Tuite v Victorian WorkCover Authority

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-20-05081

BRADLEY JAMES TUITE	Plaintiff
v
VICTORIAN WORKCOVER AUTHORITY	Defendant

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JUDGE:	HER HONOUR JUDGE K L BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:	19 and 20 July 2021 (via Zoom)
DATE OF JUDGMENT:	15 September 2021
CASE MAY BE CITED AS:	Tuite v Victorian WorkCover Authority
MEDIUM NEUTRAL CITATION:	[2021] VCC 1271

REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords:              Serious injury application – impairment of the left shoulder – pain and suffering only – range
Legislation Cited:      Workplace Injury Rehabilitation and Compensation Act 2013, s335
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Peak Engineering & Anor v McKenzie [2014] VSCA 67; Dordev v Cowan & Ors [2006] VSCA 254; Kelso v Tatiara Meat Company Pty Ltd (2007) 17 VR 592; Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326
Judgment:                  Leave granted to the plaintiff to bring proceedings for damages for pain and suffering.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S A Smith QC with Ms K Popova	Zaparas Lawyers
For the Defendant	Ms A Magee QC with Ms M Tsikaris	Russell Kennedy Lawyers

HER HONOUR:

Preliminary
1This is an application for leave to bring proceedings pursuant to s335 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) for injury suffered by the plaintiff in the course of his employment with Elcon Cables Pty Ltd (“the employer”) on 14 August 2017 (“the said date”).
2The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s325(1) of the Act. There, “serious injury” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
3The body function said to be impaired is the left shoulder.
4The application proceeded under subparagraph (a) only for pain and suffering in relation to the left shoulder.[1] The original application was under both heads and also included the right shoulder[2] and a psychiatric impairment.
[1]Transcript (“T”) 2
[2] T3. The plaintiff no longer experiences right shoulder symptoms; Mr Asaid’s April 2021 examination
5The impairment of the body function must be permanent.
6Subsection 325(2)(h) of the Act provides that consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
7The plaintiff bears an overall burden of proof upon the balances of probabilities.
8By s325(2)(b) of the Act, the impairment must have consequences in relation to pain and suffering which:
“… when judged by comparison with other cases in the range of possible impairments or losses of a body function or disfigurement … as the case may be, fairly described [as at the date of the hearing] as being more than significant or marked, and as being at least very considerable.”
9I 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.
10I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak,[3] Haden Engineering Pty Ltd v McKinnon[4] and Peak Engineering & Anor v McKenzie[5] in reaching my conclusions.
[3](2005) 14 VR 622
[4](2010) 31 VR 1
[5] [2014] VSCA 67
11The plaintiff swore two affidavits. He was cross-examined. Also in evidence were medical reports and other material including surveillance film. I have read all the tendered material.
12In issue were the plaintiff’s credit and reliability and also disentanglement.[6]
[6]T4

