Tonso v PMP Print Pty Ltd
[2010] VCC 1973
•13 December 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-10-000553
| ROY TONSO | Plaintiff |
| v | |
| PMP PRINT PTY LTD | Defendant |
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| JUDGE: | HER HONOUR JUDGE K L BOURKE |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 15, 16 and 17 November 2010 |
| DATE OF JUDGMENT: | 13 December 2010 |
| CASE MAY BE CITED AS: | Tonso v PMP Print Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 1973 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – injury to the left shoulder – leave granted for loss of earning capacity and pain and suffering.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Riordan with | Maurice Blackburn |
| Ms D E Galbally | ||
| For the Defendant | Mr C Miles | Wisewould Mahony |
| HER HONOUR: |
1 This is an application for leave to bring proceedings for damages pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff during the course of his employment on 5 February 2007 (“the said date”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity. These discrete heads of damage require the application of different statutory tests, as mandated by s.134AB(37) and (38).
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s.134AB(37) of the Act. There, “serious” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
4 The body function relied upon in this case is the left shoulder.
Outline of Section 134AB
(i) Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages;
(ii) The impairment of the body function must be permanent;
(iii) The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, subsections (19) and (38)(e) impose specific burdens in relation to a claim for loss of earning capacity;
(iv) By subsection (38)(c) of the Act, the impairment must have consequences in relation to each of pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “at least very considerable” and “more than significant” or “marked”;
(v) I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders;
(vi) Where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of forty per cent or more, both at the date of hearing and permanently thereafter;
(vii) Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured;
(viii) Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the forty per cent loss has been established;
(ix) Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases;
(x) I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 and Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602 in reaching my conclusions.
5 The plaintiff relied upon two affidavits and gave viva voce evidence. He was cross-examined. Dr Winfield and Dr Thomas were also required to attend for cross-examination.
6 In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s Evidence
7 The plaintiff is presently aged forty nine, having been born on 17 December 1960.
8 Having completed Year 11, he commenced a butcher’s apprenticeship but did not complete it. He then opened a butcher’s shop but he went broke and then moved to Perth where he worked for Hume’s for a couple of years.
9 In 1986, the plaintiff first worked for the defendant for one year before moving to Western Australia. Whilst there, he worked as a reel hand and bookbinder until the late 1990s.
10 The plaintiff then returned to Victoria to work with the defendant as a bookbinder at its Clayton premises.
Summary of the Plaintiff’s Earnings
Financial Year Gross Amount 2001/2002 $62,085.00 2002/2003 $63,507.00 2003/2004 $65,145.00 2004/2005 $68,878.00 2005/2006 $62,844.00 2006/2007 $61,872.00 2007/2008 $56,083.00 2008/2009 $56,963.00
11 The plaintiff’s duties were often heavy and repetitive, requiring him to lift and manoeuvre heavy reels and heavy items used in printing. He initially injured his left arm in September 2000, when it was jammed between a forklift and a disc. Following that incident, he was on light duties for several months and then recovered.
12 On 16 August 2005, the plaintiff suffered left shoulder pain whilst pulling a heavy reel of wire. He attended his general practitioner, Dr Winfield, who referred him to a specialist who gave him an injection. The plaintiff was on light duties for a period but was eventually able to return to his normal work.
13 In cross-examination, the plaintiff confirmed this injury was not a major issue in the scheme of things. His shoulder at that time was still hurting, but he could manage and it did not stop him working.
14 In late 2005, the plaintiff was diagnosed with bowel cancer. He was hospitalised for a couple of weeks. He had a good result from surgery and his condition did not require further monitoring. After a couple of months off work, he was eventually able to return to normal duties as a bookbinder.
15 In cross-examination, the plaintiff agreed that he injured his shoulder in a motorbike accident in 2000, after which he had surgery, from which he had a good result. In 2003, he complained of being stressed at work and sleeping poorly, and he was prescribed tranquillisers. The plaintiff’s daughter died in 2006. At that time the plaintiff was prescribed Lexapro for depression and had some counselling organised by the defendant.
16 On the said date, the plaintiff suffered injury to his left shoulder while operating an electric forklift known as a “BT lifter”.
17 To operate the BT lifter, the plaintiff stood on the back thereof and operated a T-bar which it steered. The power steering malfunctioned and the T-bar suddenly moved to the left, wrenching the plaintiff’s left shoulder (“the incident”). In cross-examination, the plaintiff said that when his shoulder was wrenched he fell to the ground.
18 Following the incident, the plaintiff attended Dr Winfield who put him on light duties as the plaintiff continued to try and work.
19 The plaintiff was eventually referred to an orthopaedic surgeon, Mr Griffin, who arranged investigations including an ultrasound, and advised the plaintiff he required left shoulder surgery.
20 On 11 February 2007, Mr Griffin operated on the plaintiff’s shoulder, repairing his rotator cuff (“the surgery”). Following the surgery, the plaintiff had a bad infection in his shoulder and he was hospitalised for many weeks.
21 The plaintiff was eventually able to return to work with the defendant, performing light duties a couple of hours a day, two days a week, in the office on the factory floor.
22 After a while the plaintiff was moved into an office upstairs where he attempted to increase his hours to about five or seven hours a week. However, he was having a great deal of left shoulder pain and relying on large dosages of medication to try to cope with the pain.
23 During 2007, the plaintiff started to take a lot of OxyContin in an attempt to try and control his pain. Later in 2007, the plaintiff separated from his wife.
24 In early 2008, the plaintiff was referred to St John of God Hospital in Frankston for rehabilitation.
25 During 2008, the plaintiff tried to work for the defendant. He increased his hours to about twenty hours per week; however he had great difficulty with this. Eventually he was told by the defendant there were no further light duties that could be provided and he was put off work in August 2008.
26 In cross-examination, the plaintiff explained that the data entry job in 2008 was quite good but he had trouble managing the keyboard. It was lighter work than the gatehouse work as it did not involve walking. He managed typing with one finger quite slowly as he had plenty of time. In August 2008 he was told there was no further work available. The defendant told him that he was a liability, and it had fulfilled its obligations. The plaintiff broke down and went to the union straight away. The union told him there was no way that was happening and there was a big union fight over it. The defendant would then not let the plaintiff return to work.
27 Whilst hospitalised for the surgery, the plaintiff developed severe low back pain and also neck pain which has continued to the present time.
28 At times his back pain goes down his left leg to his knee and is aggravated if he sits for any lengthy period.
29 The plaintiff was unsure as to whether he had had any further investigations of his back since the September 2007 MRI scan. He had only been referred to the pain doctor, Dr Thomas, who had sent him to Mr Courtney for injections in his back.
30 The condition of the plaintiff’s back since hospitalisation in 2007 has been “good and bad. It is not all the time.” Sometimes he gets back pain which pinches down his leg. When that occurs it is then really hard to walk. Driving
also aggravates his lower back pain.
31 Since the incident, the plaintiff has developed problems with his right shoulder. He has been advised by Dr Winfield that he should have surgery on that shoulder, as there is also a tear there. He had an ultrasound on 23 June 2008.
32 The plaintiff’s right shoulder gave him increasing problems whilst doing data entry work and, on Dr Winfield’s advice, the plaintiff filled out an incident form. A claim in relation to the plaintiff’s right shoulder was rejected by the Medical Panel in 2008. Whilst the plaintiff has been referred to a specialist for his right shoulder, he has not yet seen one. He is considering whether he or not he will have surgery.
