Turner v Victorian WorkCover Authority
[2022] VCC 2294
•21 December 2022
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-21-03224
| HUMPHREY BUSTER THORNE TURNER | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE ROBERTSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 March 2021 | |
DATE OF JUDGMENT: | 21 December 2022 | |
CASE MAY BE CITED AS: | Turner v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 2294 | |
JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the right shoulder – permanent severe mental or permanent severe behavioural disorder – loss of earning capacity – pain and suffering – credibility
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), s325(1) and (2); Evidence Act 2008 (Vic), s66A
Cases Cited: Humphries and Anor v Poljak [1992] 2 VR 129; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326; Peak Engineering & Anor v McKenzie [2014] VSCA 67; Davidson v Transport Accident Commission [2015] VSCA 12; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Capper v Munday Sales Pty Ltd & Anor [2013] VCC 1015; State of New South Wales v Moss (2000) 54 NSWLR 536; Graham v Baker (1961) 106 CLR 340; Malec v J C Hutton Pty Ltd (1990) 169 CLR 638; Mallett v McMonagle [1970] AC 166; Hunter v Transport Accident Commission [2005] VSCA 1; Jones v Dunkel (1959) 101 CLR 298; Wellington Shire Council v Steedman [2003] VSCA 115; Stokes v Boswen Pty Ltd [2021] VCC 391; Philippiadis v Transport Accident Commission [2016] VSCA 1; Spiteri v Victorian WorkCover Authority [2016] VCC 912; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170
Judgment: Leave granted to the plaintiff to commence a proceeding for the recovery of pain and suffering damages and for the recovery of pecuniary loss damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr N J Dunstan | Hounslow Lawyers |
| For the Defendant | Mr J L Batten | Russell Kennedy |
Table of Contents
Introduction
Background
Circumstances of injury
Medical history
Medical treatment
Treating medical practitioners
The Plaintiff’s medico-legal and other reports
Mr Austin Vo, orthopaedic surgeon
Dr Robyn Horsley, occupational physician
Vocational assessments
Paul Hartley, occupational rehabilitation consultant/vocational assessor
Flexi Personnel – Ms Louise Meilak, human resources consultant
The Defendant’s medico-legal and other reports
Dr Graeme Doig, general orthopaedics and trauma
Dr Joseph Slesenger, specialist occupational physician
Dr Peter Wilkins, occupational physician
Dr Mary Wyatt, occupational physician
Mr Ash Chehata, orthopaedic upper limb surgeon
Legal principles
Evidence
The parties’ submissions
Credibility
What injury did the Plaintiff sustain?
Permanence
Loss of earning capacity
Impairment consequences – forty per cent test
What was the Plaintiff’s pre-injury earning capacity?
What was the Plaintiff’s post injury earning capacity?
Conclusion on whether forty per cent test satisfied
Narrative test with respect to loss of earning capacity consequences
Pain and suffering
Findings
Conclusion
HER HONOUR:
Introduction
1The plaintiff, in the course of his employment with K & S Plumbing Pty Ltd (“K & S Plumbing”), suffered injury to his right shoulder on 9 March 2017 when he slipped backwards whilst digging a trench and landed on his outstretched right arm.
2By Originating Motion dated 3 August 2021, the plaintiff seeks leave pursuant to s335(2)(d) of Division 2 of Part 7 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (“the Act”),[1] to issue common law proceedings to recover damages for both pain and suffering and pecuniary loss in respect of his right shoulder injury.
[1] Amended Originating Motion dated 13 July 2020
3He claims to have suffered a “serious injury” within the meaning of paragraph (a) of the definition of “serious injury” in s325(1) of the Act. A foreshadowed claim that he suffered a “‘serious injury”[2] in respect of a permanent severe mental or behavioural disturbance or disorder, was not pursued at trial.
[2] Within the meaning of s325(1)(c) of the Act
4The parties accepted that the plaintiff’s right shoulder impairment was permanent.
Background
5The plaintiff was born in August 1992 and was twenty-nine years of age at the date of the hearing.
6He married in 2016 but has since separated from his wife.
7He completed Year 10 at Brighton Secondary College. Upon leaving school, he worked in various jobs including in film and television production where he managed film lighting until about 2015; as a console operator at Balnarring Motors from about 2012 to 2015; as a house painter for Southview Painting Co Pty Ltd from 2013 to 2015; as a barista and bar attendant from about 2015 to 2016; in his own business organising and promoting free rave events as an event and stage manager from about 2014 to 2017 and as a furniture removalist from about 2016 to 2017.
8On 24 February 2017, the plaintiff began working for K & S Plumbing as a casual full-time plumber’s labourer.
9He is right-hand dominant.
Circumstances of injury
10On 9 March 2017, while working with K & S Plumbing, the plaintiff and a fellow labourer were installing a sewerage tank in the backyard of a house. After spending roughly five hours hand-digging a hole adjacent to the house to store the tank, and because the sewerage tank was too big to take down the side of the house, the plaintiff and his colleague carried the tank down the side of a neighbour’s house and lifted it over the fence to transfer it into the backyard. At this point, an additional worker attended to assist them.
11After inserting the tank into the hole, the tank needed to be levelled. To achieve this, the plaintiff stretched forward to place a spirit level on the tank. He then stepped back. As he moved back, he caught his foot on a piece of wood and fell. He put out his right arm to prevent the fall. His right arm hit the ground and he heard a crack in his right shoulder. He felt immediate pain. He tried to continue to work after the fall, but his arm was extremely sore, so he discontinued.
Medical history
12Prior to the injury he sustained with K & S Plumbing, the plaintiff had suffered several previous injuries.
13In 2003 or 2004, he fell off his BMX bike and hit his head on the ground, jarring his neck. He broke some bones in his face and lost some teeth. He was required to wear a dental plate and had an x-ray and CT scan of his neck. His neck pain resolved over time.
14In late 2006, he hurt his right shoulder when he was tackled by a friend at a concert. He consulted his general practitioner and was referred for an x-ray and CT scan. He claimed in his first affidavit that the pain passed, and he did not have any ongoing problems with his right shoulder.
15In 2007, he fell off his motorbike, breaking his left clavicle and some of his toes.
16In 2009, he broke his left clavicle again when he collided with a stationary car while skateboarding.
17In his first affidavit, the plaintiff described being bullied at school as a fifteen or sixteen-year-old. He felt depressed and saw a case manager, who arranged for him to be admitted to the Child and Adolescent Mental Health Service (“CAMHS”) Stepping Stones’ program. He attended that program for about six weeks, following which he had outpatient treatment. He subsequently saw a psychiatrist at Origin Health for about a year-and-a-half. He was prescribed Fluoxetine which was later adjusted to Sertraline. He was still taking Sertraline immediately prior to the right shoulder injury he sustained with K & S Plumbing, although he deposed in his first affidavit that his depression was under control, and he was not seeing any mental health specialists.
18In his first affidavit, the plaintiff disclosed that he had previously used marijuana from time to time and had also used MDMA and dextroamphetamine.
19In March 2018, the plaintiff was pulled over by police while driving. He made a comment to police along the lines of “this is why people top themselves”. As a result, he was required to undergo a telephone psychiatric assessment.
20In 2019, the plaintiff was diagnosed with Attention Deficit Hyperactivity Disorder (“ADHD”) and was prescribed dextroamphetamine. His condition is now managed by his general practitioner.
Medical treatment
Treating medical practitioners
21The day after the plaintiff injured his right shoulder at work on 9 March 2017, he consulted his general practitioner, Dr Faiza Akbar, who referred him to Frankston Hospital for an x-ray.
22The plaintiff presented to the Frankston Hospital Emergency Department on 11 March 2017. He had a history of immediate pain and reduced range of movement of his right shoulder. An x-ray was taken, and a coracoid process fracture was suspected. He was diagnosed with a sprain/strain of his shoulder and a further x‑ray was requested.
23The x-ray right shoulder taken on 20 March 2017 found no fracture or dislocation within the right shoulder girdle and the subacromial space was noted to be preserved.
24An ultrasound was performed on his right shoulder on 29 March 2017. This confirmed minimal supraspinatus tendinosis and minimal subacromial bursitis. An ultrasound-guided cortisone injection was arranged and administered on 21 April 2017 into the subacromial bursa.
25The plaintiff subsequently began consulting his current general practitioner, Dr Jitendra Kumar, who arranged for an MRI scan of his right shoulder on 23 May 2017. The MRI confirmed the presence of a large joint effusion associated with apparent degeneration and tearing of the posterior labrum. This was accompanied by a large flap, 1.3-centimetres in length, of articular cartilage arising from the posteroinferior aspect of the glenoid rim, acting as a loose body. It was described in the MIA radiology report as “really quite a substantial finding” and it was said that it may well have required surgical intervention.
26On 26 May 2017, Dr Kumar referred the plaintiff to Mr Richard Large, orthopaedic surgeon, for consultation to assess the MRI right shoulder finding of a labrum tear and a large flap of cartilage.
27Mr Large’s correspondence to Dr Kumar dated 20 June 2017, noted the plaintiff had suffered an unusual injury. His posterior humeral head had impacted into his posterior glenoid, resulting in both being fractured. Mr Large noted the MRI scan did not reveal tendon tears, but it did show posterior glenoid impaction and impaction of the posterior humeral head consistent with a Hill-Sachs lesion, which he said was often seen with an anterior dislocation of the shoulder. In this case, dislocation was ruled out as a possibility because there was no Bankart lesion. The plaintiff’s Oxford Shoulder Score was 12 per cent.
28On 22 June 2017, Mr Large arranged a CT scan, which subsequently confirmed there was a cartilage lesion floating as a free body which could have constituted a labral tear. There was some cortical irregularity at the posterior glenoid margin which was consistent with the MRI report. The humeral head appeared marginally subluxed posteriorly with respect to the glenoid and there was slight cortical irregularity of the posterior aspect of the glenoid, suggesting a previous fracture at the site. There was no sign of a previous humeral head fracture. There was no humeral head abnormality detected and the AC joint alignment was normal.
29In a letter from Mr Large to Dr Kumar dated 27 June 2017, Mr Large noted the plaintiff had a cartilage lesion, which was floating as a free body, which he opined may be a labral tear. He considered an arthroscopic debridement was warranted and possibly a labral repair. He also expressed concern about the plaintiff’s rotator cuff, despite the image findings.
30Mr Large performed a right shoulder arthroscopy, capsular release, removal of loose body and subacromial decompression on the plaintiff on 12 July 2017. The superior and anterior labrum presented as normal. However, the surgery revealed right shoulder adhesive capsulitis, loose body (cartilage) and impingement syndrome. There was massive humeral and glenoid cartilage damage. The humeral head had global Type III changes with fibrillation and thinning. The inferior head had areas of osteophyte formation and had a recess of 30-millimetre x 8-millimetre x 8-millimetre cartilage avulsion with no bony component. It was not free and was attached anteriorly.
31Mr Large provided correspondence to Dr Kumar on 24 July 2017 explaining he had informed the plaintiff he had lost at least a quarter of the cartilage of his glenoid. The cartilage was unlikely to regenerate, and it was likely to progress to shoulder arthritis rather rapidly. He noted the cartilage had been shorn off and was working as a loose body inside the joint. Mr Large was of the view that was driving a lot of the plaintiff’s pain. He considered further surgical intervention could be likely in ten to fifteen years’ time.
32Mr Large opined it was highly unlikely the plaintiff would ever be able to return to manual labour.
33A further letter from Mr Large to Dr Kumar dated 7 September 2017 noted the plaintiff’s shoulder was “hurting a great deal”.
