Tcha v Contract Glass and Aluminium Pty Ltd
[2013] VCC 1800
•22 November 2013 (Revised)
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-04820
| KOET KONG TCHA | Plaintiff |
| v | |
| CONTRACT GLASS AND ALUMINIUM PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 and 14 October 2013 | |
DATE OF JUDGMENT: | 22 November 2013 (Revised) | |
CASE MAY BE CITED AS: | Tcha v Contract Glass and Aluminium Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1800 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – left arm/shoulder; right arm/shoulder – pain and suffering and loss of earning capacity – relevant principles, whether left arm and/or right arm injury “serious”
Legislation Cited: Accident Compensation Act 1985, s134AB(38)(a)
Cases Cited: Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Hunter v Transport Accident Commission [2005] VSCA 1; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170; Kelso v Tatiara Meat Co Pty Ltd [2007] VSCA 267; Sabo v George Weston Foods [2009] VSCA 242; Lu v Mediterranean Shoes Pty Ltd (2000) 1 VR 511; R J Gilbertsons Pty Ltd v Skorsis (2000) 12 VR 386; Guppy v Victorian WorkCover Authority [2010] VSCA 164; Petkovski v Galletti [1994] 1 VR 436; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz [2012] VSCA 60; Acir v Frosster Pty Ltd [2009] VSC 454
Judgment: Leave granted for the plaintiff to bring common law proceedings for both pain and suffering damages and pecuniary loss damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A D B Ingram | Slater & Gordon Ltd |
| For the Defendant | Ms M Tsikaris | Lander & Rogers |
HIS HONOUR:
1 By way of Originating Motion issued on 5 October 2012, Koet Kong Tcha (“the plaintiff”) seeks leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985, as amended (“the Act”) to bring common law proceedings to recover damages for an injury to his right shoulder/arm (“the right shoulder injury”) and to his left shoulder/arm (“the left shoulder injury”) arising out of or in the course of his employment with Contract Glass and Aluminium Pty Ltd (“the defendant”) which commenced on or about 22 August 2000.
2 The plaintiff seeks leave for “pain and suffering damages” and “pecuniary loss damages” within the meaning of s134AB(37) of the Act in respect to the right shoulder injury and/or the left shoulder injury.
3 The plaintiff gave viva voce evidence and was cross-examined. Both parties tendered various documents.[1]
[1]See Annexure “A”
Relevant legal principles
4 The Court must not give leave unless it is satisfied, on the balance of probabilities, that the right shoulder injury and/or the left shoulder injury is a “serious injury” within the meaning of the definition of “serious injury” contained in s134AB(37) of the Act.[2]
[2]See s134AB(19)(a) of the Act
5 The plaintiff relies on paragraph (a) of the definition of “serious injury” contained in s134AB(37) of the Act, which reads:
“serious injury means—
(a) permanent serious impairment or loss of a body function …. .”
6 The parts of the body said to be impaired for the purposes of paragraph (a) is the right shoulder/arm and/or the left shoulder/arm.
7 In order to succeed, the plaintiff must prove on the balance of probabilities, that:
(a)“the right shoulder injury” and/or “the left shoulder injury” suffered by him arose or out of or in the course of or due to the nature of his employment with the defendant on or after 20 August 1999;[3]
(b)the right shoulder injury and the left shoulder injury and the resulting impairments must be “permanent” – that is, permanent in the sense that they are “likely to last for the foreseeable future”;[4]
(c)the “consequences” of the right shoulder injury and/or the left shoulder injury in relation to “pain and suffering” or “loss of earning capacity” must be “serious” – that is “when judged by comparison with other cases in the range of possible impairments be fairly described as more than significant or marked, and as being at least very considerable”.[5]
This test is sometimes referred to as the “narrative test”.
[3]Section 134AB(1) of the Act and Barwon Spinners Pty Ltd & Ors Podolak (2005) 14 VR 622 at paragraph [11]
[4]Section 134AB(38)(b) and (c) of the Act
[5]Barwon Spinners Pty Ltd & Ors Podolak (op cit) at paragraph [33]
8 In relation to “loss of earning capacity consequences”, the plaintiff has a specific burden[6] to establish:
(a)as at the date of hearing, he has a loss of earning capacity of 40 per cent or more, measured (subject to certain irrelevant exceptions) as set out in paragraph (f) of the s134AB(38) of the Act;[7]
(b)and after the date of hearing he will continue permanently to have a loss of earning capacity which will be productive of a financial loss of 40 per cent or more.[8]
[6]Section 134AB(19)(b) and (38)(b) and (c) of the Act
[7]Section 134AB(38)(e)(i) of the Act
[8]Section 134AB(38)(e)(ii) of the Act
9 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 or counted for the purposes of paragraph (c) of the definition of “serious injury”;[9]
(b)must make the assessment of “serious injury” at the time the application is heard;[10]
(c)must give reasons that disclose the pathway of reasoning in dealing with the evidence, and the issues raised by the application;[11]
(d)notes that s134AB(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), s134AB(38)(b) of the Act, a worker is entitled to have leave to bring proceedings for the recovery of “pain and suffering damages” only. The worker who satisfies the loss of earning capacity requirement of s134AB of the Act is entitled, as a “matter of statutory construction” to have leave to bring proceedings for both “pain and suffering damages” and “pecuniary loss damages”;[12]
(e)notes that it has been asserted that the question of whether an injury satisfies the narrative test is largely a question of impression or value judgment.[13]
[9]Section 134AB(38)(h) of the Act
[10]Section 134AB(38)(j) of the Act
[11]See generally Hunter v Transport Accident Commission [2005] VSCA 1 at paragraphs [23]-[36]
[12]See Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170 and in particular at paragraphs [60]-[64]
[13]See Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592 at 628; Sabo v George Weston Foods [2009] VSCA 242 at paragraph [67]
The issues
10 When queried as to what were the issues, counsel for the defendant advised the Court that there was no issue that the plaintiff had suffered a right shoulder injury and a left shoulder injury arising out of or in the course of his employment with the defendant. Furthermore, there was no issue that each of those injuries gave rise to some permanent impairment with some consequences.
11 However, the defendant contended that the consequences of any such permanent impairment in relation to the right shoulder injury and/or the left shoulder injury did not satisfy the requirements of the narrative test and in any event, the plaintiff was capable of earning more than 60 per cent of his without injury earnings. In essence, counsel for the defendant described the nature of the defence to be one which is generally referred to as a “range case”.
12 Both parties accepted that the right shoulder injury and the left shoulder injury could not be aggregated to establish a “serious injury”.[14]
[14]See Lu v Mediterranean Shoes Pty Ltd (2000) 1 VR 511
The evidence of the Plaintiff
13 The plaintiff gave evidence that he is a partial disability pensioner and that his affidavits sworn on 21 October 2011[15] and on 22 July 2013[16] were “true and correct”.[17]
[15]See Exhibit A at pages 40-45 Plaintiff’s Court Book (“PCB”)
[16]See Exhibit A at pages 45a-45b PCB
[17]Transcript (“T”) 16, L3
14 The plaintiff also confirmed that contrary to the impression given by his first affidavit, he ceased work with Toyota in 1994, after which he commenced a second language training course in English. He thinks he then performed work in another factory in Dandenong for a month or so in 1997 but could not recall the name of the factory. The plaintiff gave evidence that he vaguely recalled that such work did involve some “kind of work bending tubes”.
15 The plaintiff also gave evidence that he commenced “light duties” with the defendant in November 2003, after which he never returned to unrestricted duties. Such light dues included putting wax into the screws, sweeping floors, putting stickers on windows, putting rubbers in windows and doors and helping put some aluminium pieces together. Sometimes he was put in the front office where he was “subject to greater scrutiny”.
16 The plaintiff accepted that such description was a fair description of his duties and in answer to whether that was a job that someone else normally did, he responded:
“All I know is after I got injured, then they give me these duties.”[18]
[18]T 17, L24-25
17 By way of his first affidavit, the plaintiff gave the following pertinent evidence:
·He is a sixty-three-year-old[19] married man with one dependent daughter.
[19]Born in August 1950
·He was born in East Timor of Chinese extraction and attended school in East Timor to about the age of fifteen, after which he worked with his parents in a family retail business which specialised in groceries and Chinese medicines.
·He later travelled to Indonesia and Portugal, having refugee status during those periods, and ultimately migrated to Australia on 10 July 1984.
·His native language is Timorese Hakka and although he had some “spoken English, my English language skills are really very poor”.[20]
[20]See Exhibit A, page 41 PCB
·On arriving in Australia, he obtained employment on 30 July 1984 as an assembler at the Dandenong plant of GMH, and later Toyota.
·He commenced employment with the defendant as a process worker on 27 August 2000 and was not formally terminated until 30 November 2010.
·His work involved him in “reasonably heavy work, manual work which resulted in my placing undue strain upon my left and right shoulders, elbows and arms”. In particular, he states:
“My work involved me in the manufacture of heavy aluminium doors and windows. There was frequent drilling work to be done which requires lifting of these objects. I sometimes worked on the heavy drilling work for hours on end. The factory bench was at a height which meant that I had to lift the heavy items onto it. I had to raise my arms, more so my right arm in order to undertake any drilling from the work benches provided.”[21]
[21]Exhibit A, at pages 41- 42 PCB
·He recalls a number of injuries in the course of his employment with the defendant:
– a right shoulder and thumb injury during about April 2002;
– in 2003, he began suffering increasing problems with his shoulders, particularly the right shoulder, elbows and arms;
– he had a problem with his left thumb which developed as a result of performing assembly work.
·He first consulted his local general practitioner, Dr Lim, in Endeavour Hills in the 1990s in relation to upper limb problems and these were treated with acupuncture, physiotherapy and related anti-inflammatory and pain relieving medications.
·He then describes having “a few quieter years” before suffering further symptoms in or about 1997. He was referred to the orthopaedic surgeon, Mr Razif, who he consulted on 8 May 1998, and an ultrasound of his left shoulder taken at that time demonstrated a full thickness tear of the supraspinatus tendon.
·In 2002, his symptoms were becoming more prevalent as he attempted “to perform the duties which were required of me”. By 2003, he had persistent bilateral shoulder pain as well as low back pain.
·On 27 November 2003, he underwent an x‑ray of his shoulder which revealed no bony abnormality. On 4 December 2003, he underwent ultrasounds bilaterally and it is his understanding that such ultrasound revealed “partial tearing of the supraspinatus tendons bilaterally with some impingement upon abduction”.[22]
[22]See Exhibit A, at page 42 PCB
·He was referred to the orthopaedic surgeon, Mr E Edwards, and he administered steroid injections into both shoulders – the left shoulder on 2 March 2004. He later injected the right shoulder on 7 September 2004 and the left shoulder again on 16 November 2004. He found such injections of assistance at that time and was able to return to work on light duties working restricted hours, although he found he work continued to cause persistent symptoms.
·During 2005, he had an unrelated condition which required coronary bypass grafts to be inserted but he recovered well from that procedure.
·On 25 November 2006, he underwent a repeat ultrasound of his left shoulder which he understood to demonstrate a full thickness tear of the supraspinatus tendon.
·On 16 March 2006, because of persisting low-back pain which he had been suffering for some time as a result of his work, he underwent a CT scan of the lumbosacral spine where no disc herniation or any other significant abnormality was noted.