33 When the plaintiff saw Mr Nguyen about his left shoulder in early 2010, the plaintiff also mentioned his right shoulder to him. The plaintiff told Mr Nguyen that his right shoulder was seriously bad. Mr Nguyen rotated the plaintiff’s right shoulder a few times and said it could be serious and that the plaintiff would probably need to have it fixed.
34 The plaintiff has developed pain in both wrists which was diagnosed as carpal tunnel syndrome in September 2009. He has been advised to have surgery and proposes to do so. He does not know if this condition is related to his incident injury.
35 In February 2009, the plaintiff suffered cardiac problems and had a stent inserted. He was hospitalised in February 2010 with a heart condition that was attributed to his alcohol intake. He still takes medication for hypertension.
36 During 2008-9, the plaintiff was drinking alcohol to excess, particularly after he went off OxyContin. Alcohol was a bigger problem for him than OxyContin. He was advised to attend Alcoholics Anonymous and did so, which helped him, and he is now drinking far less.
37 In cross-examination, the plaintiff agreed that these many problems were “a bit of a worry” for him.
38 In late October 2009, the defendant proposed a return to work plan for the plaintiff. He was offered a position of a gatehouse assistant on dayshift on a weekly wage just in excess of $1,000. The job was not as a security guard and the role did not have that classification.
39 The plaintiff initially thought the gatehouse job was great. He was optimistic because he wanted the job. It was fantastic, and even the union agreed it was a good job for him.
40 The plaintiff signed a role statement prior to taking this job. He relied on the fact he was assured he could do the job, but the role statement was wholly unrealistic. It required him to be “computer literate to enable navigation of software, read and create documents”. The plaintiff was also required to have literacy and numeracy skills. He had to communicate information and ideas in writing for others and he had no such capacity. The plaintiff’s reading skills are only fair and his numeracy skills are poor.
41 The plaintiff was very anxious to work and accepted the job offer and was assured that he could do the job as it was very light. At the defendant’s request, he commenced work six hours a day, quickly increasing to full time hours. He “managed it, just”.
42 The job required the plaintiff to walk around the car park twice a day monitoring cars. If vehicles travelled at an excessive speed, he was required to leave a notice on their windscreen. He was not writing out many tickets a day.
43 The plaintiff just made sure the cars were in the right place. He was not “ticking off regos”. His duties involved “really just anything that had to do with the car park”.
44 The plaintiff was also required to check the pressure gauges on the fire alarm system. In cross-examination, the plaintiff agreed this was the most physical part of his job, involving walking. Initially this task took about forty five minutes but the plaintiff eventually got it down to half an hour when he got used to it. He was required to check about seven or eight pressure gauges, look at them, open the doors and write down notes and the numbers on a clipboard. Writing down the pressure gauge numbers did not take very long.
45 The plaintiff had to report it if something was wrong. There was nothing physically difficult doing this job, except for one gauge, where he had to crouch down and go inside to see the gauge.
46 To fill in the necessary details, the plaintiff held a clipboard with his left arm. He had to put pressure against the board to stabilise it, which caused considerable problems, and at times he simply could not do it.
47 The plaintiff did not carry the clipboard under his right arm because “it was just awkward”. He used his right hand to “open doors and stuff” but he agreed that he could have carried the clipboard under his left arm.
48 The walking involved in these tasks caused an aggravation of the plaintiff’s left shoulder pain and the trouble he had was made worse by the fact that he had to carry a clipboard.
49 Also, the plaintiff did a forty to forty five minute walk around the boundary of the defendant’s premises. He was not required to do this walk every day, and only when he felt he could do it. His job was to check to see the fences were okay, and if there was any problem he had to report it to Mr Young.
50 When asked what he meant by saying he did not have to do it if he did not feel up to doing this job, the plaintiff said: “Well, that’s just like if I was sleeping at work. That was okay to do that as well. If I felt tired I would just sleep at work. Ian Young let me just do it.” Ian Young had told him: “If you feel up to it, go for a walk.” Mr Young never came up to him and said: “You haven’t done a walk for a while.”
51 The plaintiff could have fitted in “a lot of stuff” in his day: “Well, there was nothing to do there; there was just nothing to do.”
52 Once the plaintiff started this job, he had to wear either a sling or a support at all times. He disputed Mr Young’s evidence that he gave up wearing the sling and support after about six weeks back at work.
53 For the first three months in the job, the plaintiff did not actually do any work in the gatehouse. Until the defendant set up the gatehouse and installed a computer and a phone, the plaintiff “just walked around”.
54 The job “was not there ever”. Prior to the plaintiff commencing this job, the gatehouse had been used as a storage shed. It was just an empty room. The power had to be put on.
55 Whilst the plaintiff agreed that the job would be there for him tomorrow if he returned to work, no one is doing that job now. The plaintiff did not understand why the defendant was holding the job open. “If it was worried about security the whole gate is being left unattended.”
56 When the computer was hooked up to the security camera the plaintiff did not have to walk around the car park, but he still did. He still walked once whenever he felt like he needed to, or when something was not right on the camera he would go and have a look. However, if it all appeared okay on camera he would just stay in the gatehouse.
57 The plaintiff thought it was a job when the computer came: “Well sort of, yes, he thought it was a job, but he thought what for?”. He did not really ever work out why they needed him there.
58 Whilst the plaintiff was located in the gatehouse he was also told to answer incoming calls, but the whole time he was there the phone never rang. No one ever knew he was there.
59 In terms of computer work, “maybe he was learning how to send an email. That was about it.” He sent one or two emails a week. The computer was very old and slow, and was often having trouble, and the technical men were there all the time.
60 When asked about Mr Young’s comments that his paperwork was not inadequate, the plaintiff agreed he managed to do it okay every day. Mr Young was coming and saying “You’re doing a great job. They never ever faulted him.”
61 The plaintiff agreed that whilst working in the gatehouse he could stand or sit at will, and he would stand up if his back was playing up.
62 When he was interviewed by NabEnet in late 2009, the plaintiff said he told them the job itself was fine, and he was going “okay”. The plaintiff told NabEnet he had lower back pain which he thought was from the chair, but it was just pain in general. He could hardly remember complaining about his wrist to the NabEnet people.
63 The plaintiff’s main problems in the last couple of months in the gatehouse were his back and shoulder. Apart from his work tasks, the rest of the time the plaintiff slept. He was bored and stared out the window. He spent quite a few hours sitting in the gatehouse.
64 The pain came on in the plaintiff’s right shoulder when he used it to do anything. Because of discomfort in this shoulder, the plaintiff used his foot to hold open doors to protect his right shoulder.
65 Also, after sitting for any length of time, his back pain came on and went down his leg. The plaintiff complained to the defendant in this regard. He is aware that a new chair was ultimately provided after he left. He did not think it was the chair in particular that caused his problem, rather the problem was that he had to sit for long periods.
66 The plaintiff found that simply sitting aggravated his left shoulder pain to the point where it was unbearable. His shoulder popped out at work without any apparent cause because it was very unstable. Left shoulder pain increased as time went on. The pain increased to the point where the plaintiff could not manage it, and it did not matter that he was not doing anything particularly physical. He found he simply could not relieve his shoulder pain.
