaedic surgeon, Dr Boys, on 24 February 2015 and 30 October 2015. On both occasions, the plaintiff complained of diffuse chronic pain around the right anterior shoulder, upper arm, trapezius, scapula and base of the neck. Ultimately, Dr Boys was of the view that it was impossible, on clinical examination, to evaluate whether there was any specific ongoing right shoulder dysfunction because of inappropriate pain behaviours demonstrated by the plaintiff;
(ii)The rheumatologist, Dr Karna, examined the plaintiff on 11 October 2016. At that time, Dr Karna noted that the plaintiff had preserved muscle bulk around the shoulder girdles, upper limbs and had good muscle definition, stating his hands indicated ongoing use and use of the right upper limb. Although the plaintiff alleged no movement in any plane at the right shoulder, but passively (using his left arm to lift his right arm), he was able to achieve 60 degrees of abduction. Furthermore, the lightest of touch with one finger produced a pain response at the anterior, posterior and lateral aspects of the right shoulder and there was gross collapsing weakness in the entire right upper limb when compared to the left and sensory under examination was normal. Dr Karna was of the view that although he presents with symptoms, there were no objective physical findings of a soft tissue injury treated surgically that has now substantially resolved;
(iii)The occupational physician, Dr David Barton, who examined the plaintiff on 17 November 2017. At that time, the plaintiff complained of pain throughout the entire right upper limb and extending from the right side of the neck, through the shoulder, around the shoulder blade, down to the tips of the fingers. Furthermore, the pain allegedly affected the entire right half of his body occasionally, Furthermore, he complained that his shoulder movements were limited and any particular movement or activity involving the right arm increased his symptoms.
Examination revealed there was normal muscular contour over both shoulders with a normal keratinisation pattern of both hands and indeed, the circumference of the right and dominant arm had slightly greater muscle bulk than the left when measured above and below the elbows.
Specific examination of the right shoulder revealed widespread and diffuse tenderness that was quite marked, and there was a profound limitation of shoulder movements with abduction and flexion both limited to less than 30 degrees. At the examination, the plaintiff was very hesitant to move his arm away from his trunk.
Ultimately, Dr Barton could find no objective evidence of any ongoing shoulder impairment or dysfunction;
(iv)The orthopaedic surgeon, Mr Dooley, who examined the plaintiff on 25 October 2017, and on 14 November 2018. On the first occasion, the plaintiff would not permit Mr Dooley to examine the right shoulder, although it was noted that there was no obvious wasting at that time. The plaintiff complained of ongoing right shoulder girdle pain. When seen on the second occasion, Mr Dooley found the plaintiff well-muscled, with no wasting over the shoulder girdle musculature, and there was tenderness, generally, in this area. Active abduction and forward flexion were to 80 degrees, external rotation was to 40 degrees, internal rotation to 0 degrees, abduction and extension was to 10 degrees. There was a generalised reduction in power of the right upper limb, although sensation was intact.
As I have already recorded, Mr Dooley formed the opinion that the plaintiff had developed a chronic pain syndrome through psychological mechanisms which dominated his clinical presentation. Although he had significant restriction of active range of movement of the right shoulder, Mr Dooley noted this is a subjective and not an objective finding. Furthermore, Mr Dooley was of the opinion that there were inconsistent signs in relation to passive range of motion of the right shoulder.
Mr Dooley sets out in some detail the conclusions that he has reached and why he has reached them.
(v)I also refer to the Medical Panel examination which was undertaken on or about 6 October 2016. In part, the Medical Panel consisted of an orthopaedic surgeon and a general practitioner.
It is of significance, in my view, that the Panel, at that time, found the plaintiff had normal upper limb girdle contours and well-developed shoulder musculature bilaterally, with no evidence of muscle spasm, atrophy or wasting. At that time, the plaintiff had widespread pain to palpation at randomly selected points in a non-anatomical distribution throughout the right upper extremity. Assessing the range of movement at the joints of the right upper limb was difficult due to significant variation in both active and passive assisted movements.