34By 16 October 2017, the plaintiff had experienced an improvement in his range of motion. He was achieving 90 degrees elevation, 90 degrees abduction, 45 degrees external rotation, and internal rotation was thumb to buttock. His shoulder score was 16 per cent. Mr Large had sought approval for a steroid injection into the shoulder to treat the capsulitis component of the plaintiff’s problem.
35On 25 October 2017, the plaintiff underwent a further cortisone injection into his right shoulder.
36On 21 December 2017, Mr Large examined the plaintiff again and recorded his range of motion as elevation of 170 degrees, abduction of 150 degrees, external rotation of 70 degrees and internal rotation as thumb to L1. The plaintiff’s pain was noted to be improving, although he still had some pain at the extremes of his range of motion. His Oxford Shoulder Score was 40 per cent, whereas previously it had been 16 per cent. Mr Large referred the plaintiff for a further cortisone injection.
37On 6 March 2018, the plaintiff saw Mr Large again. At that appointment, the plaintiff recounted to Mr Large how his arm started hurting again when he was in a seated position, and he extended it. He felt a cracking sensation. Mr Large considered it possible the plaintiff had subluxated his shoulder posteriorly, consistent with his absence of posterior glenoid cartilage.
38On examination, posterior translation of the humeral head generated pain and instability. Otherwise, the plaintiff’s range of motion was observed to be “really good” with 70 degrees external rotation and 150 degrees elevation. His internal rotation was thumb to L2. His Oxford Shoulder Score had decreased to 22 per cent. Mr Large recommended a further MRI scan.
39Mr Large discharged the plaintiff from his care in March 2018.
40On 20 March 2018, a further MRI scan of the right shoulder was undertaken. This showed no glenohumeral joint effusion and no loose body. There was moderate chondral thinning over the posterior half of the glenoid fossa and humeral head in keeping with degenerative change. There was associated posterior humeral head subluxation. The adjacent labrum was irregular, and the MRI scan demonstrated an intermediate signal in keeping with degenerative change. There was a further intermediate signal at the base of the labrum in keeping with an undisplaced tear with likely granulation tissue. There was remodelling of the glenoid with flattening of the posterior margin. The anterior and superior labrum were intact.
41On 7 January 2019, Dr Kumar referred the plaintiff to Dr Kilner Brasier, occupational physician, at the Rosebud Superclinic, for opinion and management of his right shoulder and for consideration of what occupational roles would be suitable for him.
42On 30 July 2019, Dr Kumar prepared a generic referral letter recommending physiotherapy for the plaintiff.
43On 25 September 2019, the plaintiff was referred to Dr Robert Gassin, musculoskeletal and interventional pain management specialist. The plaintiff reported to Dr Gassin how he had suffered from ongoing pain since his right shoulder injury. He had previously been on analgesics and had undergone physiotherapy but was not receiving treatment when he saw Dr Gassin. He reported a dull ache in his right shoulder girdle and axilla region, radiating to the right rib cage and also up the neck to the right suboccipital region. He described pain, which was constantly present, but which increased with activity. He said it interfered with his work as a labourer. He noted he had considered alternative work options including work in hospitality, data entry and audio engineering in the music industry.
44Dr Gassin said the plaintiff presented with a full range of cervical and shoulder movement in all planes but was exquisitely tender to palpation at the scapular attachment of the right levator scapular muscle and along the right cervical articular pillar.
45Neurological examination of the plaintiff’s upper limb was considered essentially normal.
46Dr Gassin prescribed a variety of pain medication including Endone, Targin and Temazepam.
47In a subsequent letter from Dr Gassin to Dr Brasier dated 25 November 2019, Dr Gassin noted the plaintiff had recently had a CT scan of his cervical spine. It did not reveal any abnormality which would account for his right shoulder pain.
48Dr Gassin recommended he receive a nerve block to his right shoulder, but the plaintiff opted against it.
49Dr Gassin referred the plaintiff to Dr Jade Cowan, osteopath, and encouraged him to remain active but to pace himself.
50On 16 November 2021, Dr Kumar referred the plaintiff for a further MRI MSK (musculoskeletal) derangement of the right side of his shoulder.
51On 3 December 2021, Dr Kumar again referred the plaintiff to Mr Large for further opinion and management following increasing pain in his shoulder and based on an MRI scan showing established osteoarthritis and a chronic labrum tear.
52In a letter dated 31 January 2022, following review of the plaintiff, Mr Large opined that the plaintiff’s current situation was the inevitable decline of his shoulder function after the injury to his shoulder in which “he avulsed most of the articular cartilage”. He was of the view the plaintiff did not require intervention.
53On 23 February 2022, Dr Kumar provided a letter to the plaintiff’s solicitors describing the injury as a labrum tear with a flap of cartilage in the shoulder joint, and joint effusion. MRI scans showed osteoarthritic changes with a chronic labrum tear. Dr Kumar elaborated that the plaintiff had received arthroscopic repair of his injury by Mr Large. The plaintiff had also been given physiotherapy treatment, a right shoulder steroid injection and he had been referred to Dr Gassin. Dr Kumar opined that he expected the plaintiff’s condition to deteriorate, and he would not have capacity to return to his pre-injury role. Dr Kumar suggested the plaintiff may be suitable for very light work (with no lifting above 2 to 3 kilograms from ground to waist level and no overhead movement), but he may need intermittent time off work when experiencing flare ups in his injury.
The Plaintiff’s medico-legal and other reports
Mr Austin Vo, orthopaedic surgeon
54Mr Austin Vo examined the plaintiff and provided a report about the plaintiff’s condition on 1 February 2022.
55Upon examination, the plaintiff presented with global tenderness to his shoulder. He had limited and restricted range of motion due to pain. He had forward flexion to 40 degrees, abduction to 30 degrees, external rotation to 10 degrees and he was unable to reach his buttock upon internal rotation. It was not possible to assess his rotator cuff strength. He was unable to get his arm in the correct position as it was too painful.
56Mr Vo opined the plaintiff had sustained a significant injury precipitating severe symptoms of pain and dysfunction as a result of glenohumeral joint osteoarthritis. He also considered he was incapable of performing his pre-injury duties as a plumber’s labourer because that role required significant physical work involving the use of the upper limbs. The plaintiff’s injury was significantly impacting his social, domestic and recreational activities. Mr Vo considered the plaintiff would likely suffer from his symptoms into the foreseeable future.
57It was advised the plaintiff should continue treatment, in particular pain management with a pain medicine specialist, as well as long-term orthopaedic review. Hydrotherapy was also recommended.
Dr Robyn Horsley, occupational physician
58Dr Robyn Horsley examined and provided a report about the plaintiff’s condition on 16 September 2021.
59Dr Horsley noted the plaintiff’s occupational history. She outlined how the plaintiff had explained to her his incentive to work was to earn money to facilitate his music production, which he viewed as his genuine career path. He recounted how he had always been a music producer and at the time of his injury, was in discussions to gain a record deal with a company in America, Mindocracy Recordings. He stated that his music was dark ambient, post-classical/dance music and had been played on radio stations in Australia, Russia, the Netherlands and the United Kingdom.
60The plaintiff described to Dr Horsley using electronics, piano and singing to create his music. He said before his injury, he also played guitar, but since the accident, he was unable to put the guitar strap over his shoulder. The time he could spend producing music had been reduced to up to two hours, spread over 20-to-30-minute periods. He explained he was very frustrated about his inability to commit more time to his music and bring it to fruition and that creatively he was a shadow of his former self.
61Before the injury, the plaintiff told Dr Horsley he had worked in film and television production for a variety of production companies and performed film and lighting duties. He did this work on a freelance basis from the time he left school through to 2015. To supplement his income, he worked at Ben Waring Motors as a console operator between 2012 and 2013 and as a house painter with South View Painting Company from 2013 to 2015. He also worked as a barista for roughly twelve months. In 2014, he opened his own business organising and promoting free rave events. He worked as an event and stage manager and performed as a DJ. He operated his business until 2017 and earned a small amount of money from it. Between 2016 and 2017, he worked for Man with a Van as a furniture removalist and also at Domino’s Pizza for a short period.
62On 24 February 2017, the plaintiff commenced full-time casual employment with K & S Plumbing. His injury occurred a fortnight later, on 9 March 2017.
63The plaintiff underwent surgery in July 2017. He returned to K & S Plumbing in September 2017 and undertook spotting duties; however, he said due to his injury, he was unable to perform those duties. He remained off work until his employment was formally terminated in 2019.
64In November 2018, he participated in a three-day bobcat driving course and obtained employment as a driver but had great difficulty getting in and out of the bobcat and operating the levers, so had to discontinue the course after one day.
65In January 2019, he trialled working in a warehouse in Bayswater but after three hours was unable to continue.
66In September 2020, he gained a position working as a gas meter reader for Service Stream. He began working between four and seven hours a day. By the time of Dr Horsley’s examination, he was working 25 to 30 hours per week, sometimes more.
67Dr Horsley noted that the plaintiff found it frustrating he was earning much less than he thought he could have earned, and that his injury was not enabling him to return to the career path he had always aspired to attain in music production.
68The plaintiff explained to Dr Horsley he experienced three types of pain: The first type of pain was an ambient pain in the right shoulder girdle which manifest as a constant dull ache of about a five out of ten on the visual analogue scale. The second type of pain was a clicking pain which he described as “‘like sand between his teeth’”. He said it sounded like little twigs breaking. The pain was experienced as a hollow dull ache. The intensity of the pain varied on the analogue scale from a four out of ten to an eight out of ten and could last for up to two seconds. The third type of pain was a sharper pain located over the right scapula which grew in intensity as the day progressed and could reach a seven out of ten on the visual analogue scale.
69Overall, the plaintiff reported a reduction in his range of motion in the right shoulder. He said this made him avoid activities such as reaching, pushing, pulling or lifting, as those activities all increased his pain. The discomfort he experienced in his shoulder could radiate into his right elbow and occasionally reached his right wrist. He also occasionally experienced fleeting paraesthesia into various fingers and the palm on the right side. He often noticed pops, clicks and grinds in the right shoulder which were sometimes painful and sometimes not.
70His sleep was affected, as he could not lie on either side, so he lay on his front or on his back with his arms by his side.
71The plaintiff reported that because he favoured his right shoulder, he had been experiencing increasing symptoms in his left shoulder. Increased activity and pressure on his left side could cause severe pain in the left shoulder girdle up into the mastoid area behind his ear. The plaintiff reported he was taking painkillers which relieved pain in both his shoulders.
72He said his sitting tolerance was limited to about an hour, his standing tolerance to about 20 minutes, his driving tolerance to about 25 minutes and his walking tolerance was still within normal limits.
73Dr Horsley considered the plaintiff possessed a considerable disability. His right shoulder injury was significant. It was unique because it involved both a fracture of the posterior humeral head and the posterior glenoid. Dr Horsley noted that Mr Large recorded at arthroscopy that the plaintiff presented with global type III changes with fibrillation and thinning over the humeral head and osteophyte formation of the inferior head, with very significant cartilage avulsion involving a loss of at least a quarter of the cartilage of the glenoid. Unfortunately, the cartilage was not going to regenerate. His shoulder would experience increasing symptoms and would rapidly - certainly within ten to fifteen years – progress to shoulder arthritis, in respect of which the plaintiff would require a shoulder replacement.
74Dr Horsley was of the opinion the plaintiff was permanently unfit to return to the kind of manual work he had been performing before his injury. He had commendably relocated into a role as a gas meter reader which Dr Horsley considered was more appropriate to his limitations. At the time of Dr Horsley’s report, the plaintiff could comfortably work 25 to 30 hours a week as a gas meter reader and Dr Horsley said he would actually have worked more hours if they had been available.