67 The plaintiff saw Dr Winfield in late February 2003 and said he was finding it hard to cope and his shoulder was getting too bad. Dr Winfield told him to just keep on trying, and take more Panadeine Forte in the mornings, and that seemed to work a little bit, but not much. If he went to drive home when it was like that, as soon as he got home he was in agony. He could not sleep at nights, and it was just getting worse doing the rounds “and stuff like that”.
68 The plaintiff took Panadeine Forte and Norspan whilst working but he found it difficult to concentrate when taking the medication. If he took enough to cope with the pain he “felt out of it” and if he did not take enough medication he was unable even to get to work. However, his left shoulder then started to hurt too much. The plaintiff was going home in tears, and he was actually in tears at work a couple of times.
69 By April 2010, the plaintiff found he simply could not cope and he was forced to give up work. He was certified unfit for any work by Dr Winfield from 19 April 2010.
70 Dr Winfield told the plaintiff to see Dr Thomas first and “see how you go. If they can control the pain you can get back to work. If they can’t, obviously you cannot”.
Pain and Restriction
71 The plaintiff continues to suffer from severe constant left shoulder pain. He has great difficulty trying to control the pain with medication and he uses a brace at all times.
72 The plaintiff takes medication daily, including Norspan patches and up to ten Panadeine Forte a day. He also takes Nexium for his stomach and Lexapro for depression prescribed by Dr Winfield.
73 The plaintiff remains under Dr Winfield’s care and he sees a physiotherapist twice a week. He also attends a psychologist for treatment of depression.
74 No arrangements have been made to go back to Mr Nguyen for further left shoulder surgery as the plaintiff explained: “Once you’ve had surgery that goes really bad, it’s pretty hard to go and just jump into surgery again.”
75 The plaintiff has seen a female psychiatrist, Dr Vinay Kunar, for WorkCover. She was located around the corner from his work and he saw her quite regularly at the end of last year but he had not seen her for two months. He thought he saw her more than ten times. She gave him medication, but it gave him severe headaches and he could not use it. The plaintiff had seen her since he stopped work but she then moved.
76 The plaintiff has difficulty sleeping because of his left shoulder pain. He wakes during the night and remains tired during the day.
77 Because of his left shoulder pain, the plaintiff is restricted in normal activities. He previously enjoyed riding a dirt bike. However, he has had to give this up. He also enjoyed going fishing, but this activity has been restricted because of pain.
78 Whilst he is separated from his wife, the plaintiff sees a lot of her. They look after their two grandchildren and he has restrictions in relation to his ability to do so because of his shoulder pain.
79 Because of shoulder pain, the plaintiff cannot help with household duties such as cleaning, house repairs or gardening as he had previously done.
80 The plaintiff is very worried about his work future as he is no longer able to work as a bookbinder.
81 Around September 2009, the plaintiff undertook an introductory course in computers at the Dandenong Family House. The lady teaching him did all the keying in for the plaintiff. The course did not really helped him a great deal with computers. He has a computer at home. He is just starting to send e mails and he can buy on eBay.
82 The plaintiff presently lives in a caravan in front of his daughter’s rented house. It is a great worry to him that he is homeless, and he has been in that situation for a long time. When he was at work it was not so bad, because he had somewhere in the day to stay. The plaintiff is responsible for his own care. He has no choice.
83 For a long time because of his left shoulder injury, the plaintiff did not drive, but he does now with difficulty. He has no choice but to drive. He only drives with his right hand, and has been driving all this year. Last year he was being driven around everywhere, but by the end of the year when he recommenced work he was driving himself.
84 The plaintiff demonstrated in the witness box how he washes his hair, using his right hand to put his left hand up to his head to wash his hair.
85 When eating the plaintiff uses a knife and fork with difficulty. He holds his left hand with the fork in it, and moves the food to the fork and cuts it, and moves the plate around to cut. The plaintiff demonstrated how he ate a hamburger, lifting his left hand with his right to hold the hamburger.
86 The plaintiff can carry things in his left hand, but it does not feel comfortable and it is quite painful. He manages to put things under his left arm to carry them and hold them against his body. He could “free hang” carry something like a loaf of bread. He has had problems particularly in the last two years in that regard, and it has been getting worse.
87 The plaintiff spends his days mainly just watching movies, and tries to get as comfortable as he can lying down at home.
88 The plaintiff does not really go out. “There is nothing he can do. Where would he go?” He does a bit of shopping every now and again, because he has to look after himself. He shops for food, and maybe goes to Fountain Gate to have a look around, but he does not have much money. He looks around Bunnings at Fountain Gate or Narre Warren. He used to be a really good handyman. Maybe he has bought a tape measure once or something like that. He might go there to buy a nail punch just for the sake of having it because it is cheap.
Video Surveillance
89 There was forty nine minutes of video surveillance of the plaintiff taken on 23 July 2010, mainly at St Kilda Road Towers in Queens Road. The plaintiff was first shown at about 10.00 am walking along the street with his left arm hanging at his side.
90 The plaintiff’s car was shown driving between 10.05 am and 10.48 am when the plaintiff arrived in Queens Road. When he entered what appeared to be a food hall, the plaintiff proceeded to a counter where he bought something to eat. Whilst standing at the counter, he appeared to put his left arm up on the counter using his right hand – but it was difficult to see as he was filmed from behind.
91 Counsel for the defendant suggested to the plaintiff that he put his left arm up onto the counter without having to lift it. The plaintiff said he could not be sure. The plaintiff has never maintained his left shoulder was useless. He confirmed he cannot get the left arm up by itself.
92 The plaintiff was shown standing with his left arm resting on the counter for about ten minutes.
93 The plaintiff then walked to a table and sat down with his food and ate from 11.03 am to 11.15 am. He ate with both elbows resting on the table. He predominantly held the food in his right hand but for a little while he held the food in both hands,
94 The plaintiff then left the building at approximately 11.20 a.m.
95 For about twenty minutes the plaintiff was then shown sitting in his car parked at the same location. He then walked along the street again with his left arm hanging down.
96 There were two short videos totalling nine minutes taken on 24 October 2010. The plaintiff attended Bunnings, where he purchased a roll of flyscreen which he carried from the store hunched under his left arm or with his left arm hanging.
97 The plaintiff also used his left arm in a hunched position to carry a sausage in bread from the barbecue at Bunnings.
98 In cross-examination, the plaintiff said he might have some more movement in his arm than he had shown in the witness box. When he hunches over and puts his shoulder up towards his head, he can get a bit of a swing out of his left arm..
99 In the final video taken on 8 November 2010 of nearly three minutes’ duration, the plaintiff was shown collecting his grandchild from school.
The Plaintiff’s Medical Evidence
100 The plaintiff attended Dr Winfield two days after the incident and was put on alternate duties with a maximum lifting weight of five kilograms and not raising his arm above that level.
101 Dr Winfield noted in his first report that the plaintiff had previously injured his left shoulder in August 2005, which was the subject of a WorkCover claim. An ultrasound at that time showed a large full thickness tear of the supraspinatus tendon.
102 The plaintiff was referred to Mr Griffin, orthopaedic surgeon, who operated on the plaintiff’s left shoulder at Cabrini Hospital on 11 April 2007. Further surgery was required on 25 April 2007, when the plaintiff developed a post- operative infection. The plaintiff was put on narcotic analgesia for pain and was eventually discharged on 1 June 2007.
