Van Der Donk v Victorian WorkCover Authority
[2023] VCC 1018
•7 July 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Serious Injury List
Case No. CI-21--03624
| ROBERT VAN DER DONK | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE PILLAY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 April 2023 | |
DATE OF JUDGMENT: | 7 July 2023 | |
CASE MAY BE CITED AS: | Van Der Donk v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1018 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to left and right shoulders – central nerve sensitisation – unreliability of plaintiff’s evidence – medical opinions undermined by inaccurate history provided by plaintiff
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013 (Vic)
Cases Cited:VWA v Brassington [2021] VSCA 236; Target Australia Pty Ltd v Moloney [2000] VSCA 124; Carbone v Toyota Motor Corp Australia Ltd [2017] VSCA 249; Georgopoulos v Silaforts Painting Pty Ltd (2012) 37 VR 232; Peak Engineering Pty Ltd v McKenzie [2014] VSCA 67; Dressing v Porter [2006] VSCA 215
Judgment: Application dismissed
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Ingram KC with Ms K Bradey | Slater and Gordon Ltd |
| For the Defendant | Mr P Jens KC with Mr L Howe | Lander & Rogers |
HIS HONOUR:
Introduction
1Unusually for a serious injury application, the parties disagree on all elements of this case. The plaintiff alleges he sustained injury throughout the course of his employment with MaxScaff Pty Ltd (“MaxScaff”) moving steel scaffolding pieces. That was said to cause injury to the left shoulder and/or the right shoulder, and involve central nerve sensitisation (‘CNS’) causing pain and suffering consequences. The defendant submitted that not only was there no shoulder injury caused at MaxScaff, but the central sensitisation claim could not satisfy the requirement of the definition of serious injury, which is to identify the body function impaired. Further, it argued that the pain and suffering consequences were not more than significant or marked, no matter how they were caused.
2For the reasons which follow, I have found the plaintiff sustained injury to the right shoulder and separately the left shoulder at MaxScaff. However, I have found that neither the left shoulder or the right shoulder injury results in pain and suffering impairment consequences which are “more than significant” or have caused a more than 40 per cent loss of earning capacity. I deny the plaintiff’s applications.
Relevant history
3The plaintiff was born in July 1988 in Rushworth, Victoria. He finished Year 10 in about 2004 and commenced a painting apprenticeship for about five months. He left that due to low wages and began work as a forklift driver. He worked as an agency forklift driver at various locations between 2006 and mid 2012.[1]
[1]In his affidavit at paragraph [4] of Plaintiff’s Court Book (“PCB”) 12, he suggests he kept doing agency forklift work up until 2015 but on his resume at Defendants Amended Court Book (“DACB”) 159 it says he was working as a handyman for his father from 2012 to 2014 with no mention of forklift work. At Transcript (“T”) 32 Line (“L”) 13-16, he gave evidence of driving forklifts up to starting at Maxscaff. The footnotes in this judgment refer to the electronic numbering of the transcript of the hearing on 26 April 2023.
4During this time from December 2006 to February 2008, he worked at Wettenhall’s Logistics.[2]
[2]DACB 159
5From 2008 to 2009, he had surgery twice for pilonidal cysts.[3] I interpolate to note that he described the cysts as being located at the base of his spine between the buttocks, and often being sore and purulent. It made it difficult to sit down.
[3]Plaintiff’s Court Book (“PCB”) 12, at paragraph [9]
6From 11 April 2008 to 2011, he was employed by Effective Logistics.[4]
[4]DACB 159
7From 5 June 2012 to August 2014, he was employed on occasion with his father as a home handyman.[5] In the period from 2011 to the time that he commenced with MaxScaff on 15 December 2015, he was on Newstart allowance. Over this three-year period, the plaintiff gave evidence that his pilonidal cysts were so bad that he could not work in his occupation as a forklift driver, because he could not sit down for long periods.
[5]DACB 159
8On 15 December 2015, he joined MaxScaff. They are a scaffolding company which transports mobile modular scaffold to various worksites, where it is then erected. The plaintiff’s job was both as a driver and labourer.
9In his affidavit, he described his job in the following terms.
“My job with Maxscaff involved the delivery of scaffolding items to sites. This meant that I spent most of my time loading scaffolding items at Maxscaff’s factory using a forklift, and unloading the scaffolding items manually at delivery sites. When the job was complete, I then had to pack up the scaffolding, manually load it onto the truck and take it back to the factory, where I then had to unload the truck again.
A very large part of my job was having to repeatedly lift and carry heavy steel bars on each shoulder ….
I carried up to three steel scaffolding bars at a time, balanced on my shoulder. I became aware of shoulder pain soon after commencing with Maxscaff in 2015.”[6]
(sic)
[6]PCB 13 at paragraphs [10]-[11]
10His evidence was that his shoulders became sore doing this work but, despite complaint to his employer, his job remained the same. He continued working on. It is agreed between the parties that his employment with MaxScaff was terminated on 7 July 2016. The plaintiff’s case is that he was terminated because, he had complained about not receiving any payslips, despite money having been regularly deposited into his bank account.[7]
[7]PCB 14
11At about this time, the lease on his rental property came to an end and he was forced to look for other employment. He also became aware that his long-term partner was pregnant. The plaintiff’s evidence is that these two matters were difficult for him and prevented him from going to see a doctor in relation to his bilateral shoulder problems.
12He began employment with Printboard Industries (“Printboard”) driving a forklift on 3 August 2016.[8]
[8]DACB 159
13An assessment of the medical notes of various doctors’ clinics reveal that he attended at his general practitioner (“GP”) clinic on the following occasions between mid-2016 and January 2018: 6 September 2016, 16 September 2016, 18 December 2016, 9 January 2017, 16 January 2017, 10 February 2017, 27 April 2017, 8 September 2017, 20 September 2017 and 19 October 2017.
14The plaintiff described, in cross-examination, the work that he did at Printboard, being variously, to drive a forklift, insert polystyrene sheets into a machine which then automatically cut the sheet to size, to stack these polystyrene sheets and to load them.
15On 1 May 2017, the plaintiff’s eldest child was born. She had a condition called choanal atresia. It is a condition where both nostrils of the infant are completely blocked and need to be drilled clear. The plaintiff described the time surrounding her birth and immediate care after the surgery as intense and demanding. He said that it stirred up his shoulder problems and they began to worsen.[9]
[9]T113, L26-29
16On 20 September 2017, he attended the Mill Park Superclinic in respect of his shoulder injuries.[10] This entry assumes some importance, as it is the first recording by a medical practitioner of the shoulder problem he allegedly sustained at MaxScaff. The note reads as follows:
[10]PCB 14, DACB 147
“he has pain on his left back of the sholder blade since yesterday
he lifted heavy metals at work yesterday, which initiate the pain
today he woke up with bad pain
he feels tightness of the muscle
pain on coughing and moving the left shoulder
no breathing issues
…
tenderness on his left side paravertibral muscles close to left shoulder blade
pain gets worse on moving his left arm
…
Diagnosis:
Back pain muscular”[11]
(sic)
[11]DACB 147-8
17The evidence then is slightly confused because, on the plaintiff’s affidavit, he, at this stage, had left Printboard, or was in the process of finishing up. Other material suggests he worked until sometime in December 2017.[12]
[12] PCB 104 and PCB 109
18On 16 January 2018, he returned to his doctor who recorded the following:
“… Got shoulder pains for about 6 weeks . Works at Scaffolding , lifts heavy.
Been out of work for 2 weeks.