75As for the plaintiff’s left shoulder, the underlying degenerative change in the AC joint was considered to be a pre-existing condition which had been aggravated by the plaintiff favouring his left shoulder, secondary to the significant disability to his right shoulder.
Vocational assessments
Paul Hartley, occupational rehabilitation consultant/vocational assessor
76Mr Hartley assessed the plaintiff, via Zoom, on 17 November 2021 and provided a report dated 25 November 2021.
77Mr Hartley considered the plaintiff to be a co-operative and stoic young man who presented as slightly anxious. He found him to be a credible historian.
78The plaintiff divulged his preceding mental health problems, including his ADHD diagnosis. He also explained the previous injuries sustained by him in his childhood and adolescence.
79Mr Hartley reported that the plaintiff outlined his previous work experience including working as a lighting and grip operator, a service station console operator; a painters’ labourer; a furniture removalist and a pizza shop employee. He had engaged in employment as “a so-called ‘Event manager’ and ‘Stage manager’” whilst playing and organising gigs. Mr Hartley said he undertook that work as a hobby and did not make money from it.
80The plaintiff was noted to have no formal qualifications and the types of work he had undertaken reflected this. They consisted of unskilled manual vocations that were physically demanding or lower-level jobs. The plaintiff had obtained a forklift licence as part of a Certificate III in Warehousing. He had undertaken a two-day barista course that included training about responsible service of alcohol. He had also attempted a course in sound engineering at RMIT but had only completed one semester.
81During the examination, the plaintiff explained that on 24 February 2017, he had obtained full-time casual employment as a plumbers’ labourer with K & S Plumbing and was working up to 55 hours per week. He did not receive specific induction but engaged in work including digging trenches, cutting PVC, laying out markings and performing other laborious tasks associated with the plumbing industry. Mr Hartley reported that the plaintiff said he enjoyed the work and he had hoped to gain a plumbing apprenticeship after proving his worth as a labourer, with the aspiration of eventually becoming a trade qualified plumber. He said his hopes were dashed by the shoulder injury he sustained on 9 March 2017 after only a couple of weeks of employment with the K & S Plumbing.
82The plaintiff provided a history of the treatment he had obtained for his injury including surgery performed by Mr Large.
83Following the surgery, the plaintiff said he was unable to squat, jump, hold a shovel or move obstacles. Consequently, at the time of assessment, the plaintiff was working in alternative employment on a part-time basis as a meter reader after unsuccessfully attempting to work as a bobcat operator and warehouser.
84During examination, the plaintiff reported he suffered from ambient pain all the time in the back of his shoulder blade which manifests as a dull ache or throb. He also reported transient pain, presenting as a sharp stabbing pain in his shoulder upon movement, that came and went. He described how his pain was exacerbated by deep breaths, exertion, overuse of his right arm, driving for longer than short periods of time, undertaking computer work or holding a phone in his right hand. On the visual analogue scale, the plaintiff reported his right shoulder ambient pain as a four out of ten and his transient pain as a seven to an eight out of ten.
85At the time of assessment, the plaintiff was treating his pain with a home-based exercise program which had been prescribed by his physiotherapist. He was taking ibuprofen once daily, ibuprofen with codeine once daily, sertraline 25 milligrams once daily and dexamphetamine 0.5 milligrams once daily. The plaintiff was attending sessions with his psychiatrist, Dr Ruwan Haputhantrige, and was attending his GP about once every three months for general health management and prescriptions.
86The plaintiff complained of chronically disrupted sleep due to his pain, which caused him to wake four or five times per night and limited his sleep to about five hours per night.
87Mr Hartley considered him intelligent and advised he would benefit greatly from returning to school (TAFE) and procuring a high school education. This would assist him with long-term employability, taking into account his injury and the demands inherent in labouring work. Mr Hartley considered him articulate and well-spoken. He appreciated the plaintiff’s literacy with music production software, however, his digital literacy for non-music production was considered basic.
88Mr Hartley recognised the plaintiff’s “soft” employability skills essential for performance in the workplace. These included organisation, commitment, creativity, adaptability, honesty, integrity, reliability, meeting deadlines, motivation and communication. The plaintiff’s work history also indicated physical fitness, attention to detail and stamina.
89Despite possessing those qualities, in terms of vocational skills, the plaintiff possessed a transient employment history. He had limited hours in low paid work. He knew how to drive a bobcat and a forklift but was physically precluded from such work. He had no qualifications. His work history was limited to unskilled manual labour. He carried no experience in retail, marketing, clerical, telephone-based, office-based or administrative work.
90Mr Hartley recorded his opinion that although the plaintiff may have possessed some transferable skills, he was only capable of working within the boundaries of his physical condition. His right shoulder injury limited him to light and less manually intensive forms of employment. Because the plaintiff had a paucity of transferable skills and experience for work within his residual functional capacity, he was only suited to unskilled forms of work. It was fortunate the plaintiff had acquired work not beyond his physical abilities, as an unskilled meter reader, with an accommodating employer.
91Mr Hartley also considered the plaintiff’s geographical location. Because the plaintiff lived with his parents in Somers on the Mornington Peninsula, a reasonably isolated area, he considered the plaintiff’s location could potentially diminish his capacity to access employment. The difficulty associated with the plaintiff’s geographical location was compounded by the pain he experienced when driving for longer periods, noting for instance, that Dr Horsley had opined the plaintiff had a driving tolerance of about 25 minutes.
92Mr Hartley referred to the IPAR 130-Week Vocational Assessment Report by Ms Michelle Martin, rehabilitation counsellor, dated 29 January 2019. In that report, Ms Martin advised of potentially suitable employment options for the plaintiff. She relied on the Certificate of Capacity from Dr Kumar, which advised that the plaintiff could not reach above shoulder height or use his injured arm/hand. He could work part time performing light work with no lifting, pulling or pushing from his right arm. Ms Martin considered roles as an administration assistant, sales assistant, record and filing clerk, customer services assistant/enquiry clerk and computer programmer as appropriate for the plaintiff.
93Mr Hartley considered the employment options suggested by Ms Martin and found them to be a substantial overestimation of the plaintiff’s skills’ base and employment history, including his unpaid hobby and “work” history in the music and film industry.
94Mr Hartley considered Ms Martin’s recommendations to be markedly optimistic and potentially unreliable as an assessment of the plaintiff’s abilities. According to Mr Hartley, Ms Martin erroneously considered the plaintiff’s work history. Mr Hartley did not consider the plaintiff’s completion of a Certificate II in Road Transport Yard Operations (freight handler), Certificate IV in Sound Engineering and non-completion of a pre-apprenticeship in electrics as demonstrative of an ability to complete complex clerical and administrative duties. The plaintiff’s self-reported engagement in event management, customer service and hospitality did not necessarily translate to experience and knowledge for new industries. Ultimately, Mr Hartley was of the view the plaintiff would require further training to enter into employment in any of the recommended occupations cited by Ms Martin.
95Mr Hartley also referred to the vocational assessment report provided by rehabilitation counsellor, Jodie Pham, of Nabenet, dated 20 August 2021. Ms Pham opined the plaintiff portrayed sound experience working as a furniture removalist, event manager and house painter. She recommended specific employment local to the Mornington Peninsula area including as a weighbridge operator in Hampton Park, as a console operator at BP in Baxter, as a retail assistant with Bowens timber and building supplies in Hastings, as an administration officer and as a meter reader with Service Stream (the plaintiff’s current position).
96Mr Hartley did not believe the plaintiff possessed the attributes necessary to engage in a clerical occupation, notwithstanding the physical demands of such work was more attuned to the plaintiff’s residual functional capacity. Similarly, Mr Hartley did not consider the roles of console operator or weighbridge operator as suitable employment or realistically attainable by the plaintiff.
97Mr Hartley accepted the plaintiff was engaged as a meter reader but acknowledged that although he was managing that role, he was struggling with pain and, accordingly, his out of work time was suffering.
98Having examined the alternative vocational reports, Mr Hartley recommended that a more specific, nuanced and personalised course of treatment was preferable for the plaintiff. In Mr Hartley’s opinion, the plaintiff required very sound professional careers’ counselling to enable him to properly plan for long-term, reasonably well remunerated, full-time and sustainable employment. To ensure only fair employment prospects were entertained, counselling needed to acknowledge the plaintiff’s ongoing dominant right upper limb disability, low educational status, low skills’ base and the difficulties he experienced in his role as a meter reader.
99Mr Hartley also advised that the plaintiff’s recent diagnosis of ADHD should be properly considered in determining suitable employment prospects.
100In Mr Hartley’s estimation, the plaintiff had not received the required level of support. His needs had been overlooked by occupational rehabilitation consultants who operated in a system more concerned with obtaining “quick fix” solutions than achieving long-term, durable employment options. Moving forward, the plaintiff required private careers’ counselling over several sessions, alongside better advice in relation to career and training pathways, funding and encouragement to reasonably ensure his employability into the long term.
101Mr Hartley, in his report, also analysed the medical opinions directed to the plaintiff’s work capacity.
102The opinion of treating orthopaedic surgeon, Mr Richard Large, was considered. Mr Large said that “it is highly unlikely he will ever return to a manual labouring job because of the deficiencies in his shoulder”. The plaintiff’s treating occupational physicians also proffered similar opinions that the plaintiff would not be able to return to his pre-injury employment after suffering significant limitations in the use of his right shoulder.
103Dr Peter Wilkins, occupational physician, in his report dated 18 September 2017, had noted the plaintiff “has no effective use of his right shoulder. Any movement of the joint is painful … eventually he will require a prosthetic shoulder replacement.” He said the plaintiff had no capacity for pre-injury duties. Further, although the plaintiff possessed a capacity for office-based work, where he was able to change between sitting and standing on a comfort-directed basis, he simply had no capacity whatsoever for the use of his right-upper limb.
104Dr Joseph Slesenger, occupational physician, in his report dated 5 February 2019, stated that he advised the plaintiff not to return to his pre-injury duties, not to push, pull, carry or lift items over 10 kilograms and to refrain from sustained over-shoulder reaching.
105Dr Mary Wyatt, occupational physician, in her report dated 20 August 2021, opined that the plaintiff was permanently unfit to return to manual duties, faced significant limitations on his work prospects but was evidently fit for suitable employment due to his role as a meter reader.
106Dr Robyn Horsley, occupational physician, in her report dated 16 September 2020, asserted the plaintiff had sustained a very significant injury to his right shoulder. She considered he was permanently unfit to return to his previous manual work and would struggle to commit to his music production.
107Dr Robert Gassin, treating pain specialist, in correspondence to Dr Brasier dated 25 September 2019, advised the plaintiff’s injury interfered with his ability to work as a labourer. He said the plaintiff would need to consider alternative work options including hospitality, data entry or audio engineering in the music industry.
108As I have already touched upon, Mr Hartley was sceptical of the employment options highlighted as suitable employment in the vocational assessment reports submitted by the defendant.
109He commented that the plaintiff did not have an interest in, and aptitude for, many of the suggested occupations and for others, he lacked the physical capacity or necessary minimum skills or qualifications to perform the roles. For instance, he accepted the plaintiff would not attain full-time employment as a gas meter reader and his remuneration in part-time work with decreasing hours would be lower than his pre-injury work capacity.
110In Mr Hartley’s view, the plaintiff was only ever qualified for unskilled, physically demanding jobs. He had a restricted occupational profile prior to his injury in casual, hands-on, laborious jobs with limited education and qualifications. Although reportedly a talented musician and music producer, with sound computer skills in music production software, Mr Hartley noted that type of work was never a primary, or a sound, source of income for the plaintiff prior to his injury.
111There was no support in the medical reports for the plaintiff to be able to return to work as a plumber’s labourer.
112He had no experience in an office environment. Outside music production software, his computer skills struggled to meet the criteria for “basic skills”.