·In August 2004,[23] he was unable to perform his normal duties and was placed on light duties, working four hours a day, increasing gradually to six hours a day. He felt he was able to cope with those duties although they did lead to an increase in my level of symptoms when performing light tasks at work.
·His employment continued until 30 November 2010,[24] when he was advised by the defendant that there were no more light duties available to me and he was dismissed.
·After being put off work, he continued to attend Dr Lim who has continued to prescribe him unfit for work by reason of his injuries. He notes that at various times he has been certified fit for light duties but presently is certified unfit for all work.
·Dr Lim also prescribes medications for his use including anti-inflammatory Voltaren medication, although he has been restricted in the types of medication which he is able to use by reason of his coronary condition.
·He believes that having regard to his age, linguistic limitations and restrictions in vocational skills, that he would have difficulty returning to the workforce in the future. He believes that he has suffered a significant financial loss, as if he had not been injured he would have continued to work until he was at least 65 years of age.
·His social, domestic and recreational activities have also been restricted as a result of the injuries that he suffered. In particular, he finds it painful if he places too much strain upon his right upper limb and therefore avoids activities which cause such strain, including lifting of object, avoiding mowing of lawns and other household tasks which are now undertaken by his wife. Vacuuming and other household chores are handled by his wife.
·He finds the best way to avoid any increase in the level of symptoms which he is suffering, is to avoid placing undue strain upon those parts of the body.
[23]Later evidence established this to be in about November 2003
[24]As later evidence demonstrated, this was the date when he was formally terminated but he ceased performing any work with the defendant in or about August 2004.
18 By way of his second affidavit, the plaintiff gave the following pertinent evidence:
·He continues to have severe shoulder restriction of movement affecting both shoulders. He has difficulty lifting his arms above his head because of severe pain and the shoulders are restricted and somewhat frozen.
·The pain he is now experiencing in the left shoulder is more serious than the right shoulder, however, both shoulders give me a lot of pain.
·He still does have symptoms of low back pain when sitting for long periods and he has developed some knee pain as well, such that his mobility is somewhat affected now – however these problems would not prevent him from working.
·He continues to see his general practitioner, Dr Lim, on a monthly basis but is unable to take anti-inflammatory medication because of gastric problems.
·However, he does take Panadol and Panadeine that he purchases for the pain on a regular basis. He has also purchased a massage machine which enables him at the end of the day to massage the shoulder area. He has also purchased arthritis aid cream and Voltaren gel and rubs the gel into his shoulder joints at the end of each day.
·Certain activities involving the use of his arms cause increased symptoms – for example, he has attempted on a couple of occasions to mow the grass in the back of his house, which is a job that his wife usually struggles with. Mowing the lawn does cause pain because of the action of holding his arms outstretched and pushing the mower backwards and forwards to mow the lawn.
·The pain he experiences is more severe at night and he has difficulty sleeping and must change his position frequently because of the symptoms of pain that he experiences in his shoulders.
·Sometimes he wakes in the middle of the night with his hands falling asleep and he sometimes has pain in his right arm and elbow which radiates down to the middle finger and there is pain and numbness there from time to time.
·He continues to receive a part disability support pension which he believes commenced on 22 May 2007 and his wife continues to work.
·He confirms that after his “initial period of incapacity” he resumed employment with the defendant on limited hours initially and on light duties and continued working until 30 August 2004. He was unable to continue “because of the light duties were withdrawn by my employer”.[25]
·He then continued to received WorkCover payments until approximately mid-January 2006, after which he commenced receiving Centrelink benefits – initially the Newstart Allowance and later onto the Disability Support Pension.
·Following his “heart attack” he was operated on 7 November 2005 and such operation was a “success”, leaving his heart in good condition although he has been advised not to take anti-inflammatory medication.
·His English reading, writing and comprehension is not of a good standard and he has difficulty understanding telephone conversations. He is better with basic conversational English conducted face to face.
·Prior to the development of “my injuries” he loved participating in recreational fishing but since developing his painful shoulder problems, he no longer goes fishing.
·He also enjoyed playing table tennis socially, but this activity has ceased since the onset of “my shoulder problems”.
·As to capacity, he states:
“Accordingly, by reason of my physical condition and my language problems, I believe that I am totally unable to return to any form of employment for which I am reasonably trained and accordingly we request this honourable Court to grant me a serious injury …”[26]
[25]See Exhibit A, at page 45b PCB
[26]See Exhibit 3, at page 45b PCB
The cross-examination of the Plaintiff
19 Under cross-examination, the plaintiff gave evidence that he worked for a company for about one month, making shoes but he could not recall the name of the company but remembered it was situated somewhere in Dandenong. He confirmed that that was the only company he worked for after leaving Toyota before commencing employment with the defendant in August 2000.
20 Over the period between 1994 to 2000, he undertook English courses at various times which he believes were undertaken in a TAFE. When queried about his English studies, the plaintiff gave the following evidence:
“Q: Did you do this for a couple of weeks, or a year or - - - ?---
A: I remember I was doing about 20 hours per week and after I think I reached 500 hours, then they say I have to stop, and then somehow they would get me back on a different program.
Q: Can you speak English to me now?---
A: It was basic conversation. Yes, I could understand but if you were talking to me in very differing kind of technical talk, I wouldn’t be able to understanding you.”[27]
[27]T19, L20-28
21 The plaintiff also confirmed that he was able to read numbers and read weights. After actually ceasing work in late 2004, the plaintiff confirmed that he was referred to an organisation to help him find alternative work. In particular, he confirmed that he was sent for various interviews but “didn’t get accepted”. The type of work that he was applying for was process work but the plaintiff commented:
“Yes, but as soon as they see I was on WorkCover they said ‘No’.”[28]
[28]T22, L24-25
22 When it was suggested to the plaintiff that by looking for such work he had a capacity to do some type of work, he stated:
“A: Yes, because I also want to give it a try because I thought since I'm given this opportunity, I'll take it and see whether it’s possible.
Q: After the rehabilitation people stopped helping you, did you make any effort yourself to try and find any work?---
A: I have to try but no success.
Q: Could you tell us about those attempts, please?---
A: Because basically I was illiterate, so had to ask other people to help me find, a newspaper, if there was jobs available and I would try to contact whichever potential employer.
Q: Who have you tried to contact?---
A: I can’t remember.
Q: How long ago was the last time you tried to contact someone or a company?---
A: I think it was Centrelink also assisted me through this place called CRE - - -
Q: CRS?---
A: Maybe, it’s CRS, I can’t remember the exact name but they try, also no success, and then they send me to physio and then later they put me on part pension.
Q: Are you receiving the Newstart allowance or is it disability
pension?---
A: I think it was start in 2007.”
23 The plaintiff gave evidence that he also experiences back pain which causes difficulty sitting for long periods of time, and also he experiences problems with his knees, which causes him to hang onto a rail when going up steps. When it was put to the plaintiff that his general practitioner had recorded:
“In May 1999 he complained of right tennis elbow and left shoulder pain. All this time he was working lifting heavy glass panes.”[29]
[29]T23, L6-24
The plaintiff gave the following evidence:
“A: That type of work you just described what I used to do at Toyota in 1990. 84 to 94 I worked at Toyota, Holden Toyota.
Q: What Dr Lim has is a record of you complaining in May 1999 of right tennis elbow and left shoulder pain, she says in her report, ‘All this time he was lifting heavy glass panes’ Were you working in May 1999 with heavy glass panes and lifting heavy glass panes?---
A: No, in 1999 I wasn’t working so.
Q: Are you sure you weren’t working in 1999?---
A: I am very certain that I wasn’t working in 1999 but I know that in 2000 I then started working at aluminium factory.”[30]
[30]T25, L22 – T26, L2
24 When again queried about his ability to speak English, the plaintiff stated, in part:
“A: … I can understand some English because of the historical context but it is not my first language. My first language is actually Hakka, and I can understand some Portuguese because I lived in Portugal for a short period of time.
HIS HONOUR:
Q: Yes but is it true to say also, isn’t that - - -?---
A: I lived in Timor as well, so I have picked up some Portuguese. Again, with the Indonesians because of the invasion so I picked up some Indonesian but that is not my first language. I won’t say that my (indistinct) language is even fluent. I can understand some but not fluent.”[31]
[31]T31, L2-13
25 Various questions were posed to the plaintiff in relation to any problems that he may have had with his right or left shoulder prior to commencing with the defendant, to which he largely responded that he could not remember. In particular, the following evidence was given:
“HIS HONOUR:
Q: Can I ask you this, Mr Tcha: before you stated work with Contract Glass in 2000, had you ever had problems with your left
shoulder?---
A: I can’t remember exactly, but it’s possible because I did work in other places.
Q: But you told me you only worked in one place ,the Toyota Holden place and maybe another month; isn’t that right?---
A: Yes, when I first arrived in Australia, I worked at Holden Toyota from 84 to 94.
Q: I will ask you again: prior to 2000 what do you say your left shoulder was like?---
A: I can’t remember any more, but obviously if I had pain, I will go and see the doctor. If I didn’t have any pain or no issue, I wouldn’t go and see the doctor.
Q: How, about your right shoulder before 2000? Had you any problems with your right shoulder?---
A: I can’t remember either.
Q: When you say you can’t remember before 2000, are you saying you can’t remember if you had any problems at all with your left or right shoulder, or can’t remember what type of problems you might have had?---
A: I can’t remember the date but obviously I have been experiencing pain, that is why I would go and see the doctor.”[32]
[32]T33, L26 – T34, L17
26 When it was put to the plaintiff that the records would suggest that he attended a specialist, Mr Razif, in about 1998 and who gave him a local anaesthetic, he initially stated he did not remember, but when pushed, the plaintiff sated:
“A: Yes, I remember having injection in the past on both shoulders.”
Q: Yes. When do you remember that occurred?---
A: I don’t remember the date - - -
…
MS TSIKARIS:
Q: And the reason why you had that injection, Mr Tcha was not because you wanted a second opinion, but because you were in a lot of pain. Isn’t that right?---
A: I trust the doctor’s judgment. I don’t ask for injections. The doctor’s opinion that I should have the injection.
Q: And the injection was designed to make your left shoulder better, isn’t that right?---
A: Yes, I guess that’s the intention of the medication but it did not last long.
Q: And you continued to be in pain right up until you started work with Contract Glass. Isn’t that right?---
A: I don’t think it was so painful to the point that – otherwise I wouldn’t be able to start work.”[33]
[33]T35, L19 – T36, L5
27 When it was also put to the plaintiff that Dr Lim recorded in December 2000 complaints of right elbow pain and tennis elbow for three months, the plaintiff responded that he was in pain but he could not remember what date he went to see the doctors.
28 When queried as to what he uses to relieve the pain in his shoulders, the plaintiff responded “Panadol” and a machine just to massage the area together with ointment. The plaintiff gave evidence that he takes two tablets of Panadol when he finds the pain “unbearable” or when the pain is causing him to stay awake. The plaintiff gave evidence that he was experiencing pain then and that he experiences pain every day. When queried as to where he was experiencing pain, the following evidence was given:
“Q: Just so we identify it, just (indistinct) please. Left shoulder?---
A: And the shoulder blade area.