Wants Centrelink certificate.”[13]
[13]DACB 148
19He was referred by his GP for ultrasound of both the left and right shoulder.[14] This demonstrated some bilateral subacromial bursitis with some tendinopathic changes involving each supraspinatus tendon. No frank rotator cuff tear was noted. He had cortisone injections to both shoulders in February 2018 and was ultimately referred to an orthopaedic specialist, Mr Duy Thai. He reported to the plaintiff’s treating doctor in November 2018. That report was in the following terms:
“… It started in 2016 when he was working as a scaffolder doing a lot of heavy repetitive lifting and climbing. He changed to a forklift job which eased the symptoms a little but recently he has been doing a lot of lifting of his newborn daughter which has aggravated his symptoms.”[15]
[14]PCB 33
[15]PCB 47
20Mr Thai thought that he was a candidate for left shoulder surgery and referred him on to the Northern Hospital. He had surgery to the left shoulder on 8 May 2019, performed by Mr Thai.[16] He was complaining of pain down both arms at around this time and had EMG studies, which were reported as normal. An MRI scan was normal for the neck. In March 2020, his treating doctor referred him to see Dr Clara Wong, a pain specialist. She took a history that:
“… He was working as a forklift driver and labourer and was working with a scaffold carrying a lot of weight during work and it happened in 2015. There was overuse and he changed job in the warehouse and the pain eased off during that period; however, there was persistent pain afterwards….”[17]
[16]PCB 63 and PCB 70
[17]PCB 58
21She diagnosed him with chronic bilateral upper limb pain and neck pain with mixed nociceptive and neuropathic elements.[18]
[18]PCB 59
22On 9 April 2020, the plaintiff was referred by the defendant to see Dr Peter Wilkins, a medico-legal occupational physician. He considered that the bilateral shoulder injuries could be caused by employment with MaxScaff.[19]
[19]DACB 48
23In July 2021, the plaintiff saw Mr Grossbard, a medico-legal orthopaedic surgeon, on behalf of his solicitors. He took a history of developing pain at MaxScaff into both shoulders which was constant and did not resolve overnight. The history he took was that “despite the change in work, Mr Van Der Donk experienced increasing shoulder pain.”[20] He, however, found no significant shoulder pathology.
[20] PCB 79
24On 26 July 2021, he had medial branch blocks in the cervical spine on the recommendation of Dr Wong. This did not alleviate any problems. He had one session of psychology with Ms Wales in October 2021.[21] In October, November and December, he had Platelet-Rich Plasma (PRP) injections to both shoulders. Once again, this had no therapeutic effect.
[21]PCB 83
25At some point he moved back to Kyabram and changed to the Scope Medical Clinic. The report of Dr Moussavi from that clinic of 29 June 2022 opined that he had the capacity to do light duties office work.
26He saw a pain specialist, Mr Woodgate, in September 2022 on referral from his treating doctor. Mr Woodgate took a history of pain from 2017 while a scaffolder.[22] His examination was only on one occasion, and conducted via Zoom. He diagnosed that there was persistent bilateral shoulder pain with a large central sensitisation component.[23] The plaintiff did not continue to see Mr Woodgate.
[22]PCB 92
[23]PCB 93
27The plaintiff saw Dr Soliman in December 2022, a medico-legal practitioner on behalf of the defendant. He considered that there was no relationship between the employment with MaxScaff and Mr Van Der Donk’s ongoing symptoms. He put great store in the note of September 2017 that the injury had in fact occurred the day before. He considered it evidence that there was no injury which occurred at MaxScaff.
28Most recently the plaintiff saw Mr Moaveni, a medico-legal orthopaedic specialist, on behalf of his solicitors. He considered that there was evidence of ongoing left and right shoulder impingement with CNS components.
29Lastly, the plaintiff saw Mr Ramaswamy, a pain specialist, on behalf of his solicitors, in April this year. He considered that there was a chronic nerve sensitisation process arising from the bilateral shoulder pain.
30The plaintiff’s current condition is that he has not worked since 16 January 2018. He remains on Centrelink payments. He lives in Kyabram with his partner and two young children. He has most recently been engaged in a pain management course through a local service provider there.
Did the plaintiff sustain an injury arising from his employment at MaxScaff from December 2015 to 7 July 2016?
31The plaintiff’s case is that he sustained injury to both the left shoulder and the right shoulder during his employment with MaxScaff. As a result of those organic injuries, the plaintiff submits that he has developed CNS which now results pain, weakness and functional limitations all over his body, being migraines to burning sensations in the soles of his feet.
32The defendant submits that the plaintiff simply did not sustain injury to the shoulders during the employment with MaxScaff. This is because:
a)the plaintiff left work because of a dispute over his payslips and not injury which indicates no injury at MaxScaff;
b)he did not see a doctor for over a year about the alleged shoulder pain;
c)the doctor’s note of 20 September 2017 nominated work the day before as the cause of left shoulder pain only;
d)the plaintiff’s evidence that his CNS came on after the birth of his eldest child.
Was there an injury at MaxScaff?
(a) The lay evidence
33An examination of the first argument requires an assessment of the plaintiff’s evidence and the evidence of Mr Graydon Plummer, a fellow worker at the time. Next, an assessment of the medical material, being both the treating practitioners and the expert medical evidence. It also requires some assessment of surrounding material which the parties tendered.
34Turning to the evidence of contemporaneous witnesses. The plaintiff tendered an affidavit of Graydon Plummer. Mr Plummer was employed at MaxScaff as a scaffolder for around six months in 2015 and 2016, and worked with the plaintiff on a daily basis during that time.[24] Mr Plummer was not required for cross-examination by the defendant. He confirmed the work performed by scaffolders as being that described by the plaintiff as lifting and carrying heavy steel bars and erecting scaffolding. He deposed that the plaintiff did those duties, which involved lifting and carrying of steel bars. His evidence is that the plaintiff “reported shoulder pain to me directly and I witnessed him report his shoulder pain to managers at MaxScaff on numerous occasions.”[25]
[24]PCB 31
[25]PCB 32, at paragraph [5]
35The affidavit of Mr Plummer was late served. No objection was taken to it. No affidavit material answering it was tendered by the defendant. It strongly supports the Plaintiff’s version of events.
(b) Was there an injury at MaxScaff: the medical evidence?
36Turning to the plaintiff’s treating medical records.
37I have set out above the consultations at the Mill Park Superclinic and at the Mandalay Family Clinic which deal with the period from July 2016 until 20 September 2017. Thereafter, the plaintiff was given Mobic, Panadeine Forte, advised to rest, and recommended for physiotherapy. He next returned to his treating doctor on 19 October 2017 for a head laceration. No return prescription was made for any pain relief. He returned again on 16 January 2018 and gave a continuing history of shoulder pain over six weeks in the following terms:
“Got shoulder pains for about 6 weeks. Works at Scaffolding, lifts heavy. Been out of work for 2 weeks. Wants Centrelink certificate.”[26]
[26]DACB 148
38On examination it was found that he could not lift his arms more than shoulder height. Ultrasound was requested, and Brufen prescribed. The ultrasound was performed and recorded in the doctor’s notes on 31 January 2018 as showing subacromial bursitis bilaterally. He then proceeded to cortisone injections in February 2018. As at March 2018 his shoulder pains were persisting.
39He saw his doctor again on 1 April 2018 and was noted to have left shoulder pain for the last few weeks, localised to that side. He continued to be prescribed Panadeine Forte.[27] Bilateral shoulder pains persisted through the middle of 2018.
