Trotman v Allen
[2015] VMC 14
•5 MAY 2015
| IN THE MAGISTRATES COURT OF VICTORIA |
AT LATROBE VALLEY
WORKCOVER DIVISION
Case No.E12650929
| GREGORY TROTMAN | Plaintiff |
| v | |
| LM & LR ALLEN | Defendants |
---
MAGISTRATE: | S GARNETT |
WHERE HELD: | LATROBE VALLEY |
DATE OF HEARING: | 20 & 21 APRIL 2015 |
DATE OF DECISION: | 5 MAY 2015 |
CASE MAY BE CITED AS: | TROTMAN v ALLEN |
REASONS FOR DECISION
---
Catchwords: S 109 Rejection of claim for right shoulder injuries allegedly sustained on 18 December 2013 arising out of or in the course of employment.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr Horner | Simon Parsons & Co |
| For the Defendant | Mr Richards | Minter Ellison |
HIS HONOUR:
1 Mr Trotman is aged 42 years and was employed as a farm hand at the defendants property at Hallora from October 2013. The defendants are the parents of his former de facto partner with whom he has two children aged 15 years and 3 years. He alleges that he sustained injuries to his right shoulder on the property owned by the defendants on 18 December 2013 when he fell onto his outstretched right arm.
2 Mr Trotman lodged two WorkCover claim forms, the first in March 2014, completed and served by his lawyer, which indicated that on 18 December 2013 he sustained the following injuries; back/injury/muscle/ligament/discogenic when he was crushed by calves. He indicated on that claim form that Graham Ogilvy was a witness to the incident. His claim was rejected by Allianz on 11 April 2014, on the basis that he did not sustain an injury which arose out of or in the course of his employment. Mr Trotman lodged a second WorkCover claim with the assistance of his lawyers dated 10 March 2015, indicating that on 18 December 2013, he sustained injuries to his right shoulder when knocked over by a calf and falling onto his outstretched right arm. Once again he indicated that Graham Ogilvy was a witness to the incident and on this occasion disclosed that he had previously suffered a sore right shoulder when he was working in abattoirs. This claim was also rejected by Allianz on 2 April 2015, on the grounds that he did not sustain an injury arising out of or in the course of his employment.
3 The primary issue for the court to determine is whether or not the alleged incident occurred. Mr Trotman gave evidence and the defendant called evidence from Mr Ogilvy, Mr Russell and Mrs Lyn Allen. The parties tendered various documents, medical records and reports.
4 Mr Trotman gave evidence that he completed year 9 schooling and then worked at abattoirs in Bunyip and Garfield for a period of 15 years as a slaughterman. He said that he then performed concreting work for a period of 5 years and then on the NBN project replacing asbestos pits for a period of 3 years. He gave evidence that he commenced paid employment with the defendants in October 2013. He told the court that he has been in an “on again off again” relationship with the defendants daughter Alana, for a period of 16 years. He said that the defendants business is a dairy farm situated on 500 acres with 3 dwellings, one of which he lived in, with Alana and their children. Mr Trotman gave evidence that his duties as a farm hand consisted of him getting the cows and calves in to feed in the early hours of the morning, general farm work during the day which included maintenance and using a chainsaw to cut fallen trees and branding of the cattle. He agreed that he would normally work for 2 to 3 hours in the morning and 2 to 3 hours in the afternoon and would generally have free time between 7:30 a.m. and 4 p.m. except for the period when branding and dehorning was required. He said that the defendants employed subcontractors for particular jobs including Graham Ogilvy and Matthew Russell.
5 Mr Trotman told the court that on 18 December 2013, he was working with Graham and Matthew in the yards and Lyn Allen was present. He said that the yards consisted of a fenced area of 7-8 metres square situated in a big shed. He told the court that the calves would be manoeuvred into a crush where Mr Russell branded and de-horned them. He estimated that there would be 10 to 15 calves in the pen at one time and they would manoeuvre one at a time into the crush and once Matthew finished his job they would released back into the pen. He told the court that whilst performing these duties one of the calves rushed at him and he fell back onto the ground onto his outstretched right arm sustaining injury to his right shoulder. He told the court that Graham, Matthew and Lyn Allen were all in the yard at the time and they saw him fall. He estimated that he was on the ground from approximately 15 seconds and that Lyn Allen pulled him up onto his feet by his left arm. He said that his right arm was throbbing and he felt pain in the right shoulder and across his back. He believes that he said; “I have hurt myself”.