Q: The shoulder blade area, yes. Where else?---
A: Left elbow.
Q: Left elbow?---
A: Arm.
Q: Left upper arm?---
A: And the back as well.
Q: Which part of the back? The low back, yes?---
A: I've also got sore legs.
Q: Where are your legs sore?---
A: Knee.
INTERPRETER:
I think he’s pointing at both knees.
HIS HONOUR:
Q: Both knees?
INTERPRETER: Yes.
HIS HONOUR: Both knees are sore?---
A: Yes.
Q: Where else do you feel pain?---
A: The right shoulder and the right upper arm, but the left one is worse than the right. The right one depends on which movement. If I've been doing that ‑ ‑ ‑
Q: Pain in the right shoulder and I think up the elbow again; is that correct?---
A: Yes.
Q: Also the right upper arm?---
A: Again the right shoulder blade. Because some of the pain now spreads to the neck area.
Q: So pain in the neck, yes?---
A: And the middle of the shoulder near the join to the neck, both sides.
Q: Does that cover the areas?---
A: Yes.”[34]
[34]T38, L11 – T39, L2
29 When queried as to when he last took Panadol, the plaintiff responded “a few days ago” and when queried as to when before that, the plaintiff stated:
“Usually – I don't recall, but usually if I have the pain kind of more frequent, then I will take Panadol. It's embarrassing to say this, but I'm actually someone who's afraid of medicine, so if I could avoid taking it, I would, and secondly because of the heart condition, I try not to take too much medication, but when I'm in pain, I will take it.”[35]
[35]T41, L25-31
30 The plaintiff gave evidence that he believed that he had bought Panadol on two occasions during this year and on each occasion the purchase consisted of two boxes and inside each box there were 48 tablets. In particular, the plaintiff stated that he needed “to clarify” that the 96 tablets were not all for him but also for other members of his family as when they require Panadol. The plaintiff accepted that when he attended a variety of doctors for the purpose of this case, he did present a list prepared by someone else of all the medication that he takes and such list did not contain Panadol.
31 In particular, the plaintiff accepted that when he was sent to the orthopaedic surgeon, Mr Khan, for medico-legal purposes, he was asked by Mr Khan what medication he was taking for his shoulders. He did not mention anything about Panadol or Panadeine. In particular, the plaintiff stated:
“Because it's not a medication I take on a regular basis. Not every day. Only when the pain is unbearable, so I didn't mention it to him.”[36]
[36]T45, L17-20
32 The plaintiff stated that he has “never said the pain is always unbearable. Sometimes it’s just a mild pain”.[37]
[37]T45, L23-24
33 The plaintiff gave evidence that he uses a massage machine to massage his shoulder, back and also his legs. He purchased two machines for himself some years ago. The plaintiff stated that “basically” he uses the machine whenever he needs a massage and feels “uncomfortable”.
34 When queried about his sleep, the following evidence was given:
“Q: Is your sleep affected as a result of your shoulders, Mr Tcha?---
A: Yes. When - if I find that one side is getting too painful, then I will swap side.
Q: Is that a frequent thing or is that just an occasional thing?---
A: No, not every night. It's only sometimes because nowadays I can pick up already, ‘This is not a comfortable position,’ I quickly turn because otherwise the next day I will have a lot of pain.
Q: Would you say though that generally you sleep soundly?---
A: No. Sometimes yes, I have good sleep. Sometimes no, especially when I have the pain. That would affect my sleep.
Q: But generally what would you say the position is with your sleep?---
A; I would say in general, yes, good.”[38]
[38]T48, L16-29
35 When put to him that Dr Kaplan reported in August 2013, “He generally sleeps well unless he is faced with a major problem. He enjoys an active social life. His libido is intact”, the plaintiff accepted he made such a statement.[39]
[39]T49, L8-10
36 The plaintiff gave evidence that he last played table tennis at the place where he was making tubes in the late 90s. However, he did continue playing table tennis when working for the defendant and played with colleagues during lunchtime.
37 When asked whether he continues to play table tennis since ceasing with the defendant, the plaintiff commented that he does not have the table tennis table at home and that “my friends don't have either and I don't really socialise, go out to places to play table tennis”.[40]
[40]T50, L15-16
38 The plaintiff owns and drives a car.
39 The plaintiff has not had any physiotherapy since about 2006 or 2007 and the physiotherapy at that time was arranged by Centrelink. Before his heart condition he could not remember how many Panadol or Panadol Osteo he took but if he was in pain he would take it. When asked whether he was taking Panadol or Panadeine for any pains in his shoulders prior to starting work with the defendant, the plaintiff stated:
“I don't think that I took it that often. I don't think I did. I'm sorry, it's just been too long. Just some things happen too long ago.”[41]
[41]T52, L4-6
40 The plaintiff gave evidence that he practises Ch’i Kung which is just a breathing exercise and involves meditation. In general, he performs such activity for about one to one and a half hours each morning, although sometimes he will perform such activities lying down and only perform for 10 to 15 minutes. When pressed, he believes he probably does it three times a week.
41 The plaintiff gave evidence that he would go to parties if invited, goes for walks and shopping. In particular, the plaintiff gave evidence that he enjoys “spending time with people”.[42]
[42]T53, L21
42 When queried about when he last went fishing, the following evidence was given:
“A: I think it's a long time. I think since - I have not been to any fishing trip since I work - I left work.
Q: Was that with Contract Glass?---
A: No. Probably I stopped fishing maybe after I left Toyota, I think.
Q: So before you started with Contract Glass, is that right?---
A: That's right. I've already stopped gone fishing.”[43]
[43]T53, L22-28
43 The wife of the plaintiff works five days a week as a regular casual and his daughter is 18 years old and attends Year 12 at school.
44 The plaintiff gave evidence that during the day he would take his daughter to school and then come home, practice Ch’i Kung and then get lunch for himself and in the afternoon he would pick up his daughter but often he would drive her to a shopping centre. He does not do any cooking at home as his wife has prepared food for him which he has warmed up.
45 The plaintiff gave evidence that when his wife does go to work he would put washing in the washing machine or wash the plates and “things like that”. In particular, the plaintiff stated:
“Even if it causes pain, I would still help her.”[44]
[44]T255, L8-9
46 The plaintiff also stated that he does probably more housework now than before 2006 and this is brought about in part by the death of his younger brother who used to live with them.
47 The plaintiff accepted that he does perform lawn mowing but only when his wife does not have the time to perform such activity, and if he does perform it, he breaks it up into two “lots” because he needs to stop and rest.
48 When queried by the Court as to what actual light duties he was performing when employed by the defendant, the plaintiff stated:
“One person which saw the – one person would cut the rubber and then I will help that person carry off and put on the floor and also I put this rubber into the aluminium. So two of us doing that job. Sometimes I sweep the floor. Sometimes I would go and clean up the canteen, sometimes refill all the toilet rolls, but I was – I didn’t have to clean the toilet, but I just sweep the floor. I remember the sweeping side very well because at the time due to my heart condition sometimes I had to stop because I felt my heart was beating a bit unusual.”[45]
[45]T56, L18-28
49 The plaintiff could not recall taking any time off work as a result of his shoulder injuries and further asserted that when he commenced to perform light duties, sometimes he worked four hours and sometimes only five hours a day.
The re-examination of the Plaintiff
50 Under re-examination, the plaintiff was again queried in relation to the type of work he performed on “restricted duties”, to which the plaintiff stated:
“Other duties included in the morning my first duty I had to do was check all the toilets, make sure that all the toilet rolls are replaced, and then just wipe the bench top and all that, and then after lunch, I would then have to go and inspect all the toilets again just to make sure that, you know, where necessary replace, items to replace and also clean the bench top. In between I also helped – what I mentioned before – the other co-worker in terms of putting rubber strips into the aluminium, as well as sometimes I put weights on the screws. I also swept the floor.”[46]
[46]T60, L28-261, L7
51 The plaintiff also gave evidence that he could not recall any other person doing the type of duties he was performing when undertaking restricted duties.
52 The plaintiff gave evidence that because of his coronary condition he is “basically afraid to use” any medication which can have a negative “implication to my heart”. In particular, the plaintiff stated that he tried to avoid any chemicals “inside me” and accordingly, if he is in pain, he tends to use ointment and will only take tablets if the pain is “really unbearable”. When queried by the Court, the plaintiff said he would be “definitely” taking more painkillers if he did not have his cardiac problem.
53 The plaintiff described that he does use ointments, which he applies to the painful areas, Chinese treatment involving “cupping over the shoulders” (which gives some temporary relief), and has also used a TENS machine over the affected areas (which gave relief for about two to three days).
54 When queried as to whether or not he considered himself capable of performing the type of light duties that he had been given by the defendant towards the end of his employment, the plaintiff stated:
“I think now that with these injuries as well as just being old age I don’t think I can perform these duties anymore.”[47]
[47]T67, L7-9
55 The plaintiff stated that even when performing the light duties, he was experiencing a lot of pain in his shoulders but he “had to continue because otherwise I would lose my job”.[48]
[48]T67, L22
56 The plaintiff accepted that he thought there may be lighter duties that he could perform if he could read or write because “usually light duties means that you need to read or write”. Furthermore, the plaintiff stated that with his age as well as his health he considers that his choices are “quite limited”.
57 In re-examination, the plaintiff was queried as to his leave as to whether he could perform any of the jobs referred to in a vocational report relied on by the defendant:
(a) when queried about his ability to perform work as a “hand packer”, the plaintiff gave evidence that such a job would be “impossible” because it involves a lot of lifting and the other “practical issue” would be that it requires him to read and write English;
(b) when queried about his capacity to perform work as a “general process worker” which was said to involved “repetitive work of manual handling”, the plaintiff was of the opinion that he could not perform such work;
(c) that he could not perform work involving a cash register because he was not able to read effectively;
(d) when queried about his capacity to perform work as a “product assembler”, the following evidence was given:
“Q:…What about a product assembler where you have to sit, stand and lift products which you are assembling? What do you say about lifting products to assemble them having regard to your shoulders?
A:That requires a lot of movement of my shoulders. I don’t think that’s good.
HIS HONOUR:
Q:Do you think you could work at a bench if you were sitting down and working at a bench, like in front of me, and putting things together?
A:Sitting down too long also causes pain in my back.
Mr Ingram:
Q:Can I just ask you, sitting at a bench, let’s just say you had to put a thousand things together in an hour, moving around side by side assembling things, would you be able to do that with your shoulders?
A:No, because to move in this movement actually causes a lot of pain. Just now it is already causing pain.
Q:As a machine operator – 241, Your Honour – machine operator measure and load materials into machines. You have to be able to lift, it says down the bottom, ingredients for mixing into a machine and feeding mechanism. Are you able to lift products into machines so that you can operator a machine?
A:I don’t think it’s possible either.
Q:The last thing they have got here is quality control operator and the first thing on the list is ‘study product specification’. Would you be able to read a product specification sheet so you could be a quality control operator?
A:I can’t read so it’s going to be a problem.”[49]
[49]T69, L1-28
58 The plaintiff gave evidence that he would be unable to play table tennis as he did because of his shoulder problems and that his car driving is limited because of pain. In particular, short distances, such as taking his daughter to school, is “bearable”.