103 On 18 June 2007, an x-ray of the left shoulder showed a mild subluxation.
104 On 28 September 2007, there had been slow improvement and the plaintiff’s left shoulder elevation still was to 60 degrees. He was to start work on two hours for two days a week from 2 October 2007.
105 Over the following month, the plaintiff’s shoulder was still aching and limitation of movement was as described. The plaintiff’s work hours were increased to three hours a day, two days a week in October 2007. At that time it was hoped his hours could be built up.
106 Dr Winfield reported on 8 July 2008 that overuse of the plaintiff’s right arm had resulted in right shoulder and neck pain. The plaintiff was depressed and he was taking Lexapro.
107 On 11 December 2007, a new work offer was issued which included inwards stores inventory checks, filing et cetera. At that time CGU wanted the plaintiff to undertake a pain management course.
108 On 24 January 2008, the plaintiff was still doing clerical office jobs and had not as yet started the suggested alternate duties.
109 On 30 January 2008, Dr Winfield spoke to Dr Johns who advised him the plaintiff had been taking OxyContin for his pain. Dr Johns felt the plaintiff really could not do much work while on that medication. He wanted the plaintiff to go onto a pain management program in relation to which the he was to be assessed on 8 February 2008.
110 The plaintiff attended Dr Winfield on 26 February 2008 with much the same pain and restriction of movement of left arm.
111 The defendant offered the plaintiff a job of data entry in the business section where the plaintiff would be sitting at a desk inputting, and there would be no lifting or raising of his arms and he could work at his own pace. The plaintiff was to commence working ten hours per week.
112 The plaintiff was referred to Mr Bell, orthopaedic surgeon, for a second opinion. He gave the plaintiff an option of fusion surgery, but the plaintiff was very reluctant to undergo that procedure. At that time, Dr Johns had ordered the Norspan patches which were applied weekly.
113 As at April 2008, the plaintiff was attending pain management, hydrotherapy, and physiotherapy at St John of God Hospital.
114 From 20 May 2008, the plaintiff was working three hours, five days a week and there was some definite improved arm power at that time. On 5 June 2008, the plaintiff was working fourteen hours per week.
115 On 4 August 2008, left elevation was still restricted to 60 degrees. The plaintiff was then seeing a psychologist at St John of God Hospital.
116 On 26 August 2008, Dr Winfield attended at meeting at the defendant’s premises to discuss the plaintiff’s employment, including retraining. Dr Winfield reported that he was not really sure what the eventual outcome of the meeting was.
117 Physiotherapy funding ceased in November 2008. On 19 December 2008, the plaintiff was paying for his own treatment. He was wearing a left shoulder brace.
118 On 16 January 2009, the plaintiff complained of worsening shoulder pain and also tingling in the lower arm and hand.
119 As at that time, Dr Winfield thought that the plaintiff had a capacity for work at fourteen hours per week in clerical type duties, although such employment was not available. He thought the plaintiff’s condition was permanent and that his pain seemed to have increased and power decreased recently since physiotherapy was stopped.
120 On 2 September 2009, there was a nerve conduction study which found bilateral severe decompression of both motor and sensory fibres of the median nerve and carpal tunnel. Bilateral carpal tunnel was diagnosed. Dr Winfield referred the plaintiff to Mr Leong, plastic surgeon and surgery was contemplated.
121 The plaintiff recommenced work at six hours per day from 6 November 2009 as a gatehouse assistant.
122 On 27 November 2009, the plaintiff reported he was comfortable with his job and his hours were increased to eight hours a day from that date. The plaintiff was then using patches and taking Panadeine Forte.
123 On 20 January 2010, the plaintiff reported strong pain in the left shoulder and that his shoulder was feeling loose and lax. In lifting up the plaintiff’s arm, Dr Winfield noted the shoulder had subluxed with sudden give, and when the shoulder returned back to its place the plaintiff felt better.
124 On 3 February 2010, the plaintiff stated that his shoulder joint was continuing to subluxate and he was referred to Mr Bell.
125 Later that month, the plaintiff was increasingly concerned about right shoulder pain because of increased movements of his right arm at work. He was then driving to and from work. The Fentanyl 50 patches the plaintiff was using for pain relief made him became more groggy and confused, and as they were not giving him adequate pain relief, he resumed his Norspan patches.
126 The plaintiff was certified unfit for work on 25 and 26 February 2010.
127 On 3 March 2010, Dr Winfield recorded that the plaintiff’s notes had been subpoenaed for his serious injury court case and that the plaintiff was not happy that request had been made.
128 Dr Winfield referred the plaintiff to another orthopaedic surgeon, Mr Nguyen, advising Mr Nguyen that the plaintiff was in constant pain with weakness and no active movement of his left shoulder. Mr Nguyen thought the plaintiff’s problem was difficult to tackle and further investigations were organised.
129 Mr Nguyen advised that the CT scan demonstrated most of the acromion was missing from the AC joint and there was also some arthritis in the inferior part of the glenohumeral joint. Following the MRI Mr Nguyen advised that the scan demonstrated that the rotator cuff tendons were still intact, even though they were slightly thin. However, because of the missing acromion, the insertion of the deltoid was not well seen.
130 Mr Nguyen advised that he considered the only surgical option would be an arthrodesis but as the plaintiff had told him that a brace had not helped his shoulder, Mr Nguyen was doubtful the procedure would help the shoulder pain.
131 On 12 April 2010, the plaintiff was finding pain was a problem if he was putting too much pressure on his right arm. There was discomfort on right arm elevation greater than 120 degrees.
132 The plaintiff then returned to physiotherapy. He was put off work from 19 April until 30 April 2010. In view of the plaintiff’s difficulty with pain and restriction of movement, Dr Winfield again referred him to Dr Johns.
133 On 10 May 2010, Dr Winfield noted minimal elevation of the left arm and that the right arm was full range but uncomfortable.
134 Dr Winfield concluded the plaintiff continued to suffer shoulder pain. In particular on the left side, but his right side had also become painful since resuming work in the gatehouse. Dr Winfield noted the plaintiff had not worked since mid April 2010 and hopefully rehabilitation doctors would be able to offer some pain relief if he was not able to get that treatment now from orthopaedic surgeons.
135 Dr Winfield hoped to get the plaintiff back to work as a gatehouse assistant “because it was getting him back to work and being occupied and the plaintiff did enjoy the job”.
136 Dr Winfield reported in October 2010, having been sent the gatehouse duties, the NabEnet Ergonomic Assessment, a letter from Dr Johns dated 27 July 2010, Dr Thomas’ report of 15 June 2010, a physiotherapy report of 28 May 2010, Mr Nguyen’s letter of 23 July 2010 and reports from Flexi Personnel and Katrine Green.
137 Dr Winfield confirmed, because of worsening pain and difficulty managing gatehouse duties, the plaintiff had been unable to work since April 2010.
138 Dr Winfield advised when the plaintiff started that job, he appeared to be managing well and the defendant was satisfied with his work performance. Dr Winfield was then hopeful the plaintiff could manage in the role. However, it became apparent that as time passed, the situation worsened as the plaintiff was no longer able to perform in that role.
