Tolongou v Victorian WorkCover Authority
[2022] VCC 2235
•16 December 2022
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Serious Injury List
Case No. CI-22-01849
| Christopher Tolongou | Plaintiff |
| v | |
| Victorian WorkCover Authority | Defendant |
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JUDGE: | Her Honour Judge Myers | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 November 2022 | |
DATE OF JUDGMENT: | 16 December 2022 | |
CASE MAY BE CITED AS: | Tolongou v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 2235 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – pain and suffering consequences – injury to the right shoulder
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited:Meadows v Lichmore Pty Ltd [2013] VSCA 201; Johns v Oaktech Pty Ltd [2020] VSCA 10; Dressing v Porter [2006] VSCA 215; Sabo v George Weston Foods [2009] VSCA 242.
Judgment: Leave granted to the plaintiff
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A. Dimsey | Maurice Blackburn |
| For the Defendant | Mr C. Miles | Wisewould Mahoney |
HER HONOUR:
Introduction
1This is a “serious injury” application brought pursuant to the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”). The plaintiff, Mr Christopher Tolongou, seeks the leave of the Court to commence a common law proceeding for pain and suffering damages.
2The plaintiff relies upon injury to his right shoulder as the “serious injury”.
3The plaintiff is right-handed.
4The relevant legal principles are well-known and are not in dispute.
5There was no issue between the parties that the plaintiff suffered compensable injury to his right shoulder during the course of his employment. Permanence was not in issue.
6The defendant identified the primary dispute as ‘range’, and a further potential issue regarding disentanglement of physical from psychologically-based consequences.[1]
[1]Transcript (“T”) 3
Background
7The plaintiff is a 51-year-old man with three adult children and a partner. He lives between his parents’ home and the home of his partner.
8Since leaving school after Year 11 he has performed manual work, primarily in the transport industry.
9In 2003, the plaintiff suffered an injury to his right hip at work. He underwent a right hip arthroscopy in July 2004 but continued to be troubled by significant right hip pain. In about 2012, the plaintiff came under the care of the Pain Clinic at the Royal Melbourne Hospital for his right hip condition.[2] His treatment there included an ilio-inguinal nerve block, several radiofrequency denervations of the ilio-inguinal nerve and approximately six-monthly steroid injections of the ilio-inguinal and lateral cutaneous nerve. He continues to be treated at the Royal Melbourne Hospital for that condition.
[2]T11
10The plaintiff was out of the workforce for a large part of the period between 2009 and 2016. This was primarily because of issues involving custody of his three children.[3]
[3]T9-10
11In 2016 the plaintiff resumed working as a truck driver.[4]
[4]T11
12On 23 August 2018, the plaintiff was employed as a truck driver by a labour hire company, JV Recruitment Pty Ltd (“the employer”).
13On 6 September 2018, he was placed by the employer at BagTrans Transport. His work required the use of tautliners which involved routine handling of side gates and curtains.
14On 10 September 2018, the plaintiff developed pain in his right shoulder whilst manoeuvring side gates and curtains during the course of his work.[5]
[5] Plaintiff’s Court Book (“PCB”) 8
15The plaintiff continued working for the next two weeks, feeling increasingly significant ongoing pain in his right shoulder, and limitations in what he could do with his right shoulder and arm.
16The plaintiff carried on working at BagTrans until mid-January 2019,[6] but ceased at that time due to his right shoulder injury.
[6] PCB 35
17In terms of treatment for his right shoulder injury, the plaintiff attended his general practitioner (“GP”), Dr Kieran Keane, at the Laverton Medical Centre on 24 September 2018. Dr Keane administered a right shoulder steroid injection and prescribed OxyContin.
18Later in January 2019, Mr Tolongou was referred to orthopaedic surgeon Mr Ash Chehata. Mr Chehata recommended that the plaintiff undergo a hydrodilatation. This took place on 25 March 2019.[7] It appears to have been helpful in relieving some of the plaintiff’s symptoms for a period.[8]
[7] PCB 34
[8]PCB 59
19In April 2019, the plaintiff found a new job as a truck driver. He continues in that work. This role is much less physically demanding than his previous employment. He is not required to load and unload, and only has to use twist locks to secure the containers after others have loaded his truck.[9] He is able to operate the twist locks left-handed. Further, his truck has automatic transmission and power-steering.
