Tuzlic v Victorian WorkCover Authority
[2024] VCC 443
•24 April 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-23-03890
| ZIJAD TUZLIC | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE FRAATZ | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 March 2024 | |
DATE OF JUDGMENT: | 24 April 2024 | |
CASE MAY BE CITED AS: | Tuzlic v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 443 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Injury to left shoulder and right ankle – pain and suffering consequences conceded as “serious” – loss of earnings – whether plaintiff will continue permanently to have loss of earning capacity productive of financial loss after date of hearing
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s335; Accident Compensation Act 1985, s134AB
Cases Cited:Humphries and Anor v Poljak (1992) 2 VR 129; Yirga-Denbu v Victorian WorkCover Authority [2018] VSCA 35; Acir v Frosster Pty Ltd [2009] VSC 454; Guppy v Victorian WorkCover Authority and Bendigo Access Employment Inc [2010] VSCA 164
Judgment: Leave granted to the plaintiff to commence proceedings for damages for pain and suffering and loss of earnings
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C J Winneke KC with Ms A L Wood | Henry Carus and Associates |
| For the Defendant | Ms S Manova | Hall and Wilcox |
HIS HONOUR:
1The plaintiff, Zijad Tuzlic, commenced employment with Ink Constructions Pty Ltd as a plasterer in about August 2015. He worked full time, 40 hours a week, plus overtime. His duties involved a lot of repetitive, heavy lifting and overhead work.
2Following a gradual onset of pain in the left shoulder and right heel, on 27 November 2018, Mr Tuzlic felt acute pain in his left shoulder when lifting heavy boxes of ceiling tiles. He also felt pain in his right heel, going into his Achilles tendon, at the time, and has not worked since.
3Mr Tuzlic was sixty-one years of age at the date he ceased work.
4Now sixty-seven, Mr Tuzlic seeks leave to bring common law proceedings pursuant to s335 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) under paragraph (a) of the relevant definition of “serious injury” for pain and suffering and loss of earnings consequences as a result of the permanent serious impairment or loss of a body function.
5The injury relied upon is predominantly to his left shoulder. Although Mr Tuzlic did not formally abandon reliance upon the injury to the right ankle, the emphasis of the claim was on the gradual process-type injury to the left shoulder.
6The Victorian WorkCover Authority (“the VWA”) accepts that Mr Tuzlic suffered a compensable injury to the left shoulder in the course of his employment, which is productive of a total loss of earning capacity.
7The VWA also formally conceded that Mr Tuzlic ought be granted leave to commence proceedings for damages for pain and suffering in respect of his left shoulder injury.
8The sole and relatively narrow issue for determination by the Court is whether Mr Tuzlic is able to establish a permanent and ongoing loss of earning capacity of 40 per cent or more which will be productive of financial loss in order to satisfy the statutory test.
9In short compass, the factual issue for determination is whether, but for his compensable injury, Mr Tuzlic would still be working at and beyond the date of the hearing.
10Mr Tuzlic’s evidence included that he had otherwise intended to work until his seventies. The VWA did not invite the Court to find that Mr Tuzlic was an unreliable witness; instead it submitted that the Court should consider carefully all the evidence on this issue before making its finding.
11For the reasons that follow, I am satisfied that Mr Tuzlic ought be granted leave under s335 of the Act to bring common law proceedings to recover both pain and suffering and pecuniary loss damages for the left shoulder injury sustained in the course of his employment.
Principles
12The plaintiff bears the onus of demonstrating that his impairment is permanent and that the consequences are “serious”.
13He must establish that the economic loss consequences to him, when judged by comparison with other cases in the range of possible impairments or losses of a body function, are fairly described as being more than significant or marked, and as being at least very considerable,[1] in accordance with the narrative test set out in s325(2)(a), (b) and (c) of the Act.
[1]Humphries and Anor v Poljak (1992) 2 VR 129 at 140
14To meet the requisite threshold in relation to pecuniary loss, I must also be satisfied that Mr Tuzlic has suffered a permanent loss of earning capacity of 40 per cent or more, as set out in ss325(2)(e), (f) and (g) of the Act.