The Plaintiff’s evidence
13The plaintiff is presently aged forty-seven, having been born in May 1974. He lives with his twenty-six-year-old daughter and his brother. He is right handed.
14After finishing Year 12, from 1994 to 1999, the plaintiff delivered and installed photocopiers. For the next decade he worked in production. His last job before the said date involved delivery and installation of therapeutic furniture and later, office administration.
15From about September 2015 until 31 July 2017, save for a few short jobs here and there, he was mostly off work and on Centrelink for part of the time. He spent a lot of time caring for his daughter, who was going through a difficult time.
Medical history
16The plaintiff described a history of depression and anxiety. Unknown to him at the time, his daughter was a victim of crime (“the family problems”). Finding out about what had happened to her made him feel guilty, upset and later, depressed.
17In that context, since about 2009, he had had treatment on and off with a psychologist and had taken antidepressant medication for various periods. In about 2013, he developed anxiety and suffered from panic attacks, and gave up coaching and playing sport for a few months.
18In about June 2013, he was put back on antidepressants. His anxiety improved and his panic attacks stopped. He resumed coaching and playing sport.
19The plaintiff went through another psychologically difficult period from about November 2015 to June 2016, when his daughter attempted self-harm and was hospitalised. Thereafter, he experienced bouts of stress and anxiety, including in about June 2017. Generally, he felt that his mental health was improving.
20When he started work with the employer, his mood was well-controlled with Lexapro and he was seeing a psychologist organised by the Victims of Crime Tribunal.
Other issues
21The plaintiff was assaulted and lost consciousness in an attack in November 2009. He suffered bruising, but was otherwise okay. Although shaken up by the attack, he got over it.
22In about March 2013, he injured his right shoulder driving a truck at work. He had scans, treatment and physiotherapy, and the pain then settled. He then had a flare-up of shoulder pain, as well as neck pain in December 2013, when lifting a heavy bed at work. He took painkillers, had scans and also physiotherapy. This pain eventually settled.[7]
[7]T27
23In about May 2016, he experienced neck pain with tingling in his hands. It settled quickly. His neck felt fine until about July or August 2016, when he had these feelings again. He had an MRI scan and saw a specialist, who gave him home exercises. He had a job offer but neck pain prevented him from doing that work in about August 2016. His symptoms settled by about March 2017, and he began looking to work again.
24In about July 2017, he had a full-scale medical examination for a job in Queensland as a machine operator. He passed the medical and was offered the job but decided to stay in Victoria.
Work with the employer
25On 31 July 2017, the plaintiff commenced work with the employer as a storeman, working about 40 hours a week, earning $27 per hour. His duties were to cut and move rolls of cable, prepare product for despatch and book transport for cable pick up.
26On or about the said date, when moving a large wheel of cable off a pallet, he felt a crack in his left shoulder and severe pain in his left shoulder, upper neck and back (“the incident”).
27He could see that the bone was sticking out through his top. He stopped work immediately and was driven by his manager to the Dandenong Hospital, where his shoulder was x-rayed, and he was prescribed Endone.
28On about 17 August 2017, he saw his general practitioner, Dr Lee, and was referred for an MRI scan, which was undertaken later that month. On about 24 August 2017, he was referred by Dr Lee to orthopaedic surgeon, Mr Ash Moaveni.
29The plaintiff had a left shoulder x-ray on 4 September 2017 and started physiotherapy the following month.
30In about January 2018, he had to brake suddenly in his car and the seatbelt pushed hard against his left shoulder, temporarily making the pain worse, although it eventually returned to the level before this braking.
31On or about 17 October 2019, on referral from Dr Lee, the plaintiff commenced treatment with Michael Papasava, clinical psychologist.
32When the plaintiff swore his first affidavit in July 2020, he was having physiotherapy twice a week with Peter Graver and did home-based exercises most days. He had done gym-based exercises before COVID. He saw Dr Lee about every three weeks. He took 50 milligrams of Lyrica for pain and 10 milligrams of Coveram for blood pressure. He also took Panadol and Nurofen a few times a week, and once or twice a month he took Endone.
33The plaintiff then had constant left shoulder pain, made worse by certain postures, movements and carrying heavy things. Shoulder movement was restricted. The pain went into his neck.
34The pain in his neck since the incident was different from the type of neck pain he had had in the past. Before the incident, the pain started in the centre of his neck and went down his spine. Since then, the pain was very much focused on the left.
35Since the incident, the plaintiff had become heavily reliant on his right arm and shoulder to minimise the use of his left arm, and he suffered right shoulder pain as a consequence.
36Pre-incident, he usually got about seven hours of uninterrupted sleep a night, but since had struggled to fall asleep and woke frequently because of left shoulder pain.
37Since the incident, reaching down to tie up his shoelaces increased pain in his left shoulder and left side of his neck.
38His left shoulder pain increased when he did housework, but most of the time he pushed through the pain with household duties like getting the washing out of the machine, hanging it up, doing the dishes and making the beds. He was also prevented from vacuuming using his left arm and had to do it with his right, and that took a long time, as his right became sore when vacuuming.
39All these activities made his left shoulder pain worse, because no one else was there to do them for him. He asked his brother for help if he was at home.
40Pre-incident, the plaintiff did his own cooking, but since then, his brother did most of it for him because of the plaintiff’s left shoulder pain and discomfort.
41Before the incident, the plaintiff had played cricket for about twenty-five years. To say he was a huge fan of the sport would be an understatement. He tried to play in 2019, after a doctor told him that he should give it a go. He took strong pain-relief medication so he could play, but playing increased his left shoulder pain. He managed about four games but could not keep playing because of pain.
42Pre-incident, he had retired from playing football but continued to be involved with the football club, helping at games and functions. In 2019, he gave assistant coaching a go. His left shoulder pain often forced him to leave games before they finished or rest on the sidelines. That injury had taken away his enjoyment of the game and what he could contribute.
43Since the incident, driving aggravated his neck and shoulder. He still drove but tried to avoid peak times and longer drives. He had driven interstate since the incident to pick up and drop off his daughter; however, he had to take painkillers during the drive to manage his neck and shoulder pain.
44He had driven a couple of times, sometimes by himself, from Melbourne to Queensland a number of times in emergency situations to help his daughter as she tried to take her life a couple of years ago. She has lived with him for the last eighteen months.[8]
[8]T91
45His pain made him irritable and snappy with people, and post incident, he was a lot more argumentative with his brother.
46Before the incident, the plaintiff enjoyed socialising and went out most weekends, and it was rare to miss a cricket or football game. Since the incident, because he was in pain, he rarely went out.
47Being in constant pain had badly impacted on his mental health. As at the said date, he felt his mood was well controlled, but since the incident, he felt highly stressed and constantly anxious, and felt much worse than he had in the past.
48Post incident, he had suffered from high blood pressure and migraines, something he did not have before and which he attributed to stress. He felt lethargic and tired very easily and had difficulty concentrating.
49The plaintiff had flashbacks of the incident, how his shoulder looked and the sound it made. He felt angry and emotional when he recalled the incident.
50Post incident, he felt distant and detached from most of his friends. While he still talked to his best mate on the phone, he had not seen him for a long time and was not in the mood for person-to-person catch ups.
51Post incident, the plaintiff was quick to anger, which was out of character for him. Before the incident, he generally kept his cool. Post incident, he felt helpless, and nothing seemed to bring him pleasure. He now cried easily and frequently, which was rare before the incident.
52Post incident, he had suffered from panic attacks, which he was unable to get under control with counselling or medication.
53The plaintiff’s taxation returns confirmed he earned about $15,835 in 2016, $90,483 in 2015 and $74,621 in 2014. He had not returned to work since the incident and received weekly payments until 4 May 2020.[9] He thought he had lost the capacity to earn 40 per cent of his previous income because he could not work in jobs that had a manual component.
[9]Payments ceased in November 2020. Liability was accepted by letter dated 25 September 2017.
54The plaintiff swore a further affidavit on 9 July 2021. Since he had sworn his earlier affidavit, he had been told his medical records showed that he was diagnosed with Post-Traumatic Stress Disorder (“PTSD”) in about 2011 as a result of his daughter being a victim of crime.
55He had also been told that his medical reports suggested he had reported pain radiating to the left side of his upper back and down his left arm and hand. While he remembered the pain being mainly in the centre of his neck, he accepted the accuracy of these records.
56In his first affidavit, he forgot to mention that in about May 2020, he was reviewed by Mr Adrian Praeger, a neurosurgery consultant, who suggested that he trial Endep.
57Since swearing his first affidavit, the plaintiff has continued physiotherapy with Peter Graver, whom he sees about once a month, funded by WorkCover. He stopped counselling with Mr Papasava as WorkCover stopped paying for it and he could not fund it independently. He now sees a psychologist organised by Victims of Crime about every two months. He sees Dr Lee monthly. Apart from continuing physiotherapy and counselling, he has no plans for further treatment.
58He presently takes 60 milligrams of Duloxetine for depression, 10 milligrams of Coveram, and 10 milligrams of Physiotens for blood pressure. He takes Panadol and Nurofen a few times a week, depending on how active he is with his left arm and how bad the pain is. He had stopped taking Endone because even though it was very good for pain, it caused severe constipation.
59His left shoulder pain continues and is made worse by certain postures, movement, and with carrying heavy things. The consequences of his left shoulder injury remain.
60Right shoulder pain is eased with physiotherapy treatment, and sometimes he does not have any pain in his right shoulder. His right shoulder really is not giving him too much trouble at the moment.[10]
[10]T27
61He feels as though his mental health has become a bit worse. The symptoms and consequences of his psychiatric injury earlier deposed to have continued, save that he now feels even more hopeless, frustrated, agitated and angry about his left shoulder injury than he did before. He feels that he is very poor company at home because of his lowered mood.
62He has not returned to work and continues to receive Centrelink. His left shoulder injury has so far prevented him from returning to any work. He would eventually like to work in a non-manual role but believes that his left shoulder pain would prevent him from working any job for more than a few days a week.
Cross-examination
63Cross-examination initially focused on the differences between the plaintiff’s first and second affidavit. In the first, there was no reference to PTSD, but it was mentioned in the second as a diagnosis relating to the family problems. The plaintiff was not meaning to understate anything but agreed that he did.[11]
[11]T11
64There was also a difference between the nature of the neck pain described in the first affidavit, which was said pre incident to have no left involvement, to what he described in the second affidavit, after he had seen the records. In fact, he was earlier mistaken.[12]
[12]T13
65He agreed that insofar as the PTSD and the left-sided neck pain were involved, his first affidavit was incorrect.[13] When he swore that affidavit, he had seen Mr Praeger, neurosurgeon, six weeks earlier, and made no mention of it because it was not connected to his left shoulder.[14]
[13]T15
[14]T16
66He agreed he had had a flare-up at Christmas 2019. He had been on a waiting list since 2016 to see a neurosurgeon and had had an MRI scan that year. He did not mention this in his first affidavit because he did not see a neurosurgeon then. He saw the neck and pain clinic.[15] He denied he was trying to minimise any problems he was having with his neck.[16]
[15]T18
[16] T13
67The plaintiff agreed that he talked to his general practitioner, Dr Lee, about everything, including family issues, and he would discuss his level of pain and his need for strong painkillers.[17] His medication was prescribed at that clinic, where he had also seen Dr Radcliffe.[18]
[17]T20
[18]T21
68The plaintiff admitted having tingling and numbness in both hands, especially the index and middle finger, a month before he started with the employer.[19]
[19]T23 – Dr Lee’s notes
69The plaintiff accepted he went to Monash Clayton Back and Neck Clinic on 28 March 2019 with right-sided neck pain. He also attended on 6 June 2019 complaining of pins and needles and numbness in his fingers. It would be accurate, as of June 2019, he had right-sided neck pain with good and bad days, and his back was the worst issue then.[20]
[20]T29
70The plaintiff agreed that in August 2011, he was referred for counselling about the family problems to Maria Romano, psychologist. He had seen her many times, including twelve visits between May 2017 and May 2018. He did not mention those attendances or any family problems to Dr Handrinos or Dr Papasava, specifically denying any previous problems, and discussing his daughter, but not mentioning anything about the abuse. He had supported his daughter “from day dot,” and thought he would have mentioned it to Dr Papasava. When told that Dr Papasava mentioned the plaintiff actually denied it, he responded: “If it’s there ... .” But then he said: “We did discuss all my family history.”[21]