[9] PCB 10
20The plaintiff works between 40 and 60 hours across five shifts a week in his current role but takes the occasional day off due to right shoulder pain.[10] He can manage his current job satisfactorily.[11]
[10]PCB 10, PCB 15 and T23, T37
[11]T37
21Since April 2019, the plaintiff’s treatment for his right shoulder injury has consisted of analgesia and regular steroid injections (in October 2019, February 2020, June 2020, December 2020, March 2021, June 2021, September 2021, March 2022, May 2022 and July 2022).[12] Over time, the benefit from the steroid injections is of shorter duration and the injections have become more frequent. It is anticipated that the plaintiff will continue to receive steroid injections at regular intervals in the future.
[12]PCB 42-3
22The plaintiff tried physiotherapy for his right shoulder condition but did not find it helpful.[13]
[13]T36
23This application proceeded in the usual way. Mr Tolongou gave oral evidence and tendered two affidavits sworn by him, an affidavit sworn by his partner, Ms Maria Solomos, various medical reports and a Medical Panel Opinion and Reasons. The defendant tendered a number of medical reports, a Medicare printout and various clinical records.
24I have considered all the tendered evidence and the plaintiff’s viva voce evidence, but I shall only refer to it to the extent necessary in these reasons.
The plaintiff’s evidence
25The plaintiff swore affidavits on 22 December 2021[14] and 8 November 2022.[15] The plaintiff described the circumstances in which he sustained his right shoulder injury and the treatment he has had.
[14]PCB 5
[15]PCB 14
26In terms of ongoing consequences, the plaintiff said that he continues to experience constant pain in his right shoulder which varies in intensity. His pain is aggravated by reaching or lifting with his right arm. He prefers to keep his right arm closer to his body so as not to aggravate his pain. His ability to lift has been significantly affected in that he could previously lift as much as 60kg, but now rarely tries to lift anything weighing more than about 5kg with his right arm.[16]
[16] PCB 10
27The plaintiff finds that he has increased pain after driving for half an hour or so. Given that he works full time as a truck driver, this is a significant issue for him.[17]
[17] PCB 10-11
28The plaintiff’s capacity to perform work around the house and in the garden has also been affected. At his parents’ house he assists occasionally with household chores.[18] When he is staying with his partner, they share the household chores.[19] The plaintiff breaks up household and gardening tasks in order to get them done.[20]
[18]T28
[19]Ibid
[20] PCB 11
29There are times when the plaintiff experiences the onset of more severe pain undertaking tasks as simple as brushing his teeth or writing with a pen. Sudden movements and coughing increase the plaintiff’s right shoulder pain, and he occasionally experiences a feeling of numbness in his right arm.[21]
[21]PCB 11
30The plaintiff’s right shoulder pain causes him to wake at least a couple of times a night, most nights.[22] It is to be noted that the plaintiff had experienced sleep difficulties for many years prior to sustaining his shoulder injury, but in evidence he described having more difficulties with his sleep than he had before, due to right shoulder pain.[23]
[22]PCB 12
[23]T24-25
31Mr Tolongou used to be a recreational boxer. He ceased boxing in the ring many years prior to sustaining his right shoulder injury but had maintained involvement in that activity by regular use of a punching bag at home, and sometime sparring with his sons.[24] He has been unable to continue these activities by reason of his right shoulder injury.[25]
[24]T22
[25]T23, PCB 12
32The plaintiff previously enjoyed fishing with his father on a regular basis but has found that he can no longer fish due to pain in his right shoulder.[26]
[26]PCB 12, T24, T25
33Prior to suffering his right shoulder injury, the plaintiff enjoyed hunting and shooting but has been unable to resume those activities due to his shoulder pain and restricted movement.[27] I note that these particular recreational activities were not mentioned in the plaintiff’s affidavits, and the frequency with which such activities were pursued pre-injury is not in evidence.