139 Dr Winfield considered it was highly unlikely the plaintiff would be able to return to any duties.
140 On examination on 20 August 2010, Dr Winfield noted the plaintiff was complaining of back pain. On examination, flexion was limited to the knees. There was painful extension and painful left straight leg raises.
141 The plaintiff related that he was working as a gatehouse assistant which involved about five hours’ sitting watching screens and monitoring vehicles and there was some walking involved. The plaintiff related sitting duties contributed to the worsening of his back pain.
142 Dr Winfield commented that on the background of the 2007 CT findings, it was feasible that prolonged sitting could aggravate the plaintiff’s back pain.
143 Dr Winfield was cross-examined about a number of the plaintiff’s pre accident attendances. He confirmed that on 25 August 2003, the plaintiff complained of work-related stress and was prescribed minor tranquilisers at that time.
144 In September 2005, the plaintiff was referred to Mr Razif, orthopaedic surgeon, having injured his left shoulder. Mr Razif gave the plaintiff an injection and he made a pretty good recovery from that strain.
145 The plaintiff had a number of attendances for cancer of the small bowel in late 2005, which Dr Winfield agreed was worrying for the plaintiff.
146 The plaintiff was prescribed Lexapro in 2006 after his daughter died and also a counsellor was arranged though work. By 22 January 2007, the plaintiff had weaned himself off Lexapro.
147 Dr Winfield’s note of 7 February 2007 indicated the plaintiff wrenched his shoulder. Dr Winfield agreed there was no reference to the plaintiff falling to the ground in the incident.
148 The plaintiff returned to work following surgery and the subsequent infection in October 2007, initially for three hours, two days a week. There were attempts for him to do some data entry work in early 2008, but that did not happen. On 17 March 2008, the plaintiff was working three days a week for five hours a day.
149 In early 2008, Dr Winfield agreed with Dr Johns that the plaintiff could not do much work because he was on OxyContin.
150 The plaintiff told Dr Winfield he was comfortable with his new job at the end of 2009 and his hours increased to eight hours a day from 27 November 2009. On 22 December 2009, the plaintiff said he was managing well at work and had signed the contract
151 However, on 20 January 2010, the plaintiff said he had “strong pain in his left shoulder feeling loose and lax, on lifting sublux? and with sudden movement? when the shoulder returned back to its place he felt better”. (sic)
152 On 3 February 2010, there was another subluxation and the plaintiff was again referred to Mr Bell. As at 11 February 2010, the plaintiff was increasingly concerned about right shoulder pain. On 16 February 2010, the plaintiff wanted to make to new claim in relation to the subluxation.
153 Dr Winfield certified the plaintiff unfit for work on 25 and 26 February 2010.
154 An entry of 3 March 2010 set out the plaintiff’s clinical notes had been subpoenaed. The plaintiff was not happy, and would seek legal advice.
155 As of early April 2010, the plaintiff was also finding pain and too much pressure on his right arm.
156 On 16 April 2010, the plaintiff advised that he felt he was struggling at work and unable to manage his duties at that stage. He was put off work from 19 April to 30 April 2010.
157 On 30 April 2010, Dr Winfield noted the plaintiff was sleeping poorly and still in severe pain. His left shoulder continued to subluxate. At that time, Dr Winfield was certifying the plaintiff as totally unfit for work.
158 The plaintiff complained of low back pain on 10 September 2007 and a CT scan of the lumbar spine was organised on 27 September 2007. There were no further references to back pain in the clinical notes until August 2010.
159 Dr Winfield confirmed the plaintiff brought up his back as a problem in the early days, but the focus was then mainly on his shoulder. Dr Winfield’s last report detailing the plaintiff’s back problem followed a request from the solicitors. Dr Winfield thought it was feasible that prolonged sitting could aggravate the plaintiff’s back pain.
160 Dr Winfield was cross-examined as to the plaintiff’s actual duties in the early stages on his return to work and later on when working in the gatehouse.
161 Dr Winfield could not see “anything beyond the plaintiff” from the point of view of his back or shoulders in those duties, but noted gatehouse work would be boring. However, he did note the plaintiff was getting subluxations earlier in the year, and he was not quite sure if the walking would aggravate that at all, or not.
162 Dr Winfield did not think the computer work involving two emails per week or alternatively writing was beyond the plaintiff. His previous understanding had been that the plaintiff was sitting at work for five hours at the computer.
163 The plaintiff’s future was not a subject Dr Winfield had really thought about because he and the plaintiff “had tried pretty intensely in the plaintiff’s regular employment to get him back to work and the plaintiff was not managing”. Dr Winfield would never discourage anybody from having a try if they generally felt they could work.
164 Dr Winfield confirmed that on examination since the incident, the plaintiff had quite severe limitation of the range of movement of his shoulders with limited movement particularly with the brace on. The plaintiff could not put his arm out straight or to the side higher than ninety degrees or to ninety degrees in front of him.
165 Dr Winfield could recall the plaintiff’s right shoulder becoming an increasing problem with the plaintiff complaining of too much pressure on his right arm which was uncomfortable.
166 If the plaintiff just sat down, his left shoulder would stiffen up. The plaintiff did try with the gatehouse work and he did it for a while, but his pain seemed to have increased and he was unable to cope. His pain seemed to have deteriorated during the time he was doing that role. Both shoulders were getting worse. Dr Winfield could not really comment on the plaintiff’s problems using a clipboard.
167 The plaintiff was initially seen by Ms Arslan, physiotherapist, on 1 September 2005 complaining of left shoulder pain. She managed that condition until 14 December 2005 when there was an improvement, but the plaintiff had to cease treatment and have surgery for another condition (cancer). She then diagnosed “traumatic left rotator cuff tear supraspinatus with tendonitis”.
168 The plaintiff reported a re-aggravation in the incident, after which he was referred to Mr Griffin, who operated on 11 April 2007.
169 The plaintiff was seen for physiotherapy treatment on 19 June 2007 when he also presented with bilateral lumbar spine pain with referral into bilateral posterior thigh.
170 Ms Arslan noted that due to his left shoulder being depressed, the plaintiff was compensating by shunting his pelvis to the right and consequently his posture was quite bad.
171 Ms Arslan reported in July 2008 that the plaintiff’s lumbar spine improved over time with treatment and postural correction but he still reported lumbar spine pain at times.
172 When the plaintiff was seen on 19 June 2007 after the surgery, he also presented with left sided cervical spine pain with referral into the left posterior proximal anterior forearm and numbness in the left hand. It was noted that given the plaintiff’s left shoulder posture was significantly altered, this also put strain on his neck.
173 Ms Arslan thought that as a result of overuse of his right shoulder, the plaintiff sustained a partial tear of the right supraspinatus tendon and underwent an ultrasound which confirmed the tear on 23 June 2008. Right shoulder pain was first reported to her on 20 June 2008, but the plaintiff had been complaining of right shoulder pain for some time but it was getting worse.
174 Ms Arslan further reported in May 2010, noting a return to work at the gatehouse in November 2009, where the plaintiff’s duties involved sitting at a desk and walking around. She noted the plaintiff had to hold a clipboard at times and in January and February 2010, there were two episodes of his left shoulder dislocating while at work – once when he was leaning over a counter and the other time while walking as a result of distraction caused by his shoulder hanging by his left side.
175 The plaintiff reported fairly constant pain – 6 to 9 out of 10 – but with physiotherapy twice a week and regular use of medication, he was able to cope better. When working, the plaintiff reported constant pain at 8 to 10 out of 10.