[21]T34
71While Dr Krapivensky did not mention the family problems, they might not have been brought up. He was talking about his shoulder; nothing to do with his daughter. He would not say he chose to, but obviously he did not disclose it.[22]
[22]T35
Cricket
72The plaintiff agreed that in the 2018-2019 season (October 2018 to March 2019), he did some cricket umpiring (on match days) as well as playing. Dr Barton, the medico-legal examiner, told him to get back to some sort of normal routine, things that made him feel better, and to get back outside.[23]
[23]T36
73The highest grade in the Box Hill competition in which the plaintiff played was Ray McIntosh. The second grade was Dorothy McIntosh. There were then grades from A down to D. The plaintiff played in Ray McIntosh in 2012 and 2013. He was captain of Dorothy McIntosh when he hurt his shoulder in 2017.[24]
[24]T50
74The plaintiff thought he played E‑grade cricket after the incident. It was his club’s fourth eleven.[25] He then recalled the fourth eleven was D Grade.[26] D Grade and A Division of Veterans was the highest he had played since hurting his shoulder.[27]
[25]T38
[26]T48
[27]T51
75In the 2016-2017 season, the last before the incident, Cricket /Network records set out the plaintiff played eleven games – nine in the Dorothy McIntosh – Second Grade. He did not play in the 2017-2018 season. In 2018-2019 season, the records set out he played fourteen games, eight of which were in D Grade.
76The plaintiff made 65 runs in the game over the weekends of 23 February and 2 March 2019 and 62 in the 12 and 17 January 2019 game. The most overs he bowled in an innings in that season was 13 and he usually bowled about 4. He took three catches on 25 November and one catch on three other occasions and also a run out.
77He had played four games in the 2019 calendar year.[28] He did not play fourteen games in the 2018-2019 season as the records set out.[29] There were a number of games where he was recorded as playing but did not play. There were a couple of games where the captain would put his name down on the team sheet to hopefully qualify him for the finals if they made it.[30]
[28]T42 – some games went for two weekends
[29]T43
[30]T51
78He had a memory of not playing two weekends in November 2018 because one of his best mates was playing that game and he went to watch. He could not explain why stats said he actually played when he did not.[31]
[31]T53
79There were plenty of times when he would actually leave the field, either to be sick or in pain.[32] He thought he took Endone on 2 March 2019. He went off the field and came back while batting.[33]
[32]T55
[33]T56
80He remembered a catch he took and the day he took it. He did not have to elevate his arm as it was only at chest height.[34]
[34]T56
81He denied he understated his level of cricket involvement when examined by Mr Asaid.[35] He denied that he played cricket without restriction in the 2018 and 2019 season and that he understated his cricket involvement and history to doctors – “No, absolutely not [did he mislead]”, nor is he a liar.[36]
[35]T58
[36]T59
82Having been shown a number of Dr Lee’s entries from 2018 when she prescribed Endone and made no reference to cricket, he was not sure he told her about needing to take Endone to play cricket, “but I daresay I did”.[37]
[37]T62
83The plaintiff was shown playing cricket on 23 February 2019 (the day he hit 65) when he was batting, and also on 2 March 2019 when he was fielding.[38] When shown on Zoom, the film was a bit jerky and at times, like in slow motion.[39]
[38]Exhibit 1
[39]T68
84On the first date, the plaintiff was taken to a number of parts of the film[40] where it was suggested he had “whacked” or “smashed the ball”, or taken “a big hit”, making 65 in that innings. While there were a number of fours and sixes, I did not consider this was a “slug fest” with most of the shots being sweep shots across his body.[41] When he acknowledged the crowd when he reached 50, I did not think he engaged in any “over the top” celebration, such as flaying his arms around everywhere.[42]
[40]16:44, 16:56 and 17:6
[41] T74
[42]T78
85When hitting the ball, the plaintiff supposed he lifted his left elbow up to strike the ball “but going by that footage you’ll see the bat is in my right hand the majority of the time”.[43] He was jogging, not running, between the wickets. He agreed he was looking over both shoulders while going between the wickets.[44]
[43]T77
[44]T78
86In re-examination, the plaintiff explained that the man in the green shirt who walked over to him at 16:33 in the break gave him Endone that he had got from the plaintiff’s bag.[45] The plaintiff had a drink at least three times while batting because he was dehydrated and feeling sick and dizzy.[46]
[45]T91
[46]T92
87In the second film of 2 March 2019, the plaintiff was shown fielding. While it was put to him that at 14:16 he threw himself to the ground on the left-hand side to catch a ball, his evidence was that he went to his right. On viewing the film, he did not take a catch and went to his left with both arms, stopping the ball.[47]
[47]T79
88There was no film of the plaintiff bowling and the records show that other than one occasion, he bowled on average 4 overs an innings in the 2018-2019 season.[48]
[48]T77
89The plaintiff was seeing Dr Lee around the time of these matches. He saw her on 23 January 2019 when he was still getting certificates from her.[49] When taken to those certificates, he explained he could reach above his shoulder with his left arm “with some difficulty”.[50] He was able to play cricket using his left arm and moving his neck to the left “with some difficulty”.[51]
[49]T82
[50]T83
[51]T84
90When it was suggested there was no reference to playing cricket in Dr Lee’s notes in January or 26 February 2019, a few days after a match, the plaintiff was not sure if they then spoke about playing cricket. Dr Lee knew he actually had Endone because he played cricket. She handles all his medications and knows what he is taking, and she prescribes it. It was completely wrong he did not take Endone on that one occasion.[52]
[52]T86
91He could reach above his shoulder with his left arm, use his left arm and move his neck to the left in the January 2019 game, “with the limitations”.[53] It was not an underestimate to say that in the year 2019, he would have played four games. He confirmed that when he played, he did so with a lot of difficulty and on one occasion, took Endone.[54] He was not intending to play the 2020 season, even if there had been no COVID.[55]
[53]T86
[54]T87
[55]T90
92He regarded himself during his cricket career as an all‑rounder and was playing second top grade before the incident and D Grade after it.[56] He played 119 games before the incident in the higher level, either in top flight or second flight, either Ray McIntosh or Dorothy McIntosh.[57]
[56]T93
[57]T95
93He went to a lower grade because he was not able to train and did not think he was able to play that standard, training twice a week.[58] He was not able to bowl to the level he had always been able to in the past. In terms of pace, he was not able to get his former swing. His left arm was very crucial as a bowler.[59]
[58]T94
[59]T83
94His batting average reduced even in the lower grade, because he was just not able to play the way he used to be able to play.[60]
[60] T96
95Fielding in slips is “the least part of the fielding … where you’d move, like you wouldn’t be moving around too much … you’re standing still”.[61]
[61]T96
96If there had been no COVID and he did not have any problems with his left shoulder, he would probably be still playing now in the Box Hill Reporter competition.[62]
[62]T96
97At the age of forty-seven, the plaintiff “completely disagreed” that his neck and right shoulder would have interfered with him playing cricket.[63] When it was suggested he would have stopped when he got older, he pointed out that is why they brought in the over 40s and over 50s Veterans which had multiple grades.[64]
[63]T97
[64]T98
98On 24 July 2019, Dr Lee noted that on the weekend at training, the plaintiff injured the right side of his back. The ground was wet, he slipped and twisted his back. Since then, he had had pain in the right side of his back which affected sleep. Panadeine Forte did not help, and he complained codeine caused dizziness. He requested a short course of Endone which he had had in the past and it did not have adverse effects.[65]
[65]T88
99In response to this entry, firstly, the plaintiff would not have been having training on the weekend. He was assistant coach, standing on the sidelines, because the senior coach had asked for help. Probably he did not dispute that he might have slipped on a wet surface, which would have jolted his back.[66]
[66]T89