The Panel noted that the plaintiff demonstrated substantially greater ranges of motion of the right shoulder, incidentally during the time spent with the Panel, compared to those where measurements were undertaken. The Panel considered that the measured ranges of flexion and abduction were not due to physiological factors, as a full range of flexion and abduction of the right shoulder joint caused weakness at other points in the examination. There was sensory loss to light touch circumferentially throughout the right arm in a non-anatomical pattern, and power in the right limb, although difficult to assess due to variable collapsible weakness, appeared to be within normal limits. Grip-strength testing was limited by collapsing weakness, and therefore unreliable.
At the conclusion of the examination, the Panel observed the plaintiff putting on his t-shirt, using a full range of abduction and flexion at the right shoulder joint.
The Panel ultimately recorded that the plaintiff had:
“… persistent right shoulder dysfunction following a soft tissue injury of the right shoulder, surgically treated and now substantially resolved, relevant to the accepted right shoulder injury”.[104]
Furthermore, the Panel concluded that the plaintiff was suffering from an adjustment disorder with depressed mood and a chronic pain disorder associated with psychological factors, and a general medical condition, partly arising from his workplace injury.
[104]Medical Panel Certificate of Opinion dated 6 December 2016at page 47 DCB
220 Generally, I consider that the various opinions expressed by Mr Dooley most closely accord with the evidence in this proceeding, and to that end, I largely adopt the medical opinions that he has proffered.
221 Partly on that basis and, indeed, the various other examinations to which I have referred, I reject the opinions given by Dr Blombery, Dr Mittal, Mr Chehata and the treating general practitioner, in relation to whether there is an organic basis to explain the variable restriction of movement in the right shoulder and the constant pain, which becomes very bad with use of the right arm or, indeed, movement of the right arm towards shoulder level. However, I also note the following in relation to each of those doctors:
(a)Dr Blombery examined the plaintiff on 20 September 2016, and again on 16 October 2018. At the time of the first examination, the plaintiff was complaining of “ongoing pain to the right shoulder radiating down the right arm to the hand” which was present “all the time”. The plaintiff rated such pain as “10/10” and that it had become gradually worse over the process of time. At that time, the plaintiff also had symptoms to the right side of his body, and also his right leg, which had been present for some months. At that time, Dr Blombery noted the plaintiff tended to hold his right arm relatively immobile against his upper abdomen, with the elbow fixed at 90 degrees, and was diffusely tender on pressure from the shoulder girdle and down the right arm, but did not follow any particular structures.
Mr Blombery concluded, at that time, that the ongoing complaint of pain the plaintiff complained of in his right shoulder had features of a non-specific pain syndrome, where there has been sensitisation of pain nerve pathways, both in the periphery as well as the brain and spinal cord, such that non-painful stimuli became interpreted by the cerebral cortex as being painful. He referred to this process as “central sensitisation”.
It should be also noted that Dr Blombery considered the plaintiff had developed significant secondary depression and anxiety, which was also compounding his experience of pain.
When seen again in 2018, Dr Blombery again obtained a history from the plaintiff of ongoing pain in the right shoulder, but less severe than when first examined. There was tenderness over the right shoulder and right trapezius relating to the neck and over the neck itself, together with pain in the right arm, extending to the mid upper arm, but not distal to that. There was also tenderness over the right scapula and limitation of movement of the right shoulder. At that time, Dr Blombery again confirmed his diagnosis in relation to the right shoulder and also noted that such process, which he termed central sensitisation, was an organic disorder of pain nerve pathways. He also noted that the symptoms in the right shoulder do originate from the pathology in the right shoulder, although noting that such pathology of the shoulder no longer needs to be present in such a situation;
(b)Dr Mittal examined the plaintiff on 15 October 2018, and at the time of that examination, complained of right shoulder pain to be constant and burning in nature, and rated it 6/10 on most occasions. In particular, he reported the entire right upper limb would go numb at night and would wake him up. He did not report any weakness in the right hand, but was unable to lift more than 2 kilograms due to the right shoulder pain.
Range of motion was restricted to active abduction of 80 degrees and forward flexion to 80 degrees, and passive movements beyond this were difficult to perform due to severe pain. External rotation was painful and restricted, and there was diffuse tenderness in the entire region of the right shoulder, particularly on the anterior aspect, although upper limb neurological examination was normal.