176 Ms Arslan concluded as a result of his poor posture relating from his left shoulder condition, the plaintiff had developed lumbar spine pain/disc injury and cervical spine strain. She thought that he had suffered bilateral severe compression of both motor and sensory fibres of the median nerve in the carpal tunnel as a result of his overuse of his wrist as he has been unable to use his left shoulder.
177 Ms Arslan was then seeing the plaintiff twice a week and her main aim was to aid with his pain management. The plaintiff reported a reduction in pain levels for two to three days after treatment. He was doing stretches to maintain his passive range of movement.
178 As at May 2010, Ms Arslan concluded the plaintiff was not fit to return to his pre-injury duties at the present time or in the future. She noted that he had attempted work on light duties as a security guard and this further aggravated his shoulder. In her opinion, he was not fit to return to any form of work at present or in the future.
179 Ms Arslan considered that the plaintiff’s prognosis was not good and that he would more than likely continue to have constant varying levels of pain in the left shoulder. She noted over the last two to three years his shoulder had got worse clinically, and with radiological evidence, she felt this would continue to deteriorate.
180 She thought any suggested fusion would, however, limit the plaintiff’s passive range of movement and there was no guarantee this pain would subside. She considered that his neck and back pain from time to time would also continue to give the plaintiff pain and limit his function. She recommended that the plaintiff needed ongoing physiotherapy to aid with pain management and range of movement.
181 Mr Griffin reported to the defendant in March 2007 that the plaintiff had been referred to him again by his local doctor with a work related rotator cuff tear at the left shoulder. He advised the plaintiff would benefit from decompression of the subacromial space and rotator cuff repair of the left shoulder, and he sought funding for that procedure.
182 Having diagnosed a rotator cuff tear and impingement of the left shoulder, Mr Griffin carried out an anterior acromioplasty and direct rotator cuff repair at Cabrini Hospital on 11 April 2007 (“the surgery”).
183 Mr Griffin advised Dr Winfield on 19 June 2007 that, unfortunately, the plaintiff had had a lot of trouble following the surgery. The surgery had proceeded uneventfully but, unfortunately, the plaintiff had a wound breakdown and infection, requiring debridement and serial dressings.
184 At that stage the plaintiff’s wound was pretty much healed but he had persisting pain and stiffness, which Mr Griffin hoped would improve with physiotherapy, which could be directed both to his shoulder and his lumbar spine which became symptomatic when he was in hospital.
185 Mr Griffin advised that the plaintiff had a rare wound infection problem with great difficulty in gaining bacteriology confirmation to direct appropriate antibiotic medication, with all of this being directed by Andrew Fuller, one of the infectious diseases’ physicians.
186 Mr Griffin advised that, unfortunately, because of the plaintiff’s complicated postoperative period, the results of surgery may well be compromised.
187 By letter dated 14 August 2007, Mr Griffin advised CGU that the plaintiff presented with a clinical picture of a rotator cuff tear in the left shoulder that related to two wrenching incidents at work. The history as given was consistent with the plaintiff sustaining those injuries at work, and after the failure of conservative treatment, operative intervention was undertaken.
188 At that stage, the plaintiff was still in the recovery period following the surgery and was not yet physically capable of returning to his pre-injury duties. Mr Griffin anticipated, however, in the next month to six weeks, the plaintiff could return to suitable employment which did not involve heavy carrying or lifting with his left arm.
189 Mr Griffin then thought the plaintiff’s condition had not stabilised and it was not possible to estimate the likely duration of incapacity or the extent of permanent impairment and at what levels the plaintiff would be able to resume duties in the long term. Mr Griffin recommended a further review in approximately six months.
190 The plaintiff was first examined by Dr Johns, consultant physician in rehabilitation medicine, at St John of God Hospital, Frankston, on 29 January 2008 on referral from Dr Winfield.
191 The plaintiff then described acute pain in his left shoulder as being inside as well as all around the joint and related to muscle spasm. He was seen wearing a brace. The plaintiff was taking strong analgesia, including OxyContin, 40 milligrams twice a day, 20 milligrams of Endone at lunchtime, eight Panadeine Forte a day, Nexium and Lexapro, 20 milligrams.
192 On initial examination of the lumbar spine there was active range of movement of 70 degrees of flexion, 40 degrees of abduction, and 10 degrees of external rotation with the brace in place. The plaintiff declined to move his shoulder without the brace. He had a passive range of movement of 60 degrees of abduction, 90 degrees of flexion and 20 degrees of external rotation.
193 The plaintiff advised that he remained depressed and was easily angered and that he was under a lot of stress with his return to work program and the WorkCover process. He was then seeing a psychiatrist at Pine Lodge.
194 Dr Johns thought the plaintiff suffered from Chronic Pain Syndrome involving the left shoulder joint, with some clear clinical impairment of the joint. However, Dr Johns did not have any radiology at that time to review. He was concerned about the plaintiff’s OxyContin use from an opiate dependence viewpoint, as well as his dependence on alcohol.
195 Dr Johns organised a chronic pain management course to be undertaken by the plaintiff between 31 March and 18 June 2008. He noted the plaintiff scored in the severe to extreme range for depression, anxiety and stress scores and in other testing there were also high levels of self reported disability.
196 The program was cognitive behavioural therapy based and resulted in only a mild improvement in reducing disability with continuing depression, stress and anxiety. He noted the plaintiff did manage to increase his work hours to a maximum of seventeen per week at one stage, and he did appear to be coping better after the completion of the program and was able to do an hour’s walking at five kilometres per hour.
197 At the completion of the program, Dr Johns felt the plaintiff was not physically or psychologically capable of returning to his previous duties or hours. He thought the plaintiff needed vocational rehabilitation provided to him and some retraining and assessment of functional capacity. He wrote a letter to the case manager at CGU recommending vocational rehabilitation be provided.
198 To improve his medical management, Dr Johns commenced the plaintiff on Norspan patches to reduce his need for OxyContin. He noted the plaintiff received a further surgical opinion from Mr Bell, orthopaedic surgeon, who apparently recommended a left shoulder fusion as the only possible treatment.
199 Because the plaintiff needed psychological treatment, Dr Johns referred him to Dr Igor Shvetsov, psychiatrist, at Pine Lodge, but the plaintiff did not attend the appointment.
200 Dr Johns did not see the plaintiff between 18 September 2008 until 6 May 2010 when he was re referred by Dr Winfield.
201 At that stage, the plaintiff’s condition had been further complicated by alcoholic cardiomyopathy and coronary artery disease requiring a coronary artery stent. The plaintiff had reduced his activity levels further and gained a further ten kilograms in weight. He was continuing to use Norspan 20 patches to help reduce his pain, which he described as constant.
202 Dr Johns noted that cardiac disease was commonly associated with shoulder pain and may have led to an exacerbation of that condition, although it would be difficult to prove.
203 The plaintiff admitted to continuing to drink half a bottle of spirits each night. He remained depressed and continued to take Lexapro. Due to substance abuse, he had separated from his wife and was living in a caravan.