113He had no experience in direct sales, marketing or retail.
114In Mr Hartley’s opinion a job seeker required the physical and mental capacity, and skillset, to be able to successfully perform a given role.
115The clerical roles of administration assistant and customer service assistant/enquiry clerk recommended in the Nabenet Vocational Assessment report were rejected by Mr Hartley as being beyond the plaintiff’s capability, having regard to his level of education, work skills, experience and computer skills. Although the Nabenet Vocational Assessment report suggested the roles required no formal qualifications, there still remained an expectation of proficiency in digital literacy and the ability to learn industry specific software.
116Ultimately, Mr Hartley opined that “Whilst some of the occupations are unskilled or low skilled, many are not and require some level of skill, experience, education and/or formal training that … [the plaintiff] cannot demonstrate in my assessment”.
Flexi Personnel – Ms Louise Meilak, human resources consultant
117Ms Louise Meilak provided a report dated 16 August 2021 detailing the potential earnings of an apprentice plumber and a qualified plumber in the construction industry.
118Ms Meilak referred to the “CEPU – Plumbing Division Victorian Branch Enterprise Agreement 2019 – 2023” which recorded the current rates of pay for a registered plumber working on commercial building sites as a full-time employee at 36 hours per week.
119A qualified plumber would earn $2,248.57 per week, with a total income of $116,925.64 per annum. A fourth-year apprentice would earn $1,723.48 per week, with a total income of $89,620.96 per annum; a third-year apprentice would earn $1,381.14 per week, with a total income of $71,819.28 per annum; a second-year apprentice would earn $1,125.99 per week, with a total income of $58,551.48 per annum and a first-year apprentice would earn $964.95 per week, with a total income of $50,177.40 per annum.
The Defendant’s medico-legal and other reports
Dr Graeme Doig, general orthopaedics and trauma
120Dr Graeme Doig provided a report dated 8 November 2018.
121In his report, the plaintiff was recorded as presenting on 30 October 2018 with a constant ache in the right shoulder which was exacerbated with use. His general health was considered to be good. At the time of the report, the plaintiff was not using analgesics. He was taking Sertraline for depression, his use of which predated his work injury.
122Dr Doig noted the plaintiff’s diagnosis as a soft tissue injury to the dominant right shoulder with articular cartilage and labral damage at arthroscopy, with the plaintiff continuing to suffer pain and restrictions as a result.
123His prognosis was guarded in view of the articular cartilage damage. He considered the plaintiff would develop worsening post-traumatic osteoarthritis of the glenohumeral joint in his dominant shoulder and would have a 5-kilogram lifting, pushing, pulling restriction at or below waist height with his dominant right arm.
124The plaintiff demonstrated active range of motion arcs at the right shoulder of 180 degrees of flexion to 20 degrees of extension, giving a 2 per cent permanent impairment of the upper extremity; 180 degrees of abduction to 40 degrees of adduction, giving a 0 per cent permanent impairment of the upper extremity, and 80 degrees of external rotation to 40 degrees of internal rotation, giving a 3 per cent permanent impairment of the upper extremity.
125Dr Doig explained that those impairments were cumulative and gave a total 5 per cent permanent impairment of the upper extremity, which constituted a 3 per cent permanent impairment of the whole person.
Dr Joseph Slesenger, specialist occupational physician
126Dr Joseph Slesenger provided a report dated 5 February 2019, based on his assessment of the plaintiff on 3 February 2019.
127The plaintiff presented complaining of residual moderate to severe right shoulder pain and restricted movement, affecting his ability to reach forward, to over-shoulder reach and to lie on the right side.
128The plaintiff described his treatment. He said he visited his GP for certification and medication purposes. He undertook daily exercises with the use of a TheraBand and participated in physiotherapy sessions on a monthly basis.
129The plaintiff described a history of Major Depressive Disorder and anxiety. He said he was treated with antidepressant medication, and also consulted a psychologist on a monthly basis for counselling. His medication included Nurofen, one to two tablets a week, and Zoloft.
130The plaintiff explained he had trialled returning to work on one or two occasions but had not been able to achieve this.
131Dr Slesenger reported inspecting the plaintiff’s cervical spine. He found tenderness over the lower cervical spine. The plaintiff’s range of movements were flexion at 40 degrees, extension at 40 degrees, right rotation at 70 degrees, left rotation at 70 degrees, right lateral tilting of 40 degrees, and left lateral tilting at 40 degrees.
132Inspection of the plaintiff’s right shoulder revealed scarring anteriorly, laterally and posteriorly. There was severe tenderness to minimal palpitation in a global distribution. The range of movements in the plaintiff’s right shoulder were flexion at 90 degrees, extension at 30 degrees, internal rotation at 40 degrees, external rotation at 70 degrees and abduction at 90 degrees.
133Contrastingly, in the plaintiff’s left shoulder, there was no tenderness to palpitation and the range of movement was flexion at 170 degrees, extension at 80 degrees, internal rotation at 90 degrees, external rotation at 90 degrees and abduction at 170 degrees.
134In his right elbow, the plaintiff had flexion at 160 degrees, extension at 0 degrees, pronation at 40 degrees and supination at 90 degrees.
135The plaintiff’s range of movement in his left elbow was flexion at 160 degrees, extension at 0 degrees, pronation at 70 degrees and supination at 70 degrees. The range of movements in his right wrist and left wrist were the same.
136Dr Slesenger noted the plaintiff presented almost two years after a right shoulder soft tissue injury. Initially, he had been treated conservatively and had ultimately undergone surgery for a labral tear and possible rotator cuff tear. The plaintiff described residual right shoulder pain, restricted movement and associated dysfunction which impacted negatively on his occupational capacity. The plaintiff claimed this had stopped him from returning to his pre-injury role and had further kept him from being able to secure employment performing alternative duties. Notably, Dr Slesenger opined that a clinical examination demonstrated a moderate to severe reduction in his range of movements as well as upper limb neurological findings including non-dermatomal sensory loss and non-myotomal weakness.
137Dr Slesenger accepted the plaintiff’s occupational exposures were a plausible cause of his right shoulder impairment but also suggested there was evidence of functional overlay which had contributed to the plaintiff’s impairment. This included the plaintiff being job detached which acted as a significant barrier to him returning to work.
138Although advising against the plaintiff returning to his pre-injury duties, Dr Slesenger opined the plaintiff was capable of returning to work on a full-time basis in a modified role performing alternative duties. Restrictions were recommended in respect of pushing, pulling, carrying and lifting items over 10 kilograms and sustained over-shoulder reaching. Otherwise, he considered the plaintiff had an unlimited capacity for sitting, standing, walking, bending and driving.
139According to Dr Slesenger, the plaintiff was suited to performing work as an administrative assistant, data entry operator, production assistant, sales assistant, sales representative, console operator, receptionist, record and filing clerk, customer service assistant/enquiry clerk and ticket seller.
140Dr Slesenger provided a further report on 8 March 2019, explaining that he had read the Medical Panel Opinion dated 18 February 2019 assessing the plaintiff’s injury as constituting an 8 per cent whole person impairment. According to Dr Slesenger, as the Medical Panel report was commissioned for different purposes than his own, his opinion expressed in his earlier report remained unchanged.
Dr Peter Wilkins, occupational physician
141Dr Peter Wilkins provided a report dated 18 September 2017, based on his clinical assessment of the plaintiff on 13 September 2017.
142The plaintiff provided a history of usual employment as a film and lighting technician. Because employment opportunities were variable, the plaintiff worked as a labourer in quiet periods. He had worked with K & S Plumbing for only “a month or so” before he was injured.
143The plaintiff provided a history of his injury and subsequent work history to Dr Wilkins, who noted that the plaintiff’s general practitioner continued to certify him unfit for any work. His surgeon was reported by the plaintiff as commenting that he should expect pain and limitation which would probably result in a prosthetic shoulder joint replacement within five years or so because of the inadequate repair possible at the time of surgery.
144In the assessment, the plaintiff complained of constant right shoulder pain that intensified with virtually any movement. He described attending regular physiotherapy and performing exercises at home to treat his pain. He found the exercises painful. He also explained he had trouble maintaining his balance due to his right upper limb feeling “dead”. This caused him trouble walking on slopes or broken ground. He also reported being unable to drive and experiencing difficulty entering and exiting motor vehicles. The plaintiff said he had no effective use of his right shoulder, and any movement of the joint was painful.
145He was treating his injury with a physiotherapy mobilisation program with plans to undertake strength training in the future. He was also taking Panadeine, up to eight tablets per day.
146The plaintiff explained having had a long history of treated Bipolar Disorder, depression and anxiety which had been treated with Sertraline, 75 milligrams, for ten years.
147Mr Wilkins noted throughout the assessment, the plaintiff’s right upper limb remained motionless. He removed two jackets and a t-shirt using only his left upper limb. There was a major reduction in his right upper limb’s range of movement with no more than 30 degrees achieved for flexion and abduction and 0 degrees achieved for extension and for internal and external rotation. Examination of his left shoulder was entirely normal.
148Mr Wilkins noted the plaintiff’s right shoulder injury had not resolved. The plaintiff’s sitting and bending tolerances were unlimited, but although Mr Wilkins had no way of testing those tolerances, the plaintiff reported he could only stand and walk for up to one hour on flat terrain. Mr Wilkins was satisfied he was totally unable to lift using his right upper limb, unable to drive, unable to push using his right upper limb and unable to pull using his right upper limb.
149Mr Wilkins did not believe the plaintiff was capable of returning to his pre-injury employment. He believed he had a capacity for office-based work if he was able to shift between standing and sitting on a comfort directed basis. If he was not required to drive or take public transport, he could work in a role that did not require the use of his right-upper limb for a period of four hours per day. This was despite suggesting that he had no capacity whatsoever for the use of his right upper limb.
150Mr Wilkins recognised the plaintiff had experienced “a very severe injury” to his right shoulder. He left all questions of appropriate treatment to the plaintiff’s treating surgeon. However, he did suggest a further review of the plaintiff would be beneficial in approximately six months’ time, at which time the plaintiff may have been capable of a wider array of work.
Dr Mary Wyatt, occupational physician
151Dr Mary Wyatt provided reports dated 20 August 2021 and 15 February 2022, based partly on a video conference consultation on 12 August 2021 with the plaintiff. Dr Wyatt considered the plaintiff presented as a straightforward man. There were no ostensible inconsistencies between his history and the examination findings. He sat in a slightly forward stooped position, which he claimed was for his comfort.
152Dr Wyatt noted the plaintiff had been aided by a rehabilitation provider who agreed he could not go back to his normal job. The plaintiff obtained a role as a meter reader in September 2020.
153The plaintiff reported experiencing pain every day, a crunching sensation, clicking and a deep, dull pain and ache in his right shoulder. He said he could get into a comfortable position when leaning forward and not moving his right arm. His movement was limited and painful at or above shoulder height and he had adapted by using his left arm. He could only spend limited time on a computer.
154Upon examination, the plaintiff demonstrated limited right shoulder movement with forward flexion to 120 degrees, abduction to 110 degrees, external rotation to about half normal range and similar reduction in internal rotation.
155Dr Wyatt reviewed the radiology concerning the plaintiff’s injury including the x-ray of the right shoulder dated 20 March 2017, the ultrasound of the right shoulder dated 23 May 2017, the MRI scans of the right shoulder dated 23 May 2017 and 20 March 2018, the CT scan of the right shoulder dated 22 June 2017 and the right shoulder joint injection report dated 25 October 2017. Dr Wyatt also reviewed the Operative Report of Mr Large dated 12 July 2017, referring to the injury as consistent with adhesive capsulitis and global Type III changes with fibrillation and thinning over the humeral head and osteophyte formation at the inferior head. This was in addition to cartilage avulsion with no bony component.