59 When queried about an impact on his social life, the plaintiff accepted that if he sees his friends he talks to them. At the moment he does not socialise with people as much because he feels “down”. That he does not really want to mix with people. When pressed, the plaintiff stated that he gets irritated and impatient because of the pain in his shoulders.
60 When queried by the Court, the plaintiff considered that he had some pain in his left shoulder but not his right shoulder prior to commencement of his employment with the defendant in August 2000.
61 When asked to compare the “extent or severity of the pain of the left shoulder” prior to him commencing employment with the defendant to the time when he finished actually working with the defendant, the plaintiff stated:
“A:I think that now is since 2003 it’s actually worse, especially some movement now would cause more pain when in the past it didn’t.
Q: That’s by 2003?---
A:I think the difference is like in the past before 2000 and could still mow the grass and all that, but now I can’t. It would cause pain.”[50]
[50]T77, L4-9
62 The plaintiff gave evidence that prior to his commencement of employment with the defendant he would rate his pain in the left shoulder as 2/10, whereas after 2004 he would rate his pain as sometimes reaching 10.
The radiological evidence relied on by the Plaintiff
63 The plaintiff relies on the following radiological studies:
(a) x-ray of the right shoulder and humerus undertaken on 27 November 2003,[51] The radiologist concluded:
[51]Exhibit B, PCB 46
“Normal right shoulder and humerus”
(b) x-ray of the left shoulder.[52] The radiologist concluded:
[52]Exhibit B, PCB 46
“Normal left shoulder”
(c) Ultrasound of the shoulders undertaken on 1 December 2003.[53] The radiologist concluded:
[53]Exhibit B, PCB 47
“There was a partial tear in the supraspinatus tendons bilaterally. There was also impingement on abduction.”
(d) Ultrasound of left shoulder undertaken on 24 January 2006.[54] The radiologist concluded:
[54]Exhibit B, PCB 48
“The examination of the left shoulder revealed what was felt to be a full thickness tear, in relation to the supraspinatus tendon, measuring approximately 0.94 centimetres and approximately 1.4 centimetres from the tendon of the long head of the biceps. There appeared to be a concavity associated in the region of the tear and also undermined bone irregularity … .”
(e) Ultrasound of the right shoulder undertaken on 30 January 2006.[55] The radiologist concluded:
“Fluid appeared to be present in the vicinity of the tendon of the long head of the biceps which in itself was considered to be non-specific. As such, the examination did not reveal a specific abnormality to be able to diagnosis tendonitis or bursitis. Nor was a tear noted in relation to the supraspinatus tendon.”
[55]Exhibit B, PCB 49
The medical evidence relied on by the Plaintiff
64 The plaintiff relies on medical reports from his treating general practitioner, Dr Jenny Lim, dated 26 August 2005, 10 March 2006, 20 December 2010, 25 January 2013 and 26 July 2013.[56]
[56]Exhibit C, PCB 51-57
65 In respect to treatment for his shoulder conditions prior to his commencement of employment with the defendant, Dr Lim reports:
(a) the plaintiff consulted her on 28 April 1990 complaining of left shoulder pain and on 16 August 1990, he again complained of left shoulder pain which he attributed to lifting heavy window panes at Toyota on 9 August 1990. Dr Lim notes that his rotator cuff muscles were tender to touch and he had limited movement of his “right shoulder”.[57] Dr Lim treated him with Voltaren (although he was unable to tolerate this as it upset his stomach), physiotherapy and some acupuncture;
[57]It is possible that the doctor was referring to the left shoulder, given that there had been no recorded complaint of right shoulder pain at that time.
(b) according to Dr Lim, the plaintiff complained on and off from left shoulder pain and in 1993 his “right and neck” started bothering him;[58]
[58]I have assumed that the reference to “right” is his right shoulder
(c) on 1 November 1997, Dr Lim records that the plaintiff informed her that he was pulling on the machine and bending tubes at “Bundy Australia” when his left shoulder started to “trouble him again”. An x-ray at that time showed sclerosis at the inferior margin of his subacromial space suggesting the possibility of impingement;
(d) on 20 November 1997, Dr Lim recorded that the plaintiff complained of pain in his right chest, hand, hypochondrium, left wrist, from bending tubes at work;
(e) Dr Lim notes that the orthopaedic surgeon, Mr Razif, examined the plaintiff on 8 May 1998 and at that time an ultrasound of his left shoulder showed a full thickness tear of his supraspinatus tendon for which he had a local anaesthetic and steroid injection in the left shoulder and “felt better after that”;
(f) in May 1999, Dr Lim records the plaintiff complained of right tennis elbow and left shoulder pain and notes that at that time he was “working lifting heavy glass panes”;[59]
[59]The reference to working at that time lifting heavy glass panes may be a mistake, given that the plaintiff did not start with the defendant until August 2000
(g) on 15 April 2002, Dr Lim recorded that the plaintiff informed her that he had acupuncture for the past year and that had not been effective and also he was complaining that his right shoulder was painful. Examination at that time revealed he had a trigger left thumb and a lacerated right index finger;
(h) on 27 November 2003, Dr Lim records that the plaintiff complained of persisting bilateral shoulder pain and low back pain and that he was advised not to do repetitive drilling and heavy lifting. He had an ultrasound of the shoulder which showed partial tear of his supraspinatus tendon bilaterally and impingement on abduction;
(i) in 2004 he was referred to the orthopaedic surgeon, Mr Edwards, for management of his shoulders and he underwent steroid injections into both shoulders, after which he returned to light duties on graduated hours;
(j) on 15 July 2004, Dr Lim records that the plaintiff complained of more pain in his shoulders and was working six hours alternative duties “with difficulty”. Dr Lim also recorded on 30 August 2004 that the plaintiff ceased work on 27 August 2004 after being advised by management that there were “no light jobs” for him;
(k) in September 2004, Dr Lim records that he again attended the orthopaedic surgeon, Mr Edwards, and had further injections into his shoulder joints and also continued to have physiotherapy twice per week;
(l) on 16 November 2004, his left shoulder pain was persisting and he could not lift his hands above shoulder height, resulting in him having a further injection on 16 November 2004.
66 Dr Lim also notes that the plaintiff was diagnosed with cardiac disease and underwent five coronary bypass grafts on 7 November 2005.
67 Repeat ultrasounds of his left shoulder in January 2006 revealed a full thickness tear of the supraspinatus tendon and there was fluid on the long head of the right biceps.
68 Dr Lim notes that the plaintiff was “very upset” when his active employment ceased on 27 August 2004 and since then he has had physiotherapy and rehabilitation services to assist him to return to work but no suitable work had been found.
69 In her report dated 25 January 2013,[60] Dr Lim states, in part:
[60]Exhibit B, PCB 56
“…Mr Tcha’s condition remains much the same. He complains of bilateral shoulder pain from the tears of the supraspinatus tendon. He does not sleep well because the pain wakes him up. He has also low back pain and right knee pain.
His employment was a significant contributing factor to his injury. He has to lift heavy things and drill frames at work.
He has no capacity for work. He cannot lift above shoulder height and he cannot lift heavy things. This is related to the injuries that arose out of the employment.
He continues to take analgesics and anti-inflammatories very sparingly because of epigastric discomfort. He sometimes has Chinese treatment using cupping over the shoulder. He also uses the TENS machine. Sometimes he has relief but other times the pain is extremely bad.
The prognosis is poor. He is totally and permanently incapacitated.”
70 I also refer to the report of Dr Lim dated 26 July 2013[61] wherein she states, in part:
“…Mr Tcha still complains of bilateral shoulder pain, left worse than right. He describes the pain as needles prickling his shoulders. He is unable to lift above shoulder height. He is also unable to lift heavy things because of his lower back and shoulder injury. He does not sleep well because the pain wakes him. His wife has to mow the lawn. When she is too busy he tries to do it but is are always limited by pain.
He is hesitant to take analgesics and anti-inflammatory medication because of epigastric discomfort and possible detrimental effects on his hypertension and renal function. He continues to use topical patches, massages and cupping for pain relief. He takes Paracetamol when the pain is excruciating and he could not withstand it anymore.
Mr Tcha’s prognosis is poor. He would not be able to return to the work force. His employment was a significant contributing factor to his injury.”
[61]Exhibit B, PCB 57
71 The plaintiff also relies on a report from Associate Professor Edwards dated 20 January 2013.[62] In that report, Associate Professor Edwards notes that the complainant initially consulted him on 13 January 2004 complaining of right shoulder pain which he said commenced in 2001 as a result of drilling aluminium. Associate Professor Edwards also obtained the history that the pain became more substantial in December 2003 and that his pain occurred with specific movements, in particular, elevation of the arm above the head.
[62]Exhibit C, PCB 88
72 Clinical examination at that time demonstrated a full range of right shoulder movement but a positive impingement test. Although x-rays were normal, his ultrasound confirmed a small tear of the supraspinatus and subacromial impingement.
73 On 3 February 2004, Associate Professor Edwards injected the plaintiff with a corticosteroid into the subacromial space and a review one month later revealed improvement. At that time he also had “lesser complaints” on the left side and the left shoulder was also injected on 3 February 2004.
74 The plaintiff further consulted Associate Professor Edwards on 7 September 2004 and gave a history that the injections provided “very significant benefit” for up to three months. That the left and right sides were again painful and, on his request, the shoulders were injected on 7 February 2004 (left side) and on 16 November 2004 (the right side). Since the latter date, the plaintiff has not consulted Associate Professor Edwards.
75 The plaintiff also relies on a report from the physiotherapist, Mr B Stevens, dated 21 September 2011.[63] Mr Stevens reports that the plaintiff first presented for physiotherapy on 7 September 2004, at which time he was complaining of bilateral shoulder pain with a one year history. At that time, the plaintiff gave a history that his shoulder pain developed secondary to drilling aluminium and was aggravated by heavy lifting. Furthermore, he gave a history that he had already received acupuncture for a year and had received two cortisone injections of the right shoulder and one injection in the left shoulder under the care of Mr Edwards.
[63]Exhibit C, PCB 58-59
76 Examination at that time revealed a significant loss of range of movement with shoulder flexion of 90 degrees together with positive impingement signs. There was also painful resistant external rotation of the shoulders.
77 Mr Stevens had no knowledge of any pre-existing condition. He had available to him various radiographs and ultrasound investigations.
78 Mr Stevens notes that the plaintiff underwent about 30 physiotherapy treatments between 7 September 2004 and February 2005, initially, twice a week and later weekly. Treatment included manual therapy, soft tissue/myofascial mobilisation and release, acupuncture, electrotherapy and exercise prescriptions.