[27]Defendant’s Court Book (“DCB”) 27, T24
34Intimacy with his partner has been affected by right shoulder pain.[28]
[28] PCB 16, T29-30
35In his first affidavit, the plaintiff set out the medication he was then taking each day – namely eight Panadeine Forte, one Oxycodone, and four Panadol Osteo.[29] In his second affidavit, the plaintiff deposed to continuing a similar medication regime, but also including Nurofen and occasionally aspirin.[30]
[29]PCB 12
[30]PCB 15
36Whilst the plaintiff noted in his first affidavit that he had previously suffered various injuries including back and hip injuries,[31] he did not depose to any medication he had been taking for such injuries prior to sustaining his right shoulder injury in September 2018.
[31]PCB 6
37During cross-examination, the plaintiff was questioned about his medication use prior to sustaining his shoulder injury. He said that even before sustaining his right hip injury in 2003, he would regularly take strong codeine-type medication,[32] and that he had taken many Panadeine Forte a day for over 20 years.[33]
[32]T5
[33]T8
38The plaintiff believed that between 2003 and 2010 he took two to four Panadeine Forte a day for his right hip pain.[34] He thought it was possible that between 2009 and 2018 his GP, Dr Keane, had suggested to him that he ought to reduce his use of prescription medications.[35]
[34]T7-8
[35]T10, T18
39The plaintiff agreed that he had been taking approximately eight Panadeine Forte each day as at March 2016.[36]
[36]T16
40In May 2016, Dr Keane prescribed OxyContin in addition to Panadeine Forte to assist with the plaintiff’s ongoing right hip pain.[37] The plaintiff’s recollection was that he did not take OxyContin every day at that time.[38]
[37]T17
[38]T18
41I find that the plaintiff’s recollection as to his OxyContin use at that time is borne out by the clinical records. The GP clinical records and the Medicare history detail ten prescriptions (for 28 Oxycodone tablets each) during the seven months between 26 May 2016 and 23 December 2016, six such prescriptions during 2017, and three such prescriptions during 2018 and prior to October 2018.[39]
[39]Summary of individual prescribing history and Defendant’s Supplementary Court Book (“DSCB”) 82-84
42The picture appears to be that in the 18 months or so prior to the plaintiff sustaining his right shoulder injury in September 2018, he was regularly prescribed and taking about eight Panadeine Forte each day and one OxyContin approximately every two or three days for his right hip condition.
43Ultimately, the plaintiff agreed during cross-examination that he currently takes the Panadeine Forte for his right hip pain, and the OxyContin “more so for my shoulder”.[40]
[40]T19
44I am troubled by the fact that neither of the plaintiff’s affidavits contained reference to the plaintiff’s very significant, long term, pre-injury medication regime. Whilst the plaintiff briefly deposed that he suffered pain associated with his right hip,[41] and that he had received ongoing treatment for this over the years, the affidavits led the reader to believe that the medication the plaintiff was then taking was for his right shoulder condition only. This was clearly not the case.
[41]PCB 17
45I note however that the plaintiff was candid about his prior medication use during cross-examination and the defendant did not submit that the plaintiff’s evidence was not credible or reliable.
The affidavit of Maria Solomos
46The plaintiff tendered an affidavit sworn by his partner, Maria Solomos, on 8 November 2022. No application was made by the defendant to cross-examine her.
47Ms Solomos first met the plaintiff in about 2010. She described him as “busy and very fit” at that time, and “always being on the go”.[42] Ms Solomos said that things changed dramatically after the plaintiff injured his shoulder in 2018.
[42] PCB 19
48Ms Solomos made no mention in her affidavit of the issues the plaintiff had with his right hip from 2010 to 2018, which I find required regular treatment at the Royal Melbourne Hospital and the ingestion of significant quantities of strong prescription analgesia.
49Although Ms Solomos’ evidence was not challenged by way of cross-examination, her evidence must nonetheless be assessed in the context of the plaintiff’s evidence regarding his pre-existing hip problems and treatment.