[27]PCB 151
40As to whether the medical entries support either party’s submissions is not free from doubt one way or the other. This is because chronologically many of the entries cannot be right. However, the more accurate signs of truth appears to be the constant referencing of heavy metals and scaffolding in contrast to the date of the entry and its correlation to the chronological unfolding of events. For example, in the record of 20 September 2017 of Dr Frank, he records that there was pain on the left side due to lifting heavy metals. Similarly, in the record of Dr Hussain on 16 January 2018 there is a record of working at scaffolding and lifting heavy materials. This is an indication that the plaintiff was attempting to give a history of his work at MaxScaff being the cause of his injuries. This is because it is clear that the work that he did at Printboard did not involve scaffolding or lifting heavy equipment. It must be said that the evidence that he gave in relation to the work he did at Printboard was extremely scant. In neither of his affidavits did he mention the actual work that he did at Printboard – save for forklift driving. In cross-examination, the evidence about the duties he did at Printboard had to be dragged out of him. What was ultimately obtained by way of cross-examination was that the work at Printboard was of a light nature and did not involve lifting either scaffolding or heavy metals. It is entirely unclear, and perhaps incongruous then, that both Dr Frank and Dr Hussain in their recordings make any mention at all of scaffolding or heavy metals. I find that this referencing implicates the work at Maxscaff rather than at Printboard.
41Turning then to the history taken by Mr Thai, he took a history in the following terms:
“He is right hand dominant and has been troubled by bilateral shoulder pain for 2 years. It started in 2016 when he was working as a scaffolder doing a lot of heavy repetitive lifting and climbing. He changed to a forklift job which eased the symptoms a little but recently he has been doing a lot of lifting of his newborn daughter which has aggravated his symptoms.”[28]
[28] PCB 47
42On examination, Mr Thai found a full range of motion of the shoulders with full power of the rotator cuff. However, he found there were positive signs of impingement bilaterally. It can be seen that this history is inconsistent to a degree with the evidence of the plaintiff. The history which he had taken was inconsistent to the extent that the plaintiff said in evidence that he was lifting his daughter in about May 2017 that had aggravated his symptoms. That aggravation led ultimately to seeing Dr Frank on 20 September 2017 and thereafter the relatively frequent complaints of pain leading to an ultrasound, injection, and then orthopaedic review by Mr Thai over one year after the aggravation had come on. Leaving that aside, however, that history of the treating orthopaedic specialist is reasonably consistent with the plaintiff’s history I find.
43Having surveyed that evidence from the contemporaneous witnesses, it points strongly towards an acceptance of the plaintiff’s version of events.
44However, it is still necessary to consider the entirety of the evidence in the case. In particular the defendant pointed to the inconsistencies and unbelievability of large parts of the plaintiff’s evidence. I will deal with that in due course.
45Turning to the medico-legal reporting in the case.
46Mr Grossbard. saw the plaintiff in July 2021. He was of the opinion that the work at MaxScaff was a significant contributing factor to the onset of the pain symptoms that he still suffers, but the exact pathology underlying this was unclear.[29]
[29]PCB 82
47Mr Moaveni considered that there was ongoing left and right shoulder impingement with CNS. He considered that his employment at MaxScaff materially contributes to his left and right shoulder injuries and CNS.[30] It must be said that Mr Moaveni had no regard to the note of Dr Frank of 2017 or knowledge of the work at Printboard. These two things are of some significance, and undermine the force of his opinion.
[30]PCB 107
48Mr Ramaswamy considered that the plaintiff had ongoing chronic pain which was related to the work with MaxScaff.[31]
[31]PCB 116
49Similarly, the opinion of Mr Woodgate was that there was pain with CNS. He made no real comment as to causation.
50Dr Wong’s opinion assumes some importance because she was the treating pain specialist and saw the plaintiff over a period of time. It must be noted this was not a long or extensive period of time, but she was a treating specialist. Her specialty is in respect of pain. She considered that he has a chronic pain state following his “accident” (her word) in 2015. Her history was of the pain being aroused when he was carrying scaffold. The history she had was that the work at Printboard was the result of the pain easing, though it was that pain caused by scaffolding work which later came back at a worse level.[32]
[32]DCB 65
51Mr Wilkins, the occupational physician, considered that on the history given by the plaintiff, the injury he complained of currently may have arisen from employment with MaxScaff; however, it could also have arisen from other causes. Overall, the opinion of Dr Wilkins is so equivocal as to be of little use, as it does not specify what those other causes were or could be.
52Dr Soliman, similarly an occupational consultant, presumably was engaged to give an opinion in respect of occupational work capacity matters. The history in respect of how the injury arose was taken in detail by Dr Soliman. He is one of the few to have a real history detailing the medical attendances at the treating doctor’s surgery in late 2017. He considers there is no relationship between the employment at MaxScaff and the ongoing conditions.[33] He had no regard to the evidence of Mr Plummer, however.
[33]DCB 59
53Dr Soliman’s opinion is confirmed in the reporting of Mr Ian Dickinson. He is an orthopaedic specialist. Having reviewed that opinion, it is clear that while he takes a history of the heavy work at MaxScaff, he does not consider that it resulted in the bilateral shoulder problems.
54Assessing these reports, it does not appear to me that any one of them provides overly relevant evidence which would inform the issue of whether or not an injury had occurred at MaxScaff. The most important evidence to me appears to be that of the treating orthopaedic surgeon Mr Thai, and also Dr Wong, the treating pain specialist. However, it must be accepted that they did not have a complete or accurate chronological history. The history that they based their opinions on lacked relevant detail: the fact that after leaving MaxScaff the plaintiff worked elsewhere; and further that from the time of leaving MaxScaff to September 2017 he attended at his treating doctor numerous times but never mentioned any shoulder pain; and further that upon his first attendance with Dr Darious Frank on 20 September 2017 he gave a history which implicated work of the previous day.
55Dealing with each of those matters. Looking at Mr Thai’s history, which is set out above, it can be seen that, while he does not have a history of the Printboard employment, he certainly notes that the plaintiff left MaxScaff and changed to a forklift job, which eased his symptoms. This is consistent with the history assumed by Dr Soliman and Dr Dickinson. Mr Thai has no history of the presentation to Dr Frank on 20 September 2017 or that of the presentation to Dr Hussain in early 2018, implicating employment at Printboard as the cause of the problems. However, given my comments in respect of the fact that the history to both Dr Frank and Dr Hussain implicates scaffolding and heavy metals, this necessarily implicates MaxScaff and not Printboard. Accepting that, I consider that Mr Thai has a relevant and broadly accurate history. Dr Wong, while not having the detail of changing to Printboard after leaving MaxScaff, certainly has a history that, after leaving MaxScaff, he changed jobs to a warehouse and during this time his pain eased. This is consistent with the plaintiff’s evidence and is the same history considered by both Dr Soliman and Dr Dickinson. Dr Wong did not have the history given to Dr Frank on 20 September 2017, implicating work at Printboard as the cause of injury, or that of Dr Hussain. This similarly implicated the work at Printboard. However, as I have previously commented, the history of both those doctors seems improperly recorded and its references to scaffolding and heavy metals can only have been a reference to the work at MaxScaff and not Printboard, given the plaintiff’s evidence about the work duties that he performed at Printboard. Taking those matters into account, the history of Dr Wong can be seen to be reasonably comprehensive and supports the ultimate opinion that she reaches.
56In combination, then, I prefer the evidence of Mr Thai and Dr Wong, to that of Dr Soliman and Dr Dickinson. Their histories were taken temporally closer in time to the plaintiff’s work incident and have the benefit of being taken by independent treating specialists. They have also seen the plaintiff on numerous occasions, which both Dr Soliman and Dr Dickinson did not have the opportunity to do. For these reasons, I would prefer their evidence as to the causation of the Plaintiff’s injury to the left shoulder and the right shoulder as having occurred at MaxScaff.