6 Mr Trotman gave evidence that he did not fill in any paperwork at the time as he is illiterate. He said that by the time the incident occurred they had almost finished with all of the cattle and he did not do much more for the rest of the day except using a motorbike in the afternoon to round up the cattle for milking. He said that he rang Dr Emmerson, chiropractor, to make an appointment but there were none available on that day. He said that his arm was throbbing and he struggled to sleep that night. He told the court that he saw Dr Emmerson the following day and attended on a further 10 occasions for treatment. He gave evidence that he continued to work for the defendants until 24 February 2014, when he was certified unfit for work and disputed that he was told his employment would finish in February 2014.
7 Mr Trotman said that he did suggest to the defendants that they pay his medical expenses but said it was like “talking to a brick wall”. He gave evidence that after he ceased treatment with Dr Emmerson he consulted his general practitioner, Dr Dhillon, who arranged for scans of his upper back and neck. He told the court that he was unsure why that was done but suggested that he may have been experiencing pain in those areas. He told the court that he also saw a psychologist, Lyn Harper, at the time because of the issues in his life, including his relationship breakdown with Alana.
8 He told the court that he still experiences pain in his right shoulder and tingling in the fingers of his right hand. When questioned as to the contents of his initial claim form which was completed by his lawyer, he said that he could not read and understand the contents of the claim form. He also told the court that he was cleared to return to work in May 2014 by his doctor and attempted to work for half a day with a friend as a handyman but the work required him to knock star pickets in the ground with a sledgehammer which caused increased pain and he “could not handle it”. He said that as a consequence he attended his doctor who arranged for him to have x-rays and an ultrasound of the right shoulder. He told the court that he was then referred to Mr Owen, orthopaedic surgeon, who he first saw on 5 September 2014 and he ultimately performed arthroscopic surgery on his shoulder on 2 December 2014.
9 Mr Trotman told the court that he is now “heaps better”, his pain and movement is “all good” and his strength is “getting back there”. He told the court that apart from working for his friend for half a day in May/June 2014, he has not worked since 24 February 2014 and is yet to receive a clearance to return to work from Dr Dhillon. He said that he believed he could now perform 90% of his pre-injury duties.
10 Mr Trotman agreed that on 18 December 2013, he was involved in carrying milk buckets containing milk to the young calves and also performed that task after 18 December but said he did so mainly using his left arm. When questioned as to who was present when the alleged incident occurred, he said that he was working with Graham and Matt and that Lyn Allen was present at “the end”. He told the court that when he was injured Mr Ogilvy was next to him, approximately “two foot away”. He then told the court that Mr Ogilvy is a family friend of the defendants. He confirmed that he did not complete the WorkCover claim form and that it should have stated that he was knocked down by a calf and injured his right shoulder. When questioned as to why the claim form nominated that the injury was caused by a co-worker and his employer he said that it wasn’t and that “I got knocked over by a calf mate, not a person”. He said that he reported the incident to Lyn Allen as she was present at the time. When told that she would deny a report being made, he said; “of course she will say that”. When told that Ms Allen will tell the court that she first became aware of his allegation that he sustained a work injury was when he provided a certificate on 24 February 2014, he said; “where did she think I was going all that time?, they called him “$ Dougie”.
11 Mr Trotman agreed that in February 2003, he attended Dr Dhillon following a right shoulder injury sustained at work. He also agreed that he attended Dr Dhillon on 1 March 2004, complaining of left and right shoulder pain. Mr Trotman told the court that despite experiencing previous left and right shoulder problems he did not and had not experienced any problems with either shoulder in the years leading up to December 2013.