Dr Mittal noted that the plaintiff continues to struggle “with ongoing right shoulder chronic pain due to the development of a chronic pain syndrome” and as a result has suffered significant decrease in function and is psychologically distressed. Dr Mittal was of the ultimate opinion that the initial injury had not substantially resolved and that he had also developed a chronic pain syndrome secondary to persistent post-surgical pain, which is a process of sensitisation of the pain pathways.
222 In relation to the opinions proffered by Dr Blombery after his last examination on 16 October 2018, and the opinion proffered by Dr Mittal, who examined the plaintiff on 15 October 2018, I refer to the DVD film which was taken on various occasions, but in particular on 14 October 2018 (one day prior to the examination by Dr Mittal and two days prior to the second examination by Dr Blombery), and also on 17 October 2018 (two days after the examination by Dr Mittal and one day after the examination by Dr Blombery).
223 The film on 14 October 2018 revealed the plaintiff:
“… gesticulating which his right hand and raising his right arm to shoulder height on several occasions using his right arm to smoke a cigarette and holding his mobile phone to his ear with his right hand and talking into the phone from some period of time”.[105]
[105]See, generally, paragraph [139] of this Judgment
224 Furthermore, the film on 17 October 2018 showed the plaintiff unlocking and opening the driver’s door of a van with his right hand and arm, and later closing such van door with his right hand and opening and closing his vehicle with his right hand, the plaintiff agreed that he performed such activity without any apparent restriction.[106]
[106]See, generally, paragraph [13] of this Judgment
225 Also, Mr Dooley was forwarded various DVD material, including filming in August 2018 and October 2018. I refer to his letter dated 20 November 2018,[107] wherein he states:
“The DVD of August 2018 shows Mr Tawakuli walking comfortably with a normal arm swing. Early on in the DVD while talking to friends outside his home, he swings his right arm easily and without any obvious pain. He swings his right arm through a range of forward flexion and abduction greater than observed on formal clinical examination. He does not experience pain. Further on in the DVD, Mr Tawakuli walks through shopping centres etc. For a period of time, he engages in conversation on a mobile phone using his right hand to hold the phone near his ear. There is no sign of him having discomfort. To do this, one needs to hold the shoulder in a flexed position of ninety degrees or more. Throughout the DVDs he is animated and engaging with his friends. There is no evidence of him being down or having any difficulty in terms of using his right shoulder condition.”
[107]See exhibit “A” at pages 78A DCB
226 Bearing in mind such presentation so close to the clinical examinations by Dr Blombery and Dr Mittal, it does raise whether those doctors got an appropriate presentation as to the extent of pain suffered by the plaintiff and his restriction of movement of the right arm. It must be stressed that it is not only the actual actions depicted on the DVD footage, but seemingly, also, the ease with which the plaintiff performs such activities without any suggestion of pain or ill ease.
227 I should also add it is not clear how Dr Mittal or Dr Blombery reached the diagnoses they do – seemingly on the basis of the plaintiff’s complaints of pain and restriction of movement. That is not to say, of course, that such condition does not exist, as clearly, Mr Dooley, in his material, accepted that the condition is a recognised organic condition.
228 Although Dr Blombery considers that it is not necessary for the original pathology in the shoulder to be ongoing for the central sensitisation to be present, Dr Mittal, in part, proffers an opinion and refers to the original diagnosis made at and around the time of the initial surgery to effectively claim that there is an ongoing basis for his right shoulder symptoms.
229 If such opinion relates to the occurrence of the original shoulder injury giving rise to the injury as described by Mr Pullen, so be it. However, there would appear to be little evidence, if any, to support that he has got ongoing adhesive capsulitis, a labral SLAP lesion nor, indeed, any organically-caused restriction of movement in the shoulder.
230 I also point out that both doctors consider not only is the plaintiff totally incapacitated, taking his right shoulder condition alone, but also is incapable of working because of a cervical spine “injury”. It is not totally clear whether such opinion is based on some organic injury or because of what those doctors consider to be pain sensitisation in or around the neck. I might add, both the film and the discussion with Senior Counsel for the plaintiff did not suggest there was much ongoing problem with the neck.