(c) Was there an injury at MaxScaff: Is the Plaintiff a credible witness?
57The plaintiff’s evidence was heavily attacked as being not credible, inconsistent, and less than comprehensive on this point.
58The starting point for that was paragraphs 14 and 15 of the affidavit sworn on 16 April 2021. It is useful to set these out because they were said to be untruthful or unbelievable.
“At about the same time as my employment was (sic) Maxscaff was terminated, I found out that I was to be a father. As a result, my focus was on moving to a new house, and getting a new job to support my family. My wife had a rough pregnancy, and my daughter was born with choanal atresia. She couldn’t breathe through her nostrils, and had to have an operation very soon after her birth. I then had to care for her for three to four months after her surgery.
It wasn’t until about September 2017 that I was able to seek treatment for my shoulder injuries. By that stage, I was no longer working. I went to the Mill Park Super Clinic. I told the doctor how I had injured myself carrying scaffolding at work, but I don’t think he understood what I was saying to him. He said all I needed was physiotherapy and I would be all right.”[34]
[34]PCB 14, at paragraphs [14] and [15]
59It will be recalled that the plaintiff was terminated from MaxScaff on 7 July 2016. The defendant first put that moving houses was achieved over a reasonably short period of time. That is, by the spring of 2016. The plaintiff accepted this. The defendant then submitted that there was plenty of time to see a doctor prior to the birth of the plaintiff’s daughter on 1 May 2017.
60At T23, L14, the following exchanged occurred:
Q: “No. There's nothing to lose about. So that prior to you being sacked, you had been intending to work on then?---
A: Um, prior - sorry, prior to being sacked, I believe that I was at the state where I was thinking about, um, going to the doctors, and - and making more of a report on my shoulders. But I was fired very abruptly, and I couldn't move forward with anything due to my circumstances in life at the time.”[35]
The defendant put that this was simply nonsense.[36]
[35]T22, L14-21
[36]T32, L6
61The plaintiff was pressed about why, between Spring 2016 and 1 May 2017, he could not go and see a doctor. The plaintiff’s evidence was that he was more worried about getting money saved up and getting the house sorted out for his daughter. It was then pointed out to the plaintiff that he had, in fact, seen a doctor on numerous occasions, but never about his shoulders, in this period. When confronted with that, the plaintiff suggested that, if he had seen a doctor, it would only have been about an infected cheek.[37] It is useful to examine those attendances in some detail. There are nine attendances in total.
· On 6 September 2016, he consulted Dr Usman Baran in relation to an abscess in his thigh and a recurrent right-sided face lesion.[38]
· On 16 September 2016, he consulted Dr Aung Gyi for a sore throat and cough.
· On 18 December 2016, he saw Dr Gyi for small swellings behind both left and right ears.[39]
· On 9 January 2017, he consulted Dr Hussain for infection on the right side of his face.[40]
· On 10 February 2017, he saw Dr Gyi, with his partner, for pain around the left ear and left eyebrow.[41]
· On 27 April 2017, he saw Dr Hussain for face pimples.
· His daughter was born in May 2017.
· On 8 September 2017, he saw Dr Hussain for boils on his face and body.[42]
[37]T33, L21
[38]DACB 146
[39]DACB 118
[40]DACB 146
[41]DACB 117
[42]DACB 147
62The first point to note is, that the number of attendances suggest that the plaintiff was not restricted in going to the doctor by reason of the need to move home and prepare for the birth of his child as he suggested. Secondly, it appears, in contrast to the plaintiff’s evidence, that he consulted the doctor, not just in relation to his right cheek, which might be thought to be a pressing and overwhelming matter, such to exclude consideration of the right shoulder. It can be seen that he attended for other matters, such as respiratory problems. In the end, the plaintiff retreated to the proposition that, despite the injuries to the shoulders being bad at the time he left MaxScaff, he was just used to having an injury and it healing up, and not having to go to the doctor about it.[43] The plaintiff suggested he had a “one-track mind” and that is why he did not focus on his shoulders.
[43]T35, L28 – T36, L3
63That evidence, as to having a “one-track mind” and not able to do anything else, cannot be accepted, given that he was dealing with both a right cheek and respiratory problem and still working. It suggests he was able to do multiple things at once. I consider that if his shoulders were problematic, he could have gone to see the doctor or mentioned the issue during one of his other consultations. On this point, I consider there is much force in the defendant’s submission, that the injuries occasioned at MaxScaff, if any, were minor. In addition, this finding also supports the defendant’s proposition that the plaintiff’s evidence was inconsistent.
64The next point to mention about the inconsistency in the plaintiff’s evidence relates to when he finished at Printboard. In his affidavit, he deposed to finishing in September 2017. He was then confronted with the note of the treating doctor from January 2018, with a history of pain over the last six weeks. He sought to explain that by saying that he must have got the dates confused and worked a little bit longer with Printboard than he had deposed to. What the true situation is, is unclear, given what he went on to say about possibly working a little longer.[44] However, this is contradicted by the evidence the plaintiff gave in cross-examination, which was that he finished up at Printboard because his shoulder problems had become much worse.[45] This was not in his affidavit material and is a significant omission, because if he was struggling on he would surely remember how long that difficulty went on for.
[44]T53, L25
[45]T50, L21
65It also seems unclear, given the history of the lighter work at Printboard and an easing of his symptoms there, why his condition worsened at all. This was wholly unexplained by the affidavit material. The plaintiff’s evidence in cross-examination was that the birth of his child triggered a worsening of his symptoms. This is significant because, prior to that time, the plaintiff had been working full time in a manual job involving forklift driving and also machine operating. He accepted that he had not needed one day off work by reason of his shoulder injuries.[46] He considered that his condition was manageable. This was until the amplification of his symptoms after the birth of his child. None of this was in his affidavit and contained at paragraphs 14 or 15. Those paragraphs left the impression that he was soldiering on with a chronic condition until September 2017, when he could seek treatment for his shoulder injuries. The evidence under cross-examination stands in stark contrast to that and seems to show that, in fact, he had opportunities to consult with a doctor regarding his shoulder injuries, but did not do so; that he was able to work full time in a manual job involving his arms full time; that he did not require any time off by reason of this manual work, medication, or treatment to deal with any shoulder problems. It was only after the birth of his child that his condition changed. This was unexplained and seems inconsistent. I consider this revealed a real inconsistency in the Plaintiff’s evidence
[46] T109, L28 – T1, L2
66Something must also be said about the plaintiff’s manner of giving evidence. He gave the impression of being confused, particularly about the chronology of events. He constantly went back on his evidence. An example of this is as to the timing of the cessation of his employment with Printboard. At first he stated it was about September 2017 and then when confronted with the note of January 2018 he amended his answer to fit in with that. Another example is set out above when he was answering questions about why he did not see a doctor after leaving MaxScaff. The confusion in the substance of his evidence was replicated in the manner of his giving evidence and it did not leave me with confidence that he was being accurate in his evidence.
67It was also put by the defendant that the plaintiff in 2013 had made application for a disability support pension (“DSP”) on the basis of injury to the right and left shoulders. The plaintiff categorically denied this, despite the Centrelink record being put to him. To the extent that the defendant pressed this point, I would not accept it. First, by reason of the plaintiff’s outright denial. Secondly, the note from Dr Gyi makes it clear that the application for a DSP was made by reason of the cyst at his tailbone.[47]
[47] DCB 140
68Overall I formed the impression that the plaintiff’s evidence was not reliable or accurate and required corroboration to be accepted.