50Whilst I accept Ms Solomos’ evidence regarding the restrictions she witnessed in the plaintiff’s activities due to his right shoulder condition, I treat her evidence generally with some caution given the absence of any reference to the plaintiff’s pre-existing hip problem.
The medical evidence
Treating practitioners
51Three reports were tendered from the plaintiff’s GP, Dr Kieran Keane. In them, Dr Keane outlined his treatment of the plaintiff’s right shoulder condition since September 2018.[43] He noted that on initial presentation the plaintiff had painful restricted abduction of the right shoulder to about 90 degrees. He was treated with a steroid injection to the subacromial space which provided some benefit for a few weeks, but his pain continued to be aggravated by his work duties. Dr Keane sent the plaintiff for an MRI which was undertaken on 16 January 2019. He summarised the report as concluding that there was moderate tendinosis of the supraspinatus tendon with moderate subacromial bursitis, an old SLAP injury, moderate biceps tendinosis of the arcuate segment and features consistent with capsulitis.
[43]PCB 40, PCB 42 and DSCB 34
52Dr Keane referred the plaintiff to Mr Ash Chehata, orthopaedic surgeon, whom he saw on 4 March 2019. Mr Chehata recommended a hydrodilatation to treat the SLAP tear associated with adhesive capsulitis. This took place on 25 March 2019 and provided relief of the plaintiff’s symptoms for a period of weeks.[44]
[44] PCB 59
53Dr Keane administered a further steroid injection into the plaintiff’s right shoulder on 25 October 2019. This provided some mild relief of his symptoms for a period. He has undergone repeat steroid injections since that time. They currently occur at approximately three-monthly intervals and will likely continue into the foreseeable future.[45]
[45]PCB 43
54Dr Keane stated that the plaintiff’s current symptoms are of constant pain in the right shoulder, painful restricted movements associated with a click, and radiation of pain down the arm associated with tingling in the hand.[46] Dr Keane opined that the plaintiff is permanently unfit for his pre-injury duties and will not be fit for work that requires heavy lifting, heavy manual duties or work above shoulder level. He outlined that the plaintiff requires a quite specific truck cabin configuration in order to continue his driving duties.[47]
[46]PCB 42
[47]PCB 43
55In his report dated 6 August 2019, Dr Keane reported to the plaintiff’s solicitors regarding the plaintiff’s right hip injury, and the treatment for it from 2003 onwards.[48] Dr Keane noted that the regular treatment the plaintiff received at the Pain Clinic at the Royal Melbourne Hospital appeared to give him some mild or temporary relief of his right hip symptoms but did not materially improve his perceived pain, his quality of life, or his analgesia intake.[49] He reported that the plaintiff was continuing to take the maximum dose of Panadeine Forte per day, being eight tablets, and was commenced on OxyContin 10mg in 2016 and continued to take this most mornings, stating this provides adequate pain relief to allow him to work. This report made no mention of the plaintiff’s right shoulder condition.
[48]DSCB 34
[49] DSCB 35
56The plaintiff tendered three reports from treating orthopaedic surgeon Mr Ash Chehata.[50] Mr Chehata first saw the plaintiff on 4 March 2019, and diagnosed adhesive capsulitis, and tendinosis of the supraspinatus, coupled with a SLAP tear. He organised the hydrodilatation.