231 Mr Chehata examined the plaintiff on 2 October 2018, and at that time the plaintiff complained of “ongoing and unremitting constant pain in the right shoulder, with radiation up into the trapezial musculature, and into the cervical spine”.[108] He described minimal pain on rotation of the cervical spine, but described anterior and anterolateral restriction in range of movement and ongoing shoulder pain. Again, this presentation must be compared to the video material, particularly on 14 October and 17 October 2018.
[108]Report of Mr Ash Chehata, dated 9 October 2018 at page 136 PCB
232 Mr Chehata also found normal muscle bulk, with no signs of wasting of the supra and infraspinatus tendons. There were no obvious signs of sensation loss or change in colour, and there was no intrinsic muscle wasting of the hands.
233 The plaintiff had normal tone and reflexes, although throughout any motion of the right shoulder he forces against, he is unable to relax, which is explained, through the interpreter, due to the severity of the pain. Mr Chehata noted that the plaintiff had diffuse pain coming from the shoulder and when taking off his clothes, when he barely used his right arm.
234 Again, Mr Chehata repeats the diagnosis of partial tearing of the supraspinatus and subscapularis, as diagnosed on arthroscopy by the treating surgeon, Mr Pullen, coupled with subacromial bursitis and the development of adhesive capsulitis. Of course, there would appear to have been no evidence of ongoing adhesive capsulitis from about 2016 or, for that matter, bursitis. Furthermore, Mr Chehata considers the plaintiff is suffering a “chronic pain syndrome”.
235 When queried as to whether there was an organic basis for the plaintiff’s right arm or shoulder symptoms, again, the plaintiff relied on findings on arthroscopy to support such a view which, as he then reports, has subsequently developed a chronic pain syndrome. It is not clear whether Mr Chehata, when he refers to a “chronic pain syndrome”, is referring to a pain syndrome, as described by Drs Blombery and Mittal, or some sort of psychological reaction to pain. If the latter, again, it is not clear as to where a chronic pain syndrome starts and stops in relation to his presentation.
236 Mr Chehata is also of the view that the plaintiff’s employment with the defendant led to an aggravation of multilevel cervical spondylosis that has contributed to the pain and incapacity, with the subsequent development of a pain syndrome. Mr Chehata considers that the plaintiff could not realistically be employed in the open marketplace as a result of his cervical spine injury alone, on the basis there has been “significant aggravation of degenerative cervical spondylosis and subsequent development of a chronic pain syndrome”. Again, this is in the face of seemingly free neck movement shown during the video, and the discussion of Senior Counsel for the plaintiff accepts that there was good movement of the neck.
237 In relation to the general practitioner, Senior Counsel for the plaintiff submitted that the opinion of Dr Karantonis, as expressed in his report dated 25 October 2018, says, among other things, that there is an ongoing basis for the right shoulder symptoms suffered by the plaintiff, based on clinical presentation and ongoing findings associated with radiological tests, confirming tendonitis and adhesive capsulitis. It is unclear what Dr Karantonis means about based on “clinical presentation” or “findings associated with radiological tests”. Indeed, as I have stated several times, there would appear to have been no evidence of capsulitis, either clinically or by the MRI scan undertaken on 5 October 2016. Furthermore, such MRI scan would suggest there were no features of subacromial bursitis and no labral tear or chondral abnormality. The MRI scan did note the insertion of subscapularis tendinopathy, again, noting there would appear to be no reliable or objective signs of such condition over various examinations undertaken by a host of doctors. Furthermore, for the reasons which I have already set forth, there is, in my view, some danger in accepting, at face value, the symptoms and restrictions relied on by the plaintiff.
238 Although accepting that this matter has not been free of difficulty (and as I have said earlier, not assisted by various doctors not being cross-examined), I consider that the application must be dismissed.
239 I will hear the parties on the question of costs.
Annexure “A”
1 The plaintiff tendered the following documents:
Exhibit 1
· Affidavits of the plaintiff sworn on 8 September 2013 and 13 November 2018.
