Wesolowski v VWA
[2025] VCC 228
•6 March 2025
| IN THE COUNTY COURT OF VICTORIA AT GEELONG COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-21-01028
| Steven John Wesolowski | Plaintiff |
| v | |
| Victorian Workcover Authority | Defendant |
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JUDGE: | CLAYTON | |
WHERE HELD: | Geelong | |
DATE OF HEARING: | 4 & 5 March 2025 | |
DATE OF JUDGMENT: | 6 March 2025 | |
CASE MAY BE CITED AS: | Wesolowski v VWA | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 228 | |
EX TEMPORE
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – right shoulder – pain and suffering – pecuniary loss – credibility of plaintiff – surveillance footage – work capacity
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013 (Vic)
Cases Cited:
Judgment: The plaintiff is granted leave to commence proceedings for pain and suffering and pecuniary loss.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A McNab SC with Mr A Saunders | Gordon Legal |
| For the Defendant | Mr R Kumar with Ms J Clark | Wisewould Mahoney |
HER HONOUR:
1The plaintiff says that he injured his right shoulder on 19 June 2018 when he was manually trowelling concrete while employed by the defendant. He seeks leave to commence common law proceedings for pain and suffering and pecuniary loss. He must establish that he has a permanent serious impairment or loss of function of a body part and/or a severe psychiatric injury that is more than significant or marked and at least very considerable.
2In relation to his pecuniary loss, he must establish that he has sustained a loss of earning capacity from personal exertion of at least 40 per cent when compared with his without-injury earning capacity from personal exertion.
3The issues in this case are:
(a) has the plaintiff's credit been impugned to the extent that I should find his evidence about his experience of pain to be unreliable;
(b) does the evidence support a finding that the plaintiff's pain from physical injury causes him to be incapacitated for any suitable employment;
(c) if not, has the plaintiff established that he has suffered a pecuniary loss that meets the test, having regard to what the plaintiff submits I should accept as his without-injury earning capacity and what the defendant submits I should accept as a figure that best reflects his without-injury earning capacity;
(d) has the plaintiff disentangled any psychiatric injury he suffers from previous psychiatric impairments; and, in this regard, did the history the plaintiff provided to Dr Schultz accurately reflect his psychiatric history and the stressors in his life such that the conclusions of Dr Schultz are reliable;
(e) does the plaintiff's psychiatric condition meet the relevant test and render him incapacitated for any suitable employment and, if not, has he nevertheless sustained a 40 per cent or more loss of earning capacity as a result of his psychiatric injury.
Background
4The background to this matter is that the plaintiff was born in 1984 and during his working life he has worked mainly in construction and mainly as a concreter. He started working as a concreter for Cambar Precast firstly through a labour hire firm, ICC Services, and then, in around early 2018, as an employee.
5On 19 June 2018 he suffered an acute injury at work to his right shoulder. There is no dispute between the parties that he suffered this injury on that day. After a day or two off work he returned to work for a day or so before taking six weeks off work. He then returned to work on light duties and says that during this period of time he required assistance from his co-workers.
6By November 2018 he says his condition had deteriorated and he was referred to a surgeon. In March 2019 his employment was terminated either because he was fired or was made redundant, but, in any event, on his case he was unable to continue to perform his job.
Incident and medical treatment
7On 19 June 2018 the plaintiff says that he was manually trowelling concrete when he had an acute onset of pain in his right shoulder. He continued to work until the end of that day but had continual pain. He says that the next morning the pain was excruciating and that around this time he went to his general practitioner who recommended physiotherapy and prescribed Panadeine Forte. On 28 June 2018 the plaintiff saw his usual general practitioner, who prescribed anti-inflammatory medication. The plaintiff went to Corio Bay Health Group for physiotherapy.
8He was then referred to orthopaedic surgeon, Mr Robert Wood, who he saw in late November 2018. Mr Wood noted that he had a good range of movement in the shoulder but positive impingement signs. An MRI of 10 December 2018 showed mild tendinosis of the supraspinatus, infraspinatus and subscapularis tendons, partial thickness bursal surface tear and mild bursitis. He had cortisone injections which he said were of no help. Mr Wood noted that despite the injections he continued to have ongoing issues. Mr Wood recommended a right shoulder subacromial decompression.
9On 29 March 2019 the plaintiff had that surgery, which is described in the records as a rotator cuff small repair with biceps tenodesis. He is noted to have had a very slow recovery which included an infection at the treatment site. He had further cortisone injections. Due to his ongoing pain Mr Wood referred him to Pain Matrix, where he saw Dr McCoy in August 2019.
10Dr McCoy noted that the shoulder surgery had not helped his condition and that further injections of local anaesthetic and steroid into the elbow and shoulder had not improved the situation. On examination he was noted to have some wasting of the deltoid and supraspinatus muscle, a range of movement at about 90 per cent of the expected range of movement, and significant pain and weakness.
11He was diagnosed with fixed nociceptive pain and neuropathic pain secondary to acute injury in the right shoulder. At that point, which was August 2019, Dr McCoy considered it was unlikely that the plaintiff would return to concreting. Dr McCoy affirmed that diagnosis in subsequent reports, including most recently in February 2025. He noted at that time current symptoms of right shoulder pain, upper limb pain with tingling, burning and pins and needles and sleep disturbance. He considered the condition stable and did not consider interventions likely to improve the situation.