79 Mr Stevens notes that at the time of discharge, range of movement in the shoulders had increased, that pain was reported as being consistent and continued to be aggravated by activities, including driving and lifting. The plaintiff was discharged to the care of his general practitioner and, according to Mr Stevens, some progress had been made but the plaintiff “had plateaued and was non-resolved”.[64]
[64]Exhibit C, PCB 59
Medico-legal reports relied on by the Plaintiff
80 The plaintiff relies on the following reports from various medico-legal specialists:
(a) reports of the surgeon, Mr B Reid, who examined the plaintiff on 18 August 2004[65] and on 12 July 2005;[66]
[65]Report of same date, Exhibit D, DCB 13
[66]Report of same date, Exhibit D, DCB 17
(b) the reports of the consultant in occupational health, safety and legal medicine, Dr Maurice Wallin, who examined the plaintiff on 26 August 2004[67] and also supplied a supplementary report dated 30 August 2004;[68]
[67]Report of same date, Exhibit E, DCB 20
[68]Report of same date, Exhibit E, DCB 25
(c) report of the psychiatrist, Dr Nathar, who psychiatrically examined the plaintiff on 19 September 2005;[69]
[69]Report dated 20 September 2005, Exhibit F, DCB 34-38
(d) report of the orthopaedic surgeon, Mr M Dooley, who examined the plaintiff on 25 June 2013;[70]
(e) reports of the orthopaedic surgeon, Mr N Khan, who examined the plaintiff on 21 December 2011[71] and on 8 May 2013.[72]
[70]Report dated 23 July 2013, Exhibit G, DCB 55-58
[71]Report dated 14 March 2012, Exhibit C, PCB 71-78
[72]Report dated 17 July 2013, Exhibit C, PCB 80-87
81 When initially examined by Mr Reid on 18 August 2004, the plaintiff gave a history that from around April 2002 he began to develop gradually increasing pain in both shoulders and that the pain would come on when he raised his arms above shoulder level when working. After a medical examination of x-rays undertaken of the shoulders on 27 December 2003, and the ultrasound undertaken on 4 December 2003, Mr Reid expressed the opinion that the plaintiff had suffered partial tears of the supraspinatus tendons of both shoulders with impingement of the tissues between the humerus and the acromion. In particular, Mr Reid was of the opinion that the employment of the plaintiff was a significant contributing factor to the condition of the shoulders. He considered the plaintiff, at that time, did not have the capacity to return to his pre-injury employment but had the capacity to return to work not involving elevations of the arms above shoulder level.
82 At the time of that examination, the plaintiff had commenced performing “light duties” with the defendant putting rubber runners on the window frames and applying plastic protective strips for transport. Mr Reid noted that this work was done at waist level and he was able to cope with this work without much discomfort.
83 When later seen in July 2005, the plaintiff complained that he had not improved and continued to have pain in both shoulders and both arms posteriorly. Furthermore, he reported that he was unable to raise his arms very much above shoulder level. Mr Reid, after making a medical examination, was of the opinion that the plaintiff continued to have bilateral rotator cuff tendonitis which was recovering slowly and that he only had a mild restriction of movement of his shoulders.
84 Mr Reid was of the opinion that he was incapable of performing his pre-injury duties but capable of performing work not involving carrying weights above shoulder level.
85 When examined by Dr Wallin in August 2004, the plaintiff gave a history that he did not experience any specific injury but claimed that he initially experienced bilateral elbow and shoulder symptoms which he attributed to the type of work he was engaged in and, particularly, about working above shoulder height.
86 Dr Wallin made a medical examination and had available both the x-rays of the shoulders dated 27 November 2003 and the ultrasound undertaken of both shoulders undertaken on 4 December 2003. Dr Wallin accepted that the plaintiff appeared to have developed bilateral rotator cuff pathology in the form of partial tears of each supraspinatus tendon out of and in the course of his employment with the defendant. Furthermore, he accepted that the plaintiff had signs of ongoing rotator cuff pathology consistent with the presence of bilateral supraspinatus tendon tears.
87 In particular, Dr Wallin was of the opinion that although the plaintiff was unfit to perform fully unrestricted work, he had the ability to perform suitable employment such as his working on a six hour basis (at that time);
88 Dr Nathar psychiatrically examined the plaintiff in September 2005 and obtained a history, in part, that the plaintiff developed pain in both shoulders in or about April 2002, which was attributed to the type of work that he was undertaking with the defendant. He obtained a further history that from November 2003 he was placed on light duties, which ceased in August 2004.
89 He noted that the plaintiff gave a history that he tends to wake up at about 4am or 5am, not because of pain, but because of worrying about things – in particular, he worries about his heart problem (at that time he had yet to undergo the grafting surgery).
90 Dr Nathar considered that the plaintiff had not suffered a clinical, significant, psychiatric injury and did not have any psychiatric injury contributing to any psychiatric incapacity for employment.
91 When Mr Dooley examined the plaintiff in June 2013, he obtained a history that after commencing employment with the defendant the plaintiff commenced to experience pain in both of his shoulders and law back. At the time of examination, the plaintiff was complaining of ongoing right and left girdle pain and low back pain, especially when ascending stairs. Furthermore, at times his legs get sore but he does attempt to walk because of his cardiac condition.
92 Examination of the shoulders revealed no wasting of the shoulder girdle musculature with mild tenderness of both shoulder girdles. In particular, active abduction and forward flexion were to 90 degrees, external rotation to 80 degrees and internal rotation to 50 degrees. Adduction and extension were to 20 degrees and any attempts to move the shoulder passively beyond the active range of motion was met by resistance.
93 Seemingly, Mr Dooley had access only to plain x-rays of the shoulders, which he considered to be normal (together with plain x-rays of lumbar spine, which showed mild lumbar degenerative change). Mr Dooley expresses the following opinion (in part):
“Mr Tcha has naturally occurring degenerative change affecting both rotator cuff regions and the lumbar spine. He reports the onset of right and left shoulder girdle pain and low back pain during the course of his work as an assembler of aluminium and door frames. Such work would have the capacity to aggravate underlying degenerative change in these regions. It is clear that prior to beginning this sort of work, Mr Tcha had been symptomatic from degeneration of rotator cuff regions of both shoulders. He was treated appropriately with simple medication, subacromial cortisone injections and modification of activities. He was carrying out light, physical-type work and coping with this until it was stated that no further such work was available at Mr Tcha’s place of employment. Mr Tcha has reported persisting bilateral shoulder girdle pain and low back pain. Clinical examination today revealed a restriction of range of motion of both shoulders greater than one would expect to see for his condition. Overall, he has a good range of motion of the lumbar spine and there is no evidence of neurological deficit affecting either limb. Patients with symptomatic degenerative disc disease of the low lumbar spine can note pain with extension of their spine, as Mr Tcha did on examination.
Overall, the appropriate treatment for Mr Tcha in terms of his shoulders is to continue with creams and rubs and sensibly modify his activity. If his pain became heightened, then a further subacromial cortisone injection would become reasonable. The inconsistent signs in relation to active and passive shoulder movement would make me feel that any surgery on the shoulder would be unlikely to help him in the long-term and could well compound his condition … .”[73]
[73]See Exhibit G, DCB 57
94 Furthermore, Mr Dooley opined that from what he refers to as a pathological anatomical point of view, the current condition of the plaintiff’s shoulders are as they would be whether or not employment with Contract Glass occurred.
95 In particular, Mr Dooley states that from a physical perspective only, the plaintiff would have the capacity to carry out light duties work and administrative-type work. In particular, he would need to avoid work which involved regular heavy lifting and regular activity at or above shoulder level. Furthermore, he would need to avoid regular bending, lifting and twisting (seemingly in relation to his back condition).
96 Mr Dooley considered that the plaintiff would have the physical capacity to work as a carpark attendant, crossing supervisor and ticket collector. Furthermore, his ability to work as an operator and assembler would depend on the amount of physical work involved and the amount of activity at and above shoulder level and reaching out.
97 When examined initially by Mr Khan, the plaintiff gave a history that in or about April 2002 he developed pain during the course of employment in the right shoulder and left thumb and soon after that in the left shoulder. Mr Khan had also been supplied details of the earlier complaints recorded by Dr Lim preceding the plaintiff’s employment with the defendant.
98 Mr Khan also obtained a history from the plaintiff that there was some disturbance in his sleep, particularly when the pain would flare-up and also because he worried about his future. The plaintiff also complained of pain in his low back and both knees and that he found it difficult to play table tennis now. Furthermore, although he manages to drive a car, it is not for long periods.
99 Examinations of the shoulder revealed that he could abduct and forward flex both shoulders to 90 degrees or so and then he would complain of pain. Furthermore, the left shoulder was more painful than the right. There was no abnormality in the elbows.
100 Seemingly, Mr Khan had access to all the available radiological material already referred to in this Judgment.
101 Mr Khan was of the opinion that the plaintiff had residual symptoms of chronic rotator cuff tendonopathy with partial tear of the supraspinatus tendon in his left shoulder and that he had chronic rotator cuff tendonopathy with partial tear of the rotator cuff tendon in the right shoulder. The left shoulder was worse than the right. Mr Khan considered that such shoulder injuries arose out of or in the course of the employment with the defendant. He also diagnosed the plaintiff to be suffering symptoms of chronic lumbosacral strain with some residual weakness of his back consistent with his employment.
102 In particular, Mr Khan stated:
“Taking into account each of the physical injuries, particularly the left and right shoulders and his back, your client does not realistically have a capacity for pre-injury employment. He has a realistic capacity for suitable employment with restrictions on his activities.”
103 When reviewed in May 2013, the plaintiff apparently stated that he could manage to sleep reasonably well and intermittently his sleep would be disturbed by pain in the shoulders. However, both knees ached. He was unable to kneel, bend or squat on his knees and he did not like to sit for too long as it was associate with the development of low back pain after 20 minutes in any one position. He had not received any physiotherapy nor seen any specialist in relation to his shoulders since the last examination and had been seeing Dr Lim once a month for medication.
104 Again, Mr Khan was of the opinion that the plaintiff suffered from rotator cuff tendonopathy in both shoulders, together with low back symptoms. In particular, Mr Khan states:
“He continues to have residual after effects of the injury leaving him with partial disability. He is unable to perform any heavy work requiring repetitive pushing, pulling and elevation of his arms above chest level, lifting weights of more than two kilograms of each arm or performing repetitive strenuous use of the arm. He should avoid activity requiring excessive bending, twisting and turning of his lumbar spine, keeping his back bent for long periods and lifting heavy weights as mentioned above. He has also developed non-organic symptoms and has been assessed by psychiatrist, Dr Stern had concluded that on account of the work-related injuries in relation to his psychiatric state, he has been diagnosed as having a mild adjustment disorder with depressed mood … .”[74]
[74]See Exhibit C, PCB 86
Other material
105 The plaintiff also relied on various certificates of capacity issued by Dr Lim[75] and also a vocational assessment prepared by Recovre dated 24 November 2005.[76]
[75]See Exhibit I
[76]See Exhibit J
Medico-legal reports relied on by the Defendant
106 The defendant relies on the following medical reports from various medico-legal specialists:
(a) the report of the orthopaedic surgeon, Mr S O’Loughlin, who examined the plaintiff on 2 August 2005;[77]
[77]Report of same date, Exhibit 3, DCB 30-33
(b) the report of the orthopaedic surgeon, Mr R Williams, who examined the plaintiff on 28 April 2011;[78]
[78]Report of same date, Exhibit 3, DCB 39-43
(c) the report of the psychiatrist, Dr S Stern, who psychiatrically examined the plaintiff on 9 May 2011;[79]
(d) the reports of the psychiatrist, Dr Kaplan, who examined the plaintiff on 28 November 2011[80] and on 27 August 2013.[81]
[79]Report of same date, Exhibit 3, DCB 47-53
[80]Report dated 29 November 2011, Exhibit 5, PCB 60-66
[81]Report dated 30 August 2013, Exhibit 5, PCB 67-69
107 When examined by Mr O’Loughlin in August 2005, the plaintiff gave a history that he injured his shoulders in or about April 2002 as a result of the type of work that he was performing with the defendant. Over time, the pain became progressively worse leading him to put in a WorkCover claim on 27 November 2003.