(Such documents found at pages 1-6 and 23-27 of the Plaintiff’s Court Book (“PCB”)).
Exhibit 2
· The medical reports and/or letters from the treating general practitioner, Dr Anthony Karantonis, dated 30 November 2014, 16 February 2016, 21 April 2016, 14 November 2016 and 25 October 2018.
(Such reports found at pages 47-66 PCB).
· Medical reports and letters from the treating orthopaedic surgeon, Mr Christopher Pullen, dated 6 June 2014, 24 July 2014, 24 September 2014 (two reports), 2 May 2015 and 6 May 2015.
(Such reports are found at pages 70-80 PCB).
· Medical reports and letters from the treating rehabilitation and pain specialist, Dr Clayton Thomas, dated 10 November 2015 and 8 February 2017.
(Such reports found at pages 81-88 PCB).
· Dandenong Hospital Emergency Department discharge summary dated 20 November 2014.
(Such report found at pages 89-90 PCB).
· Pain Management Unit – multi-disciplinary assessment report.
(Such report found at pages 91-94 PCB).
Exhibit 3
· Ultrasound of the right shoulder undertaken on 27 March 2013
· Ultrasound-guided right subacromial bursal injection undertaken on 9 April 2013
· MRI scan of the right shoulder undertaken on 9 October 2013
· Ultrasound of the right shoulder undertaken on 17 December 2013
· Right-shoulder injection undertaken on 10 January 2014
· MRI scan of the right shoulder and cervical spine undertaken on 28 February 2014
· X-ray of the right shoulder dated 10 October 2014
· MRI scan of the right shoulder dated 15 April 2015
· Right shoulder hydrodilatation undertaken on 8 May 2015
· Ultrasound of the right shoulder undertaken on 19 September 2016
· MRI scan of the right shoulder undertaken on 5 October 2016
· MRI scan of the cervical spine undertaken on 5 May 2017
(Such documents found at pages 95-107 PCB).
Exhibit 4
· Medico-legal reports from the consultant physician and pain specialist, Dr Peter Blombery, dated 20 September 2016 and 22 October 2018
· Medico-legal report of the orthopaedic surgeon, Mr Ash Chehata, dated 9 October 2018
· Medico-legal report of the pain specialist, Dr Meena Mittal, dated 15 October 2018.
(Such reports found at pages 116-157 PCB.)
Exhibit 5
· Summary of Tax Returns of the plaintiff for the financial years ending 30 June 2013 through to 30 June 2018 inclusive.
(Such documents found at page 162 PCB.)
Exhibit 6
· Summary of the video material – handed up in Court in table format.
Exhibit 7
· DVD (not tendered on 27 November 2018 due to an oversight).
2 The defendant tendered the following documents:
Exhibit “A”
· Medico-legal reports of the orthopaedic surgeon, Mr Peter Boys, dated 24 February 2015 and 30 October 2015
· Medico-legal report of the rheumatologist, Dr Roy Karna, dated 11 October 2016
· Medical Panel Certificate and Reasons for Opinion, dated 6 October 2016
· Medico-legal reports of the orthopaedic surgeon, Mr Michael Dooley, dated 31 October 2017, 15 January 2018, 19 November 2018 and 20 November 2018
· Medico-legal reports of the occupational physician, Dr David Barton, dated 21 November 2017 and 16 January 2018.
· Medico-legal report of the psychiatrist, Dr Timothy Entwisle, dated 11 December 2017.
(Such reports found at pages 3-11 and 22-78 of the Defendant’s Court Book (“DCB”)).
Exhibit “B”
· Vocational Assessment Report dated 19 September 2017.
(Such report found at pages 79-102 DCB).
Exhibit “C”
· Consultation record of Dr Clayton Thomas, including various dates.
(Such record found at page 103 DCB).
Exhibit “D”
· Facebook material handed up in Court in chronological order.
Exhibit “E”
· Reports and correspondence from Ms Ellen Rugara – refugee health nurse (Cardinia) – dated 7 November and 13 November 2012.
(Such documents found at pages 113-114 DCB).
- - -
8
0