69Assessing all the evidence on this point to answer the question “did the Plaintiff sustain an injury to the right shoulder and/or an injury to the left shoulder at MaxScaff?” I answer that question in the affirmative. I come to that conclusion given my findings above which can be summarised in the following manner:
· The evidence of Mr Plummer supports the Plaintiff’s evidence of the contemporaneous complaints of injury and pain;
· The notes to the treating doctors, Dr Frank on 20 September 2017 and Dr Hussain in January 2018 implicate the heavy lifting of scaffold and metal at what can only be Maxscaff;
· The histories of Mr Thai and Dr Wong are broadly consistent with heavy lifting at Maxscaff being the cause of bilateral shoulder injuries.
· The plaintiff’s evidence is inconsistent and lacks credibility. It cannot be relied on without independent corroboration.
I find that injury is subacromial impingement and bursitis of the right shoulder and separately the left shoulder.[48] The body function impaired is the function of the right shoulder and separately the left shoulder.
[48]PCB 64
What are the claimed impairments of body function?
Applicable legal principles
70In order to satisfy the Court that he has sustained a serious injury, Mr Van Der Donk must demonstrate that he has a permanent serious impairment or loss of a body function in accordance with the definition of paragraph (a) of the term “serious injury” within the meaning of the Act.
71The first point to make is that the plaintiff makes claim for the right shoulder and, separately, the left shoulder, injuries.
72It is impermissible to aggregate two or more injuries suffered in different circumstances.[49] This court is required to determine whether the injuries sustained to the right shoulder, or the left shoulder, have been sustained in compensable circumstances, and then to proceed to assess whether that injury has resulted in permanent serious impairment of the function of the right shoulder or the left shoulder.
[49]VWA v Brassington [2021] VSCA 236 at [40]
73In Target Australia Pty Ltd v Moloney,[50] Batt JA defined what the term “body function” means. He held that it denotes a physical act or operation and not some applied activity.[51]
[50][2000] VSCA 124
[51]Target Australia Pty Ltd v Moloney (supra), at [18]
74It is clear from Carbone v Toyota Motor Corp Australia Ltd,[52] that bilateral shoulder injuries which arose from different incidents results in injuries which are to be considered separately, as they also affect separate body functions.
[52][2017] VSCA 249 at paragraph [59]
75Having set that out, it is clear that the injuries to Mr Van Der Donk’s right shoulder is separate to the injury to the left shoulder. The plaintiff submits the right shoulder injury is permanent and separately the left shoulder injury is a permanent impairment. This can be accepted.
76A particular issue now arises in this case. The plaintiff accepts that the right shoulder injury cannot be aggregated with the left shoulder injury and the combined injuries assessed to determine whether the relevant impairment or loss of body function rises to the requisite level. This means that the injury to the right shoulder must be looked at as distinct from the injury to the left shoulder. In this case, however, the plaintiff submits that, by reason of the right shoulder injury in combination with the injury to the left shoulder, the plaintiff has developed CNS.
77The medical evidence, particularly that of Dr Wong, Dr Ramaswamy and Dr Woodgate, [53] the relevant pain specialists, do not ascribe the CNS to either the right or the left shoulder. Rather, their reports and opinions proceed on the basis that injuries to the right shoulder and the left shoulder have caused the development of the CNS.[54]
[53]See Dr Wong at PCB 66, Dr Ramaswamy at PCB 116 and Dr Woodgate PCB 93
[54]Dr Wong opines that the Plaintiff’s diagnosis is chronic bilateral upper limb and neck pain with mixed nociceptive and neuropathic elements. Dr Ramaswamy opines that the Plaintiff has bilateral shoulder pain as a direct consequence of his work injury, and also features of central sensitisation. Dr Woodgate opines that the Plaintiff has persistent bilateral shoulder pain with a large central sensitisation component.
78In Georgopoulos v Silaforts Painting Pty Ltd (2012) 37 VR 232 (“Georgopoulos”), the Court was concerned with whether the grant of a certificate made in respect of psychological injury only operated as a doorway, allowing the injured plaintiff to claim physical injuries as part of the common law damages trial. In the course of considering that issue, the Court of Appeal said the following:
“It can be seen that, in the first instance, serious injury is constituted by permanent serious impairment or loss of a body function. Such impairment or loss of a body function is not the same thing as impairment of a person as a whole. As the Full Court held in Humphries v Poljak in respect of the parallel provision in the Transport Accident Act 1986, the definition requires the identification of a body function and the assessment of the extent to which the body function has been affected. Two or more injuries may act together on a particular body function so as to cause serious impairment or loss within the meaning of the definition, but it is impermissible to aggregate impairments, one of which is not a permanent serious impairment, to separate body functions in an attempt to satisfy the requirements of the definition.
It follows that it is not the character of the injury itself which determines whether it is a serious injury but its consequences. Section 134AB(38) then goes on to make ‘elaborate provision’ for the assessment of those consequences.
In turn, it will be possible to determine whether a worker has suffered a serious injury by reference to a specific impairment of a body function, despite the fact that it may not be possible to determine which individual component or what combination of components of the compensable injury are causing that impairment.
Thus, an impairment or loss of function of the thumb and right hand may result from nerve damage at the spine, shoulder, elbow or wrist coupled with tendon damage at the shoulder, elbow or wrist. If the worker is able to establish impairment in the relevant sense, then he or she is seriously injured. It is not necessary to disaggregate the causal mechanism, provided that the compensable injury results in the impairment which satisfies the serious injury criteria set down by s 134AB.” (emphasis added) [55]
[55] Georgopoulos v Silaforts Painting Pty Ltd (2012) 37 VR 232 (“Georgopoulos”) at [58] - [61]
79These comments, I consider, remain relevant to the question of how the CNS arose; that is whether it needs to be attributed separately to the right or left shoulders. Alternatively whether it can, as the plaintiff submits, be causally related to both the right and left shoulders.
80Some guidance as to how this issue might be dealt with comes from Peak Engineering Pty Ltd v McKenzie[56] (“Peak Engineering”). In that case, Mr McKenzie had originally sustained an injury to his left hand. That occurred while he was employed with Peak Engineering in 2004. He then left that employment. In a later job in 2008, he sustained injury to his left knee. Both the hand injury and the knee injury affected Mr McKenzie’s life and activities. In due course, Mr McKenzie brought separate serious injury applications in respect of the hand injury and then the knee injury. The knee injury case settled. The hand injury case went on before a judge of this court. In the course of that proceeding, the evidence disclosed significant areas where the restrictions on Mr McKenzie’s activities were attributable to both the hand and the knee injuries. An example of this was the pain which affected him during the night and disrupted his sleep.[57] In a decision with which both Redlich JA and Dixon AJ agreed, Maxwell P stated:
“… In a case of this kind, where two different injuries are concurrently producing pain and suffering consequences for the applicant, it will ordinarily be necessary to make findings about all of the pain and suffering consequences which are operative at the date of the trial. This would seem to be an essential pre-condition to the task of deciding which of the pain and suffering consequences are attributable to which injury. The matters identified in the previous paragraph were all directly relevant to the enquiry in the present case, and needed to be addressed squarely.”[58] (emphasis added)
[56][2014] VSCA 67 (“Peak Engineering”)
[57]Peak Engineering at [6]
[58]Peak Engineering at [24]
81This makes clear that the Court must identify which injury causes which pain and suffering consequence. Here, the plaintiff is not in a position to indicate whether some or all of the pain consequences that he suffers arise from the left or right shoulder injury. An example of this is the complaint of pain in the soles of his feet. Whether this is caused by the right shoulder or left shoulder organically based CNS is unclear.