12 When told that Mr Ogilvy will give evidence that the incident did not occur, Mr Trotman said; “of course he will say that, because they are all family friends”. When told that Mr Russell will say the same, he responded by saying; “fair enough, they have all sat around and had a discussion”. Mr Trotman disagreed with the suggestion that he did not have much work to do in February 2014 because the de-horning and branding tasks were nearly completed. He told the court that if Mrs Allen says that, she is not telling the truth. When questioned concerning the entries in the records of Dr Emmerson relating to complaints of neck pain, left trapezius pain and right shoulder pain, he said that he was receiving treatment for his right shoulder only. He agreed that in February 2014, he was experiencing stress-related symptoms which he attributed to; his right shoulder injury, he did not want to go on WorkCover, he was facing an allegation that he had assaulted his son, and an Intervention Order had been taken out against him by Alana. When told that the records of Dr Dhillon will indicate that he attended on 24 February with complaints of backache and with no mention of right shoulder pain he said that the reason he attended was because of his right shoulder injury. He agreed that he was provided with a normal sickness certificate for 3 days which he said he handed to Mrs Allen. He denied that he threw the certificate at her. He agreed that he requested that she pay the chiropractic treatment expenses but denied that he told her the treatment was for a back injury. Mr Trotman agreed that he told Dr Dhillon on 27 February that he was having trouble sleeping, was experiencing back pain and having suicidal thoughts because his partner had left him. However, he said that he was more upset about the work situation. When it was put to him that there was no mention of his right shoulder injury, he said that that was the reason he attended Dr Dhillon on that date.
13 Mr Trotman confirmed that his lawyer completed the WorkCover claim for him and agreed that it was based on information he gave him. He could not explain why the original claim form did not mention that his right shoulder was injured on 18 December. He confirmed that he did lodge a Personal Accident Insurance claim as a consequence of his work injuries for which he has received payments for a period of 12 months. He agreed that he suffered further right shoulder pain in late May or early June 2014 when working with a friend as a result of using a little sledgehammer to knock star pickets into the ground. He said he attempted to hit the start picketing on 4 or 5 occasions. He also agreed that he was involved in a motor vehicle accident in February 2014, when he rolled his car, but denied sustaining injury.
14 Mr Ogilvy gave evidence that he works as a self-employed contractor. He confirmed that he has worked for the defendants on and off for a period of 10 years performing animal husbandry tasks, weed spraying and fencing. He told the court that he was working on the defendants property on 18 December 2013, assisting Mr Russell and Mr Trotman in the branding and de-horning of calves. He said that both he and Mr Trotman were catching the calves and guiding them into the cradle in order for Mr Russell to perform the branding and de-horning tasks. He said that he was not aware that Mr Trotman had fallen over and sustained an injury nor did he complain to him that he had been injured. He recalled that he Mr Trotman work together on a later date shifting calves to another property and he was not aware that Mr Trotman was experiencing any problems with his right shoulder. He said that on the day of the alleged incident, Mrs Allen was present at the end of the day in order to sign the paperwork but was not present in the yards when they were branding and de-horning the calves.
15 During cross examination, he agreed that the work they were performing could be physical. He also confirmed that he is a family friend of the defendants and was aware that Mr Trotman had been in a relationship with their daughter for many years. He also agreed that some of the calves they were working with on 18 December were reluctant to go into the crush. He told the court that the average weight of the calves would be between 80 and 100 kg, that they were under pressure to go into the crush and could be unpredictable in their behaviour. He agreed that he was not watching Mr Trotman whilst they were working and that it was possible that he did fall over without him knowing it. He said that he is unsure as to why Mr Trotman named him as a witness in his Workcover claim form when he did not see the alleged incident occur.
16 Mr Russell gave evidence that he attended the defendant’s property on 18 December 2013 in order to perform branding and de-horning work. He confirmed that he was working with the assistance of Mr Trotman and Mr Ogilvy. He said that he performed his tasks in the crusher which is in the corner of the yard. He told the court that Mr Trotman and Mr Ogilvy were guiding the calves into the crusher. He told the court that he did not see Mr Trotman fall over nor did he complain to him that he had done so. He told the court that if such an incident had occurred he would have noticed it. He said that Mrs Allen was only present at the end of that day to sign the job card. In cross examination, he told the court that the job was completed over a period of 1 1/2 to 2 hours with each calf taking approximately 2 to 3 minutes on average to brand and de-horn. He told the court that the calves would be guided into the crush and once he finished his job they would be released back into the pen which is an area of approximately 14 square foot. He agreed that some of the calves are resistant to go into the crush and that is the reason there are 2 people to guide them. He said that although he is focused on his job, he was able to watch Mr Trotman and Mr Ogilvy guiding them into the crush. He told the court that at all times he had a full view of the pen and the calves and did not observe Mr Trotman being rushed at or falling over. When it was suggested to him that his evidence meant Mr Trotman was lying, he said; “he is wasting our time because it did not happen”.