15The measure of the claimed loss of earning capacity requires a comparison of two matters:
(a) the gross income the plaintiff is earning or is capable of earning in suitable employment at the date of the hearing (“after injury” earnings); and
(b) the gross income that the plaintiff was earning or was capable of earning “during that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity had the injury not occurred” (“without injury” earnings).[2]
[2]Yirga-Denbu v Victorian WorkCover Authority [2018] VSCA 35 at paragraph [70]
16Any such comparison should accord with the observations of J Forrest J in Acir v Frosster Pty Ltd[3] that s134AB of the Accident Compensation Act 1985 is:
“… a gateway provision which either precludes or permits a worker to bring a claim for damages for loss of earning capacity. It is a part of the serious injury process, not that of assessment of damages. It does not involve any determination (interim or final) of actual loss of earning capacity sustained by the worker.”[4]
[3] [2009] VSC 454 (“Acir”)
[4] Acir at paragraph [171]
17I am required to assess whether Mr Tuzlic has a loss of earning capacity of 40 per cent or more as at the date of the hearing of this application;[5] and determine whether, after the date of the hearing, he will continue permanently to have a loss of earning capacity which will be productive of financial loss of 40 per cent or more.[6]
[5] See s325(2)(e)(i) of the Act;
[6] Section 325(2)(e)(ii) of the Act
18In Guppy v Victorian WorkCover Authority and Bendigo Access Employment Inc,[7] the Court of Appeal set out the method contained in paragraphs of the analogue provision in the Accident Compensation Act 1985[8] for determining whether the impairment or loss of body function is “serious” as follows:
“●the term ‘serious’ is to be satisfied by reference to the consequences to Mr Guppy of the impairment with respect to loss of earning capacity when judged by comparison with other cases in the range of possible impairments (para (b));
●the impairment shall not be held to be serious unless the loss of earning capacity consequence is, when judged by comparison with other cases in the range of possible impairments, ‘fairly described as being more than significant or marked, and as being at least very considerable’ (para (c));
●the Court shall not grant leave on the basis that Mr Guppy has established the loss of earning capacity required by para (b) unless he establishes, in addition to the requirements of para (c), that he has a loss of earning capacity of 40 per cent or more, measured as set out in para (f), and that he will continue permanently to have a loss of earning capacity which will be productive of financial loss of 40 per cent or more (para (e));
●for the purposes of para (e), Mr Guppy’s loss of earning capacity is to be measured by comparing his gross income from personal exertion (expressed at an annual rate) which he is earning, or is capable of earning, in suitable employment as at the date of the hearing of the application by the County Court (November 2008), with the gross income (expressed at an annual rate) that Mr Guppy was earning, or was capable of earning, from personal exertion (or would have earned or would have been capable of earning from personal exertion) during that part of the period within 3 years before and 3 years after the injury as most fairly reflects his earning capacity had the injury not occurred (para (f)).”[9]
[7][2010] VSCA 164 (“Guppy”)
[8]Section 134AB(38)
[9]Guppy (supra) at paragraph [14]
19I am required to assess all the evidence that most fairly reflects the plaintiff’s earning capacity as at the date of the hearing. As J Forrest J said in Acir,[10] the question to be answered in the context of s325(2)(f) is: what was the worker’s ability to earn money in the workforce, taking into account his pre-injury state of health, level of employment and career opportunities at the time of injury.
[10] Supra
The issue in more detail
20The principal submissions of the VWA were that, as at the date of the hearing:
(a) Mr Tuzlic was aged sixty-seven;
(b) due to other health factors independent of the injury to his left shoulder and right heel (namely his hip and low back), he would not have been working in any event;
(c) accordingly, he could not satisfy the requirement in s325(2)(e)(ii) that he will, after the date of the hearing, continue permanently to have a loss of earning capacity which will be productive of a financial loss of 40 per cent or more.