82In Dressing v Porter,[59] the plaintiff was the driver of a motor vehicle which was struck from behind while it was parked. The plaintiff complained of neck pain. By the time of trial on 28 October 2005, in this court, the plaintiff had been treated entirely conservatively. The issue in the case was as to the extent of the pain and suffering consequences of the neck injury and the existence of any incapacity for work attributable to that injury. The question to be resolved in the case was complicated by several medical problems pre-existing the date of the injury which, it was argued, contributed to the incapacity for work alleged at the time of trial in 2005. In a comment relevant to the resolution of the issues in this case, Ashley JA, in reasons approved by other members of the Court, stated:
“… If, by reason of pain and suffering consequences the compensable injury met the serious injury test, it was beside the point that some other condition might also have satisfied the test by reason of its pain and suffering consequences ….”[60]
[59][2006] VSCA 215 (“Dressing v Porter”)
[60]Dressing v Porter at [47]
83Turning to whether the CNS can be claimed as a pain and suffering consequences of the right shoulder or, separately, the left shoulder. There is an argument to suggest that as the right shoulder and separately the left shoulder injuries arose from the work process over a relatively short period of time, the impairment consequences ought be considered in combination. I consider any such submission was directly counter to what was said by Maxwell P in Peak Engineering. Rather, I consider that I must assess the impairment or loss of body function ascribed to the right shoulder injury or, separately, the left shoulder injury.[61] Applying that principle leads me to the conclusion that, on the medical evidence, I am not able to find whether the right shoulder injury or, separately, the left shoulder injury, has caused the CNS. The evidence suggests that it is both the right and left shoulder injuries. In some ways, this is a perverse result because, by being unable to distinguish the exact causal link to each shoulder injury, the plaintiff is then unable to rely at all on the development of CNS. However, it is a position I consider I am compelled to by the legislation and the precedent in Peak Engineering.
The Plaintiff’s Alternative case: the CNS can be considered though it arose from both right and left shoulder injuries
[61]Ibid
84If I were wrong about that conclusion, I will now stay to consider the situation as if the plaintiff had convinced me that the CNS could be attributable to either, or both, his shoulder injuries. The plaintiff’s case on this basis is that his shoulder injuries do result in some modest physical reduction in strength and of the shoulder. He claims that it is really the CNS that is the most significant impairment consequence. He claims the CNS produces, inter alia, migraines, hip pain and a burning sensation in his feet. He describes it as “horrible and terrible”. It prevents him doing any substantial physical work. He claims to have pain associated with walking and that the pain becomes too much to bear when mowing the lawns or playing with his kids.[62] He claims it cruels nearly all of his social, domestic and recreational activities. On this case, it is asserted that the CNS affects not just the identified and accepted impaired body function, being the right and left shoulders, but the entire body.
[62]PCB 23
85I reject that claim given the unreliability of the plaintiff’s evidence. I also base this on the fact that histories given to the doctors are so wanting in respect of correct occupational and medical histories that the opinions of those practitioners who support the plaintiff cannot be accepted.
Can the Plaintiff’s evidence as to impairment consequences be accepted?
86Starting with the unreliability of his evidence. It is well known in this jurisdiction, where cases are conducted by affidavit, that it is critical for the plaintiff’s evidence to deal with the relevant matters of history, injury and consequences. Here, the plaintiff’s evidence was deficient in critical areas. He swore two affidavits – on 16 April 2021 and 17 April 2023. A critical part of his case was that, by reason of his injury at MaxScaff, he was unable to work and had suffered a loss of 40 per cent or more. Such an assessment is performed by measuring that which he is capable of earning against that which he was earning, or capable of earning, in the three years before and the three years after the injury, as most fairly reflects his capacity to earn but for the injury. However, in his first affidavit, in describing his working life prior to MaxScaff, he deposed:
“At about the same time as my employment with Maxscaff was terminated, I found out that I was to be a father. As a result, my focus was on moving to a new house, and getting a new job to support my family. My wife had a rough pregnancy, and my daughter was born with choanal atresia. She couldn’t breathe through her nostrils, and had to have an operation very soon after her birth. I then had to care for her for three to four months after her surgery.
It wasn’t until about September 2017 that I was able to seek treatment for my shoulder injuries. By that stage, I was no longer working. I went to the Mill Park Super Clinic. I told the doctor how I had injured myself carrying scaffolding at work, but I don’t think he understood what I was saying to him. He said all I needed was physiotherapy and I would be all right.”[63]
[63]PCB14, at paragraphs [14]-[15]
87Relevantly, as to injuries affecting work he deposed to having two pilonidal cysts at ages 20 and 21 (2008 to 2009)[64] and he set out his earnings in 2012 to 2018 in a table at page 20 of the Plaintiff’s Court Book. For the years 2013 and 2014, he wrote “TBA”, which I take to mean “to be advised”. His later affidavit did not update this aspect of the first affidavit. The state of the affidavit material left the Court in the position of assuming the plaintiff had worked in the three years prior to his employment at MaxScaff. However, in cross-examination, he conceded that “I had three years where I couldn’t be employed because I could hardly walk”.[65] He gave evidence this was in the three years prior to employment with MaxScaff, that is 2012 -2015.[66] In addition, the defendant tendered the Centrelink materials showing that from 28 February 2012 to 25 March 2014 and then from 30 July 2014 to 10 September 2014, and then from 17 February 2015 to 14 April 2015, he was in receipt of Newstart allowance. In addition, on 13 May 2013, his application for a DSP was rejected. In cross-examination, he accepted that he had made such an application because his pilonidal cysts disabled him.[67] This material was relevant to his issue of capacity and particularly the statutory task of assessing his without-injury earnings. The absence of any reference in his affidavit to his inability to work in the three years prior to MaxScaff is strange and was unexplained. Further, there is no reason why the earnings detail noted as “TBA” was inserted in the affidavits. It left the impression that there were earnings from personal exertion in this period, which was false. It is one matter which illustrates the unreliability of the plaintiff’s evidence.
[64]PCB12, at paragraph [8]
[65]T48, L8-9
[66]PCB 19-20, at paragraph [48]
[67]T61, L3-7
88Moving on to the next part of the plaintiff’s affidavit said to demonstrate his unreliability. This occurred when the defendant put to the plaintiff that his reason for not seeking treatment for his shoulder injuries after leaving MaxScaff was “nonsense”.[68] I have set out above the excerpts from the Plaintiff’s affidavit, at paragraphs 14 and 15, where the plaintiff deposed to not seeing a doctor because of the need to move house and deal with his daughter’s choanal atresia. I refer to paragraphs 58 and 62 above, which set out the factual details of these matters. Overall, I accept the defendant’s submission that the plaintiff’s evidence makes little sense and it was given in an attempt to explain away an apparent inconsistency as to why he did not seek immediate treatment after leaving MaxScaff if his injury was so bad as to leave him unable to carry a 2-litre milk bottle. I have, of course, found that he suffered an injury at MaxScaff, but a failure to insert any detail of the treating doctor’s attendances after ceasing at MaxScaff until the birth of his child, the attempt, in cross-examination, to explain this failure on having a one-track mind – which, as I have pointed out above, is factually incorrect - suggests strongly the plaintiff’s evidence was being shaped and given in order to sway the Court in his favour. I find his evidence on this point less than reliable and given positively to sway the Court, rather than to accurately recount the facts.