108 Mr O’Loughlin undertook a physical examination and had available x-rays of the shoulders performed on 27 November 2003 and the ultrasound of both shoulders performed on 4 December 2003.
109 Mr O’Loughlin was of the opinion that the plaintiff suffered bilateral rotator cuff partial thickness tears and also swelling of the rotator cuff tendons, producing impingement on abduction and flexion. Furthermore, Mr O’Loughlin was of the opinion that the plaintiff’s work using a drill above shoulder level over a period of time and lifting aluminium frames produced the partial thickness rotator cuff tears. At that time, he considered the plaintiff capable of performing part-time, light work.
110 When examined by Mr Williams in April 2011, the plaintiff gave a history that he could not recall any specific history of injury to his shoulders but, essentially, his shoulders gradually became painful during the course of his employment with the defendant. At the time of examination, the plaintiff was complaining of persisting pain in both shoulders which, according to Mr Williams, was rather diffuse, extending from the suprascapular region to the anterior aspect of his shoulders. Furthermore, the plaintiff complained of pain in his lower back, which causes difficulties, and also some discomfort in the lower part of his neck, which Mr Williams considered was probably related to his shoulder condition.
111 Examination revealed that shoulder movements were restricted with flexion to 140 degrees, extension 50 degrees, abduction 130 degrees and adduction at 50 degrees.
112 Mr Williams was of the opinion that the persisting shoulder symptoms and signs in the plaintiff were related to degenerative changes in the rotator cuffs and subacromial bursitis. Furthermore, he considered his lumbar pain was probably related to malfunction of his lower lumbar intervertebral joints consistent with the ageing process.
113 Seemingly, the primary purpose of the examination by Mr Williams was to render AMA impairment valuation and he noted that the condition of both shoulders of the plaintiff and his lumbar pain had been “accepted”, presumably by the agent of the defendant.
114 When examined by Dr Stern in May 2011, the plaintiff gave a history that in or about November 2003, when employed by the defendant, he developed pain in both shoulders and the low back. Although he continued working, he did contact his general practitioner, Dr Lim, who advised light duties.
115 The plaintiff continued on light duties until August 2004, when he was told that no further suitable work was available.
116 At the time of examination, the plaintiff was complaining of constant pain in the neck, shoulders, elbows, low back and both knees.
117 Dr Stern also obtained a history that the social activities of the plaintiff had been reduced and his interest in table tennis ceased because of his pain.
118 Dr Stern considered that the plaintiff had suffered a mild adjustment disorder with depressed mood related to the work injuries to his shoulders and low back. However, he considered that his social, leisure and activities of daily living were not limited by psychiatric factors. Again, seemingly, Dr Stern examined the plaintiff for the purposes of making any relevant assessment of AMA impairment valuation.
119 When initially examined by Dr Kaplan in November 2011, the plaintiff gave a history that although he had suffered some pain in his left shoulder when working for GMH and Toyota, the pain resolved after he ceased work in 1994. When working for the defendant in or about 2002, he began to experience pain in his shoulders and his low back, causing him to be assigned to light duties in 2003 and being advised in August 2004 that no further light duties were available.
120 At the time of examination, the plaintiff stated that he experiences constant mild pain in the shoulders and, at times, he experiences pain in the neck. The pain in his shoulders is aggravated when he raises his arms by movement of his shoulder joints when performing physical tasks. He is unable to undertake strenuous, manual tasks.
121 Dr Kaplan was of the view that the plaintiff described what were probably “mild symptoms of anxiety” causing him to be sometimes impatient and difficulties with concentration and memory. Such psychiatric condition would be determined by the outcome of his physical condition and he is likely to remain prone to anxiety as long as the pain persists and as long as he remains disabled by his pain.
122 When later examined in August 2013, the plaintiff gave a history that he continues to experience pain in the shoulders, elbows, neck and lower back and that his physical condition had not improved since he was last examined two years ago. Again, after examination, Dr Kaplan was of the view that the plaintiff continues to experience mild symptoms of anxiety expressed in the form of irritability and anxiety when exposed to stress or pressure.
Other material relied on by the Defendant
123 Counsel for the defendant also relies on the worker’s claim form dated 1 December 2003,[82] vocational assessments prepared by Recovre dated 5 November 2004[83] and the financial taxation summary for the plaintiff.[84]
[82]See Exhibit 1 PCB 10-12
[83]See Exhibit 5
[84]See Exhibit 7
Analysis of the evidence
124 Before recording my findings of fact, I consider it apposite to comment on the evidence of the plaintiff. Counsel for the defendant submitted that although the plaintiff was not dishonest, he was an unreliable witness. The basis of such submission was that the plaintiff appeared “confused at times” and could not be specific about events in the past. Counsel for the plaintiff submitted that the plaintiff may be characterised as unreliable in relation to past events because of the effluxion of time.
125 After observing the plaintiff give evidence over a reasonable period of time, I formed the view that he was attempting to give honest and accurate answers to the questions posed to him. However, I also came to the view that he was an unreliable witness, particularly in relation to events prior to the commencement of his employment with the defendant on 27 August 2000. In particular, the plaintiff was vague about when he suffered any pain or difficulties with his left or right shoulders prior to August 2000 and the nature of any treatment that he underwent in relation to the left and right shoulders prior to that date. However, as I have already stated, I did not form the view that the plaintiff was disingenuous when giving evidence about these matters.
126 Seemingly, any reference in the plaintiff’s affidavits to problems with either shoulder and/or treatment prior to August 2000 was based on the reports of Dr Lim, the treating general practitioner of the plaintiff from at least, 28 April 1990.[85] The plaintiff gave evidence that Dr Lim spoke his language and that she had been his doctor for many years.
[85]See report dated 20 December 2010 Exhibit C at page 54 PCB
127 Dr Lim was not called to give evidence and her various reports were tendered. Unfortunately, such reports are not particularly fulsome as to symptoms in the shoulders and treatment for such condition prior to August 2000.
128 After consideration of all the evidence, I make the following findings of fact:
(a)The plaintiff is a sixty-three year old married man with one dependent daughter. He is a partial disability pensioner.
(b)He was born in East Timor of Chinese extraction and his native language is Timorese Hakka. He attended school to about the age of fifteen in East Timor after which he assisted his parents in a family retail business. He has obtained no particular qualifications.
(c)He migrated to Australia on 10 July 1984 and thereafter commenced employment on 30 July 1984 as an assembler at the Dandenong plant of GMH which later was the Toyota plant. He remained in that employment until 1994.
(d)Over the period from 1994 to 2000, he undertook various English courses at various times through the auspices of TAFE. Although not particularly clear precisely when those courses were undertaken, the plaintiff did describe one course where he undertook learning English 20 hours per week and that the program extended for 500 hours after which he was put on a “different program”. Under cross-examination, the plaintiff accepted that he could read weights and numbers. However, in relation to his understanding of English, the plaintiff asserted:
“It was basic conversation. Yes, I could understand but if you were talking to me in very different kinds of technical talk I wouldn’t be able to understand you.”[86]
[86]T19, L25-25
Ultimately I came to the view that the plaintiff did have a limited capacity to converse in English but was extremely limited in his capacity to read English or understand English when spoken quickly. Such a situation was exacerbated if he was required to read technical documents or understand relatively large words.
At first blush, I considered such limitations to be inherently unlikely given the period of time that the plaintiff has been in Australia (29 years) and the degree of English training that he has undertaken – however, after observing the plaintiff I do find that he has difficulty comprehending English other than in its most simple forms.
(e)Although not completely clear, it would appear that the plaintiff was only engaged in one very short period of employment between the cessation of his work with Toyota in 1994 and the commencement of his employment with the defendant in August 2000. Such work was for about a month or so and maybe with the company referred to as Bundy. Such evidence is perhaps yet another example of the vagueness and unreliability of the plaintiff.
(f)The plaintiff commenced employment with the defendant on 27 August 2000 as a process worker and for reasons which were not totally clear, his employment was “formally terminated” on 30 November 2010. His initial work with the defendant involved the manufacture of heavy aluminium doors and windows which required use of both arms performing drilling work, lifting and carrying heavy items and the need to raise his arms to undertake various work activities.
(g)Prior to his commencement of employment with the defendant, the plaintiff had the following difficulties with his right and/or left shoulders:
(i)On 28 April 1990, he consulted Dr Lim complaining of left shoulder pain;
(ii)On 16 August 1990, he again consulted Dr Lim complaining of left shoulder pain which he attributed to lifting heavy window panes at Toyota on 9 August 1990. At that time Dr Lim noted that his rotator cuff muscles were tender to touch and he had limited movement of his “right shoulder”.[87] At that time he was treated with Voltaren, physiotherapy and some acupuncture;
[87]See Footnote 57
(iii)Over the years the plaintiff complained on and off from left shoulder pain and in 1993 his right shoulder and neck started bothering him;
(iv)On 1 November 1997, the plaintiff complained to Dr Lim that his left shoulder started to “trouble him again” when working at “Bundy”. An x‑ray at that time showed sclerosis of the inferior margin of his subacromial space suggesting the possibility of impingement.
(v)Mr Razif, an orthopaedic surgeon, examined the plaintiff on 8 May 1998 and at that time an ultrasound of his left shoulder showed a full thickness tear of his supraspinatus tendon for which he had a local anaesthetic and steroid injection in the left shoulder and the plaintiff “felt better after that”.
(vi)In May 1999, the plaintiff was complaining of right tennis elbow and left shoulder pain and curiously, he notes that at the time he was “working lifting heavy glass panes”.[88]
[88]See Footnote 59
(h)That during the course of his employment with the defendant over the period from his commencement in August 2000 up to late 2003, the plaintiff gradually experienced increasing pain in both his left and right shoulders without any particular incident. During that period of time, the plaintiff attended Dr Lim as follows:
(i)On 15 April 2002, Dr Lim notes the plaintiff informed her that he had had acupuncture for the past year (presumably for his right shoulder pain) and that he was complaining of a painful right shoulder;
(ii)On 27 November 2003, Dr Lim notes that the plaintiff complained of persisting bilateral shoulder pain (and low back pain) and at that time he was advised not do any repetitive drilling or heavy lifting. Dr Lim arranged for him to undergo an ultrasound of the shoulders[89] which revealed a partial tear of his supraspinatus tendon bilaterally and impingement on abduction.
[89]See Exhibit B, PCB 47
(i)Consistent with the preponderance of evidence, I am satisfied as a matter of probability that the plaintiff suffered compensable injury to his right shoulder and to his left shoulder arising out of or in the course of his employment with the defendant. Such a finding is consistent with the opinions expressed by the general practitioner, Dr Lim; the surgeon, Mr B Reid; the occupational health specialist, Dr Maurice Wallin; the orthopaedic surgeon, Mr M Dooley; the orthopaedic surgeon, Mr N Khan; and the orthopaedic surgeon, Mr S O’Loughlin.