204 As of July 2010, Dr Johns thought the plaintiff continued to suffer from a chronic left shoulder pain syndrome associated with depression and substance abuse, complicated by coronary artery disease and alcoholic cardiomyopathy. The plaintiff had made little gain to recommend further rehabilitation and Dr Johns thought the most appropriate aspects of his treatment were alcohol detoxification and appropriate management of depression by a psychiatrist skilled in substance abuse disorders. He recommended that the plaintiff be referred to a pain specialist, such as Dr Thomas, for consideration of further intervention for his shoulder pain, although he believed that the plaintiff was not likely to benefit much from further intervention until the substance abuse disorder and depression was successfully treated.
205 Dr David Tierney, clinical psychologist, saw the plaintiff on referral from Dr Johns. In total, the plaintiff attended twenty five appointments between 13 February 2008 and 9 September 2009. The initial part of the psychology treatment was part of a multidisciplinary pain management program which also included other therapies at St John of God Hospital.
206 The plaintiff reported no psychological issues prior to the incident but advised that he had suffered from cancer, and also that his daughter died in 2006.
207 The plaintiff described his mood as aggressive and depressed. He said his goal was to improve his management of his pain so he could increase his hours at work and his work tolerance, thus this was the primary focus of treatment.
208 At the conclusion of the program on 16 June 2008, the plaintiff reported that while his pain continued to be a problem, his management had improved. Other ongoing issues reported were poor sleep and concentration. Further, the plaintiff had recently separated. The plaintiff was keen to have ongoing psychology and/or psychiatric input. Dr Tierney noted that testing indicated that was warranted, showing extremely severe symptoms of depression, anxiety and stress.
209 When examined on 14 July 2008, the plaintiff reported his employment had been terminated or was being terminated and he was concerned about his future. Approval was obtained for twelve additional appointments and the focus then shifted to the plaintiff coping with the defendant not wanting him back and exploring other work options.
210 The plaintiff’s mood continued to fluctuate and he disclosed he had ceased drinking. Exploring that further, it became clear the plaintiff had been abusing alcohol but had not disclosed it. He later resumed drinking alcohol, and management became the focus of some of the sessions.
211 On 13 February 2009, the plaintiff reported he had been hospitalised for cardiac failure. He reported some problems getting approval for physiotherapy and was going to conciliation in that regard.
212 On 20 May 2009, the plaintiff advised that his mood had improved and he had adjusted to not working and he had reduced his alcohol content.
213 On 10 June 2009, the plaintiff reported that his general practitioner had referred him to an alcohol treatment agency. At that time the plaintiff’s accommodation had become insecure and he had purchased a caravan with a plan to place it on a relative’s property.
214 On 12 August 2009, the plaintiff was upset his WorkCover payments were about to cease. The approval date for psychology sessions had expired and his request for further treatment in this regard was denied.
215 Dr Tierney diagnosed an Adjustment Disorder with Depression and Anxiety. He noted the plaintiff clearly connected his psychological state with his injury and issues related to it, but Dr Tierney was unsure of the cause of the plaintiff’s abuse of alcohol.
216 Dr Tierney noted he had not contacted the plaintiff since 9 September 2009. However, throughout contact the plaintiff’s desire to work was strong.
217 The plaintiff saw Mr Nguyen on 5 March 2010 on referral from Dr Winfield.
218 The plaintiff was then complaining of constant left shoulder pain, which was greater with certain movements. His other medical problems included depression and cardiomyopathy.
219 On examination, there was tenderness anterior to the left shoulder, probably secondary to bursitis. Most of the acromion was felt to be missing. The AC joint was also absent and only the end of the clavicle was palpable.
220 The plaintiff had full passive forward elevation, external rotation and internal rotation. He had no active forward elevation or abduction. There was tenderness around the scapular and pectoralis muscles.
221 Mr Nguyen noted an x-ray which demonstrated most of the acromion was missing as well as the end of the clavicle. Further, the March 2010 CT scan of the left shoulder demonstrated most of the acromion missing as well as the AC joint. There was loss of joint space in the inferior aspect of the glenohumeral joint signifying early arthritic changes. There was also upward subluxation of the humeral head in relation to the glenoid.
445 Obviously the plaintiff has no capacity for any type of manual work requiring the use of both hands – a consequence which is of particular seriousness to him given his history of only manual work.
446 I do not accept that the plaintiff went off work in April 2010 because he thought the fact he was working would detract from the present application. The plaintiff clearly had problems with subluxations and had complained to Dr Winfield of difficulties coping with work prior to a request being made of Dr Winfield to provide his file in March 2010.
447 The plaintiff continues to require “hands on” treatment and significant medication. His ability to engage in domestic activities and enjoyment of recreational activities has almost been destroyed by his injury.
448 Obviously the plaintiff’s condition is permanent and there is no suggestion of any further surgery or treatment that may improve his condition, with a fusion being ruled out for a number of reasons..
449 I am satisfied that the impairment to the left shoulder is serious on the basis of these consequences alone.
450 Further, I accept that other consequences of this impairment are spinal pain, and also right shoulder pain.
451 Although there was no mention of any back complaint to Dr Winfield after September 2007 when a lumbar spine CT scan was carried out, until this year, and Dr Winfield described the relationship of any back problem with the shoulder complaint as “feasible”, I accept that the plaintiff has had problems with his back caused by periods of immobilisation in the hospital, as noted by Ms Arslan at the time and also as accepted by Mr Kierce. Further, Ms Arslan has continued to treat the plaintiff’s back in addition to his other problems..
452 Whilst there have been no further investigations of the right shoulder since 2008, nor any specialist referral, I accept that as a result of increased use of his right arm in data entry work in 2008, and later on in early 2010 whilst engaged in gatehouse duties because of his useless left shoulder, the plaintiff continues to experience right shoulder symptoms.
453 Having satisfied the narrative requirements to obtain leave in relation to loss of earning capacity, the plaintiff must also establish that –
(a) at the date of the hearing, he has a loss of earning capacity of forty per cent or more – s.134AB(38)(e)(i); and also (b) after the date of hearing, the relevant loss of earning capacity will continue permanently – s.134AB(38)(e)(ii). 454 The measurement of loss of earning capacity is set out in paragraph (f) which requires a comparison between:
(i) “without injury” earnings; and (ii) “after injury” earnings. 455 The former must be calculated by reference to the six year period specified in s.134AB(38)(f).
456 “Without injury” earnings consist of the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion had the injury not occurred.
457 It is to be calculated by reference to that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity.
458 The plaintiff carries the onus of proof in relation to economic loss and particularly in establishing satisfaction of the criteria in paragraphs (e), (f) and (g) therein.
459 I am therefore required to determine a “without injury” earnings figure.
460 The plaintiff’s present income from personal exertion is nil.
461 In relation to the assessment of loss of earning capacity, counsel for the defendant made a novel submission.
462 He submitted that the recent amendments to s 134AB(38)(f) of the Act meant that the “after injury” earnings figure applicable when assessing whether the plaintiff had suffered the requisite loss of earning capacity was what he was earning or capable of earning in suitable employment at the date of the decision to reject the application or the date of the hearing, whichever figure was the greater.
463 Counsel for the defendant submitted that the amendment to s.134AB(38)(f) adding:
“(i) the worker's gross income from personal exertion (expressed at
an annual rate) which the worker is—
(A) earning, whether in suitable employment or not; or (B) capable of earning in suitable employment— as at that date, whichever is the greater …”
changed the date of assessment when one went back to subparagraph (e)
which referred to:
“at the date of a decision under subsection (16)(a) or at the date of a
decision of an application under subsection (16)(b).”