21The application was conducted on the basis that the critical factual matter which I am required to decide in the application of the statutory test is whether Mr Tuzlic would have been working as at the date of the hearing and into his seventies if he had not suffered the injury to his left shoulder and right heel in 2018.
Background
22Mr Tuzlic was born in the former Yugoslavia/Bosnia, and came to Australia in 1999 as a refugee. His work history in Bosnia, Serbia and in Australia comprised full-time building and construction-related work with overtime, and never three days off sick in a row over a forty-year period.[11]
[11] Transcript (“T)” 37
23He is married, and has an adult son and two young grandchildren.
24Earlier in November 2018, Mr Tuzlic consulted his general practitioner concerning the onset of pain in his left shoulder and right heel. On 27 November 2018, he again presented to his doctor, and had an ultrasound of the left shoulder and the right heel the following day.
25The ultrasound on 28 November 2018 disclosed thickening of the subacromial bursa in the left shoulder with no rotator cuff tear or impingement. At the heel, there was mild thickening of the Achilles tendon distally at its insertion and there was small amount of fluid within the adjacent bursa.
26He has not worked since 28 November 2018.
27Initially taking over-the-counter analgesics, Mr Tuzlic has been prescribed strong pain medication including Panadeine Forte, Tramadol and Lyrica on an ongoing basis since February 2019.
28The main concern was and is his left shoulder. A corticosteroid injection in March 2019 did not relieve his pain, and an MRI scan on 15 October 2019 confirmed the presence of a partial-thickness tear of the supraspinatus against a background of tendinosis; moderate acromioclavicular joint degeneration; subacromial bursitis secondary to impingement from an inferior osteophyte from the AC joint; and features suggestive of capsulitis.[12]
[12] Plaintiff’s Amended Court Book (“PCB”) 32
29He was referred to consultant orthopaedic surgeon Dr Ash Chehata in October 2019, who diagnosed and treated Mr Tuzlic’s severe adhesive capsulitis in the left shoulder during 2019 and 2020. He performed a hydrodilatation in December 2019 which did not improve symptoms; and in March 2020, a full synovectomy, biceps tenotomy and resection of severe AC joint degeneration.[13]
[13] PCB 62
Plaintiff’s evidence
30Relevant to the issue in dispute in this proceeding, Mr Tuzlic’s sworn evidence included:
(a) “Before my work injuries, I do not recall having neck or back problems. If I did, they didn't last long. I cannot recall taking anytime off work for a neck or a back issue”;[14]
(b) “I have been working for most of my adult life. I really enjoyed working and I think I was a good employee. I was on time and rarely took a sick day. I was experienced and was often given the complex plastering jobs”;[15]
(c) In 2006 or 2007, he obtained his bus licence, because:
“If there was [a] lack of work in [the] construction industry, I could do that, I could drive children. If say 80 or something – and I’m not working [in the] construction industry, I can still do something. I didn't want to stay at home and do nothing.”[16]
[14] Further affidavit of the plaintiff sworn 23 February 2024, paragraph [18]
[15] Ibid, paragraph [20]
[16] T38
(d) “In 2014, my wife and I took out a bank loan to purchase our home in Victoria after selling our house in New South Wales. I had to work because I had a mortgage. I planned to work full-time into my seventies because the mortgage had to be repaid.”[17]
[17] Further affidavit of the plaintiff sworn 23 February 2024, paragraph [21]
31Mr Tuzlic was cross-examined carefully, and it emerged that:
(a) the nature of his duties included regularly being required to lift 20 kilograms or more;[18]
(b) he was made redundant on 28 November 2018;[19]
(c) he has paid out his mortgage loan, save for $160.00, but uses the offset facility for his savings. He intends to maintain the facility, and to use available funds for emergencies;[20]
(d) he has not had pain in his left hip and groin area since 2017;[21]
(e) he has had intermittent pain in his low back in the past, but none at present,[22] and it did not affect his work prior to November 2018;
(f) any low-back and left leg pain before his work injuries in 2018:
“… was something momentary that was there, the pain was there, and the pain went away.