[68]T32, L6
89The next matter in his affidavit relates to his work after MaxScaff. He deposed that:
“Within a short time of the termination of my employment with Maxscaff, I got a job doing forklift work with Printboard Industries. I worked there for about six to eight months on a casual basis. My shoulders were painful doing these sore (sic) while forklift driving, and I ended up ceasing that work. I have not worked since that time.”[69]
[69]PCB 19, at paragraph [46]
90This evidence is not particularly comprehensive and is not accurate. It is not comprehensive in a critical aspect. It is the plaintiff’s case that, at the time he left Maxscaff, his shoulders were painful. He deposed that, while at Maxscaff:
“… I found that outside of work I was having trouble carrying things like a two litre container of milk, I had trouble reaching above my head, and holding or gripping anything hurt ….”[70]
[70]PCB 13, at paragraph [12]
91His affidavit strongly implies that his work at Printboard was “forklift work”. This was proved to be only partly correct. In cross-examination he gave evidence that at Printboard there were a variety of jobs.[71] These involved placing sheets of polystyrene onto a machine, activating the machine to cut it, and then lifting and stacking the sheet. He said there could be hundreds of such sheets.[72] This description of his work clearly involves the use of his arms and shoulders in repetitive work to replace, then move, and stack the sheets. The plaintiff’s evidence in cross-examination made clear that the task did not involve heavy lifting.[73] I consider this is beside the point, because it was apparent from the cross-examination that the affidavit did not accurately describe the work at Printboard. The cross-examination then elicited evidence that, to perform the work at the machine, he had to stand for hours at a time. The plaintiff accepted that. The plaintiff further accepted that, in the time he worked at Printboard, he did not take one day off work for sick leave.[74]
[71]T107, L13
[72]T107, L7
[73]T107, L30
[74]T108, L1
92This passage of cross-examination revealed several inconsistencies and reinforces for me the unreliability of his evidence. This was because none of this was in his affidavit, when, clearly, it was relevant to his injury and his capacity. For example, in his affidavit, he had deposed that, on leaving MaxScaff, his shoulders were painful and made it hard to carry a 2-litre milk container. If that was the case, how was he able to perform repetitive work lifting and stacking the polystyrene sheets? This was unexplained. There might well be a clear, rational explanation, but the fact that this manual task was not referred to or explained in the affidavit material reinforces my finding that his affidavit was selective with the facts it presented, with an eye on shaping the Court’s assessment. Furthermore, the fact he worked at this position for much longer than he deposed was also inconsistent with several other pieces of evidence and reinforces my finding that his evidence was unreliable. For example it will be recalled that he had deposed to working at Printboard for 6 to 8 months almost immediately after MaxScaff.[75] Given that he left MaxScaff in July 2016, and began at Printboard in August 2016 this infers he ceased his employment at Printboard in about March to April 2017 – well prior to the birth of his daughter in May 2017. In his affidavit, he deposed, “[m]y shoulders were painful doing these sore (sic) while forklift driving, and I ended up ceasing that work”.[76] This quotation suggests that, within a reasonably-short period of ceasing at MaxScaff, his shoulder pain overwhelmed his ability to work and even forklift driving – a job with limited shoulder strain - was too much work for him.
[75]PCB 19, at paragraph [46]. He claimed at T47, L3 to have started at Printboard four to six weeks after ceasing at MaxScaff
[76]PCB 19, at paragraph [46]
93The facts, however, proved this evidence and the implications it sought to impart were untrue. First, the evidence seems to strongly suggest he worked until December 2017 at Printboard.[77] He conceded as much in cross-examination.[78] Second, he nominated the birth of his child as triggering a worsening of his pain and not forklift driving.[79] This was not mentioned in his affidavit at all. It did find expression in some treating medical reports,[80] but they similarly had no history of either the full range of duties at Printboard or the accurate period of time he worked there. A proper appreciation of his occupational history may well have impacted on Mr Thai and Dr Wong’s opinion. I will return to this point.
[77]DACB 148
[78]T53, L23
[79]T46, L5
[80]PCB 47
94I consider the omission of the accurate details of his time and work duties at Printboard to reveal further unreliability in the plaintiff’s evidence. These matters go to central issues in the case before the Court, being the occurrence of injury at Maxscaff and the onset of incapacitating symptoms. It also revealed a certain inconsistency in the plaintiff’s evidence, which is as to why he did not mention his shoulder problems until 28 September 2017. It will be recalled that the plaintiff had suggested this was because he was consumed with finding a house and dealing with his daughter’s health issues. He made no mention that work at Printboard prevented him going to a doctor. As set out above, the cross-examination revealed he worked well after the birth of his daughter and took no sick time off. This contrasts to the position before the birth of his child in May 2017, when he was working and took time off, clearly showing he could consult a doctor for ailments. Yet, after his daughter was born, and on his evidence, this triggering a worsening of his symptoms, he did not go to a doctor until September 2017 and then remained at work until December 2017, when he ceased. It can be asked rhetorically, why, if his shoulders worsened while at Printboard, did he not go to a doctor? This reveals the unbelievability of his evidence.
95The defendant also submitted that the plaintiff was not a witness of truth given he had a range of physical capabilities which he had not disclosed. Surveillance footage was shown of the Plaintiff. The first video was of 24 November 2022. It shows the Plaintiff briefly attaching a trailer to a car, driving to a service station to fill up and then to a tip site. He is then seen taking smallish items from the trailer and throwing them into a tip site. During this time I saw the Plaintiff move in a completely unrestricted manner. He then drove back to his home, carried his child inside. He is then seen unhitching the trailer and manually manoeuvring it in the driveway. To do this he pulls and pushes the trailer. He carries the jockey wheel freely, walks in what appears a normal manner and carries his young son briefly in what appears to be a normal manner. It must be said that in his affidavit he deposed to being able to carry his son for short periods.[81] I consider it striking that the Plaintiff’s demeanour in the witness box was remarkably different to his presentation in the footage. In the witness box he grimaced and moved slowly sitting, turning and standing. He had a defeated air about him. In the video he is seen differently. He moves at normal walking pace, bends, lifts and pushes as if he is not limited. Other footage was taken of him at a roadside café. It did not shed much light on his capabilities. Overall I consider that the video shows the Plaintiff to, at that moment in time, have different physical capacities than the impression left in the affidavit material. This is as to his ability to walk, bend, use his arms for light work over a short period.
[81]PCB 26, at paragraph [25]
Can the medical evidence as to impairment consequences be accepted?