[50]PCB 35, PCB 37, PCB 58
57Mr Chehata reviewed the plaintiff at the request of his solicitors on 18 October 2022.[51] He noted that the hydrodilatation procedure had provided significant relief, but the plaintiff had since required cortisone injections at regular intervals. Mr Chehata opined that the plaintiff was almost certainly addicted to opioids.[52] He noted that the plaintiff was continuing to suffer from ongoing pain in his right shoulder which was restricting his activities, including personal care, household chores and recreational pursuits. He noted that the plaintiff intermittently experienced neuropathic-style symptoms with numbness and pins and needles down his right arm.[53]
[51]PCB 58
[52] PCB 59
[53]PCB 60
58In his recent report, Mr Chehata confirmed his diagnosis of a chronic SLAP tear secondary to adhesive capsulitis causing chronic pain. He noted that restrictions appeared to be significant, including an inability to forward flex and abduct past 90 degrees without pain.[54]
[54] PCB 62
59The defendant tendered a report from Dr Malcolm Hogg, Anaesthetist and Pain Medicine Specialist, Royal Melbourne Hospital, dated 5 October 2021.[55] Dr Hogg noted the plaintiff continued to suffer from pain deep in the right groin region, exacerbated by activity and prolonged sitting in the driving position. Medication use was noted to be 6-8 Panadeine Forte per day, ibuprofen, and OxyContin possibly up to one daily.[56] Dr Hogg suggested some change to the medications to be prescribed, proposing clonidine use at times for pain flares. He reported that the plaintiff had completed a pain questionnaire with high reports on pain severity and impact, high on depression/anxiety/stress, high on pain catastrophising and low on pain self-efficacy. Dr Hogg reported that the plaintiff’s function limitation was low-moderate by comparison.[57]
[55]DSCB 36
[56] Ibid
[57]DSCB 37
Medico-legal
60The plaintiff tendered a Certificate of Opinion and Reasons of the Medical Panel dated 6 January 2020.[58] In short, the Medical Panel found that the plaintiff had clinical signs of an unresolved soft tissue injury of his right shoulder, comprising a primary superior labral tear from anterior to superior (SLAP tear) and associated secondary residual capsulitis caused by the claimed right shoulder injury which occurred on 10 September 2018.
[58]PCB 44
61The plaintiff tendered a report of Associate Professor Miron Goldwasser, orthopaedic surgeon, dated 5 March 2021.[59] Associate Professor Goldwasser examined the plaintiff on behalf of the defendant for the purpose of his impairment benefit claim. He noted that the plaintiff reported experiencing constant right shoulder pain, aggravated by reaching, lifting more than 5kg, and driving for longer than 30-40 minutes. On examination, Associate Professor Goldwasser noted mild wasting of the supraspinatus, tenderness in the shoulder, most prominent anteriorly, and considerable restriction of shoulder movements which also produced pain. The plaintiff was not able to sustain muscle power in his right upper limb when tested because of complaints of pain.
[59]PCB 64
62Associate Professor Goldwasser opined that the injury to the plaintiff’s right shoulder was consistent with the history given, and whilst the condition still fluctuated from time to time, overall, it had remained much the same for a long period of time.
63The plaintiff tendered a report of Associate Professor Bruce Love, orthopaedic surgeon, dated 17 August 2022.[60] On clinical examination, Associate Professor Love found significant tenderness anterior to the right shoulder and lateral to the acromion. Active range of motion of the right shoulder was extremely limited and a positive impingement sign was noted. Associate Professor Love opined that the plaintiff had developed severe rotator cuff tendinosis and his prognosis was most uncertain. He further stated that the plaintiff remained unfit for his pre-injury duties and was no longer fit to engage in repetitive lifting tasks.
[60]PCB 48
64The defendant tendered two reports of Dr Peter Wilkins, Occupational Physician, dated 8 February 2019 and 18 February 2019.[61] He examined the plaintiff on one occasion, on 6 February 2019.
[61]DCB 4, DCB 12
65On examination, Dr Wilkins found that power for resisted movements was reduced at the plaintiff’s right shoulder, and he was tender to palpation anteriorly and laterally at the right AC joint. There were impingement signs on abduction and forward flexion, and internal rotation was restricted to L5 level. Dr Wilkins noted that the plaintiff was unable to abduct or flex his right shoulder above the horizontal.
66Dr Wilkins diagnosed an old SLAP injury based on radiological appearances, not accounted for by the history provided. More acutely, he said the plaintiff had subacromial bursitis, tendinosis of the superior subscapularis and long head of biceps, minor arthrosis of the AC joint and clinical signs of adhesive capsulitis consistent with the MRI appearance. He opined that the plaintiff was not capable of heavy vehicle driving. Dr Wilkins stated that conventional treatment for the plaintiff’s injuries involved a combination of analgesia, NSAID, hydrodilatation or instillation of local anaesthetic plus steroid and sometimes manipulation under anaesthetic.