The Plaintiff’s medical evidence – treaters
100When the plaintiff attended Dandenong Hospital Emergency Department on the said date, the presenting problem was:
“PT was pulling down on heavy cable – heard / felt a snap to L AC jt area. Pain++ with associated pain and tingling into the hand (mainly ulnar side).”
101An x-ray was undertaken and there was a diagnosis of “Sprain/strain of shoulder” and Endone was prescribed.
Mr Ash Moaveni, orthopaedic surgeon
102The plaintiff saw Mr Moaveni on referral from Dr Lee in August 2017. The plaintiff then complained of numbness and tingling affecting his arm.
103On examination, there was a significant deformity around the left AC joint, and it was exquisitely tender. Shoulder movement was very limited, with no external rotation strength, and there was patchy numbness through the arm.
104Mr Moaveni noted an AC joint injury had been seen on MRI and there were no other significant soft-tissue injuries. The intrasubstance tear was relatively small. He agreed that the plaintiff had suffered an acute AC joint injury, and it was difficult to know whether that would settle down on its own. He discussed surgery with him and would write to WorkCover for approval. Re-assessment was planned in a couple of weeks. If there had not been improvement by then, he would go ahead with AC joint stabilisation.
105Mr Moaveni saw the plaintiff again on 6 September 2017. He noted, unfortunately since the last review, his shoulder continued to be quite painful. An up-to-date x‑ray of the left shoulder showed some calcification around the acromioclavicular joint.
106Surgery was discussed again in the form of repair or reconstruction of the ligaments. They both thought that a reconstruction was worthwhile given the degree of calcification around the AC joint. Mr Moaveni explained the nature and expected outcome, and possible complications, of the surgery. He noted that the plaintiff also realised that he would require a second operation to remove the hook plate about three or four months after the reconstruction. The plaintiff’s shoulder continued to be quite sore and painful, and he was keen to go ahead. He also mentioned some numbness in his hand, which Mr Moaveni thought was likely to relate to the AC joint injury. That would be investigated further, should it not settle down after surgery.
107Mr Moaveni saw the plaintiff again on 2 February 2018. The Type V AC joint separation last seen had settled down on its own accord.
108He noted that six weeks earlier, the plaintiff was involved in the sudden braking of a motor vehicle with the seatbelt running across his left shoulder, and it was becoming quite painful. Most of the pain was over the trapezius muscle.
109On examination, range of motion was well preserved. The AC joint was deformed but felt quite stable. There was no tenderness of that joint, but most of the tenderness was over the trapezius muscle. He reassured the plaintiff that his pain would gradually settle down again, and that he should continue with rehabilitation. There was then no indication for an AC joint stabilisation procedure, and he did not anticipate any long-term issues with follow-up at the plaintiff’s discretion.
110In a report to the plaintiff’s solicitors in February 2020, Mr Moaveni diagnosed Type V left AC joint separation. He could not comment on the plaintiff’s current fitness for work as he had not seen him since February 2018. He would have expected that the plaintiff would have recovered from the re-injury in 2018.[67]
[67]13 February 2020 report
Advocate Medical Centre – Dr Sook Lin Lee
111There were a number of reports from the plaintiff’s general practitioner, Dr Lee.
112In her first report of October 2017, Dr Lee noted that the plaintiff had a left shoulder fracture dislocation of the AC joint and rotator cuff as a result of the incident. He decided not to have surgery as the recovery time would be prolonged, so would have conservative treatment instead. He would therefore need to see a physiotherapist and osteopath. Approval was sought from the insurer in this regard.
113In early December 2017, Dr Lee thought that the plaintiff would probably be able to do some light duties in February 2018.
114In her March 2018 report to the insurer, she noted that the plaintiff had developed hypertension since the injury, particularly after a meeting with the employer on 25 January 2018. It was only in 2018 that his blood pressure was noted to be high.
115Dr Lee thought it quite possible that all the stress from the injury, and how things had been handled by the employer, had led to the rise in his blood pressure. The plaintiff had become anxious. His moods had been affected and he had ongoing shoulder pain. All factors had caused him to be less active and may contribute to the change in his blood pressure.
116In October 2018, Dr Lee advised the insurer that the plaintiff had developed depression and anxiety due to the incident, and lost his ability to work as before, and that had affected his financial, physical, social and psychological aspects of his life severely.
117The plaintiff had very low moods, became very anxious, had disturbed sleep and tired easily. He had issues with concentration and motivation, and the chronic pain in his shoulder, neck, head and arms significantly affected his mental health. Accordingly, a request was made for psychological counselling and a pain management program to be funded by WorkCover.
118In November 2018, Dr Lee advised that the plaintiff’s neck, shoulder, arm pain and headaches had escalated since physiotherapy was ceased, and she requested a continuation of treatment. There was a further request for physiotherapy in October 2019.
119In January 2020, Dr Lee reported that the plaintiff had two conditions: one which was due to the incident, and the other a pre-existing injury of his neck which was not work related.
120She noted that the MRI of his left shoulder showed Grade 3 AC joint injury with fracture dislocation, moderate subacromial bursitis, and a small intrasubstance tear of the supraspinatus tendon.
121Mr Moaveni had monitored the plaintiff’s condition and decided that, although the joint was permanently deformed, it felt stable, so there was no indication for surgery. He also noted that the plaintiff had developed tenderness in his left trapezius muscle as a result of the injury.
122As a result of the injury, Dr Lee thought the plaintiff had developed chronic pain in his left shoulder, particularly over the left trapezius. He had become extremely stressed, anxious and depressed due to financial problems, and his blood pressure had risen.
123The other medical condition was chronic neck pain and radiculopathy, which was diagnosed in August 2016. This was due to moderate to severe spinal canal stenosis and evidence of C7 nerve root compression from disc osteophyte complex at C6-7. The pain had become worse in recent months and was causing severe neck pain radiating down the right shoulder and arm, with associated numbness and tingling. The plaintiff was awaiting a neurosurgery appointment.
124Dr Lee thought the plaintiff’s neck and right arm was a major issue at that time and causing a lot of distress. He was very frustrated that he had to wait for the neurosurgeon appointment.
125In her view, the plaintiff’s pre-existing neck problems and radiculopathy, work-related AC joint injury, chronic pain in his left shoulder and subsequent anxiety and depression were all contributing to his inability to do any work, and all conditions were exacerbating each other.
126The plaintiff was then taking Paracetamol, Lyrica and occasional Endone for pain relief. He was also having physiotherapy, which gave him relief of his neck and shoulder pain.
127In her March 2020 report, Dr Lee noted that the plaintiff had a pre-existing history of anxiety and depression, but the symptoms had escalated since the incident, together with the subsequent chronic pain and financial stress due to an ability to work.
128The left shoulder injury and pain in the left suprascapular region had caused the neck pain to be aggravated and, in the last few months, the plaintiff had been experiencing a resurgence of the neck and right arm symptoms from 2016.
129She thought the plaintiff was then not able to work due to the severe pain in his neck and right arm. There was also ongoing discomfort in the left shoulder region, but this was not as severe as the right side. His depression was also a significant contributing factor to his inability to work, as his impaired concentration, poor motivation, disturbed sleep, fatigue and high anxiety levels prevented him from being able to work.
130Dr Lee noted that the plaintiff was keen to return to the workforce doing suitable jobs; however, he needed to have his neck problems treated successfully to eliminate the pain. That was likely to lead to an improvement of his mood and frustration and, in turn, may allow him to work in some capacity again.
131On 17 April 2020, Dr Lee referred the plaintiff to neurosurgeon, Associate Professor (“AP”) Andrew Danks at Monash Medical Centre, noting that the plaintiff had been waiting since 2016 for an appointment, and that had been the third referral request.
132In her November 2020 report, Dr Lee noted that the plaintiff’s shoulder injury affected his neck condition due to neck and upper back structures compensating for the shoulder injury.
133At that stage, she thought he would benefit from physiotherapy, a pain management program and psychological counselling.
134In her March 2021 report, Dr Lee noted that the plaintiff had been attending a psychologist at EACH from time to time for several years for his depression and anxiety. He declined to see a psychiatrist as he did not trust psychiatrists.
135Dr Lee confirmed the diagnosis of the left shoulder injury and noted that the plaintiff also had neck pain and radicular pain that was not related to the incident due to a pre-existing cervical spine condition that was being managed by neurosurgeons at Monash. The incident caused a flare-up of his pre-existing history of anxiety and depression.