17 Mrs Allen gave evidence that Mr Trotman commenced paid employment in October 2013. She said that his job consisted of feeding the calves in the morning which took approximately one and a half hours, getting them in for milking and then rounding them up in the evening. She said that on 18 December, she was not present in the yard while the calves were being branded and de-horned as she and Alana were milking the cows. She said that when Mr Russell finished the job they all came to the shed for her to sign the paperwork. She told the court that she was unaware that Mr Trotman had fallen and he did not report the incident to her. She said that she first became aware of the incident when he attended her house on the 24 February 2014 and threw a medical certificate at her. She said that he was quite angry and when she questioned him about what the document was he was ranting and raving about having the property valued and that he would return on Saturday. She said that she told him that he should only return if he was “well”.
18 In cross examination, she agreed that Mr Trotman was also involved in performing fencing duties and cutting up fallen trees with a chainsaw. She said that by February 2014, there were not many jobs for him to do and that she does recall him telling her that he could not perform all of the jobs because he had a sore shoulder. She said that she also noticed that he had “patches” on his right shoulder. She said that she was aware that he was attending Dr Emmerson for a shoulder condition but he had not told her that it was work related or that it was due to an incident on 18 December. She disagreed that she had a bad relationship with Mr Trotman at that time. She agreed that she did seek legal advice on 25 February 2014, after he had given her the certificate because she thought Mr Trotman may lodge a claim for payment of his chiropractic expenses. She told the court that when he gave her the certificate on 24 February, she thought it was for a back problem because that is what he told her his problem was.
Medical Evidence
19 The medical records of Dr Emmerson indicate that Mr Trotman attended at the Drouin Chiropractic Clinic on 19 December 2013 complaining of right posterior shoulder pain as a consequence of being knocked back onto his right shoulder and arm by a four-month old calf at work on 18 December. He also complained of tingling in the right 4th and 5th digits and provided a history of regular lifting of 20 litre buckets of milk at work. Dr Emmerson diagnosed biomechanical dysfunction of the cervical and the thoracic spine with associated myofascitis. He noted a prior history of a right hip fracture in 1994 and attendances from January 2004 for lower back pain and neck tightness. In March 2004, Mr Trotman attended for left and right anterior shoulder pain and thoracic spine pain. Further attendances occurred in 2006 and 2007 relating to back and thoracic spine pain and in 2009 and 2012 for left shoulder pain and thoracic pain respectively.
20 The records also reveal attendances on; 6 January 2014; for left neck and left trapezius muscle pain; 10 February; for an ultrasound of the right lateral rhomboid and distal trapezius muscle; 19 February; for an ultrasound of the right C6-T9; 24 February; left 4th and 5th finger is cramping on neck flexion, CMT to thoracic spine, ultra sound right of T1-10; and 28 February; same burning pain in midthoracic spine as on 19 December 2013. Dr Emmerson opined that the work incident described was consistent to cause the right shoulder and right thoracic area injury. On 28 February 2014, Dr Emmerson completed a chiropractic treatment notification form indicating that Mr Trotman suffered from a biomechanical dysfunction of the cervical and thoracic spine with associated myofascitis and was complaining of right mid back pain and slight right neck pain with decreased right shoulder abduction and a slight decrease in right neck rotation. His stated goal was to increase strength and range of motion.