67The defendant also tendered two reports of Mr Graeme Brown, orthopaedic surgeon, dated 30 March 2022 and 30 September 2022.[62]
[62]DCB 25, DCB 31
68In his first report, Mr Brown noted that the plaintiff complained of constant right shoulder pain, aggravated particularly by abduction, forward elevation and extending his shoulder, and often experienced pins and needles in his whole right arm to his hands and fingers. He opined that clinically the plaintiff had reduced right shoulder movement with unresolved adhesive capsulitis or stiffness secondary to another injury such as a SLAP tear. He noted that the plaintiff reported to him that he was more aggressive since his injury, and he opined that the plaintiff had a psychological reaction to his physical condition. Mr Brown stated that because of the psychological reaction, the plaintiff’s pain was constant and of greater severity than Mr Brown would typically see with someone with this physical condition.
69In his second report, Mr Brown noted that the plaintiff stated his pain had worsened since May 2022 and was always 10/10 in severity. He told Mr Brown his right hand was swollen. Mr Brown noted that the plaintiff’s predominant symptom was generalised shoulder pain, aggravated by movement. His sleep remained poor because of shoulder pain, and movement of the shoulder remained restricted. The plaintiff continued to experience pins and needles in his right arm, including his hands and fingers.
70Mr Brown’s diagnosis remained unchanged in his second report, that is that the plaintiff suffered from severe shoulder pain and reduced movement consistent with unresolved adhesive capsulitis or stiffness secondary to another injury, such as a SLAP tear. He noted the objective clinical signs were of a global reduction in active movement of the right shoulder. He repeated his opinion regarding the impact of a psychological reaction to the physical condition.
Disentangling the physical and mental consequences
71At the start of the hearing the defendant identified a possible issue, based upon the reports of Mr Brown, regarding disentanglement of physical contributions to pain and suffering from psychological contributions.[63] An extremely brief submission was made in closing, but it was said not to be a major issue.[64]
[63]T3
[64]T43
72There is no controversy that this issue is to be approached in a two-step manner.[65]
[65]Meadows v Lichmore Pty Ltd [2013] VSCA 201, [21]-[22] (Maxwell ACJ)
73The first step is to determine whether there is a substantial organic basis for the pain and suffering consequences relied upon. If there is, there is no need to proceed to the second step of ‘disentangling’.
74I find that the evidence firmly supports a determination that there is a substantial organic basis for the plaintiff’s right shoulder condition. Each of the experts who have reported upon the plaintiff’s condition have identified an organic injury to the plaintiff’s right shoulder, demonstrated on imaging, and in keeping with clinical examination. Indeed, Mr Brown opined that the plaintiff presented with pain and reduced movement consistent with unresolved adhesive capsulitis, and objective clinical signs of a global reduction in active movement of the shoulder.[66] Further, the plaintiff’s injury has been treated as an organic injury, with prescription analgesia, a hydrodilatation and regular steroid injections.
[66]DCB 32
75Given my findings in relation to the first step of the process, I am not required to proceed to the second step.
Do the impairment consequences of the plaintiff’s right shoulder injury meet the threshold?
76The defendant’s primary submission was that this is a ‘range case’, and the plaintiff’s impairment consequences do not meet the threshold.
77The defendant submitted that the plaintiff has had limited treatment for his right shoulder condition; his ingestion of medication is not very different from the pre-injury position; he remains capable of working up to 60 hours a week as a truck driver; that he was previously, and continues to be, greatly affected by his right hip condition and had already substantially lost his hobbies including boxing; his socialising has not been significantly affected; his sleep was already poor; and that he remains able to perform personal care, perform household chores, wash his car and use a whipper-snipper.
78The credibility and reliability of the plaintiff is often critically important in cases of the present kind.[67] I note that there was no attack by the defendant upon the plaintiff’s credibility.