Furthermore, bearing in mind the history of complaint and treatment in relation to his shoulders (predominantly the left) prior to his employment with the defendant, I consider that the nature of the injury is best described as an aggravation of pre-existing degenerative changes in the rotator cuff regions of each shoulder. As I understood the submission of the defendant, there is no issue that the plaintiff did suffer some compensable injury to the right and left shoulder arising out of or in the course of his employment with the defendant.
Counsel for the defendant highlighted those parts of the opinions expressed by Mr Dooley and Mr Williams suggesting that currently the plaintiff exhibits evidence of degenerative change in the shoulders and in particular according to Mr Dooley at least, the current condition of the plaintiff’s shoulders from a pathological anatomical point of view would be as they are now, whether or not employment with the defendant occurred. I reject any suggestion that the plaintiff is currently experiencing the same degree of pain, the same restriction of movement in each shoulder, and the same degree of incapacity for employment, whether or not employment with the defendant had occurred. In this respect, I give substantial weight to the opinion of the treating general practitioner who observed the deterioration of his shoulders which was brought about by the type of work he was performing with the defendant I also note that in R J Gilbertsons Pty Ltd v Skorsis[90] and in particular at 389, where at Winneke P stated:
[90](2000) 12 VR 386
“It may be conceded that the judge, in reaching her conclusion that the aggravation of the joint injury was a “serious injury”, did not make any explicit finding as to the probable course of the pre-existing condition or when, in the absence of supervening negligence, it was likely to have led to incapacity. This was probably because no expert had been specifically asked to express such an opinion even though, as I see it, the appellant, who was contending that the aggravation was not a “serious injury”, bore the evidential burden of showing what the probable course of the pre-existing condition would be.”
(j)The plaintiff lodged a claim for compensation on 1 December 2003, claiming that he had suffered injury to his right and left shoulders, right and left elbows and back. The claim notes that the injury was on 15 April 2002.
Dr Lim consulted with the plaintiff on 27 November 2003 at which time she gave him a certificate for one day off work.[91] At that time, Dr Lim arranged for the plaintiff to undergo the ultrasound of his shoulders on 1 December 2003[92] and on 1 December 2003 certified the plaintiff fit for alternative duties from 27 November 2003 as a result of injuries to his right and left shoulders, left and right elbows, and back injury. The work restrictions were for “light duties, no heavy lifting over 5 kilograms, no lifting above shoulder height”.
[91]See Exhibit I, at page 211 PCB
[92]See Exhibit B, at page 47 PCB
(k)The defendant placed the plaintiff on light duties and he continued with such light duties until 27 August 2004 when he was advised by management that there were “no light jobs” available for him. Such light duties consisted of a variety of duties, including putting wax into screws, sweeping floors, putting stickers on windows, putting rubbers in windows and doors, helping put some aluminium pieces together, cleaning the canteen, sometimes filling up toilet rolls and sometimes cleaning bench tops.
(l)Dr Lim provided medical certificates of capacity over the period of time that the plaintiff performed light duties.[93] Such certificates mostly made reference to the right and left shoulder injuries and certified the plaintiff to either perform modified or light duties on an assembly line and initially for four hours a day building up to five hours and six hours at the time that he ceased work.[94]
[93]On one or two occasions it may have been another doctor at the clinic
[94]See Exhibit L
(m)During the period that the plaintiff was performing such light duties, I find, consistent with the plaintiff’s evidence, that such duties did lead to an increase in his level of symptoms when performing such tasks. I also note that the plaintiff attended Associate Professor Edwards on 13 January 2004, at which time the plaintiff complained of right shoulder pain which had become more substantial in December 2003, causing Associate Professor Edwards to inject the right shoulder on 3 February 2004. Furthermore, on 3 February 2004, the plaintiff made complaints (of a lesser nature) of pain in the left shoulder and was injected in that shoulder on that day. The left shoulder underwent a further injection on 7 September 2004 and the right shoulder on 16 November 2004. I also find that in July 2004, the plaintiff had further pain in his shoulders and was unable to sleep because of the pain as he had been required to push silicone into pipes which needed some force.
(n)On ceasing work, I also find that the plaintiff was referred for physiotherapy on 7 September 2004, at which time he was complaining of bilateral shoulder pain. He underwent approximately 30 physiotherapy treatments up until February 2005 and on discharge, pain was reported as being persistent and continued to be aggravated by activities, including driving and lifting.
(o)The plaintiff was referred to the rehabilitation provider Recovre on 20 October 2004 and on 4 November 2004 a vocational assessment was undertaken whereby the plaintiff was assessed to be suitable to perform work as a process worker or a hand packer. Somewhat cryptically, the consultant at Recovre states:
“Process worker and hand packer have been identified as suitable employment options based upon Mr Tcha’s transferable skills. Particular vacancies within these job categories can differ greatly in the duties required (eg level of manual handling), thus an appropriate position would need to accommodate Mr Tcha’s physical restrictions, as indicated by medical opinion. Given Mr Tcha’s limited English language skills, suitable employment opportunities may be reduced, however, labour research indicates availability of work of this type may be suitable for Mr Tcha.”[95]
[95]See Exhibit 5, DCB 217
The plaintiff remained a “client” of Recovre until approximately 8 November 2005. During that period he was unable to be placed in suitable employment and the Recovre consultant noted as at July 2005 that the plaintiff had been an “active participant” in trying to obtain employment. In a further vocational assessment undertaken on 24 November 2005, the plaintiff was assessed to be suitable to perform work as a hand packer, service assistant (railways assistant, carpark attendant, crossing supervisor, ticket collector, examination supervisor), general process worker, machine operator, quality control operator and product assembler.
(p)Since ceasing work, the plaintiff continued to receive certificates from Dr Lim for alternative duties from 22 October 2004 up until 13 April 2006 save for the period from 22 July 2005 to 22 August 2005. Such certificates describe the injury as a bilateral tear of the supraspinatus tendons. On 13 April 2006, Dr Lim commenced issuing certificates certifying the plaintiff unfit for any duties and in the certificate dated 13 April 2006, she commented he was suffering bilateral partial tear of the supraspinatus tendons and experiencing increasing pain causing him to be unable to sleep because of pain. Such certificates have continued to date, although in about late 2006, the certificates referring to the bilateral shoulder condition also refer to low back pain on various occasions.
(q)On 20 May 2005 the plaintiff complained to Dr Lim of chest discomfort on exertion and he was referred to a cardiologist which resulted in five coronary bypass grafts on 7 November 2005. In this respect, Dr Lim reports that he “recovered” from that operation.
(r)The plaintiff also underwent a further ultrasound of his left shoulder on 24 January 2006[96] which revealed a full thickness tear in the supraspinatus tendon measuring approximately 0.947 centimetres and approximately 1.4 centimetres from the tendon of the long head of the biceps. The plaintiff also underwent an ultrasound of the right shoulder on 30 January 2006, which revealed fluid to be present in the vicinity of the tendon of the long head of the biceps, but other than that, there was no specific abnormality.
[96]See Exhibit B, PCB 48
(s)Consistent with the evidence of the plaintiff, I do find that the plaintiff presently experiences pain in the left shoulder and the shoulder blade area; left elbow and left arm; the low back; both knees; the right shoulder and the right shoulder blade area, (although the left shoulder and shoulder blade area is worse;) and some pain spreading towards the neck area.
(t)In particular, I find in relation to the left and right shoulders that:
·He has restriction of movement of the left and right shoulders and, in particular, restriction of movement of his arms above shoulder height.
·That he has always some degree of pain in the shoulders, although such pain does fluctuate. Furthermore, I accept that to the extent that he had left shoulder pain prior to his commencing employment with the defendant, such pain had materially increased by the cessation of his employment in August 2004 and such pain has continued with some fluctuations.
·That the pain in the right shoulder essentially came on during the course of his employment with the defendant.
·That he does have restrictions in various activities involving the use of the arms, for example, driving any distance, some intermittent difficulties with sleep when he rolls on a particular shoulder, some limitations involving such activities as pushing a lawn mower where the arms are extended.
(u)The plaintiff has used until recent times a TENS machine, Chinese “cupping” and intermittent medication to control the pain in his shoulders. I do accept his evidence that the plaintiff only sparingly uses medication as he has concerns as to how any medication would impact on his heart condition. Accordingly, such medication as Panadol is only taken when the pain is “really unbearable”. I also accept that he uses ointment to help control the pain.
Has the Plaintiff suffered a serious injury?
129 After a consideration of all the evidence, I am satisfied that the right shoulder injury and the left shoulder injury have each resulted in impairments of shoulder function which are permanent. In my view, such is made clear when one considers that the plaintiff, on my findings, has experienced restriction of movement and pain in both the left shoulder and right shoulder since ceasing active employment in August 2004. As I understood the submission of the defendant, there was no particular issue that the plaintiff suffered some degree of permanent impairment in the left shoulder and right shoulder with some consequences.
130 As I have already recorded, the position of the defendant is that any organic consequences in relation to the left shoulder and/or the right shoulder do not satisfy the narrative test. More particularly, counsel for the defendant submits that any “pain and suffering” consequences in relation to the left shoulder and/or the right shoulder are not “serious”, that is, capable of being fairly described as being more than significant or market, and at least very considerable when compared with other cases in the range of possible impairments.
131 In particular, counsel for the defendant highlights these matters:
(a) that the plaintiff demonstrated his capacity for alternative lighter duties from November 2003 until August 2004 when such duties came to an end rather than the plaintiff ceasing work because of ongoing difficulties;
(b) Dr Lim continued to give certificates for light duties until well into 2006. Furthermore, later medical certificates certifying the plaintiff incapable of any work made reference on a variety of occasions to his low back condition;
(c) Mr Dooley (who medico-legally examined the plaintiff on behalf of the defendant) and Mr Khan (who medico-legally examined the plaintiff on behalf of his solicitors) both opined that the plaintiff has some residual capacity for work. These doctors are particularly relevant given the assessment of serious injury must be made at today’s date and their opinions are relatively recent. Furthermore, medico-legal specialists who examined the plaintiff over the years, have all suggested that he has some degree of retained capacity.
132 Furthermore, it is submitted on behalf of the defendant that given the nature of the injury to the left shoulder and right shoulder should be categorised as an aggravation of a pre-existing condition (which I accept). It’s further submitted that the principles enunciated in Petkovski v Galletti[97] should be applied to ascertain whether or not the plaintiff had suffered a “serious injury” within the meaning of s134AB of the Act. Although Petkovski v Galletti was determined in the context of s93 of the Transport Accident Act 1986, the principles have long been accepted to apply to serious injury applications determined under the Act.[98]
[97][1994] 1 VR 436
[98]See Guppy v Victorian WorkCover Authority [2010] VSCA 164 at [19]; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz [2012] VSCA 60
133 In the context of aggravation to a pre-existing injury, Southwell and Teague JJ made it plain that the task of the Full Court is to analyse the extent of the impairment of the body function before and after the relevant injury. In referring to the submissions that had been rejected by the trial judge, Southwell and Teague JJ stated:
“The questions of irrelevance of the existence of the pre-existing degenerative condition in the applicant’s one was raised both in the court below and in this Court. It was submitted in both courts for the respondent that a comparison must be made of the condition of the applicant immediately before the accident with his condition thereafter and an assessment made of the extent of the additional impairment; if that additional impairment was not serious so it was said then leave must be refused.