21 The medical records and reports from Dr Dhillon were tendered. He reported that he has been treating Mr Trotman since August 2002 and that Mr Trotman presented on the 24th February 2003, with right shoulder pain with a subsequent ultrasound reported as being normal. He also reported that Mr Trotman presented on 1 March 2004, complaining of left and right shoulder pain and numbness of both hands whilst working as a slaughterman in for 16 years in an abattoir. Dr Dhillon reported that an ultrasound revealed a full thickness tear of the right (it was the left) supraspinatus tendon. The clinical records reveal that Mr Trotman attended on 2 December 2013, complaining of a burning sensation in the right medial border of his scapular and was tender on examination. On 12 December, he recorded that Mr Trotman was still experiencing a burning sensation in his upper back. He next saw him on 24th February 2014, and obtained a history of being knocked down by a calf on 18 December 2013. Mr Trotman told him that he had received treatment from a physiotherapist and a chiropractor, was stressed as he was having domestic problems with his wife and could not sleep. Dr Dhillon noted that he was teary, complained of mild tingling over the medial border of his hands and was tender in his upper thoracic spine and over the right side medial border of his scapular. He prescribed Tramal for pain relief with a short course of Valium. Dr Dhillon provided him with a normal medical certificate certifying that he was unfit for work for the period 24 February to 28 February inclusive. Dr Dhillon reported that Mr Trotman next attended on 27 February complaining of back pain, he felt suicidal and was referred for counselling. He provided a further normal certificate to the effect that he remained unfit for work for the period 27 February to 12 March. On 3 March, Dr Dhillon noted that x-rays showed mild thoracic spondylosis. Mr Trotman complained of pain in the upper thoracic region with a CT scan of the cervical spine reported as being normal, power and reflexes in the right hand were normal but there was tenderness on neck extension. Dr Dhillon provided Mr Trotman with a Workcover certificate noting; knocked down by a calf on 18/12/13 - upper back pain, neuralgic pain Lt hand and aggravation of degenerative spine disease and certifying him unfit for work for the period 27 February to 12 March. On 6 March, Mr Trotman complained of sleep deprivation with right upper limb and scapular pain. He noted that Mr Trotman presented on 5 June, complaining of pain in his right shoulder since 18 December and obtained a history from Mr Trotman that he was hammering with a sledgehammer and it was painful. On examination, he found right shoulder movements were normal, there was no local tenderness or loss of sensation or muscle wasting. A subsequent x-ray was normal but an ultrasound on the right shoulder performed on 17 June indicated a partial thickness tear of the articular aspect of the supraspinatus tendon. Dr Dhillon provided Mr Trotman with continuing Workcover certificates from 3 March 2014, but the first mention of the “right shoulder” on a certificate did not occur until 13 June 2014.
22 The medical records and reports from Mr Owen, orthopaedic surgeon were tendered. Mr Owen reported that he first saw Mr Trotman on 5 September 2014. He obtained a history from him that he sustained injuries on 18 December 2013, when a calf struck him and pulled his right arm backwards causing significant pain. Mr Trotman also told him that he continued to work for the following 2 months and sought chiropractic treatment without improvement. He noted that an ultrasound was reported as showing a partial thickness tear of the supraspinatous tendon on the joint side rather than the bursal side. He administered steroid injections and recommended strengthening exercises. He confirmed that he performed an arthroscopic acromioplasty on 2 December 2014, which demonstrated a normal glenohumeral joint, some synovitis on the subacromial space and some attritional changes under the acromion. He reported that he last saw Mr Trotman on 23 December 2014, at which time Mr Trotman reported significant improvement, he was feeling comfortable and his range of movement was increasing. Mr Owen opined that Mr Trotman received a wrenching injury to the right shoulder as a result of the incident described.
23 Mr Brearley, assessed Mr Trotman on behalf of his lawyers on 4 September 2014. He obtained a history from Mr Trotman that on 18 December 2013, he was trying to get a 4 month old calf into a crush for de-horning and freeze branding when the calf suddenly tried to get away and knocked him over. He said that in order to save his fall, he pulled his right arm back and landed heavily on his outstretched right hand and felt immediate pain in the right shoulder. He told Mr Brearley that he received chiropractic treatment the following day and continued receiving treatment over the next 2 months before he saw his own general practitioner. Mr Brearley opined that as a result of the fall, Mr Trotman sustained a significant injury to the rotator cuff, comprising a tear of the supraspinatus tendon. On examination, he found evidence of subacromial bursitis with severe restriction of all shoulder movements and no improvement in his symptoms since the injury occurred.
24 Dr Gill, Consultant psychiatrist, assessed Mr Trotman for his lawyers on 26 September 2014. He also obtained a history of injury on 18 December 2013 when a calf rushed at Mr Trotman, knocking him backwards, resulting in him falling onto his outstretched right-hand producing the injury to his shoulder. Mr Trotman said that when he was provided with a WorkCover medical certificate on 24 February 2014, “that’s when it turned to shit”, as his partners parents became hostile towards him and he was also in conflict with his wife. Mr Trotman provided Dr Gill with a history of being involved in an argument with his 14-year-old son resulting in his partners parents alleging that he assaulted him and made threats to kill. He told Dr Gill that an Intervention Order was obtained which prevented him from going within 200 metres of the farm or communicating with his wife and children. Dr Gill obtained a history that Mr Trotman became depressed, increased his alcohol consumption to 6 to 10 cans of beer a day and also smoked marijuana. He also obtained a past history of a motor vehicle accident when he was 22 years of age and suffered a fractured pelvis and depression. Dr Gill opined that Mr Trotman has suffered an adjustment disorder with mixed anxiety and depressed mood, the symptoms of which have partially resolved. He also noted that the specific injury did not produce any significant psychological distress, but his psychiatric disturbance with anxiety and depression was a result of the medical certificate being provided to him on 24 February and the hostile reaction from the defendants and his partner as a result of the WorkCover claim. He also reported that Mr Trotman told him that he does not need ongoing psychological counselling or medication.