156Dr Wyatt did not find any evidence of a pain disorder or any signs of functional overlay. She noted the plaintiff’s long history of mental health issues but noted his comment during examination that his life had substantially improved since being diagnosed and treated with medication for ADHD. His mental health was not considered a factor that impaired the plaintiff’s focus to re-engage with work.
157The plaintiff reported using a combination of analgesics for his pain. He said he took around four to six ibuprofen and 12.5 milligrams of codeine tablets per day. He said these made him tired. He was also taking a small dose of Sertraline and dexamphetamine for his ADHD. He was also seeing a psychologist at six-monthly intervals.
158Dr Wyatt opined the plaintiff’s injury and inability to use his dominant right arm rendered him fit for only a limited range of duties. He was no longer capable of performing manual duties such as furniture removal, labouring, painting or working in hospitality like he had done in the past. He found sitting for long periods of time at the computer, due to the posture of his arm, triggered his shoulder pain. He had to adapt to using his left arm for most activities at home. Dr Wyatt recommended he learn how to use the computer mouse in his left hand.
159Dr Wyatt noted the plaintiff was working full time as a meter reader. She said he had been fortunate to obtain such a position, which was not demanding on his right shoulder, and which demonstrated he was capable of performing suitable employment.
160She acknowledged the suitable employment options detailed in the vocational assessment report including administrative assistant, sales’ assistant, records and a filing clerk, customer service assistant clerk and computer programmer. Dr Wyatt considered a number of those roles to be suitable full-time employment including the roles of administrative assistant, sales’ assistant and customer service assistant. Dr Wyatt considered the records and filing clerk role was not suitable because it involved manual filing tasks that could require regular reaching or above shoulder height work. Similarly, the role of computer programmer involved considerable time sitting at a computer and typing fairly consistently. Dr Wyatt doubted the plaintiff was capable of engaging in that type of work full time and was even dubious he could cope with that type of role 25 to 30 hours a week.
161Because the plaintiff was currently working, Dr Wyatt did not recommend vocational rehabilitation, but did encourage further vocational training.
162Dr Wyatt provided a further report dated 15 February 2022, in which she considered two further vocational assessment reports: the Nabenet Vocational Assessment report dated 20 August 2021 and the report of Vocational Directions dated 25 November 2021. She then assessed the suitability of five further employment options for the plaintiff (as raised in the Nabenet Vocational Assessment report dated 20 August 2021 provided to Dr Wyatt). Those roles included weighbridge operator, console operator, retail assistant at a timber and building supplier, administrative officer and meter reader.
163Dr Wyatt also noted the Vocational Directions’ report indicated competency with numeracy, reading and writing and basic skills in Word and Excel. It recommended considerable further training including a Certificate III in general education for adults, followed by completion of Year 11 and Year 12 and subsequent vocational or tertiary training to improve long-term employability.
164Dr Wyatt considered the plaintiff was capable of working as a weighbridge operator in a full-time capacity. She noted the distance from home and the opportunity to take a break part way along the journey. She considered the demands of the job were not outside the plaintiff’s physical capabilities. No formal qualifications were required, and the relevant training was provided by the employer. She had seen other patients with a similar skill set who had obtained similar work.
165The role of console operator was not considered to be a suitable role as Dr Wyatt assumed it involved restocking which she considered to be beyond the plaintiff’s physical abilities. Similarly, the role of retail assistant at a timber and hardware supplier was considered inappropriate as it required intermittent lifting of timber.
166Dr Wyatt considered the plaintiff was capable of performing the role of administration assistant. The role was not physically taxing; no formal qualifications were required, and computer skills were highly regarded. Although the plaintiff may have lacked experience in that type of role, Dr Wyatt thought it would not be beyond him physically.
167Dr Wyatt considered the plaintiff’s current role as a meter reader suitable employment.
168Dr Wyatt concurred with Mr Hartley's report and surmised that although the plaintiff did not necessarily require completion of secondary school, vocational training such as a Certificate II and Certificate III in business administration, or other similar vocational training, would enhance his work options.
Mr Ash Chehata, orthopaedic upper limb surgeon
169Mr Chehata provided two reports dated 23 February 2022 and 3 March 2022 respectively.
170Mr Chehata examined the plaintiff on 22 February 2022.
171He took a history of the incident in which the plaintiff was injured and considered the plaintiff’s current function. He noted that the plaintiff presented with “severe pain and high levels of anxiety”.
172On examination, the plaintiff demonstrated right shoulder movements of flexion at 5 degrees, extension at 5 degrees, adduction at 10 degrees, abduction at 14 degrees, internal rotation at 0 degrees and external rotation at 0 degrees. There was no obvious muscle wasting across the shoulder and his neurological function was intact. He could flex and extend normally at the level of the elbow. According to Mr Chehata, the plaintiff appeared incredibly stressed about the idea of moving his shoulder. The plaintiff thought it would exacerbate his pain. He felt he was already developing a tremor due to the expectation
173Mr Chehata diagnosed the plaintiff as likely experiencing a pain syndrome on the background of severe articular surface damage which served as the precipitating event. Although there was no obvious pathology, Mr Chehata accepted the plaintiff’s history of a fall and resolution with no previous injuries to the right shoulder.
174Mr Chehata opined that the inconsistent findings on examination were relevant. He considered there appeared to be a clear pain disorder with chronic pain and functional overlay which was likely rooted in the plaintiff’s severe mental health issues including ADHD. He said those conditions could exacerbate and magnify symptomatology. The examination ostensibly revealed that the plaintiff had no movement in the right shoulder which was very unlikely to accurately reflect the plaintiff’s actual use of his right arm.
175Mr Chehata considered the plaintiff’s prognosis to be poor. He suggested, given his inability to utilise the right arm at all, it was impossible to envision the plaintiff returning to any form of employment. Rehabilitation was unlikely to be successful after such a long period. He noted that changes due to arthritis could have occurred and his recovery could have been further affected by his underlying mental health issues. Mr Chehata said those issues could then solidify a well-entrenched inability to utilise the arm.
176Mr Chehata provided a supplementary report dated 3 March 2022, clarifying the inconsistencies apparent during the initial examination. He explained that the reason the plaintiff could not achieve movement in his right arm at all was more related to mental health issues rather than pure organic findings.
177Mr Chehata noted that Mr Vo’s assessment of the plaintiff revealed a limited range of movement at 40 degrees and 30 degrees as well. Dr Wyatt’s examination recorded far better movement at 120 degrees with external rotation being half what was normal. Mr Chehata detailed this discrepancy as bizarre.
178Ultimately, Mr Chehata believed the restriction in the plaintiff’s right arm was because of a self-limiting or functional component magnified by likely mental health issues, rather than originating from an organic basis.
Legal principles
179To succeed in this application, the plaintiff must satisfy the Court, on the balance of probabilities, he has sustained a “serious injury” within the meaning of paragraph (a) of the definition of “serious injury” in s325(1) of the Act.
180“Serious injury” is defined in s325(1) of the Act relevantly as follows:
“‘serious injury’ means –
(a) permanent serious impairment or loss of a body function;
… .”
181The Act distinguishes between injuries and impairments. It is necessary that a plaintiff establish that he or she has suffered a compensable injury and that such injury is, in its consequences – either as to pain and suffering or loss of earning capacity – a serious injury.
182Section 325(2) of the Act provides:
(a)…
(b)the terms serious and severe are to be satisfied by reference to the consequences to the worker of any impairment or loss of a body function, disfigurement or mental or behavioural disturbance or disorder, as the case may be, with respect to—
(i) pain and suffering; or
(ii) loss of earning capacity—
when judged by comparison with other cases in the range of possible impairments or losses of a body function, disfigurements, or mental or behavioural disturbances or disorders respectively;
(c)an impairment or loss of a body function or a disfigurement is not to be held to be serious for the purposes of section 335(2) unless—
(i) the pain and suffering consequence; or
(ii) the loss of earning capacity consequence—
is, when judged by comparison with other cases, in the range of possible impairments or losses of a body function, … as the case may be, fairly described as being more than significant or marked, and as being at least very considerable;
… .”
183The effect of s325(2)(b) and (c) is that the pain and suffering or loss of earning capacity consequences of the injury to a plaintiff, when judged objectively by comparison with other cases in the range of possible impairments or losses, must be “at least ‘very considerable’ and certainly more than ‘significant’ or ‘marked’”.[3]
[3]Humphries and Anor v Poljak [1992] 2 VR 129 at 140 (per Crockett and Southwell JJ)
184This requires the Court to evaluate a claimant’s injury within a spectrum of seriousness of injuries by comparing a worker’s impairment, not just with other types of impairment of a similar kind, but also with other types of physical impairment.[4] Within that range is a point at which an injury becomes “very considerable”.[5]
[4] Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1 (“Haden”)
[5] Dwyer v Calco Timbers Pty Ltd (No 2) [2006] VSCA 187 (Dwyer) (Nettle, Ashley and Dodds-Streeton JJA)
185To make the necessary evaluation, the Court is required to consider the extent to which pain limits the plaintiff’s functioning, performance of ordinary activities, physical capabilities, and enjoyment of life. The plaintiff’s experience of pain including the intensity, frequency, and duration of the pain must be assessed. This is discharged by considering the plaintiff’s own personal account of their pain (both in court and to doctors); how the plaintiff manages the pain (for example medication, rest, seeking medical treatment); what the doctors say about the extent and intensity of the pain, and what the objective evidence conveys about the disabling effects of the pain.[6]
[6]Haden (supra) at paragraph [11]
186Other matters which may also be relevant include the effect of pain on the plaintiff’s sleep; mobility; cognitive functioning; capacity for self-care and self-management; performance of household and family duties; recreational activities; social activities; sexual life, and enjoyment of life.[7]
[7]Haden (supra) at paragraph [16]
187The inability of a worker to engage in employment which he or she undertook is a matter that may properly be taken into account in assessing pain and suffering and loss of enjoyment of life.[8] Similarly, it may also be relevant that, because of the injury sustained, an applicant has more limited employment options.[9]
[8]Haden (supra) at paragraph [15] (per Maxwell P); Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326 (“Ellis”) at paragraph [35]; PeakEngineering Pty Ltd v McKenzie [2014] VSCA 67 at paragraph [38]; Demmler v Transport Accident Commission [2018] VSCA 284 at paragraphs [59]-[60]
[9]Ellis (ibid) at paragraph [48]
188Additionally, in Davidson v Transport Accident Commission,[10] the Court of Appeal, referring to Stijepic v One Force Group Australia Pty Ltd,[11] identified that:
“… When judging the pain and suffering consequences for [a particular applicant] by comparison with other cases, … it is relevant to look at the likely period in (sic) which those consequences will be experienced. All things being equal, impairment consequences which [an applicant] will have to put up with for [decades] might well be judged more serious than the same consequences which [another applicant] may have to put up with for a much shorter period of time. … .”
[10][2015] VSCA 12
[11][2009] VSCA 181
189Ultimately, the assessment of whether the pain and suffering consequences of an injury are at least very considerable, and certainly more than significant or marked, and therefore a serious injury, involve matters of degree, impression and a value judgment, as to relative incapacity – that is, a consideration of the whole of the evidence.
190Where an injury is said to be a “serious injury” by virtue of the loss of earning capacity consequences, the plaintiff must establish, at the date of the hearing, that:
(a) he/she has sustained a loss of earning capacity of 40 per cent or more, as set out in s325(2)(e)(i);
(b) pursuant to s325(2)(e)(ii), he/she will continue permanently to have such a loss of earning capacity, and
(c) the narrative test in s325(2)(b) is met.