…
If there was pain there would be an intermittent pain that comes and goes.”[23]
[18] T23
[19] T20
[20] T21-23; see also re-examination at T42-43
[21] T26-27
[22] T34
[23] T27
(g) at the time Dr Gutha referred him for a CT scan of his lower back on 29 July 2019, Mr Tuzlic freely conceded he had difficulties with walking, pain, sleeping and could not lie on his side.[24] He also saw his doctor from time to time complaining of low-back pain in 2020, 2021 and 2022;[25]
(h) he was prescribed Lyrica in 2019 for his left shoulder, but also for his back;[26]
(i) he is not having treatment for his back currently, but conceded that his back was “80 per cent not 100 per cent”;[27]
(j) he could not remember mentioning low-back pain to his doctor in the last year;[28]
(k) he intended, but for his left shoulder injury in particular, to work beyond the “retirement age” of sixty-seven years, whether as a plasterer or driving a bus or forklift. The reason he obtained these licences was in case he no longer was able to work as a plasterer;[29]
(l) if not for his left shoulder or Achilles tendon injuries, he could still do work as a plasterer or a carpenter, and otherwise feels equally capable of working now as he did prior to ceasing work in November 2018;[30]
(m) apart from his shoulder and the Achilles injury, he considers himself to be particularly energetic, fit and healthy for his age;[31] and
(n) he hoped to work as long as possible, and his intention was to work until after seventy.[32]
[24] T27-28
[25] T28
[26] T29
[27] T32
[28] T36
[29] T38
[30] T32
[31] T24
[32] T33
32In re-examination, his evidence included:
(a) he did not remember any problems with his lower back prior to the injuries suffered in around November of 2018 that would have affected his work;[33]
(b) he is ashamed and embarrassed that his wife now has to work, and he stays at home;[34]
(c) if his back was causing him difficulties in lifting or doing the heavier aspects of the job as a plasterer, there are plastering jobs that are lighter which he could do, particularly given his experience;[35] and
(d) if he could not work as a plasterer, he could work as a bus driver if not for his left shoulder injury.[36]
[33] T36
[34] T38
[35] T42
[36] T42
33There are no credit issues in this case, and I accept Mr Tuzlic as a witness who made genuine efforts to give truthful, reliable evidence. I accept his evidence as to his intention to work until his seventies; that his back was not a problem before 2018; and he has no symptoms in his back at the moment.
34Mr Tuzlic’s evidence is consistent with the histories he provided to doctors over time.
Histories to treating doctors
35In relation to his hip, Mr Tuzlic went to see a general practitioner in February 2017 and gave a history of groin pain intermittently for a period of six months. An ultrasound on 31 March 2017 showed a small amount of fluid.[37]
[37] Defendant’s Amended Court Book (“DCB”) 163
36Complaints to his general practitioner of hip pain on the left side on 24 and 27 February 2017 are the only records of hip pain.[38]
[38]DCB 163
37There does not appear to be any recorded history of low-back pain whilst Mr Tuzlic was employed as a plasterer with Ink Constructions, or otherwise. The clinical records of Wyndhamvale Health Care on 16 February 2017 record that Mr Tuzlic was “a new patient, no regular GP, healthy man, no health issues, not on any medications”.[39]
[39] DCB 164
38After the entries in relation to his hip in March 2017, there is no record of significance until the claimed injuries to the shoulder and heel in November 2018.