25 The defendants tendered medical reports from Dr Wadsley, occupational physician, dated 28 March 2014, Dr Serry, consultant psychiatrist, dated 3 April 2014 and Dr Yong, occupational physician, dated 20 March 2015. Dr Wadsley obtained a history from Mr Trotman that on 18 December 2013, he was moving calves into a crush as they were to have their horns cut that day. He said that the calves were about 4 months old and some of them were quite large. He told Dr Wadsley that one of the calves pushed him and he fell to the ground directly on his outstretched right arm. He also told Dr Wadsley that he was with 3 other workers at the time and that when he fell, he took most of the pressure on his right hand and it was transmitted up his arm and he immediately felt pain in his right shoulder when he fell. He also told Dr Wadsley that he told the others that were present, including one of the owners, that he had hurt himself. He also told Dr Wadsley that Matt Russell asked him how he was. He told the doctor that his injury happened at the end of the day and that night he could not sleep because of the pain in his shoulder, neck and under his shoulder blade. Dr Wadsley also obtained a history from Mr Trotman that his employers knew that he had a right shoulder injury as he always told them when he was going to the chiropractor for treatment. He also said that on Christmas Day that year, he had to leave the family gathering early because his arm and shoulder was saw and the other guests at the party knew that this was the reason. He told Dr Wadsley that when he gave his doctors certificate to his employer, he was told to leave and they threatened him and then they took out a restraining order on him.
26 Mr Trotman told Dr Wadsley that he was experiencing slight pain on the right side of his neck but that his main pain was in his right shoulder and around his right shoulder blade. He said that he occasionally gets a little bit of tingling in his little and ring fingers of the right hand, but this comes and goes and is gradually resolving. He said that he also has pain referred down his arm to around his right elbow. On examination, Dr Wadsley noted that Mr Trotman’s right shoulder was lower than the left and there was evidence of some wasting in the right supraspinatus muscle at the back of his shoulder. She also noted that there was pain on testing of the right supraspinatus, but the power seemed reasonable. She reported that the power of the infraspinatus and subscapularis muscles was normal. She also noted that there was some evidence of impingement in the right shoulder but no winging of his right scapula when tested. She also reported that the range of movement of his right shoulder was reduced in all directions, that he could move his right hand to the side of his buttock only, that flexion and abduction were approximately 80° each and that adduction at the right shoulder only allowed Mr Trotman to get his hand to the front of his left shoulder. Dr Wadsley opined that the primary problem appeared to be related to the right shoulder, even though his treating practitioner seemed to have fully investigated his neck and thoracic spine. She believed that he probably has an injury to his right rotator cuff and has probably strained his neck and perhaps aggravated pre-existing underlying cervical spondylosis. She stated that the mechanism as described would be consistent with the injury as diagnosed. She noted that he did not provide any history of lower back pain.
27 Dr Serry obtained a history from Mr Trotman that on 18 December 2013, he sustained an injury when he was freeze branding and de-horning calves. He said that as he was doing so he was knocked over by a calf and fell backwards onto his right arm which was stretched out behind him. He said that he was immediately aware that something was wrong with the right upper limb but continued working. He felt that his symptoms would improve but they did not. Mr Trotman told Dr Serry that after he provided his employer with a certificate, “all hell has broken loose”. He said that he is ex-partner’s parents have been very angry towards him, threatening him and he has been denied access to his children and was subject to an Intervention Order. After obtaining all relevant particulars, Dr Serry diagnosed that Mr Trotman was suffering an adjustment disorder with anxious and depressed mood which had arisen as a result of the difficulties in the interaction with his employer from 24 February 2014 and not as a consequence of the injury on 18 December.