191Section 325(2)(e)(i) provides that:
“… the worker has a loss of earning capacity of 40 per cent or more, measured (except in the case of a worker referred to in item 1 of Schedule 2 or a worker under the age of 26 years at the date of the injury) as set out in paragraph (f); …”
192Where a worker is under the age of twenty-six years at the date of injury, in assessing loss of earning capacity, what a worker was earning, was capable of earning or would have earned during the three-year pre- and post-injury period is not relevant. The effect of s325(2)(e)(i) is that the formula in s325(2)(f) does not apply to the worker.[12] Instead, the usual common law position as to the assessment of loss of earning capacity applies and the Court may “have regard to the probable income from personal exertion which a worker would have earned but for the injury over the worker’s probable earning life”.[13]
[12]Capper v Munday Sales Pty Ltd & Anor [2013] VCC 1015 at paragraph [144]
[13]Second Reading Speech on the Accident Compensation (Common and Benefits) Bill, Legislative Assembly, 13 April 2000, the Honourable R Cameron, Minister for WorkCover, at 1003; Victoria, Parliamentary Debates, Legislative Assembly, 23 May 2000, 1169 (Hon M M Gould, Minister assisting the Minister for WorkCover)
193In State of New South Wales v Moss,[14] Heydon JA identified the common law principles used to assess the loss of earning capacity of a plaintiff injured in a school accident at the age of fourteen years. Those principles included:
(a) that reduction in earning capacity may be inferred from factors such as a plaintiff’s family background, intellectual capacity, drive and personality;
(b) evidence of past economic loss is some, though not conclusive, evidence of reduced earning capacity;
(c) in general, it is desirable for precise evidence to be called as to what the plaintiff would have been likely to earn but for the injury and what the plaintiff is likely to earn after it;[15]
(d) the compensable loss is not a loss of income but the loss of capacity to earn income in a manner productive of financial loss.[16] It does not depend on calculating the income from a particular career which is no longer possible, but in calculating the damage to a capacity to carry on various careers. It is an exercise in estimation of possibilities, not proof of probabilities;
(e) the task of the Court is to form a discretionary judgment by reference to not-wholly determinate criteria within fairly wide parameters.
[14](2000) 54 NSWLR 536
[15]Ibid, at paragraphs [66]-[87]
[16]Graham v Baker (1961) 106 CLR 340 at 347
194In Malec v J C Hutton Pty Ltd,[17] Brennan and Dawson JJ approved Lord Diplock’s statement in Mallett v McMonagle:[18]
“…, the court must make an estimate as to what are the chances that a particular thing will or would have happened and reflect those chances, whether or not they are more or less than even, in the amount of damages which it awards. … .”
[17](1990) 169 CLR 638 (“Malec”) at 639
[18] [1970] AC 166 at 176
195Deane, Gaudron and McHugh JJ also referred to the assessment process and observed:
“… If the law is to take account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring. The probability may be very high - 99.9 per cent - or very low - 0.1 per cent. But unless the chance is so low as to be regarded as speculative - say less than 1 per cent - or so high as to be practically certain - say over 99 per cent - the court will take that chance into account in assessing the damages. Where proof is necessarily unattainable, it would be unfair to treat as certain a prediction which has a 51 per cent probability of occurring, but to ignore altogether a prediction which has a 49 per cent probability of occurring. … .”[19]
[19] Malec (supra) at paragraph [7]
196The assessment of whether the injury is “serious” for the purposes of the Act is assessed at the time the application is heard.
197The Court must disclose the path of reasoning in dealing with the evidence and the issues raised by the application.[20]
[20]Hunter v Transport Accident Commission [2005] VSCA 1 at paragraphs [33]-[36]
Evidence
198At the hearing, the plaintiff relied upon three affidavits of the plaintiff, sworn 25 March 2021, 24 February 2022 and 3 March 2022.
199The plaintiff gave evidence, confined to adopting his affidavits, and was cross-examined.
200On behalf of the plaintiff, various pages of the Plaintiff’s Further Amended Court book were tendered as exhibit A, including MRI scans, CT scans, ultrasounds, medical reports, vocational assessment reports, taxation return summaries and other documents
201The Authority tendered as exhibit 1, various pages of the Amended Defendant’s Court Book, including an affidavit of Steven Mannix affirmed 1 March 2022, medical reports, vocational assessment reports and other documents.
The parties’ submissions
202It was submitted on behalf of the plaintiff that:
(a) The plaintiff had suffered a serious injury in terms of both the pain and suffering consequences and loss of earning capacity consequences;[21]
(b) The plaintiff had the capacity and intent to become a plumber before he suffered his compensable injury and would have eventually earned as a qualified plumber, or would have been capable of earning, $116,925.64 per year;
(c) In calculating the loss of earning capacity, there was no requirement to determine whether it was probable the plaintiff would have become a plumber. Rather, it was necessary to determine whether he could possibly have worked as a plumber;[22]
(d) The plaintiff was a credible witness.
[21]Section 325(2) of the Act
[22]State of New South Wales v Moss (supra) at paragraph [71]
203The defendant submitted that:
(a) There was no issue that the plaintiff had a very considerable pain and suffering consequence as defined in s325(1)(a) of the Act in respect of the injury to his right shoulder on 9 March 2017;
(b) There was no issue that the plaintiff was unfit to return to his pre-injury duties as a labourer;
(c) The medical evidence revealed that the plaintiff was capable of returning to lighter or alternate duties of employment that did not involve repetitive manual lifting, or pushing, or use of the right upper limb, and that such employment defeated the argument that he would permanently have a loss of earning capacity which was productive of a financial loss of 40 per cent or more of his pre-injury earnings;
(d) The plaintiff’s assertion he had aspired to become a qualified plumber and that but for the injury he would have succeeded in that endeavour, should be rejected. There was no corroborated evidence of this purported aspiration from treaters, consultants or family members and in fact that contention was repudiated by Mr Mannix, the plaintiff’s previous manager at K & S Plumbing;
(e) A Jones v Dunkel[23] finding should be made in respect of the plaintiff’s failure to tender evidence from family members corroborating his assertion he intended to become a qualified plumber;
(f) Finally, if the Court were to find the plaintiff had planned to pursue a plumbing apprenticeship, that finding would need to be made on the balance of probabilities as being more likely than not.
[23] (1959) 101 CLR 298
Credibility
204The defendant challenged the plaintiff’s credit.
205The defendant relied on the medical findings of Dr Chehata, orthopaedic surgeon, who suggested that the plaintiff’s injury was “very likely … more related to non-organic findings, which have a greater implication and are far greater likely than any organic or physical explanation for his presentation”.[24] It was submitted I should adopt Mr Chehata’s opinion of the plaintiff’s injury. That opinion, if accepted, it was said, cast doubt on the plaintiff’s explanation of his injury and confuted his credit.[25]
[24]Defendant’s Court Book page 103
[25]Transcript 94, Line 9
206Conversely, counsel for the plaintiff submitted that the plaintiff was a witness of truth who answered questions truthfully, even where they could have undermined his case. It was contended he did his best to be completely honest and the Court should accept his evidence as reliable.[26] Furthermore, the plaintiff argued that in the absence of any surveillance, which the defendant actually possessed but chose not to tender, the only information the Court had in relation to the plaintiff’s credit was how the plaintiff appeared in the witness box.[27]
[26]Transcript 101, Line 4
[27]Transcript 107, Line 20
207First, I do not accept Dr Chehata’s opinion that the plaintiff’s pain was “very likely … more related to non-organic findings, which have a greater implication and are far greater likely than any organic or physical explanation for his presentation”. I have reached this conclusion because there was an organic basis for the plaintiff’s pain, supported by the radiology reports. In addition, Dr Chehata’s opinion, although supported by Dr Slesenger, was contrary to the opinions of the plaintiff’s treating practitioners and also, the opinions provided by other medico-legal experts on behalf of both the plaintiff and the defendant.
208As early as 23 May 2017, an MRI scan confirmed the presence of a large joint effusion associated with apparent degeneration and tearing of the posterior labrum accompanied by a large flap, 1.3-centimetres in length, of articular cartilage arising from the posteroinferior aspect of the glenoid rim, acting as a loose body. The radiology report described this as “really quite a substantial finding” and suggested that surgical intervention may have been required.
209The most recent MRI showed osteoarthritic changes and the continued presence of a chronic labrum tear.
210The plaintiff’s treating practitioners did not suggest that there was any functional overlay. Dr Kumar, in a letter dated 23 February 2022 to the plaintiff’s solicitors, described the injury as a labrum tear with a flap of cartilage in the shoulder joint and joint effusion. Similarly, Mr Large, in a letter dated 31 January 2022, following review of the plaintiff, opined the injury to the plaintiff’s shoulder “avulsed most of the articular cartilage”.
211Medico-legal opinion from experts on behalf of both the plaintiff and the defendant also did not support the presence of any functional overlay or non-organic findings as the explanation for the plaintiff’s pain.
212In contrast to Mr Chehata, Mr Vo opined the plaintiff had sustained a significant injury precipitating severe symptoms of pain and dysfunction as a result of glenohumeral joint osteoarthritis.
213Dr Slesenger suggested the presence of functional overlay when he examined the plaintiff in 2019. However, the reports of both Dr Horsley, on behalf of the plaintiff, and Dr Wyatt, on behalf of the defendant, noted no evidence of a pain disorder or functional overlay when the plaintiff was examined by each of them. Their reports were requested in 2021 whereas Dr Slesenger’s report was obtained in 2019.
214On balance, I do not accept Mr Chehata’s opinion.
215Consequently, I do not find that Dr Chehata’s opinion invalidates the plaintiff’s credit.
216Second, I found the plaintiff to be a candid and forthright witness during cross-examination. He was frank in relation to his answers concerning previous physical injuries, periods of mental health treatment and the use of medication for his mood. For instance, he was open about undergoing a hospital admission for his mental health condition in 2007 and remaining on anti-depressants since that time. He was also candid about his occasional use of illicit substances.
217I find that the plaintiff was a co-operative witness who answered questions honestly and did not seek to embellish the responses he gave during cross-examination, even when the answers he gave were unhelpful to his case. From my observation, the plaintiff appeared to be an honest and credible witness.
218Nevertheless, just because I accept that the plaintiff is honest and credible does not mean that I must uncritically accept his stated levels of pain and disability. I am required to assess all of the evidence.
What injury did the Plaintiff sustain?
219Following the plaintiff’s accident, the ultrasound taken on 29 March 2017 revealed that he had minimal supraspinatus tendinosis and minimal subacromial bursitis. A subsequent MRI scan taken on 23 May 2017 identified a large joint effusion associated with apparent degeneration and tearing of the posterior labrum, and a large flap, 1.3-centimetres in length, of articular cartilage arising from the posteroinferior aspect of the glenoid rim, acting as a loose body.
220The plaintiff underwent a right shoulder arthroscopy, capsular release, removal of the loose body and subacromial decompression on 12 July 2017. Massive humeral and glenoid cartilage damage was identified. The humeral head had global type III changes with fibrillation and thinning. The inferior head had areas of osteophyte formation and had a recess of 30-millimetre x 8-millimetre x 8-millimetre-cartilage avulsion with no bony component.
221An MRI scan taken on 20 March 2018 showed there was no longer a glenohumeral joint effusion and no loose body. However, there was moderate chondral thinning over the posterior half of the glenoid fossa and humeral head in keeping with degenerative change. There was associated posterior humeral head subluxation. The adjacent labrum was irregular, and radiology signals were in keeping with degenerative change and an undisplaced tear with likely granulation tissue.
222The medico-legal reports noted articular cartilage and labral damage in the shoulder joint with osteoarthritic changes.