464 It was submitted by counsel for the defendant that the added words “whichever is greater” govern the word “date”, requiring a comparison of income as at the date of the Authority’s decision and the date of hearing. It was submitted that the Court must then have regard to the greater amount of the earnings at each date in calculating the “after injury” earnings.
465 On this basis, as at 28 January 2010, the date the claim was rejected, the plaintiff was earning $1,079 per week gross, he had not suffered the requisite loss of forty per cent and his application therefore failed.
466 I accept the submission by counsel for the plaintiff that the insertion of those extra paragraphs in line with the change of definition of “suitable employment” in Section 5 does not change the time at which the assessment of loss of earning capacity is made. It does not mean the date of decision to deny a serious injury is relevant in any way.
467 In addition to those extra words, the only other real amendment was to bring into account earnings from non suitable employment as set out in paragraph (A).
468 In my view the defendant’s argued interpretation is clearly incorrect. It says that the words “whichever is the greater” relates to the words “date preceding them. I accept that the reference to “whichever is the greater” is clearly a reference to the two amounts referred to in that subsection. That subsection refers to earnings whether in suitable employment or not and income which the worker is capable of earning in suitable employment. Previously no reference was made specifically to which of those should be adopted.
469 All the words “whichever is the greater” add is that the Court must have regard to the greater of the two amounts of income referred to in sub-paragraphs (A) and (B). It is the greater of those two sums to which the words are directed.
470 I am required to compare “without injury” gross earnings and “after injury” earnings pursuant to s.(38)(e)(i) as at the date of the hearing.
471 The plaintiff is required to establish that on a permanent basis he does not have the ability to earn in excess of sixty per cent of his without injury earnings which I fix at $65,000 taking into account the statutory formula. That figure is $39,000.
472 Obviously if the plaintiff has a capacity to work full time in the gatehouse job, he has not suffered the requisite loss as his salary was what he would be paid now as a bookbinder – in excess of $1,000 per week.
473 I am satisfied that the plaintiff is a motivated man who has attempted a return to work on two occasions despite a significant injury which has effectively resulted in the loss of use of his left arm.
474 As Nettle JA commented in Dwyer v Calco Timbers Pty Ltd No 2 [2008] VSCA 260, at paragraph 4, that he suspected:
“… but for the way the appellant has been prepared to put up with his pain and suffering and get on with his business as best he can, the respondent may well have not disputed his claim … But it would be unfortunate and in my view wrongheaded if in future such an applicant were treated less favourably than another who, being of less strength of character, simply resigned himself to his injury.”
475 In 2008, the plaintiff attempted a return to work on data entry, simply keying in with one finger. He could do that work, although with increasing right shoulder problems, until his position was terminated in August 2008 when he was told there was no further work for him.
476 Of more relevance to this application is the plaintiff’s recent work history performing gatehouse duties between November 2009 and April 2010.
477 The plaintiff was prepared to try the gatehouse duties. He coped with them and enjoyed them initially and was paid a substantial weekly wage in excess of $1,000. After a couple of months however he was in quite a bit of pain but persevered with his duties until he experienced increasing pain in both shoulders and his back in early 2010. He was then certified totally unfit for these duties by Dr Winfield in mid April 2010.
478 The recent amendments to the s.5 and s.134AB of the Act effectively overturned the decision in Smorgon Steel Tube Mills Pty Ltd v Majkic [2008] VSCA 230 where the Court held that, when considering suitable employment, it had to be shown that a real job was being provided. Suitable employment only extended to work generally available in the employment market rather than a position tailored to meet the peculiar needs of an individual worker who was incapable of performing his normal work.
479 “Suitable employment”’ is now defined in s.5 of the Act as:
“…employment in work for which the worker is currently suited—
(a) … (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.”
480 It is clear that this subsection was an amendment calculated to overcome the result reached in Majkic (supra)..
481 I accept that whilst s.5(2) of the Act widens the concept of suitable employment and a job may be created to meet the particular injuries and concerns of the particular worker, the employment must be real work and the job must be genuine.
482 The question is whether the guardhouse job was “suitable employment” and whether the plaintiff has the capacity to undertake such duties.
483 The job must constitute work or employment. The mere presence of the plaintiff in the workplace at the gatehouse with no real tasks cannot constitute employment.
484 In my view, the gatehouse job served no purpose other than taking up the plaintiff’s time, as would be the case if he was at home. The plaintiff was allowed to sleep on the job. He did not have to do the security walk and monitor the gates if he did not feel like it. Computer work involved sending perhaps one or two emails a week.
485 I accept the job was a fiction, created for the plaintiff to place him in work. After the plaintiff left the job in April this year, no one has replaced him.
486 I cannot accept there was a purpose for the job as deposed by Mr Young, in that the job was necessary to meet a contractual requirement. Clearly the job was not of longstanding and it did not play an essential role in the defendant’s operations. The evidence that the defendant is holding the position open for the plaintiff stretches credibility.
487 I accept the plaintiff’s description of the gatehouse job as boring – “he had nothing really to do and no one knew he was there.” He was asked to walk around the car park “but he really did not know why”.
488 Whilst Dr Thomas described the work as an ideal job, I accept that he was clearly directing himself to the minimal tasks required to the point where the job was not a job simply because all the plaintiff was doing was just sitting in the defendant’s premises.
489 I accept that the plaintiff, in early 2010, experienced increasing difficulties, confirmed by Dr Winfield, with his left shoulder, and also his right shoulder and back, to the point where he was no longer able to continue attending the workplace in April 2010.
490 Even just staying in the one position, the weight of the plaintiff’s left arm is a problem. As Dr Thomas explained “with the gravity of his arm, with not only a degenerate shoulder but a painful shoulder it is likely to lead to an escalation of that pain”.
491 Whilst the use of a clipboard was minimal, having seen the plaintiff on video, it was understandable that he would have had problems using the clipboard and that he would have had to keep it under his left arm to keep his right arm free to do other tasks such as open doors. Not having any real use of his left shoulder, all tasks had to be performed right handed, thereby increasing right shoulder pain.
492 Whilst Dr Thomas thought the plaintiff possibly had a capacity to perform gatehouse duties on a half time basis because of his pain levels and unreliability, he considered that the plaintiff could not return to the gatehouse in any shape or form until his condition improved.
493 Given the plaintiff’s difficulties working at the gatehouse on even the most minimal tasks, and the permanent nature of his left shoulder condition, I am satisfied that his inability to work even in these minimal duties is permanent.
494 Even if he could return to half time duties, which I consider highly unlikely, the plaintiff has suffered the requisite loss of earning capacity of forty per cent.
495 I am also required to consider issues of retraining and rehabilitation pursuant to subsection (g).
496 In light of my findings as to the plaintiff’s impairment and his incapacity for employment, I am satisfied there is no rehabilitation or retraining that would be appropriate to be undertaken by the plaintiff which would alter the situation that he has a permanent loss of earning capacity of forty per cent or more. As rehabilitation and retraining have nothing to offer the plaintiff in terms of his capacity for employment, the plaintiff has satisfied the requirements of s.134AB(38)(g).
497 Accordingly, I grant leave to the plaintiff to bring proceedings for damages for pain and suffering and loss of earning capacity.
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