136The left shoulder was chronically deformed and there was some permanent restriction of movement and weakness. She thought it was possible that the current exacerbation of the plaintiff’s depression, PTSD and anxiety will improve with time if he receives appropriate psychological support, reduction in his life stresses and good pain management. She thought he was prone to relapses of his mood disorder whenever stressed.
137In her view, the plaintiff does not have a capacity to do his pre-injury duties indefinitely due to his shoulder injury. He would never be able to return to pre-injury duties with regard to his work-related psychological injury. He has some capacity to work on a part-time basis in a suitable field that does not require heavy physical work that will not impact on his left shoulder. The number of hours will depend on the type of work. She did not think that he would be able to work full time.
138She considered the plaintiff is likely to have some capacity to work in a suitable job, as there is a good chance the current exacerbation of his depression, due to the work injury, will improve with proper treatment.
139She noted the plaintiff’s social and recreational activities pre incident revolved around football coaching and playing cricket. He was now unable to do both due to his shoulder. He could only do light domestic duties.
140In her June 2021 report, she listed the plaintiff’s current medications and noted that he had declined a pain management service and accepted that he would always have a degree of pain and wanted to self-manage.
Carmaine Ng, physiotherapist – Bounce Health Group
141In her most recent report of March 2018, Ms Ng noted the plaintiff had only been weaned off using a sling a fortnight earlier and his shoulder muscles were significantly deconditioned.
142She recommended a further six months of treatment and gym membership.
Peter Graver, physiotherapist
143The plaintiff first had physiotherapy with Mr Graver at Back in Motion in September 2019. He then reported right-sided neck, shoulder and arm pain which had begun twelve months earlier, with an increase in the previous month, and constant pain in his neck, shoulder and arm over the last week.
144On assessment, the plaintiff also reported the workplace injury to his left shoulder. Mr Graver thought that the plaintiff had developed left arm and neck symptoms as a result of the incident injury.
145Mr Graver most recently reported in March this year, summarising the treatment he had provided since September 2019. While he noted that from September 2020 to the present, treatment transitioned to a more of an independent process with monthly visits, the plaintiff required treatment for unforeseen flareups of pain roughly every three to five weeks.
146While he was experiencing tolerable symptoms, the plaintiff continued to be significantly limited in his capacity to perform activities of daily living, and ongoing treatment was required.
Mr Adrian Praeger, neurosurgeon, Monash
147Mr Praeger reported to Dr Lee in May 2020, having seen the plaintiff in Neurosurgical Outpatients.
148He noted that the plaintiff presented with a multi-year history of chronic neck pain and right arm pain. His latest flare-up had been going on since prior to Christmas – about six months. He described this as a pain radiating down to all fingers but mainly the middle. The plaintiff was taking Panadol and, at times, Panadeine Forte, as well as an occasional Endone for this pain but currently he was only really taking Panadol. He had been doing physiotherapy with strength exercises and had not really noticed any further improvement.
149Examination was consistent with right C7 radiculopathy, including a right-sided triceps weakness of 4 out of 5, some numbness in the right middle finger, as well as absent triceps jerk.
150On the last MRI scan three months earlier, the plaintiff demonstrated multi-level degenerative disease, the worst being at C5-6 and at C6-7; this was mainly bilateral foraminal stenosis and it would account for his symptoms. At C5-6, there was a broadbased central disc prolapse.
151He suggested that the plaintiff trial Endep as he was not taking any consistent analgesia. He suggested a repeat MRI scan in six weeks.
Maria Romano, psychologist
152The plaintiff was referred to the Eastern Victims Assistance Program in August 2011 by Victims of Crime Helpline and began counselling on 28 September 2011 with fifty-four sessions to date.
153He was diagnosed with PTSD in 2011 as a result of learning of his daughter, Thalia’s, abuse. He was forced to cease work to care for her and provide intense supervision. Between 2011 and 2018, Tahlia, had a minimum of 77 hospital admissions – at least four to mental health units.
154The plaintiff had reported that when he started with the employer, he was feeling mentally stronger and ready to commit to a healthy routine and lifestyle, with regular work. Following the incident, his anxiety escalated, and his physical health deteriorated, with high blood pressure, stomach issues, ongoing pain and an inability to sleep. His employer’s response to the injury resulted in greater suffering.
155Ms Romano thought it reasonable to expect the incident injury and the plaintiff’s interactions with his employer exacerbated his pre-existing symptoms of anxiety and depression. Recent symptoms included feeling hopeless, weight gain, no interest in exercise or social interactions and high blood pressure.
156She thought that the plaintiff would benefit from ongoing counselling fortnightly to provide him with a focus on his needs and recovery. Up to this time, most of his attention had been taken by his daughter, and counselling would provide an opportunity to focus on his symptoms. The plaintiff was also concerned about his brother’s health and the health of his parents.
157The prognosis was difficult to determine at that time.
Mr Michael Papasava, clinical psychologist
158Mr Papasava saw the plaintiff on referral from Dr Lee in January 2020.
159There was no mention in his March 2020 report of any psychiatric or psychological problems preceding the incident.
160In terms of personal history, he noted the plaintiff was not married but had a twenty-four-year-old daughter with whom he had a very good relationship and always had been involved in her activities.
161In terms of psychological or psychiatric history, the plaintiff had no prior psychological or psychiatric history and denied any psychiatric history in his family.
162Mr Papasava diagnosed, as a direct and exclusive consequence of his work-related activities, the plaintiff developed a PTSD, a Major Depressive Disorder, panic attacks and a Pain Disorder associated with a general medical condition. Those conditions affected adversely his emotional, interpersonal, social and potential for occupational functioning, and he required a combination of appropriate psychological and pharmaceutical treatment long term.
163Mr Papasava took the following history in terms of sport played by the plaintiff.
164The plaintiff played cricket his whole life, starting in the under twelves at Forest Hill. He was senior club captain and senior coach for three years, represented the league association five times in A-grade:
“Last year 2019 I attempted to play cricket on the advice of my orthopaedic surgeon so I could get out of the house … more for my mental state than the physical side … I was an A-grade cricketer and I played in E-grade … but I struggled due to pain. I was sent off the field twice in those games because I was sick and vomiting due to pain. I took one catch and dropped three catches and made two scores of zero and I scored over fifty when I took three Endone. I was as sick as a dog for the next twenty-four hours. I’ve also been awarded life membership at the Forest Hill Cricket Club in 2018.
I haven’t been to the club in any capacity in the last two years. When I played for them last year, I played the game and then went straight home and it has been discussed by members of the club that I haven’t been down to the club in any capacity for the last two years. I’m currently receiving messages from the players that I’m not responding to. I’ve gone from being the heart and soul of the club to doing nothing at all due to this injury.”