The learned County Court Judge rejected this principal submission of the respondent…He said: ‘in my opinion, the Act simply requires me as an assessing judge to be “affirmatively satisfied” that the applicant as at the date of the application is suffering from a “serious injury” within the meaning of the Act’.
…It is clear that the submission for the respondent ought not to have been rejected by the judge; in this Court, counsel for the applicant conceded as much. We are of the opinion for these reasons. One should commence with the acknowledge that it has long been the law that an injured person is to be compensated for, but only for, such disabilities as are proved to have resulted from the relevant accident. While the wrongdoer must take the victim as he finds him, he must compensate only for the damage he has wrought.”[99]
[99]See Petkovski v Galletti (op cit) at page 443
134 I consider it appropriate to initially decide whether the plaintiff satisfies the requirement to obtain leave to claim “pecuniary loss damages”.
135 In relation to the issue of pecuniary loss damages, s134AB(38)(e)(i) of the Act requires the plaintiff to establish that as at the date of the hearing of the application, he “has a loss of earning capacity…of 40 per cent or more” measured “as set out in (f)”. The measurement of the claim for loss of earning capacity, as described in paragraph (f) necessitates a comparison of two matters:
(a) what the plaintiff is earning, whether in suitable employment or not, or capable of earning in suitable employment at the date of hearing (“after injury earnings”); and
(b) the income that the plaintiff was earning or was capable of earning “during that part of the period within three years before and three years after the injury as most fairly reflects the plaintiff’s earning capacity had the injury not occurred (“without injury earnings”).
136 In both cases, the income is limited to gross income from personal exertion and is to be annualised.
137 Section 134AB(38)(e)(ii) of the Act requires the plaintiff to establish that he will, after the date of hearing, “continue permanently to have a loss of earning capacity which will be productive of a financial loss of 40 per cent or more”.
138 Section 5(1) of the Act defines “suitable employment” to mean:
“…In relation to a worker, means employment in work for which the worker is currently suited –
(a) having regard to –
(i)the nature of the worker’s incapacity and the details provided in medical information including, but not limited to, the certificate of capacity supplied by the worker; and
(ii)the nature of the worker’s pre-injury employment; and
(iii)the worker’s age, education, skills and work experience; and
(iv)the worker’s place of residence; and
(v)any plan or document prepared as part of the return to work planning process; and
(vi)any occupational rehabilitation services that are being, or have been, provided to the worker; and
(b) regardless of whether –
(i) the work or the employment is available; and
(ii)the work or the employment is of a type or nature that is generally available in the employment market.”
139 Counsel for the plaintiff submitted that the left shoulder injury considered alone or the right shoulder injury considered alone, renders the plaintiff incapacitated for the type of work he initially undertook with the defendant and also for suitable employment. By taking effectively an “all or nothing” position, it was not necessary for him to establish a “without injury earnings” earning rate.
140 Counsel for the defendant, although tendering the financial taxation summary of the plaintiff,[100] primarily submitted that the plaintiff demonstrated that he was capable of earning at least 60 per cent of his without injury earnings when he was working six hours a day at the time that his light duties came to an end in August 2004.
[100]See Exhibit 7
141 Furthermore, counsel for the defendant relied on the various reports from Recovre setting out what was said to be “suitable employment” for the plaintiff.
142 After a consideration of all the evidence, I have ultimately formed the view that the consequences of the left shoulder injury considered alone and the consequences of the right shoulder injury considered alone, renders the plaintiff incapable of performing suitable employment. I have come to such conclusion for the following reasons:
(a) As I have recorded, one of the more critical points of the submission of the defendant is that the plaintiff demonstrated his capacity for “suitable employment” over the period from November 2003 to August 2004. Although there is no doubt that the plaintiff was employed over that period performing work, such work was essentially different jobs at different times to accommodate the light duty certificates. No doubt it was hoped, on the part of the defendant, that the plaintiff would be able to resume his normal duties in due course. In my view, such activities did not reflect a settled type of work or the type of work that the defendant would normally employ a person to perform.
(b) Leaving aside whatever the nature of the work may have been, the plaintiff clearly had difficulty performing any such work and this is perhaps best encapsulated by the following evidence:
“Q:You were on light duties for the last bit of your work with the defendant. How did your shoulders cope even with those lighter duties?
A:It was also causing me a lot of pain but I had to continue because otherwise I would lose my job.”[101]
[101]T67, L19-21
Such an assertion is borne out when one takes account of the plaintiff attending Associate Professor Edwards during that period of time and also complaining to Dr Lim of ongoing difficulties.
(c) Although the medical certificates certifying the plaintiff fit for light duties continued after the cessation of work until 2006, much of that period encompassed efforts by the rehabilitation organisation to find “suitable employment” for the plaintiff. Such efforts were unsuccessful.
(d) Although I have made reference to the reports of Dr Lim to be not overly fulsome, it must be borne steadily in mind that Dr Lim has been the treating doctor of this plaintiff for many years. Although she comments in her reports on occasion that the plaintiff has difficulties with his low back and knees (and to a lesser extent his cardiac condition), it is clear enough that she considers that both the right shoulder and left shoulder are restricted in movement and give rise to significant pain symptoms which would impact on his capacity for employment. Of course, it is not to the point that at serious injury level that another condition may impact on his capacity for employment.[102]
(e) I did form the view that the plaintiff does suffer a degree of pain in each shoulder which, unfortunately, cannot be ideally controlled by medication because of his fear of taking medication given his past cardiac condition. Bearing in mind his age, his quite limited capacity to speak and transact in English, his industrial background, and the pain that he experiences either in his left shoulder considered alone or his right shoulder considered alone, all of which, in my view effectively prevents him from performing any of the jobs proffered by the defendant. Even those doctors who opined that he has some capacity of employment, make a variety of qualifications as to what he can do. Although each shoulder has to be assessed independently, pain and restriction in one shoulder clearly impacts on the capacity to perform work whether it be the right shoulder or the left shoulder particularly in relation to manual handling activities.
[102]See Acir v Frosster Pty Ltd [2009] VSC 454
143 After consideration of all the evidence, including the medical evidence, the evidence of the plaintiff and my observations of him, I do find that the left shoulder injury (perhaps more so than the right shoulder injury) considered alone, renders the plaintiff unfit for suitable employment. In a similar way, the right shoulder injury standing alone, renders the plaintiff incapable of suitable employment.
144 I do point out that although the evidence is vague as to what level of pain the plaintiff may have been experiencing in his left and right shoulders when he commenced employment with the defendant, I consider it of some importance that the plaintiff did demonstrate his capacity to perform work involving the full use of his shoulders up until November 2003, at which time he made the claim for compensation. Leaving aside any other issue, in terms of Petkovski v Galletti,[103] the extent of the aggravation of his left shoulder injury and/or his right shoulder injury can be measured by his demonstration of performing unlimited work with his right shoulder and/or left shoulder to the situation now where he is incapable of performing suitable employment with either his left shoulder and/or his right shoulder.
[103] Supra
145 Accordingly, applying the principles set out in Advanced Wire & Cable Pty Ltd v Abdulle,[104] I determine the plaintiff has satisfied the requirements of the Act in establishing leave being granted to bring common law proceedings for both “pain and suffering damages” and “pecuniary loss damages” in respect of the left shoulder injury considered alone and the right shoulder injury considered alone.
[104][2009] VSCA 170 at paragraphs [60]-[64]
146 For completeness, I should also add that I was not satisfied that alleged pain and suffering consequences, such as the inability to now fish or play table tennis, were of any note. In respect of the fishing, the plaintiff suggested that such activity had not been engaged in since well-before his commencing employment with the defendant and that to the extent that he played table tennis, I gained the impression this was far from a “passion” but rather something he did every now and again during the lunch breaks at the defendant’s premises.
147 Furthermore, there was little evidence to support any impact on his social life or activities of daily living save and except in relation to the general pain symptoms that he experiences in relation to the left shoulder and the right shoulder.
Conclusion
148 Accordingly, pursuant to s134AB(16) of the Act, I grant leave for the plaintiff to bring common law proceedings for both pain and suffering damages and pecuniary loss damages in respect of the right shoulder injury and the left shoulder injury arising out of or in the course of his employment with the defendant.
149 I will hear the parties on the question of costs.
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ANNEXURE “A”
1 The plaintiff tendered the following documents:
Exhibit A
– Affidavits of the plaintiff sworn on 21 October 2011 and 22 July 2013, found at pp 40 – 45b Plaintiff’s Court Book (“PCB”)
Exhibit B
– Diagnostic investigations consisting of ultrasounds of the –
– Right shoulder, humerus and left shoulder dated 27 November 2003;
– The shoulders dated 4 December 2003;
– The left shoulder dated 24 January 2006;
– The right shoulder dated 30 January 2006
Such ultrasounds are found at pages pp 46 – 49 PCB
Exhibit C
– Medical reports of the treating general practitioner, Dr J Lim, dated 26 August 2005; 10 March 2006; 20 December 2010; 25 January 2013 and 26 July 2013;
– Report of the physiotherapist, Mr B Stevens, dated 21 September 2011;
– Reports of the orthopaedic surgeon, Mr M Khan – dated 14 December 2012 and 17 July 2013
– Report of Associate Professor Elton Edwards dated 20 January 2013
All such reports found at pp 51 – 59, and 71 – 89 PCB
Exhibit D
– Medical reports of the orthopaedic surgeon, Mr B Reid, dated 18 August 2004 and 12 July 2005, such reports found at pp 13 – 19 of the Defendant’s Court Book (“DCB”)
Exhibit E
– Medical reports of the consultant in rehabilitation medicine, Dr Maurice Wallin, dated 26 August 2004 and 30 August 2004, such reports found at pp 26 – 29 DCB
Exhibit F
– Psychiatric report of Dr Nathar dated 20 September 2005, found at
pp 34 ‑ 38 DCB
Exhibit G
– Report of the orthopaedic surgeon, Mr M Dooley, dated 23 July 2013 found at pp 55 – 58 DCB
Exhibit H
– Medical Panel opinion contained at pp 64 – 65 DCB
Exhibit I
– Certificates of capacity found at pp 16 – 211 DCB
Exhibit J
– Recovre vocational assessment report dated 24 November 2005 found at pp 234 – 243 DCB
2 The defendant submitted the following material:
Exhibit 1
– Worker’s claim form dated 1 December 2003 found at pp 10 – 12 PCB
Exhibit 2
– Termination notice found at pp 1 – 5 DCB
Exhibit 3
– Medical reports of the orthopaedic surgeon, Mr S O’Loughlin, dated 7 August 2005; the orthopaedic surgeon, Mr R Williams, dated 28 April 2011; and the psychiatrist, Dr S Stern, dated 9 May 2011, all such reports found at pages 30 – 33 and 39 – 54 DCB
Exhibit 4
– CT scan of the lumbosacral spine dated 16 March 2006 at p 61 DCB
Exhibit 5
– Recovre vocational assessment report dated 5 November 2004 at
pp 212 – 217 DCB– Reports of the psychiatrist, Dr Kaplan, dated 29 November 2011 and 30 August 2012, such reports found at pp 60 – 70 PCB
Exhibit 7
– Financial taxation summary at p 90 PCB.
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0
12
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