223Having considered the various medical opinions, I have concluded the plaintiff has ongoing degenerative changes in his shoulder consequent upon a large joint effusion associated with apparent degeneration, tearing of the posterior labrum and a large flap avulsion of his articular cartilage resulting in humeral and glenoid cartilage damage and osteophyte formation. He continues to suffer from glenohumeral joint osteoarthritis and a chronic tear in the posterior labrum.
Permanence
224The plaintiff was injured on 9 March 2017. Since that time, he has undergone surgery, had cortisone injections, physiotherapy, hydrotherapy, deep tissue massage and acupuncture. He has also been prescribed various pain medications including Endone, Targin and Temaze. He continues to suffer the effects of the damage to his right shoulder. Further, the preponderance of medical opinion supports the position that he will remain permanently incapacitated from his pre-injury duties. Given the length of time the plaintiff’s upper right arm condition has persisted, and the fact that the parties each considered his injury to be permanent, I have formed the view that the plaintiff’s injury is permanent in the sense that it is likely to persist through the foreseeable future.
Loss of earning capacity
Impairment consequences – forty per cent test
225For leave to be granted to seek damages for pecuniary loss, the plaintiff must establish, at the date of the hearing, that:
(a) he has sustained a loss of earning capacity of 40 per cent or more, as set out in s325(2)(e)(i) of the Act;
(b) pursuant to s325(2)(e)(ii) of the Act, the plaintiff will continue permanently to have such a loss of earning capacity, and
(c) the narrative test in s325(2)(b) of the Act is met.
226As set out already, the effect of s325(2)(e)(i) is that the formula in s325(2)(f) does not apply to the worker.[28] The usual common law position as to the assessment of loss of earning capacity applies. The Court must have regard to the probable income from personal exertion which a worker would have earned but for the injury over the worker’s probable earning life.
[28] Capper v Munday Sales Pty Ltd & Anor (supra) at paragraph [144]
227Taking into account the relevant legal principles, my task is to assess, to the best of my ability, the plaintiff’s injury, and to determine whether he has suffered more than a 40 per cent loss of earning capacity. As Heydon JA identified in Moss,[29] the compensable loss is not a loss of income or an enquiry as to what the plaintiff was earning immediately prior to sustaining injury. It is an assessment of the loss of capacity to earn income in a manner productive of financial loss. While it requires the estimation of possibilities,[30] the plaintiff must nevertheless satisfy me, on the balance of probabilities, that he has suffered the requisite loss of earning capacity.
[29] Supra
[30]Wellington Shire Council v Steedman [2003] VSCA 115; State of New South Wales v Moss (supra)
What was the Plaintiff’s pre-injury earning capacity?
228The plaintiff’s pre-injury earning capacity is a critical consideration in this case.
229As set out above, the plaintiff contended he had the capacity to earn an income as a qualified trade plumber and would have achieved such an earning capacity. The defendant argued to the contrary.
230The plaintiff’s evidence in his first affidavit was that when he was injured, he was working as a plumber’s labourer for K & S Plumbing and was assisting in tasks like digging and installing tanks as part of a team. He said he did not receive a formal induction and he had been working for K & S Plumbing for roughly only two weeks. He was engaged in full-time casual employment which, according to Mr Mannix – the person he reported to at K & S Plumbing – was subject to successfully completing a three-month probation period. The plaintiff did not recollect the application of the probationary period.
231The plaintiff claimed in his affidavit and when giving evidence that Steven Mannix, the director of K & S Plumbing, had spoken to him about the option of potentially partaking in a plumbing apprenticeship if he were interested.
232In his first affidavit, sworn 25 March 2021, the plaintiff stated that, “On being employed by K&S, I was told that if I enjoyed the work, I might be offered a plumbing apprenticeship. I had been really keen to do this, and would have done so had it been offered to me and had I not suffered my right shoulder injury.”
233In his further affidavit, sworn 24 February 2022, the plaintiff elaborated on the prospect of engaging in an apprenticeship with K & S Plumbing, stating, “Prior to my injury I had spoken with my employer, Stephen Mannix about doing a plumbing apprenticeship. He approached me and asked me if I was interested, and I said that I was.”
234Based on the Flexi Personnel report dated 16 August 2021, which recorded the total income of a full-time qualified plumber, working on commercial building sites and based upon the current CEPU Agreement, as $116,925.64 per year, the plaintiff claimed this would have been his pre-injury earning capacity. It was the plaintiff’s contention that he would have attained a trade plumber’s qualification and consequently, his pre-injury earning capacity should be determined by the rate of earnings of a trade plumber. If this were to be the case, to demonstrate he had suffered a “serious injury” with respect to loss of earning capacity the plaintiff had to demonstrate he had suffered more than a 40 per cent loss of earning capacity.
235Sixty per cent of $116,925.64 (without any allowance for overtime) was $70,155.38. Accordingly, if the plaintiff had attained a trade plumbing qualification, to demonstrate the requisite loss of earning capacity, the plaintiff would have to have shown his post-injury earning capacity was less than $70,155.38.
236The plaintiff’s argument, however, was premised on the fact that he would in fact have attained a trade plumber’s qualification. For the reasons which follow, I have formed the view this was unrealistic.
237First, there was nothing from the plaintiff’s family background that suggested he would become a trade plumber. The plaintiff currently resides with his parents. He told Dr Horsley he moved back home after the accident to try to save some money. He told Mr Vo his parents assist with certain household chores including cooking, mowing the lawn and cleaning. The most I can infer from this evidence is that his parents are generally supportive of him.
238Second, there was nothing from the plaintiff’s study and work history which pointed towards a drive or ambition to become a plumber. The plaintiff received his secondary education at Christian Brother’s College and then Brighton Secondary College. He left school after Year 10. Thereafter, he worked consistently in various jobs including in film and television production where he managed film lighting until about 2015; as a console operator at Balnarring Motors from about 2012 to 2015; as a house painter for Southview Painting Co Pty Ltd from 2013 to 2015; as a barista and bar attendant from about 2015 to 2016; in his own business organising and promoting free rave events as an event and stage manager from about 2014 to 2017 and as a furniture removalist from about 2016 to 2017. He had never previously worked in the area of plumbing.
239Further, to the extent he had undertaken a pre-apprenticeship course to become an electrician at TAFE, he had not completed that course. This evidence provides some indication of the plaintiff’s aptitude and willingness to persist.
240I infer from the plaintiff’s study and work history that he had an ability to work. In my view though, there was nothing from the plaintiff’s work history which suggested he had a particular drive or ambition to attain plumbing qualifications.
241The plaintiff’s counsel referred me to the decision of Stokes v Boswen Pty Ltd[31] and suggested that notwithstanding the plaintiff’s somewhat sporadic employment, he discharged the burden of proving he had sustained a loss of earning capacity of at least 40 per cent. Notwithstanding that submission, in my view, Stokes is distinguishable.
[31][2021] VCC 391 (“Stokes”) (Judge Bowman)
242In Stokes, the plaintiff asked the Court to find that he would have continued in the employment he was already working in, even though he had only been employed for a short time. That is different to this case. Here, the plaintiff is asking the Court not only to find he would have remained working in the plumbing industry as a labourer, but also, that he would have had the capacity to attain an apprenticeship, complete the relevant training and ultimately become a qualified trade plumber.
243Third, nothing can be inferred from the plaintiff’s specific work history with K & S Plumbing about his desire or commitment to become a trade plumber. According to the plaintiff’s first affidavit, at the date of his injury, he had only been working for K & S Plumbing for around two weeks. The plaintiff told Dr Wilkins on 13 September 2017 that he had extended his hours with K & S Plumbing to at least 55 hours per week. Even if the plaintiff was working those hours, that increase would not be evidence of a desire by him to become a trade plumber, particularly given the extremely limited time the plaintiff had worked for K & S Plumbing.
244Fourth, even if there was evidence of a desire by the plaintiff to qualify as a trade plumber, there is no evidence that he would necessarily have been encouraged by K & S Plumbing to undertake, or that he would have been offered, an apprenticeship or that he had the aptitude to achieve that aim.
245Mr Mannix, the representative of the plaintiff’s employer, in his affidavit did not agree that the plaintiff had been offered a plumbing apprenticeship or that it had been suggested to the plaintiff he had a prospect of obtaining a plumbing apprenticeship with K & S Plumbing. He said K & S Plumbing had not directly employed plumbing apprentices since 2017.
246In cross-examination, the plaintiff was asked about his suggestion that there was a prospect he would be able to undertake a plumbing apprenticeship with K & S Plumbing. He said he saw an advertisement in the paper for the job with K & S Plumbing. He subsequently received a call to come in for an interview. He could not recall who the interview was with but suggested it could have been with the office manager, Trish Edwards.
247It was put to the plaintiff he then completed a one-day trial and was offered a full-time casual position as a labourer subject to successfully completing a three-month probation period. The plaintiff’s initial response was there was nothing mentioned in the conversation about a three-month probation period. When probed about this by the defendant’s counsel and asked again whether he was offered a full-time casual position subject to successfully completing a three-month probation period, he agreed he was. He also agreed he was not told explicitly by Steven Mannix that it would be possible for him to commence a plumbing apprenticeship with K & S Plumbing, although he said they did have a conversation about apprenticeships.
248In my view, the evidence does not establish that the plaintiff was offered an apprenticeship as a plumber or that it was even a possibility. Further, given his extremely short work history with K & S Plumbing, and his diverse prior work history, no inference can be drawn that the plaintiff would necessarily have continued working as a plumber’s labourer, let alone that he would have attained a qualification as a trade plumber.
249Fifth, although the plaintiff considered he would have become an apprentice plumber, and ultimately would have obtained a qualification as a trade plumber, his belief was not consistent with what he told the medical practitioners. The histories the plaintiff gave to the various medical practitioners, did not demonstrate any degree of ambition for plumbing.
250It is accepted, based on Philippiadis v Transport Accident Commission,[32] that histories in medical records may be inaccurate, as Mr Dunstan, counsel for the plaintiff, submitted. Care should therefore be taken in using them as a basis for an adverse finding. Nevertheless, because they disclose contemporaneous representations by the plaintiff to medical practitioners about his health, feelings, sensations, intention, knowledge or state of mind, they constitute an exception to the hearsay rule pursuant to s66A of the Evidence Act 2008 and form part of the totality of the evidence available to be considered.
[32][2016] VSCA 1
251The medical records disclose very little about the plaintiff wanting to become a qualified plumber. The plaintiff explained to Dr Horsley, who he was assessed by on 16 September 2021, that music was his “career path” before he was injured. He said he had “always been a music producer” and that he was in “discussions to gain a record deal with a company in America”. He did not mention plumbing.
252Similarly, when the plaintiff consulted Mr Wilkins for a clinical assessment on 13 September 2017, he told him his “usual employment was as a film and lighting technician”. He explained that employment opportunities in that field were variable over time and during quiet periods, he worked as a labourer from time to time. This is what he detailed he had done from the time he left school. Again, there was no mention of a desire to complete a plumbing apprenticeship.
253The first mention of a plumbing apprenticeship was to Mr Hartley, who the plaintiff saw via Zoom on 17 November 2021. This assessment post-dated the commencement of this proceeding. The plaintiff told Mr Hartley that his work with K & S Plumbing was work that he enjoyed and “it was his hope to gain a Plumbing Apprenticeship after proving his worth as a labourer, with the aim of becoming a Trade Qualified Plumber over time”.