165Mr Papasava thought, from a psychological perspective, that the plaintiff was unfit for either pre-injury or alternate duties at present and for some significant period of time to come. He would require a significant amount of treatment for his psychological condition. The prognosis was good for partial restoration.
Medico-legal evidence
Mr Gerald Moran, orthopaedic surgeon
166The plaintiff was examined by Mr Moran in November 2017. At that stage, the plaintiff reported that he was improving slowly. He had left shoulder pain, which was present most of the time, and his left shoulder movements were restricted.
167Mr Moran thought the plaintiff had a fracture dislocation of his left acromioclavicular joint with an intrasubstance tear of the supraspinatus. This condition was still materially contributed to by the incident injury.
168The plaintiff was not fit to return to pre-injury work but was fit for full-time light duties, noting that he said he was not qualified for office duties.
Mr Raf Asaid, orthopaedic surgeon
169Mr Asaf first saw the plaintiff in August 2020, and more recently in April of this year.[68]
[68]He also provided a supplementary report in June 2021, commenting on suggested jobs
170When first seen, the plaintiff described his symptoms as stabilised in the last year without any significant improvement. He complained of constant pain in the left shoulder associated with an occasional cracking or crunching sensation with certain movements. He had pain every day, which he described as a constant, dull ache with an occasional sharp stabbing pain, particularly when attempting to lift heavy objects or with overhead activities.
171The plaintiff reported the injury having a significant effect on his social and psychological wellbeing. He had previously enjoyed playing football and cricket and as a result, he now rarely participated in those activities and no longer participated in social activities.
172His medication at that stage was Panadol and Nurofen as required.
173A physical examination demonstrated deformity around the left acromioclavicular joint with prominence at the distal end of the clavicle in comparison with the right. There was tenderness to palpation over the left AC joint and over the biceps tendon. Rotator cuff testing was normal, with grade 5 power of supraspinatus, infraspinatus and subscapularis. Impingement signs were negative.
174There was reduced abduction – passive and active – and forward flexion of the left shoulder.
175Mr Asaid was provided with photographic material accompanying the surveillance reports of the plaintiff playing cricket on 19 and 26 January, 23 February and 2 March 2019. He noted the plaintiff reported cricket had always been a big part of his life and was something he derived great enjoyment from. He deposed to taking heavy pain medication during his attempts to return to this activity.
176Mr Asaid thought it difficult to assess whether the activities demonstrated were performed in an unrestricted manner, particularly without the video; however, they were consistent with the physical examination, with the shoulder demonstrating a near normal range of motion.
177In the absence of any other reported precipitating events, the AC joint dislocation had occurred as a direct result of the incident.
178Taking into consideration the described levels of pain and discomfort, as well as described functional limitations, the plaintiff would not be fit for pre-injury work, which was quite labour intensive, and a return to manual work could further exacerbate his symptoms.
179The plaintiff would be fit for alternate duties in a role which did not require him to perform any heavy lifting, pushing or pulling activities, with particular avoidance of any above shoulder height activities.
180The plaintiff should continue physiotherapy, with the aim to regain near full movement. He should also consider further follow up with his orthopaedic surgeon, having last seen Mr Moaveni in February 2018. There should also be further imaging of the shoulder, the last investigation having been conducted in 2017.
181Mr Asaid concluded the plaintiff continued to describe considerable pain in his left shoulder, nearly three years since his injury. At that point, he was unlikely to make any considerable improvement in the foreseeable future.
182There was a re-examination in April 2021.
183Since last review, the plaintiff had not been able to return to work. He had been having physiotherapy over the last six months with only a slight improvement in symptoms.
184He also recorded that due to ongoing neck pain, he was referred to a neurosurgeon at Monash with regards to a possible disc bulge at C6-7. Following this review, he had been recommended to undergo surgery on the cervical spine but was considering that option. There had been no change in his medication or treatment regime.
185The plaintiff reported that over the last six months, the level of pain and disability had been stable, without any significant improvement.
186In addition to persistent left shoulder pain aggravated by activity, where a dull ache could become sharp and stabbing, it had now reached a point where he had learnt to live with his pain and avoid activities that caused aggravation. He also reported his neck felt quite stiff and he had difficulty turning it to the left. The pain in his neck also comes and goes.
187The plaintiff reported he no longer had any pain in his right shoulder.
188He was still taking Panadol and Nurofen when required.
189On examination, there was tenderness to palpation over the left AC joint and over the left side of the paraspinal region and scapular spine. Impingement signs were negative.
190In addition to the photographs of the plaintiff paying cricket, Mr Asaid had also been provided with an 11-second video of him on the field walking with a bat. The plaintiff advised he was encouraged by his orthopaedic surgeon to try and play cricket despite the pain. He had previously played A Grade but when shown on the film, he had returned to E Grade and played about four games and spent a long time off the field to recover following every stint when he attempted to play. Once he took Endone prior to playing, however, he had to leave the field while batting because of pain.
191He used to bowl at about 125 to 130 kilometres per hour but when he returned, when he attempted to bowl, he had considerable difficulty where the ball was often bouncing twice before reaching the stumps.
192In the film, the plaintiff spent much of the time standing on the field. He took a chest height catch where he did not need to elevate his arm.
193Mr Asaid’s views as to diagnosis and causation and the plaintiff’s employment capacity were unchanged. He thought the plaintiff had a capacity to perform suitable employment in a role which did not require him to do any heavy lifting, pushing or pulling, with particular avoidance of any above-shoulder activities. He considered, given the duration of time the plaintiff had been out of the workforce, as well as the discomfort he described in his left shoulder, he would be limited to part-time work.
194Given the lack of improvement, Mr Asaid thought it unlikely the plaintiff would make any considerable improvement in the foreseeable future.
195In his most recent report of June 2021, Mr Asaid stated the number of hours he thought the plaintiff could potentially work was largely dependent on the specific role and tasks he was required to perform. He would envisage the plaintiff would be capable initially of returning to work in a role with restrictions he had earlier described, working 15 hours a week, five days a week on alternate days. His capacity should then be reassessed based on his ability to cope and readjusted if the symptoms allow. However, any attempt to return to work should be made under the care and guidance of his general practitioner and an occupational physician.

The Defendant’s medical evidence
196Dr Lee issued certificates of capacity in late January/February 2019 which set out the plaintiff could not reach above his shoulder with his left arm, could not use his injured left arm, could not lift with the left arm, and could not move his neck to the left. On that basis, he was certified to have no capacity for employment.
197On 23 January 2019, Dr Lee noted the plaintiff’s shoulder and neck pain was still troublesome and advised regular Panadol Osteo.
198On 12 February 2019, there was worsening neck and shoulder pain and tingling in his left arm: “Discussed his chronic neck problems … Requests a letter … [for] more Physio.”
199On 26 February 2019, neck and shoulder pain was still quite bad: “Only taking Lyrica 25 mg nocte and has not … [increased] dose yet.”
200On 5 March 2019, it was noted the neck and left scapular region are very painful, pain is radiating down both arms.
Medico-legal evidence
Dr David Barton, occupational physician
201Dr Barton examined the plaintiff on a number of occasions.
202On examination of the left shoulder in February 2018, there was no particular area of tenderness to light palpation. All shoulder movements were reduced by about a third, with the plaintiff grimacing with all movements.
203Dr Barton thought there were some minor features noted during the examination that pointed towards a possible degree of overlay. He noted that the generalised weakness throughout the left arm would appear feigned, and the grimacing at the extremes of all movement seemed somewhat unusual.
204He diagnosed persistent dysfunction, following what appeared to be an acute fracture dislocation of the left AC joint treated surgically.
205He then thought the plaintiff had a capacity for light suitable work with no heavy lifting, no reaching above chest height, thus having a capacity for suitable employment.
206On re‑examination in November 2018, the plaintiff said that over the last six months, he had had lots of migraines, and the area on the left side of his neck, near the angle of the neck, felt like concrete. He also said his depression and anxiety had skyrocketed, and his blood pressure had gone through the roof.
207Again, Dr Barton thought the plaintiff had the capacity to return to suitable duties. There were several minor findings during examination that pointed towards a possible degree of overlay. The generalised weakness throughout the left arm would appear feigned, and the grimacing at the extremes of all movements seemed somewhat unusual.
208Of concern during the assessment were several findings that did not fit within a straightforward physical condition and suggested a degree of overlay was playing a part.
209Dr Barton provided a supplementary report in March 2019 after he had reviewed his clinical notes and reports and seen the surveillance footage. He believed his concerns about the plaintiff feigning had been supported by the surveillance, which clearly showed him undertaking extensive physical activity without any particular issues regarding his arms.