39In the context of regular attendances upon his treating general practitioner, Dr Gutha Sathish, in relation to left shoulder pain and other symptoms since he ceased work in 2018, from time to time Mr Tuzlic also complained of low-back pain. The attendances reflect the intermittent nature of this pain:
(a) on two occasions in March 2019,[40] Mr Tuzlic was complaining of mild discomfort with tenderness over the left lower lumbar area on examination and mild radiation to the buttock. He was advised to take analgesics and rest;
(b) there is no mention of any low-back pain upon examination by Mr Tuzlic’s treating physiotherapist, Patrick Vuong, on 18 March 2019;[41]
(c) in July 2019, he was again complaining of acute low-back pain and stiffness with mild radiating pain on the left side. Dr Gutha prescribed Lyrica and referred Mr Tuzlic for a CT scan on 29 July 2019. The scan found disc and facet joint degenerate changes, with moderate background central canal narrowing at L3-4, left paracentral disc protrusion and probable impingement at the origin of the left L4 nerve root;[42]
(d) he attended on Dr Gutha again on 5 August, 5 September, 2 and 17 December 2019 in relation to both his left shoulder and low-back pain, and was prescribed more Lyrica;[43]
(e) after December 2019, there are then isolated references to low-back pain in August 2020, March 2021 and May 2022. The last record in the clinical notes of low-back pain symptoms is on 6 December 2022.[44]
[40] DCB 156
[41] Report of Mr Patrick Vuong: PCB 46
[42] PCB 31
[43] DCB 149-152
[44] DCB 136, 138, 142 and 146
40There were many attendances on Dr Gutha in the intervening periods in relation to the left shoulder where there is no record of symptoms in the low back. Those attendances on his doctor where low-back pain was recorded were generally accompanied by a record of left shoulder pain.
41His affidavit and oral evidence in relation to working until his seventies is consistent with the history he provided to occupational therapist Ms Janette Ash, as recorded in the Recovre vocational assessment report dated 23 October 2023:
“Retirement plans –
Mr Tuzlic is now 66 years of age however he says that he had intended to work until he was around 72 years as that is when his house mortgage will be completed. He had considered changing careers into more sedentary work, and with that in mind, began to complete bus driver training and obtained his forklift licence, though he never did transition out of plastering. … .”[45]
[45] DCB 103
42Mr Tuzlic’s history to Dr Joseph Slesenger, specialist occupational physician, in October 2023 included:
“Lower back pain: the pain is mild to moderate, centred in the lower back (he had back pain during the course of his employment, although advised that having ceased employment, his symptoms improved).”[46]
“He advised of a history of back pain, which he advised he suffered with intermittently during the course of his employment. His symptoms had been managed conservatively. His symptoms have settled to a mild and intermittent level since he ceased employment.”[47]
“… Nevertheless, Mr Tuzlic confirmed a past history of lower back pain, which he advised developed during the course of his employment. His lower back pain has persisted, although improved with the cessation of employment. He advised of mild and intermittent symptoms, centred in the lower back.”[48]
[46]DCB 64
[47] DCB 74
[48]DCB 76
43Mr Tuzlic’s evidence is also consistent with the medical evidence as to his back and hip conditions.
Medical evidence
Medical Panel
44The Medical Panel’s Certificate of Opinion dated 29 July 2019[49] records:
“The Panel is of the opinion that Mr Tuzlic is suffering from a mild soft tissue injury of the left shoulder and right Achilles enthesopathy relevant to the claimed injuries.”
[49] PCB 100-101
Dr Philip Mutton
45Consultant occupational physician Dr Philip Mutton examined Mr Tuzlic in 2019 and again in 2020. In his opinion, Mr Tuzlic did not have any current work capacity for work, largely on account of the left shoulder, and the timeframe for recovery was likely to be quite prolonged given the likely diagnosis of adhesive capsulitis. He noted a quite marked loss of range of movement in the left shoulder, and chronic pain. Mr Tuzlic also had issues with pain in the right heel with walking.[50]
[50] See reports dated 29 November 2019 and 15 October 2020: PCB 117 and 112
Dr Gutha, general practitioner
46In his report dated 6 February 2024,[51] Dr Gutha records his diagnosis of:
(a) a partial thickness tear of the left supraspinatus on a background of tendinosis; moderate acromioclavicular joint degenerative changes; subacromial bursitis secondary to impingement from an inferior osteophyte from the acromioclavicular joint; and features suggestive of capsulitis; and
(b) a low-grade insertional tendinitis of the right Achilles tendon.
[51] Report of Dr Sathish Reddy Gutha dated 6 February 2024: PCB 40
47In his opinion, Mr Tuzlic is unfit for any kind of employment based on his left shoulder and right heel injuries, age, education, skills and experience for the foreseeable future.