[67]Johns v Oaktech Pty Ltd [2020] VSCA 10, [76]
79The fact that the plaintiff has a significant injury to his right hip which might be said to have serious consequences for him does not mean that his right shoulder injury cannot also meet the threshold. It is for the Court to assess the impact of the different conditions separately to decide whether the compensable injury is serious.[68]
[68]Dressing v Porter [2006] VSCA 215, [47] (Ashley JA)
80Whilst it is regrettable that the plaintiff’s affidavits, and that of his partner, Ms Solomos, did not deal appropriately with the plaintiff’s very significant pre‑existing right hip problem and its consequences, I found the plaintiff to be a straightforward and candid witness. In particular, he was forthcoming in his viva voce evidence about his right hip problem, its treatment and consequences.
81I am satisfied that I can rely upon the plaintiff as a witness of truth.
82I find the plaintiff to be a man who has simply endeavoured to get on with work and other activities as best he can. I accept his evidence regarding the ongoing pain and restriction of movement that he experiences in his right shoulder.
83On the whole of the evidence, I find that the plaintiff suffered a SLAP tear of his right shoulder and associated secondary residual capsulitis which has resulted in chronic pain, mild wasting of the supraspinatus, a significant reduction in range of movement, and impingement.
84I find that it is of significance that the injury is to the plaintiff’s dominant arm.
85The plaintiff experiences constant pain which varies in intensity according to his level of activity. I find that there are times when an otherwise innocuous activity, such as brushing his teeth, can trigger significantly increased pain.
86I find that the pain caused by his right shoulder condition has caused the plaintiff to take OxyContin almost every day, rather than every second or third day, as previously. The plaintiff also takes over-the-counter medications, namely Nurofen and Panadol Osteo, on average four tablets of each daily, to manage his right shoulder pain.[69] He has undergone a hydrodilatation and repeated steroid injections. He will continue to require steroid injections to manage his pain into the foreseeable future, likely every two to three months.
[69]T38
87Whilst the plaintiff has been able to continue to work as a truck driver on a full-time basis, I note that all of the evidence and circumstances must be considered in a serious injury application, and an ability to return to work is not determinative against a plaintiff.[70]
[70]Sabo v George Weston Foods [2009] VSCA 242, [71]
88I find that the plaintiff is unable to engage in unrestricted truck driving because of his right shoulder injury. To his credit he has managed to secure a truck driving role that does not require him to participate in loading or unloading in any significant way, and with a cabin setup that places the least strain upon his right shoulder. I further accept the plaintiff’s evidence that he tends to rest and avoid activities on the weekends so that he is able to work the following week.
89I find that the plaintiff is restricted in his ability to perform household chores by reason of his right shoulder pain, but he continues to do so as best he can, particularly when he resides with his partner. Whilst the plaintiff has retained the capacity to perform most household chores, he does less where possible and manages by breaking up the activities. I find that he experiences increased pain when doing so.
90The plaintiff had difficulties with his sleep before suffering his right shoulder injury, but I find that he now has further nightly interruptions due to right shoulder pain.
91The plaintiff had been a keen boxer in the past but had been limited in his ability to pursue that activity because of his right hip injury. He was no longer able to box recreationally ‘in the ring’, but nevertheless enjoyed sparring with his sons and would regularly use a punching bag at home.[71] I find that activity is now lost to him by reason of his shoulder injury. In circumstances where he had already lost the recreational aspect of boxing ‘in the ring’, the loss of his remaining ability to engage in boxing activities is significant to the plaintiff.
[71]T22, T40
92Further, I find that the plaintiff previously enjoyed fishing with his father from his father’s boat but has been unable to continue to do so because of his shoulder injury.[72] The frequency with which the plaintiff previously engaged in that activity is not clear on the evidence, and in those circumstances I find this impairment consequence to be mild only.
[72]PCB 12
93I have considered not only what the plaintiff has lost by reason of the impairment consequences of his right shoulder injury, but also what he has retained.
94In all the circumstances, I am satisfied that the pain and suffering consequences of the long-term impairment of the plaintiff’s right shoulder are more than significant or marked and at least very considerable when compared with other cases in the range of long-term impairments of a body function.
95Leave is granted to issue proceedings for the recovery of damages for pain and suffering in respect of the injury to the plaintiff’s right shoulder sustained during the course of his employment on 10 September 2018.
96I will hear the parties on the question of costs.
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