210He thought the plaintiff was misrepresenting his injury and capacity. In view of the extensive cricket playing, he could see no reason why the plaintiff could not return to his pre-injury work. He believed he had had enough time to recover from the left shoulder problem to the extent that he can return to normal work.
211Physically, in regard to his ability to return to normal work, his condition could be considered to have resolved. Without any clear evidence of ongoing problems with the shoulder, no treatment was required.
212Dr Barton last saw the plaintiff in May this year.
213He then thought there was a deformity related to the AC joint and outer part of the clavicle. Apart from that, there was no objective evidence of any particular ongoing problem with the rest of the left shoulder. He would accept there was some minor persisting dysfunction of the shoulder as a result of the fracture, but it was not as disabling as the plaintiff reported.
214Dr Barton thought there had been a consistent non-objective finding of global weakness throughout the left arm which was clearly feigned. This, to some extent, was confirmed by the lower grip strengths, which was far more than would be expected for a non-dominant arm, and he believed confirmed poor effort.
215From a physical point of view, he could see no particular reason why the plaintiff could not return to normal work. The nature of the injury was one that a number of sportspeople may sustain, and usually are quite capable of getting back into their sport and other work and life activities. While he believed the plaintiff was capable of normal work, he thought he certainly had a capacity for suitable employment full-time.
Dr Francis Ghan, orthopaedic surgeon
216Dr Ghan examined the plaintiff in January 2020.
217He thought the AC joint subluxation injury had resolved. He noted the mechanism of injury was very unusual, and that a joint injury is usually sustained from a direct fall onto the shoulder. He was not convinced simply leveraging a metal pole could cause a left AC joint injury of this nature.
218He thought the plaintiff’s current physical condition was no longer materially contributed to by the incident injury. In his view, the plaintiff had a capacity for pre-injury duty and hours.
219Dr Ghan re-examined the plaintiff in May 2021. He was asked to review the claim that, because of his left shoulder, the plaintiff was overusing his right shoulder and aggravating his cervical spine.
220On examination, left shoulder abduction and forward flexion was “pretty satisfactory for function”. There was no evidence of bursitis causing painful arc or impingement syndrome. The left AC joint had grade 2 subluxation.
221The plaintiff reported his right shoulder was “pretty good” since having physiotherapy. His neck was a bit stiff. He was in the middle of fifteen sessions of physiotherapy over twelve months.
222The plaintiff complained that his left shoulder was weak and did not have full movement. He said he could lift at the most 5 to 10 kilograms. He could not even wash his hair with his left hand.
223WorkCover payments stopped in November 2020.
224Dr Ghan thought the left shoulder overall function was satisfactory despite the prominent left AC joint subluxation. He did not believe there was significant dysfunction in the left shoulder to cause right shoulder or neck aggravation. In any case, the right shoulder examination also demonstrated a good range of motion, and likewise, the neck had no evidence of stiffness or radiculopathy.
225Dr Ghan had reviewed the surveillance reports dated 4 February and 12 March 2019 in relation to the plaintiff’s playing cricket on 19 and 26 January 2019, umpiring and batting, using both arms freely with no discomfort. He noted a photograph shot of the January game showed him batting using both arms quite forcefully. Again, on 23 February and 2 March 2019, there were photographs of him playing cricket with no obvious pain or discomfort.
226Dr Ghan’s examination revealed no significant objective findings. There were non-objective findings, mainly symptoms that could not be corroborated by objective physical signs.
227Dr Ghan thought the plaintiff was fully capable of returning to pre-injury duties and hours. Apart from the left AC joint subluxation, he could not find any evidence that the incident was still materially contributing to his present left shoulder condition. The plaintiff could certainly perform suitable employment full time.
228The surveillance reports corroborated his opinion that there was nothing much wrong with the plaintiff. If he could play cricket with vigour, he could certainly work.
Dr Dennis Handrinos, psychiatrist
229Dr Handrinos examined the plaintiff in April 2018, focussing on past and current psychological problems and their relationship to his work injury.
230The plaintiff made no mention of the family problems to Dr Handrinos.
231The plaintiff told him he had discussed referral to a psychiatrist or psychologist with his general practitioner, but none had been formally made at that stage. He said he would be prepared to attend a mental health clinician if there was a chance it would help.[69]
[69]He was seeing Ms Romano for counselling at that time.
232Dr Handrinos concluded the plaintiff had developed an Adjustment Disorder with Mixed Anxiety and Depressed Mood that arose in the setting of feeling pressured to return to work despite ongoing pain and restricted movement of his injured limb. The psychiatric disorder alone was not significantly affecting the plaintiff’s ability to return to work at that stage.
Dr Natalie Krapivensky, psychiatrist
233The plaintiff was examined by Dr Krapivensky via Zoom on 2 June 2021. Under the heading “Past psychiatric history”, it was noted, “Nil reported”.
234Dr Krapivensky thought the plaintiff had no current psychiatric condition. His depression arose secondary to the physical injury in the incident. Current treatment was appropriate and should continue for at least six weeks.
Cricket records
235Cricket Network Player Career statistics were provided for the 2007-2008 to 2018-2019 seasons inclusive.
Surveillance
236It was agreed there were 84.5 hours of surveillance and 2 hours, 37 seconds of film.

Overview
237There is no dispute the plaintiff suffered a compensable injury to his left shoulder in the incident – an acute AC joint injury shown on MRI – a grade 3 AC joint injury with fracture dislocation, moderate subacromial bursitis and intrasubstance tear of the supraspinatus.
238There was no suggestion of any left shoulder problem pre incident.
239Mr Moaveni initially recommended surgery, when he first saw the plaintiff in late August 2017, in the form of arthroscopy and AC joint stabilisation. In October 2017, Dr Lee noted the plaintiff had chosen not to go ahead with surgery and would pursue conservative treatment.
240The plaintiff did, however, see Mr Moaveni in February the following year. At that stage, the AC joint separation had settled down of its own accord. The joint was deformed but felt quite stable. Mr Moaveni thought there was currently no indication for the AC joint stabilisation procedure. He has not seen the plaintiff since.[70]
[70]Mr Moran saw the plaintiff in November 2017 before this re-examination
241While Mr Moaveni was optimistic about the plaintiff’s prognosis, general practitioner, Dr Lee, continues to see the plaintiff for ongoing left shoulder complaints. She has seen him from the outset and “has no qualms or reservations … about the fact he’s continuing to have an ongoing problem with his left shoulder.”[71]
[71]T126
242All recent medico-legal examiners agree the left shoulder deformity remains but differ in their view as to the existence of any pain or restriction in relation thereto.
243Given Dr Lee’s ongoing treatment of the plaintiff’s left shoulder, I reject Dr Ghan’s view that the incident injury no longer materially contributes to his present condition. Occupational physician, Dr David Barton, was only the only practitioner who found global weakness which he believed was feigned. He did, however, accept the AC joint was injured in the incident and to some extent because of the persisting deformity it is ongoing and there was a minor persisting dysfunction.[72]
[72]T127
244I am satisfied there is an organically based left shoulder condition as at the date of hearing as the deformity is permanent (corroborated by the radiology and clinical examination) and there is some weakness and restriction of movement on an ongoing basis, as Dr Lee described in her 2021 report.
245The issue is whether the consequences of any impairment in relation thereto are “serious”.
Credit
246As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[73]
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
[73] (Supra) at paragraph [12]

247Counsel for the defendant submitted the plaintiff’s credit and reliability is central to this application as medical opinions are largely dependent on it.[74] It was submitted that his veracity had been compromised by his cricket activities, which were in strong contrast to his affidavit and what he has told doctors.[75]
[74]T102 - Dordev v Cowan & Ors [2006] VSCA 254
[75]T102
248Also relevant when assessing his credibility was his failure to tell the doctors, the psychiatrists and psychologists about his family problems.[76]
[76]T102
249Further, his first affidavit was wrong in his description of the nature of his pre‑existing neck pain. His denial that he had attempted to minimise any neck problems should not be accepted and “just does not wash” when he has seen a neurosurgeon for his neck six weeks before he swore that affidavit. When he did mention seeing Mr Praeger in his second affidavit, he gave the impression it was for his left shoulder, having forgotten to mention this attendance at all in his first affidavit.[77]
[77]T103
250As I indicated during the hearing, I was not particularly concerned as to whether a doctor actually suggested the plaintiff return to playing cricket. Further, any difference between the plaintiff’s affidavits pointed out by counsel for the defendant did not raise significant credit issues.[78]
[78]T114
251Although counsel for the plaintiff explained his client was focussing on his left shoulder when examined for the purposes of this application, it did seem somewhat strange that he either failed to tell/or specifically denied the family problems and treatment in relation thereto when examined by psychiatrists and psychologists about his daughter’s issues. I do accept, however, that the plaintiff was very frank about his psychiatric condition in his affidavits.[79]
[79]T115
252Further, no psychiatric impairment was claimed and while the plaintiff’s evidence in this regard was unsatisfactory, generally I found him to be a credible witness whose evidence as to ongoing left shoulder pain and resultant restrictions was not significantly challenged.[80]
[80] T122
253Also, as counsel for the plaintiff explained, the plaintiff did not know about the surveillance film when he swore his affidavit as it was not exchanged until the response material. He did not understate his involvement in the 2018-2019 season if, when he mentioned playing four games in 2019, he meant the calendar year – when it seems he actually played six games.[81]
[81]T116
Pain
254As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[82]
“The evidentiary basis of the pain assessment will ordinarily comprise the following:
(a) what the plaintiff says about the pain (both in court and to doctors);
… .”
[82](Supra) at paragraph [11]