48Although Dr Gutha was not specifically asked about the plaintiff’s back, under the heading, “Any other general matters”, he identified that Mr Tuzlic –
“… has Osteoarthritis of [the] cervical spine and also lumbar spine with disc bulges and left sided radiculopathy symptoms in lower legs and coupled with existing injuries he is an unlikely candidate to gain or remain in any kind of employment based on his age, multiple health conditions, education, skills and experience.”[52]
[52] PCB 41
Treating orthopaedic surgeons
49Consultant orthopaedic surgeon Mr Ash Chehata treated Mr Tuzlic for his severe frozen shoulder in 2019 and 2020 as set out above. Whilst hoping to manage the small partial thickness rotator cuff tear without operative intervention, he performed surgery in March 2020 following the failure of conservative measures. Upon review in April 2020, Mr Chehata reported to Dr Gutha in these terms:
“Zijad is doing quite well. His wounds have healed, and there are no signs of infection. He is continuing to be able to stretch, forward flex and abduct well past 100 degrees, and I think he will continue to make gains with the left shoulder. It is unnecessary for him to attend physiotherapy, but I am more than happy for him to do some self directed stretching and I have shown him this in detail.”[53]
[53] PCB 62
50Foot and ankle orthopaedic surgeon Mr Hamish Curry treated Mr Tuzlic in July 2020 for mild insertional Achilles tendinopathy. In his opinion, Mr Tuzlic was not able to work as a carpenter due to a combination of his operated left shoulder, as well as his Achilles tendon.
Medico-legal opinion
Associate Professor Bruce Love
51In his first report of 25 January 2019, Associate Professor Love, orthopaedic surgeon, does not record any symptoms in Mr Tuzlic’s low back at the time, despite a full examination. He diagnosed chronic rotator cuff tendinosis of the right shoulder and Achilles tendinitis of the right heel.
52Associate Professor Love examined Mr Tuzlic again on 27 December 2023, having been provided with a comprehensive set of reports and materials including the CT scan of the lumbar spine dated 29 July 2019 and all clinical records.[54] Mr Tuzlic provided a history of “variable back pain” that was not a “major concern”.[55]
[54]DCB 46
[55] DCB 46
53In his subsequent report, Associate Professor Love confirmed his diagnosis, and recorded his opinions that Mr Tuzlic had no capacity to return to employment of any type in either a full-time or part-time capacity, and his current level of incapacity would continue indefinitely.
54Asked specifically what impact Mr Tuzlic’s back has on his capacity to work, and other activities of daily living and social, domestic or recreational activities, Associate Professor Love stated:
“… there is only brief reference to his back condition in the general practitioner notes and when I acquired [scil enquired] of Mr Tuzlic as to the level of symptoms he is experiencing in his back, he did not volunteer significant impairment. He does state that he has difficulty engaging in household tasks and asks his wife to do many of those chores. His back condition, left shoulder and right heel all appear to contribute to those incapacities.”[56]
[56] DCB 50
55In his final report of 19 February 2024, having reviewed the full progress notes, Associate Professor Love stated, in relation to Mr Tuzlic’s back condition, that:
“From the information provided, I am not of the belief that a change of my previously expressed opinion is required with regards to the worker’s capacity, activities of daily living and social and recreational activities.”[57]
[57] DCB 58
56Associate Professor Love’s opinion seems clear: as far as he was concerned, it is not the low-back condition which is causing Mr Tuzlic’s incapacity for employment.