96Turning next to consider the effect this unreliability has on the medical opinion. Starting with Mr Thai. I have set out above that in Mr Thai’s first report of 27 November 2018, he does not have an accurate history of the work at Printboard and no understanding of the work involving placing, cutting and stacking polystyrene sheets. This is a significant occupational exertion in the context of the cause for the symptoms given the repetitive manual handling tasks (even of light weights). Given my findings that the plaintiff sustained right and separately left shoulder injuries at MaxScaff, this incorrect history is of only marginal importance however as to the development of the impingement in either shoulder. His opinion does not bear on the development of the CNS and the claimed impairment consequences flowing from it. Next examining Dr Wong’s opinion in her report of 10 March 2020. She has a history of a “job in a warehouse and the pain eased off during that period; however, there was persistent pain afterwards and the pain worsened and became constant”.[82] This history has no detail of the repetitive manual nature of the Printboard work involving his arms or of the worsening of the symptoms at around the time of his daughter’s birth. These matters may well be highly significant to Dr Wong’s opinion as to the causal mechanism of the CNS and its ongoing effects. In her second report of 28 July 2020, she repeats her earlier history. As to causation, however, she states “To my knowledge this is not an aggravation of a pre-existing condition but a new condition aroused by Mr Van Der Donk’s employment”.[83] Given the actual work duties at Printboard that the plaintiff admitted to, it is entirely probable that this may have influenced Dr Wong’s opinion. Similarly, the fact that the plaintiff’s evidence in cross-examination was to the effect that he was coping with such work at Printboard with no days off sick and then after the birth of his daughter experienced a worsening of the symptoms which some six months later led to him ceasing work completely, may well have altered her opinion. Clearly these matters were relevant and bore directly on the question of how the CNS developed. By being deprived of that correct history, the overall opinion of Dr Wong is undermined as to causation of the CNS. Similarly, Dr Woodgate’s opinion is completely undermined because of his incorrect history that the pain began in 2017 when Mr Van Der Donk was working as a scaffolder. It is accepted that he was not so employed at that time. Dr Woodgate also has no history of the manual labour in the Printboard work or the onset of symptoms after the birth of the plaintiff’s daughter. As to causation of the CNS then, I consider his opinion is of no use. Mr Ramaswamy also was not provided with a comprehensive history.[84] It was deficient because it failed to record an accurate history of the breadth of the Printboard work although it did recount the onset of worsening symptoms after the birth of the plaintiff’s daughter. Mr Ramaswamy was then asked to consider the issue of causation of injuries from the employment at MaxScaff. He stated:
Question 1: Your diagnosis of the injury sustained by my client during the course of his employment with MaxScaff Pty Ltd between December 2015 and July 2016?
Based on the history that Mr Van Der Donk given (sic) to me and given to other treating doctors it seems quite evident that his pain in his both shoulders started as part of his employment with MaxScaff Pty Ltd in December 2015 as a consequence of lifting heavy weight repetitively. His symptoms subsided briefly when he switched jobs into taking on a forklift role; however, he reported persistent shoulder pain. He mentioned that he had a lot of personal issues, due to which, he had to prioritise his role as looking after his newborn child and also his need to support his family financially because of which it is reasonable to conclude that Mr Van Der Donk would have neglected his health and not reported his shoulder symptoms to his GP. I feel it is reasonable to give the benefit of doubt given the consistency of the symptoms that he has presented with to several of his treating doctors. In my opinion Mr Van Der Donk has bilateral shoulder pain as a direct result of his work injury. He also has features of central sensitisation and overall it has resulted in a chronic pain state.”[85] (emphasis added)
[82]PCB 58
[83]PCB 66
[84]PCB 111
[85]PCB 116
97He concluded that the plaintiff has a chronic pain state with an organic basis. The difficulty in accepting this opinion is because it is an opinion which seeks to “give the benefit of the doubt” to the plaintiff, without a proper appreciation of the facts as to causation. These facts were known to Mr Van Der Donk but not disclosed by him to Mr Ramaswamy or in his affidavit. To repeat, they are first that after ceasing at Maxscaff, he had eight doctors’ visits without once mentioning his shoulder pain and, second, that his work at Printboard began in August 2016 and involved repetitive manual handling. These are significant matters because they ran counter to the factual history that Mr Ramaswamy had of the plaintiff neglecting his health due to family pressures. The numerous consultations with doctors after ceasing at Maxscaff with no report of the shoulder problems bore directly on Mr Ramaswamy’s view that the plaintiff’s actions in not reporting his symptoms was understandable and a basis for giving him the “benefit of the doubt”. Without knowing the facts, Mr Ramaswamy’s opinion is in my view significantly undermined.
98Turning to Mr Moaveni’s opinion.[86] The history of the onset of symptoms is not accurate. It does not contain any history of the breadth of work at Printboard or what it involved. Similarly, it contains no history of the pain worsening by reason of his daughter’s birth. Importantly, it contains no reference to the attendances on treating doctors after ceasing at MaxScaff where there is no reference to shoulder pain. Interestingly, it also contains no reference to the first treating doctor’s note of 28 September 2017 which ascribes the shoulder pain to the day before – that is, while at Printboard. I consider these matters so significant they affect not only Mr Moaveni’s opinion as to the causation diagnosis of “bilateral upper limb ongoing pain with central sensitisation components”,[87] but also the diagnosis itself.
[86]PCB 101
[87]PCB 107
99Assessing all that material, I do not accept that the doctors just mentioned can accurately assess either the cause of the CNS or report on the range of symptoms it resulted in. This is particularly the case with Mr Moaveni.
Conclusion as to the impairment consequences
100I have set out above why the plaintiff’s evidence was not credible on critical issues at paragraphs 57 to 69 above. I have further set out why on other critical issues it was so unreliable as to undermine the medical opinions that relied on that history. It now falls to draw these matters together in an overall way to assess whether the claimed impairment consequences can be proven on the balance of probabilities. This is because, as I have set out, the plaintiff relies on Mr Moaveni’s opinion to argue that he has an organic basis for the CNS and in addition that such condition has resulted in the impairment consequences reported to Mr Moaveni. These are similar to the affidavit material filed by the plaintiff and also his partner. It will be recalled that these consequences are alleged to be, inter alia, migraines, hip pains and burning pains to the soles of his feet. They are described as “horrible” and “terrible”.
101It is trite to record that there is no objective test to substantiate these complaints. Nerve conduction studies in the arms were normal,[88] cervical branch blocks were not diagnostically useful. Cervical MRI scan was normal. Blood tests have not revealed any underlying cause for weakness and cramping of his arms or inflammation. Given the lack of independent evidence to support the plaintiff’s complaint of various types of symptomatology the plaintiff relies on his evidence and that of his partner as to his impairment consequences. I conclude that I cannot accept the plaintiff’s evidence on its own as to the vast majority of his impairment consequences. Having made that finding, the evidence of his partner largely falls away.
[88]PCB 111
102Turning to what I can accept due to corroboration from independent witnesses and other evidence. I accept that he has had impingement of the right shoulder and separately the left shoulder. This has been treated surgically. The evidence is that this surgery has given him good movement. It is best summed up by his treating doctor in April 2023 who opined:
“He still has some degree on (sic) pain on (sic) the both shoulders but with no restriction of the movements.” [89]
[89]PCB 95
103He takes Lyrica, Baclofen and Seroquel. He uses marijuana for his mental state.[90] He has ceased all physical therapy save for home TheraBand exercises. This much can be accepted, however, beyond this, the plaintiff’s complaints as to the impairment consequences which are said to result from these accepted facts cannot be accepted. In light of the evidence that I have accepted from the histories of Mr Thai and Dr Wong, it is clear that the plaintiff felt some easing of his symptoms after he left MaxScaff and began work at Printboard. This suggests that the condition with the shoulders was not overly significant. Otherwise, I cannot accept his evidence given the significant inconsistency, unreliability and unbelievability of his evidence set out above. In turn, I consider this has resulted in incorrect histories being given to the doctors that he calls in aid so that their recording of his symptoms is so corrupted I cannot rely on them.
[90]PCB 103
104For these reasons I am unable to make a finding that the plaintiff has sustained impairment consequences which can be classified as “more than significant or marked”. Similarly, I do not find they have resulted in a loss of earnings of more than 40 per cent. This applies in respect of the injury to the right shoulder or, separately, the left shoulder. I would repeat that I consider that I am unable to consider the CNS given it is not clear whether it arose from the right shoulder or separately the left shoulder. If I were wrong about that conclusion and the CNS were to be considered, I would alternatively find that the claimed pain and suffering consequences arising from it are not able to be established. In that alternative case, the plaintiff’s case must also fail because he has failed to prove the impairment consequences are sufficient to satisfy the statutory tests.
105I will dismiss the plaintiff’s application and hear the parties on the question of costs.
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