255The plaintiff continues to have constant pain in his left shoulder, made worse by certain postures, movement and carrying heavy things, with some restriction of movement.
256On examination, the level of shoulder movement has varied, with a slight restriction at times to findings of almost a normal range on other occasions.
257As Dr Lee recently reported, the plaintiff’s current symptoms are chronic pain over the left shoulder, in particular over the trapezius region – with impairment of movement and strength. The plaintiff’s complaints have been in similar terms to all examiners, although when first seen by Dr Ghan in 2020, he noted the plaintiff reported his left shoulder “is pretty good”.
Treatment
258Surgery was initially contemplated by Mr Moaveni but not undertaken, as the plaintiff preferred a conservative approach.
259The plaintiff has had physiotherapy, initially from Ms Ng in 2017/2018 and more recently from Peter Graver at Back in Motion from September 2019 and continuing.
260The plaintiff requires ongoing pain relief for his left shoulder. As Dr Lee recently reported, he takes analgesic medication which includes paracetamol or Panadeine Forte.
261In Kelso v Tatiara Meat Company Pty Ltd,[83] Dodds-Streeton JA said:
“The chronic pain was a prominent feature of the appellant’s case. The endurance of permanent daily pain requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence.”
[83](2007) 17 VR 592 at paragraph [199]
262Since the incident, the plaintiff at times has also required Endone for his shoulder and other issues.
263On 22 June 2018, Dr Lee noted the plaintiff needed a brief course of Endone to settle neck, shoulder and back pain which had flared up at present. Endone was prescribed for an episode of very bad neck pain on 30 July 2018 and was ceased the following month. On 1 September 2018, Endone was prescribed for a flare up of left-sided neck and shoulder pain. The next prescription on 9 November 2018 was further Tramadol for very bad pain in neck and shoulder. Panadeine Forte was prescribed later that month.
264In January 2019, Dr Lee noted “advised regular Panadol Osteo tds” – shoulder and neck pain still troublesome. Lyrica was prescribed for neck pain with radiculopathy on 12 February 2019. Lyrica was increased later that month as neck and shoulder “still quite bad”.
265The next prescription of painkillers was Endone on 24 July 2019 when the plaintiff requested a short course which he had in the past and did not have adverse effects.[84]
[84]Slip at footy training
266In her January 2020 report, Dr Lee reported the plaintiff was taking analgesics; that is, Paracetamol, Lyrica and occasional Endone to get pain relief.
267While there is no specific reference in Dr Lee’s notes to the plaintiff taking Endone to help him play cricket, he was being prescribed Endone when he was playing during the 2018-2019 season.
Cricket
268The plaintiff’s great love before the incident was playing cricket and his social involvement in the cricket club. He was made a life member of the Forest Hill Cricket Club in 2018. His involvement was set out in detail in Dr Papasava’s report.[85]
[85]Paragraph 164 of my judgment
269Before the incident, at the age of forty-three, he was captain of the second top team, playing weekly, and training two nights per week. He had played in the top division a couple of years earlier.
270After the incident, he was unable to play at all in the 2017-2018 season because of his shoulder injury.[86] On his return to the game in the 2018-2019 season, he played only D Grade and A Grade Veterans.
[86]T60
271While there was film shown of the plaintiff batting, most shots were sweep shots across his body in his innings of 65 – his best that season. I accept, however, that he did have a number of drink breaks during the innings and took medication that day as he was having difficulty batting as he described.
272He was not shown bowling in any film and the records indicate he did very little bowling in the 2018-2019 season. The season before the incident, while not bowling at 125 kilograms as he did as a younger man, the plaintiff “was still bowling pretty fast.”[87]
[87]T56. Plaintiff’s history to Mr Asaid
273Further, the fielding in slips shown in the film was not overly vigorous or requiring significant use of his left arm.
274The film was not inconsistent with physical examination, with the plaintiff’s left shoulder demonstrating a near normal range of motion as Mr Asaid explained.
275The plaintiff last played cricket in March 2019.[88] I accept had he not injured his left shoulder, he would still be playing, subject to COVID interruptions. Cricket is a sport that can still be enjoyed by older players in normal grade or special veterans’ competitions. At forty-seven, he would have had been able to continue playing for some years and enjoy club life but for his shoulder injury.[89]
[88]T40
[89]T119
276This is a significant consequence for him but not a consequence which, in itself, is “serious” as his counsel conceded.[90]
[90]T127
Work
277In his first affidavit, the plaintiff deposed that he had not returned to work since the incident and that he thought he had suffered a 40 per cent loss of earning capacity as a result of his left shoulder injury. He added in his second affidavit that he would eventually like to return to work in a non-manual role, but he believed his left shoulder pain would prevent him from working in any job more than a few days a week.
278Before the incident, the plaintiff mainly engaged in physical work requiring the use of both arms. His job with the employer as a storeman involved handling heavy cable, a task which resulted in an acute AC joint injury.
279Prior to the incident, the plaintiff had had no problem with his left shoulder. Although he was being prescribed anti-depressant medication and was involved in psychological counselling in relation to the family problems, this condition was under control when he commenced work with the employer on 31 July 2017, having recently passed a full-scale medical examination for a machine operator job in Queensland.
280While there was no leave application in relation to loss of earning capacity, the inability to perform unrestricted manual work, because of his left shoulder, can be taken into account when considering pain and suffering consequences.[91] Evidence from an occupational physician is not required in this regard.
[91]Haden Engineering Pty Ltd v McKinnon (supra) at paragraph [9]; Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326
281The plaintiff has not returned to work since the incident and was in receipt of weekly payments until November 2020. Dr Lee considers that on the basis of his left shoulder alone, he is permanently unfit for his pre-injury duties – a view shared by Mr Asaid, who thought a return to the pre-injury level of manual work which was quite labour intensive could further aggravate the plaintiff’s symptoms.
282While Dr Barton considers the plaintiff has a capacity for unrestricted work, he seems to have largely based this view on his opinion that the plaintiff’s left shoulder condition was feigned – a view not shared by any other examiner. He also has relied on the plaintiff’s ability to play cricket – an activity which he can no longer continue.

283Dr Ghan had a similar view – if the plaintiff could play cricket “with vigour”, then he certainly could work.[92] The situation now, however, is that the plaintiff cannot play cricket.
[92]T112
284While the plaintiff recommenced playing cricket in the 2018-2019 season when certified unfit to work by Dr Lee, her certificates relate to work capacity – whether the plaintiff can engage in manual work – not whether he can move his left arm in any context.[93]
[93]T117
285In any event, I did not consider any use of his left arm shown on the film could be described as “vigorous” or sustained.
286The plaintiff does, however, have a capacity for a limited range of suitable employment. He has consistently said he would like to go back to work – but in a non-manual capacity.
Other consequences
287The plaintiff now struggles to fall asleep and stay asleep because of left shoulder pain.
288He has difficulty with housework and cooking and needs help in that regard from his brother with whom he lives.[94] Driving for extended periods causes him problems with his shoulder.
[94]T121
289The plaintiff was unable to give his full attention to his role as assistant coach at the football club in 2019 as he had to leave games early because of his shoulder pain. His social life at the cricket club had ceased before the COVID outbreak.[95]
[95]T122
290Taking all the evidence into account, I am satisfied that the consequences of the plaintiff’s left shoulder impairment – constant pain, the need for ongoing painkilling medication, limited employment capacity, inability to continue cricket and interference with sleep and other activities of daily living – are “serious”. As there has been no significant improvement in his left shoulder condition for four years, I am satisfied this impairment is permanent.
291Accordingly, I grant leave to bring proceedings for damages for pain and suffering.

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[2021] VCC 1271

15 September 2021