Mr Russell Miller
57Orthopaedic surgeon Mr Russell Miller examined Mr Tuzlic, and prepared reports dated 20 February and 31 October 2023. In his opinion:
(a) the ongoing symptoms in the left shoulder following surgery relate to persisting rotator cuff dysfunction, capsulitis, residual pathology in the acromioclavicular joint and biceps tendinopathy. The prognosis is only fair;
(b) Mr Tuzlic’s incapacity for work is mainly due to the ongoing symptoms in the left shoulder, but also the right foot;[58] and
(c) the left shoulder alone would preclude a return to pre-injury duties on any significant full-time or part-time basis.[59]
[58] PCB 74
[59] See report dated 31 October 2023: PCB 76
58In relation to the spine, Mr Miller reported:
(a) examination of the lumbar spine revealed no scars or deformity. There was minor low lumbar tenderness;
(b) minor ache, discomfort and pain in the low back radiating into the buttocks, groin and leg, predominantly the right side but no other features to suggest radiculopathy, or neurological deficit;
(c) a musculo-ligamentous strain and aggravation of degenerative disease in the cervicothoracic and lumbar spine;
(d) the current clinical presentation leads to overall, a good prognosis;[60]
(e) his symptoms are at the minor end;
(f) it is unlikely the spine will impose specific work restrictions; and
(g) his low-back symptoms were “unlikely to have ongoing relevance".[61]
[60] Report dated 20 February 2023: PCB 66, at PCB 72
[61] Report dated 31 October 2023: PCB 81
Dr Aman Awad
59Occupational physician Dr Eman Awad examined Mr Tuzlic on 3 November 2023. He diagnosed persistent rotator cuff dysfunction with capsulitis and biceps tendinopathy, chronic pain and mild insertional Achilles tendinopathy, without further improvement in his symptoms.[62]
[62] PCB 88
60He made findings in relation to incapacity for pre-injury duties and ongoing incapacity, including that various employment options identified for Mr Tuzlic were not suitable.
61In Dr Awad’s opinion –
“… had he not sustained his workplace injury, and given that he was fit and well, he is likely to have been able to continue working past the age of 67."[63]
[63] PCB 89
62I do not accept the VWA’s submission that Dr Awad failed to turn his mind to the back condition. Dr Awad recorded a history of “lower back pain, which is intermittent in nature”;[64] and that on examination, “[h]e had an unremarkable cervical examination and mild reduced range of movement of his lumbar spine”.[65]
[64]PCB 86
[65] PCB 87
63I also reject the submission that his opinion is of limited weight because it is based on “a false assumption that the plaintiff was fit and well at the time of the injury, which is contrary to the clinical records and his admission that he had back pain and hip pain before the subject injury”.[66] There is no significant history in relation to the hip. There is no evidence of any significant low-back symptoms prior to 2018, or record of any treatment. It is unclear whether the materials provided to Dr Awad included the clinical notes recording references to treatment and medication prescribed at least in part for the low back from time to time since November 2018 referred to above. I do not consider this to be a proper basis to reduce the weight of his opinion.
[66] T65
Dr Joseph Slesenger
64Dr Joseph Slesenger prepared a report dated 31 October 2023. Relevantly, his opinions included:
“Taking into account his past employment history, his lower back pain as documented in the clinical records and the persistence of his symptoms after he ceased employment, I am of the opinion that he is at risk of recurrence of his lower back pain should he return to his pre-injury role (regardless of his left shoulder and right heel impairment).”[67]
[67] DCB 76
65Dr Slesenger applied a 15-kilogram lifting restriction for occasional lifting, and a 10-kilogram repetitive lift restriction.
Findings
66I accept Mr Tuzlic as an entirely believable, conscientious witness.
67There is no dispute that Mr Tuzlic is totally incapacitated for employment as at the date of hearing as a result of his compensable left shoulder injury.
68From 5 November 2018 through to the date of the hearing, there have been unremitting complaints and problems with respect to the right heel and the left shoulder.
69The medical and other evidence as to other conditions of:
(a) the hip, which required investigation in 2017, but not thereafter; and
(b) the low back, which, at the date of the hearing, produces only a mild impairment,
do not preclude a finding that Mr Tuzlic would have been working but for his shoulder injury as at the day of the hearing and into his seventies.
70I accept Jasmin Tuzlic’s evidence[68] that given his father’s experience, Mr Tuzlic would have been able to obtain work after the redundancy in November 2018.