28 Dr Yong obtained a history from Mr Trotman that on 18 December 2013, he was assisting two other workers by guiding a calf into a crush. He said that the calf started to rush it him and he was pushed over and fell backwards putting his right arm behind him to break his fall. He told Dr Yong that he felt the immediate onset of right shoulder pain and mild upper back discomfort. He went on to tell Dr Yong that in February he took a medical certificate to his employer and was told to go away. He also told Dr Yong that in February 2015 he was issued with a certificate stating that he was fit to return to work on restricted duties. Mr Trotman told him that he has occasional right shoulder discomfort with certain movements and that his range of movement has improved. He said that he has no other back discomfort as this settled within a few weeks of the fall. Dr Yong obtained a history of past shoulder injuries and pelvic and hip injuries sustained in the motor vehicle accident 23 years before. Dr Yong noted that Mr Trotman is recovering through an activity-based program following his operation in December 2014. He stated that there is no evidence of any current neck or back condition and that he has a current capacity for work which avoids repeated right arm movements above shoulder height or reaching duties, avoiding right arm repeated firm pushing or pulling duties and avoiding lifting more than 10 kg on a repeated basis. He suggested that a graduated return to work program could be offered initially on a half time basis increasing to his preinjury hours over a one-month period. He considered that the mechanism of injury was consistent with what he was told leading to the onset of the condition.
Conclusion
29 Mr Trotman presented as a genuine and credible witness. I accept his evidence that he fell backwards onto his outstretched right arm on 18 December 2013, sustaining injury to his neck, back and right shoulder. It appears to me that a great deal of confusion has been caused as a result of the treating practitioners focus on his complaints of neck and thoracic pain and forming an opinion at an early stage that the pain he complained of in his right shoulder was emanating from his neck. The confusion was compounded by his lawyers failing to include his complaint of right shoulder pain in the initial claim form notwithstanding that he told the court that he told them he was suffering from right shoulder discomfort.
30 Although finding Mr Trotman to be a credible witness, his evidence was not without error. I find that he was wrong that Lyn Allen was present at the time of his fall and that she helped him to his feet. I accept her evidence that she was not present which was confirmed by Mr Ogilvy and Mr Russell. Although I find that they did not witness the fall and he made no complaint to them of it as stated by him, does not necessarily lead to a conclusion that the fall did not occur. I am re-assured in accepting his evidence that the incident did occur by virtue of the fact that on the following day he attended Dr Emmerson for treatment as a result of experiencing right posterior shoulder pain and providing a history of the fall at work on the previous day. It is a contemporaneous record of his complaint of right shoulder pain and the said incident. His additional complaints of neck, thoracic and back pain led to radiological investigations being performed on those areas. It was only after his persisting complaints of right shoulder pain that his treating practitioners saw fit to refer him for x-rays and an ultrasound of his right shoulder in June 2014, which revealed a partial thickness tear of the supraspinatus tendon, which ultimately led to arthroscopic surgery being performed by Mr Owen on 2 December 2014. It is also of some importance that when he first saw Dr Dhillon on 24 February, he recorded that Mr Trotman was tender over the right side medial border of his scapula and prescribed medication for pain relief.
31 The completion of the initial claim form by his lawyers, in circumstances where he was unable to read its contents, appears to have been done by reference to medical material in their possession at that time, rather than on the specific instructions given by him as to the site of his pain having regards to the evidence that he gave to the court that he was complaining of right shoulder pain from the outset. The evidence of Mr Trotman that he was complaining of right shoulder pain from 18 December is corroborated by the evidence of Mrs Allen that she recalled that he was unable to do all of his allocated jobs after 18 December because of a “shoulder problem” and she saw that he was wearing “patches” on his right shoulder.
32 Mr Owen, Mr Brearley, Dr Wadsley and Dr Yong are all of the opinion that the injury to his shoulder is consistent with the mechanism of injury described by him. Dr Wadsley also notes that although he was initially treated for neck and thoracic spine pain, he probably did injure his right rotator cuff in the incident described.
33 I find that Mr Trotman ceased work on 24 February as a result of a combination of factors including; neck, back, thoracic and right shoulder pain and an adjustment disorder as diagnosed by Dr Gill and Dr Serry which was caused by family issues including his interaction with the defendants and not as a consequence of the injury on 18 December. The medical evidence supports that he has remained unfit for his pre-injury duties since 24 February 2014 but is now fit for suitable work which does not involve repetitive right arm movements or repetitive lifting over 10 kg.
34 Accordingly, Mr Trotman is entitled to receive weekly payments of compensation and reasonable medical and the like expenses as a result of the injuries sustained by him on 18 December 2013, which arose out of or in the course of his employment with the defendants. The decisions of Allianz dated 11 April 2014 and 2 April 2015 are set aside.
0
0
0