254Fifth, the plaintiff’s stated desire to complete a plumbing apprenticeship was not corroborated by his family members. The defendant contended that on the issue of whether the plaintiff would have become a qualified plumber, it was reasonable that he should have called evidence from family and friends in support of his position. The failure to adduce such evidence, it was said, warranted a Jones v Dunkel[33] inference being drawn against the plaintiff that the evidence would not have assisted the plaintiff. However, I disagree. While the plaintiff did not call his family members or friends to give evidence and he did not explain their absence, the missing evidence would not have elucidated whether the plaintiff would have become a qualified plumber any more than the plaintiff’s own assertion. For that reason, I am not prepared to draw an adverse inference against the plaintiff.
[33] Supra
255Counsel for the plaintiff urged me to find that the prospect of the plaintiff becoming a qualified plumber was a realistic possibility. In my view though, after considering a range of decisions including Spiteri v Victorian WorkCover Authority,[34] and assessing the evidence as a whole, the chance of the plaintiff undertaking a plumbing apprenticeship was at best speculative. For the reasons set out, I am not persuaded, on the balance of probabilities, that becoming a qualified trade plumber was a realistic possibility for the plaintiff.
[34][2016] VCC 912 (Judge Misso)
256Having assessed all the evidence, prior to his injury, I do not accept the plaintiff had an earning capacity based on a qualification as a trade plumber. In my view, given the range of relevant matters including the plaintiff’s family background, personality, drive, educational qualifications and work history, the plaintiff’s pre-injury earning capacity would have been limited to the types of jobs he had previously undertaken, which he would have been able to perform on a full-time basis. These included occupations such as film lighting manager, console operator, house painter, barista, bar attendant, furniture removal and labouring.
257There was limited evidence about what the plaintiff’s earning capacity would have been had he continued to perform such roles.
258Based on his earnings in the financial years ended 2016 to 2019, the most the plaintiff earned was $41,774 per annum. It is feasible though, that he had a higher earning capacity than simply what he earned. For instance, based on the Nabenet Vocational Assessment report dated 20 August 2021, a console operator working part time earns $22 per hour, and $29 per hour on a casual basis. Had the plaintiff been able to work a 40-hour week at $29 per hour, his annual earning capacity would have been $1,160 per week or $60,320 per annum. Similarly, the earning capacity for a retail job would have been similar to the earning capacity for the job with Bowens timber and building supplies referred to in the Nabenet Vocational Assessment report dated 20 August 2021 and would have been in the order of $936 per week or $48,672 per annum. Importantly, there was also evidence in Dr Horsley’s report that as a plumber’s labourer, the plaintiff had the capacity to earn up to $80,000 per annum.
259Considering all the evidence available, and taking the plaintiff’s case at its highest, I have concluded that he had a pre-injury earning capacity of $80,000 per annum based on the earning capacity of a plumber’s labourer.
What was the Plaintiff’s post injury earning capacity?
260Following his injury, the plaintiff returned to work on a full-time basis as a meter reader, earning $60,580. His case was he could not cope with that role, and he resigned his job as a meter reader because of the increasing pain he was experiencing. He is not currently working. The submission on behalf of the plaintiff was not that he had no capacity to work, but that he would be unable to work more than 25 to 30 hours per week.
261I accept the plaintiff could not work on a full-time basis, but, in my view, notwithstanding he had ongoing pain, he has a residual work capacity.
262None of the doctors opined that the plaintiff had no residual work capacity.
263The Nabenet Vocational Assessment report dated 20 August 2021 suggested the plaintiff had a residual capacity to work, amongst other things, as a weighbridge operator.
264Dr Wyatt considered whether the plaintiff had capacity to perform a role as a weighbridge operator. Her evidence was that the plaintiff had the physical capability to work as a weighbridge operator full time, with the potential to earn $54,000 in a full-time role. She noted no formal qualifications were required, training in the relevant software was provided by the employer and she had seen other patients with similar skills obtain similar roles. Dr Wyatt referred to the distance the job was from home (44 minutes), but she also noted the opportunity for the plaintiff to take a break partway along the journey. She also considered the plaintiff had the ability to work as a parking meter reader full time.
265At the time of Dr Horsley’s report, dated 16 September 2021, Dr Horsley was of the view the plaintiff had capacity to undertake the gas meter reader role he had been performing. That role, in her opinion, was appropriate to his limitations. The plaintiff could comfortably work 25 to 30 hours a week as a gas meter reader and Dr Horsley noted he would actually work more hours if they were available. Dr Horsley also accepted the plaintiff could potentially do the weighbridge operator job subject to undertaking training in the relevant software and with a flexible employer. There were no formal qualifications required.
266The plaintiff’s evidence was that he had ceased the gas meter reader role due to increasing pain. I accept the plaintiff had continuing pain in his shoulder. His subjective view was that it was significant enough that he ceased working as a gas meter reader; however, the balance of the medical evidence supports the view that the plaintiff had a continuing ability to work, even if not on a full-time basis.
267Having considered the whole of the evidence, I accept the plaintiff had a residual capacity to work as a meter reader or as a weighbridge operator.
268Working as a weighbridge operator full time had a potential earning capacity of $54,000. A 35-hour week correlates to an hourly rate of $29.67 per hour and a 40-hour week is equivalent to an hourly rate of $25.96. Adopting the most favourable rate for the plaintiff of $25.96, his post-injury earning capacity for a 25-hour week would be $649.04 per week or $33,750 per annum.
269The plaintiff’s earning capacity as a gas meter reader was $60,580 based on a weekly rate of $1,165 per week. This equated to an hourly rate of $27 per hour. For a 25-hour week, the post-injury earning capacity would be $675 per week or $35,100 per annum.
Conclusion on whether forty per cent test satisfied
270Comparing the lesser of the amounts I have found the plaintiff would be capable of earning post injury, namely $33,750, with the amount I have found to be his pre-injury earning capacity, namely $80,000, the plaintiff has sustained a loss of earning capacity of more than 40 per cent ꟷ the relevant 40 per cent less figure being $48,000.
271In all the circumstances, I find that the plaintiff has sustained a loss of earning capacity of more than 40 per cent and therefore satisfies the test in s325(2)(e)(i).
Narrative test with respect to loss of earning capacity consequences
272The narrative test requires that I consider whether, pursuant to s325(2)(c), the loss of earning capacity consequences of the plaintiff’s right shoulder injury are, when judged in comparison with the range of possible impairments or losses of a body function, fairly described as being more than significant or marked, and as being at least very considerable.
273The inability to return to pre-injury employment is a matter which may properly be taken into account in assessing pain and suffering and loss of enjoyment of life. It is also relevant in assessing the seriousness of loss of earning capacity consequences.
274There were differing views about the plaintiff’s ongoing earning capacity, however, all medical experts agreed that the plaintiff will never return to his pre-injury employment as a plumber’s labourer. Further, the range of occupations in which he will be able to work has been significantly curtailed. In my view, these are very considerable loss of earning capacity consequences. They are permanent.
275Consequently, I find that when judged by comparison with other cases in the range of possible impairments or losses of a body function, the loss of earning capacity consequences to the plaintiff are “serious”. The plaintiff has, as a result, suffered a “serious injury”.
Pain and suffering
276Having made a finding that the requirements of s325(1) are met with respect to the claimed loss of earning capacity consequences ꟷ that is, that the loss of earning capacity consequences are “serious” ꟷ in addition to being granted leave to commence proceedings for the recovery of damages for loss of earning capacity, a claim for the recovery of damages for pain and suffering may also be brought by the plaintiff.[35] Consequently, I find that the plaintiff is also entitled to bring a claim for damages for pain and suffering in respect of his right shoulder.
[35] Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170 at paragraph [63]
277For completeness, I note the defendant’s submission at the conclusion of the hearing that having heard the evidence, there was no issue the plaintiff had a very considerable pain and suffering consequence as defined in s325(1)(a) of the Act in respect of the injury to his right shoulder on 9 March 2017. If I had been required to separately consider the plaintiff’s pain and suffering impairment consequences, taking into account the defendant’s submission as well as the totality of the evidence, including the range of other possible impairments, I would nevertheless have concluded that the impairment consequences of the plaintiff’s right shoulder injury are “significant or marked” and “at least very considerable” and consequently, that he had suffered a “serious injury”.
278Following the injury sustained to his right shoulder, the plaintiff said in his first affidavit he has difficulty lifting anything other than very light objects. He said he found it hard to reach, including behind his back.
279The plaintiff described his pain. He said if he moved his shoulder in the wrong direction, it really hurt, and the pain put him out of action for a couple of days. He actively avoided using his right arm to prevent that from happening.
280He described how his pain and restriction had brought him to tears a lot of the time. He said he feels disabled. He forgets he is young. He feels like an older person since he was injured. He said his injury has aged him and he can no longer do things young people can do.
281The plaintiff said his pain impacted his sleep. He said to Mr Hartley he was experiencing chronically disrupted sleep due to his pain, which caused him to wake four or five times per night and limited his sleep to about five hours per night.
282He had been prescribed a variety of pain medication for his right shoulder injury including Endone, Targin and Temaze. He stopped taking Endone and Targin and was then prescribed and took 12 milligrams of codeine and 200 milligrams of ibuprofen “every now and then”.
283Driving a car hurt his shoulder and could sometimes cause a sudden onset of pain.
284His ability to drive is now limited to up to twenty-five minutes at a time.
285The plaintiff said he finds it hard to wash himself. Although he had managed to adapt the way he showers and dresses due to his pain, he often did not shower and often wore the same clothes in order to avoid pain. He had particular difficulty washing his back and trouble using his right hand to brush his teeth. He had to use his left-hand to wash his hair and he relied on his left hand to get dressed.
286The plaintiff continues to live with his parents. They cook and clean for him. He told Dr Horsley he finds it difficult to cut vegetables or to hold a coffee mug for any length of time. He cannot do much at all to contribute to the household chores.
287After the plaintiff was injured, his relationship with his wife deteriorated. The relationship had not been problem free before he was injured, but the plaintiff described how his injury made him argue more with his wife. His wife left him in mid-2017 and he moved back in with his parents.
288He is now unable to participate in pre-injury activities that he used to enjoy. For instance, he is unable to put his guitar into his right axilla and he is unable to put the strap over his right shoulder. His music production has been restricted as well and has now reduced to up to 2 hours in total, spread out over 20-to-30-minute periods.
289He is unable to play cricket, football or tennis recreationally. He no longer lifts weights at home to keep fit. Nor is he able to skateboard. He cannot assist friends with lighting on films because he is unable to carry the equipment.
290The plaintiff has experienced a reduced social life.
291Further, because of his upper right arm injury, the plaintiff has lost the ability to return to his pre-injury employment. He can no longer perform manual labouring jobs.
Findings
292Having considered all the evidence, I find that:
(a) The plaintiff has ongoing degenerative changes in his shoulder consequent upon a large joint effusion associated with apparent degeneration, tearing of the posterior labrum and a large flap avulsion of his articular cartilage resulting in humeral and glenoid cartilage damage and osteophyte formation. He continues to suffer from glenohumeral joint osteoarthritis and a chronic tear in the posterior labrum;
(b) The plaintiff was an honest and credible witness;
(c) The plaintiff’s right shoulder injury sustained on 9 March 2017 has produced loss of earning capacity consequences which are more than “significant or marked” and at least “very considerable”;
(d) The plaintiff’s loss of earning capacity consequences are permanent;
(e) Accordingly, the plaintiff has suffered a “serious injury” and I find he should be granted leave pursuant to s335(2)(d) of the Act to bring proceedings to recover pecuniary loss damages;
(f) Because the consequences arising from his injury are “serious”, in addition to being granted leave to commence proceedings for the recovery of damages for loss of earning capacity, a claim for the recovery of damages for pain and suffering may also be brought by the plaintiff.
Conclusion
293I will grant leave to the plaintiff to commence a proceeding for the recovery of pain and suffering damages and for the recovery of loss of earning capacity damages.
294I will hear argument with respect to costs.
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