[68] Affidavit sworn 26 February 2024, at paragraph [9]
71I find that Mr Tuzlic:
(a) was a reliable employee who intended to work until his seventies, at least for the reasons that he enjoyed his work as a plasterer, wished to pay off his mortgage and when he did so, continue to put money aside for himself and his wife; and
(b) did not have any relevant medical condition before November 2018 that affected his ability to work.
72There is no medical evidence to support the proposition that Mr Tuzlic would have been forced to retire before the date of the hearing because of his low-back condition. The high point of the evidence is Dr Slesenger’s opinion that Mr Tuzlic may have been at risk of aggravating his low-back condition in the course of his duties as a plasterer had he continued to work beyond November 2018 and did not comply with modest restrictions.[69] Dr Gutha’s opinion in relation to capacity for employment is substantially based upon the left shoulder and right heel conditions, and does not assist the VWA.
[69]Report of Dr Slesenger: DCB 95
73Even if Mr Tuzlic’s low-back condition flared up from time to time and prevented him from working on an occasional or intermittent basis, the evidence overall supports my finding as at the date of the hearing, that his back condition would not have forced him to retire.
74Although he had a disc protrusion with sciatica nearly five years ago in July 2019 requiring ongoing treatment from his general practitioner and prescription medication, he is not currently having any low-back issues or treatment. Provided he exercised caution, perhaps in accordance with the restrictions recommended by Dr Slesenger, or even found work outside the construction industry, I find it more probable than not that Mr Tuzlic is presently only prevented from working at or close to full-time hours by his left shoulder injury.
75I accept the submissions of Senior Counsel for Mr Tuzlic that:
(a) many people do want to continue in work for as long as they can; and
(b) Mr Tuzlic was a reliable employee who enjoyed working and would be continuing to work full time but for his left shoulder injury.
76Whilst there is a statistical basis for the VWA’s submission that on average, plasterers retire at fifty-nine years of age, with only one per cent of plasterers working at age sixty-seven, I must consider the particular circumstances of Mr Tuzlic. I find that, but for his left shoulder injury, he had capacity at the date of the hearing to engage in his usual work as a plasterer.
77I accept his evidence that:
(a) as a very experienced tradesman, he would have been able to engage in work even if he experienced flare-ups in his low-back condition from time to time;
(b) as a result of his significant experience, he could do his job, including some heavier lifting, as a plasterer despite his low-back condition;
(c) lighter plastering work is apparently available; and
(d) in the alternative to working as a plasterer, Mr Tuzlic is licenced to drive a bus and would, but for his left shoulder injury, have capacity to work in that role.
78The left shoulder injury in particular has caused him difficulties with respect to his ability to drive a bus.[70] Even if his back condition did prevent him from working as a plasterer, I find he is now precluded from working in this alternative capacity.
[70]Affidavits of Mr Tuzlic sworn 22 March 2023, at paragraph [19], and 23 February 2024, at paragraph [21]; see opinions of Mr Curry - PCB 35; Dr Awad - PCB 90; Dr Jennifer Flynn - PCB 96
79I am satisfied that the evidence overall establishes that he would be working as at the date of the hearing, and into the future, but for his left shoulder injury.
Conclusion
80On the basis of the evidence set out above, and in particular Mr Tuzlic’s evidence and the medico-legal opinions, I find that:
(a) Mr Tuzlic’s lumbar spine condition would not have prevented him from working as at the date of the hearing;
(b) but for his injuries, Mr Tuzlic would have worked until the date of the hearing, and into the future;
(c) the left shoulder injury in particular has resulted in a loss of earning capacity of 40 per cent or more as at the date of the hearing and permanently into the future; and
(d) his loss of earning capacity will be productive of financial loss sufficient to satisfy the statutory test.
81I find that the consequence to him of his loss of earning capacity is very significant, and, accordingly, am satisfied of the narrative test in relation to loss and earnings.
82I grant the plaintiff leave to commence proceedings for damages at common law for pain and suffering and loss of earnings.
83I will hear the parties as to the form of final orders and as to costs.
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