12In summary, the medical treatment that the plaintiff has undergone has been surgery for a rotator cuff small repair and tenodesis, injections of anaesthetic and steroid into the shoulder and elbow joints, and a Ketamine infusion. I note here that more recently he has had some epidural injections into the neck.
13The defendant submits that this is irrelevant because the neck is not part of the claimed injury. The plaintiff said it is not clear that the epidural was only for the neck but might have included referred pain from the shoulder. It is the plaintiff's case to establish what treatment he has that relates to the injury. There is uncertainty about what the treatment was for, and there is no evidence upon which I can assume or infer that it was for the shoulder. Therefore I have disregarded these injections for the purpose of this assessment.
14The plaintiff has also been treated with various medications, most consistently opioid medication in the form of OxyContin and Endone. He has had regular attendances on his general practitioner. In addition to treatment for his pain, the plaintiff has had fairly regular counselling, primarily with Natalie Stitt and more recently with Abbey Rietschel. He has been prescribed antidepressant medication by his general practitioner but has not attended a psychiatrist for treatment.
The Plaintiff’s credit
15The defendant attacked the plaintiff's credit on a number of bases. Firstly in relation to video surveillance footage. The plaintiff had said in oral evidence that he has a very limited capacity to lift using his right arm, and he gave examples of lifting a cup, turning pages or having a cigarette. He said he can use his right arm “slightly” and he can “move stuff around” with his right arm, but would primarily use his left arm.
16He said he struggles to lift anything heavy with his right arm and would not use it to lift anything more than a couple of kilos. He said he could not lift his children since the surgery in 2019. He said that he might go to the shops but would not carry anything heavy in his right arm.
17Video surveillance footage was shown of two occasions in June 2021. The first, on 14 June 2021, showed the plaintiff pulling and lifting up a large trailer and attaching it to a car with the help of another person. The plaintiff used both arms to do this task. The plaintiff could not recall the circumstances in which this event had occurred.
18He recognised that the video was taken outside the house where his children lived but could not recall it and did not know who the other person in the video was. He denied that the reason he could not recall it was because doing that sort of activity was a common occurrence. He said that he still uses his right arm but the majority of the time he uses his left.
19The second video footage shown was from 28 June 2014, which showed amongst other things the plaintiff lifting one of his children over a fence at an oval or a park. He also threw a Frisbee with his right arm. The plaintiff said that he did small things with the kids. He said that if he needed to pick up the kids, he would. If not, he won't. He said when he does things that involve lifting with his right arm he pays for it later with increased pain.
20To my observation on the surveillance footage, although the plaintiff did use his right arm in the manner described, he mostly favoured his left arm. I accept that the plaintiff's evidence that he could not lift his children or anything heavy after the surgery is not entirely accurate. However, I do not consider it significantly impugns his credit. I accept that when he had to do so, he would lift his children even if this increased his pain.
21In relation to lifting and moving the trailer, although he used his right arm it is not possible from the footage to determine what sort of a load the right arm was bearing. I therefore do not make a finding that his credit was significantly impugned by the video footage.
22Questions were also directed to the plaintiff about his use of opioid medication and the plaintiff was taken to a number of instances where he had sought additional scripts from doctors after alleging he had misplaced medication, lost his medication, left it somewhere, or lost a script. The implication from this line of questioning seemed to me to be that the plaintiff was engaging in drug seeking behaviour because of abuse of or addiction to opioids and that, therefore, his use of opioids does not accurately reflect his level of pain.
23The plaintiff denied abusing the medication. I accept that there were a significant number of occasions where the plaintiff presented seeking scripts for opioids in circumstances that could reasonably give rise to a suspicion of drug seeking behaviour. Ultimately, however, it is a matter for the doctors treating him to make that determination and to assess his need for the medication. He has a long-term treating general practitioner who continues to prescribe opioid medication.
24He may well have a dependency on that medication, given its highly addictive nature, but I do not accept that this means that his underlying pain does not exist. His underlying pain has, through the period of time since the surgery, resulted in him taking at least one opioid medication daily and usually twice daily, and for substantial periods of time two opioid medications, Endone and OxyContin.
25I accept the plaintiff's evidence that he has tried to reduce and limit his use of opioids but has not always been successful and over the long term has not been able to maintain any reduction. This accords with the medical records where he has from time to time managed to reduce, even if the precise details of those reductions are something he no longer recalls. Accordingly, I am not satisfied that the evidence in relation to seeking scripts from doctors significantly impugns the plaintiff's credit. As I am not satisfied that the plaintiff's credit has been significantly impugned, I generally accept his evidence that he has constant, albeit variable, pain in his right shoulder.
Organic basis for pain
26This then brings me to consider whether that pain has an organic basis. It is not hotly disputed in this case that there is at least some organic basis for the pain. Plainly enough Mr Wood considered there was an organic pathology as he recommended and performed surgery. Dr McCoy diagnosed nociceptive pain and neuropathic pain. In 2021 Mr Miller diagnosed an injury of subacromial impingement bursitis and thinning of the biceps tendon, and subsequent manifestation of a chronic regional pain syndrome with persistent rotator cuff dysfunction, capsulitis and residual pathology in the acromioclavicular joint. In his subsequent report it was clear that his diagnosis of a chronic regional pain syndrome was in his view an adverse mental state reaction.
27Dr Robyn Horsley diagnosed a soft tissue injury which progressed to a nociceptive and neuropathic pain condition. Dr Ho diagnosed, in 2018, a rotator cuff injury. In 2020, Dr Andrew Muir diagnosed a chronic pain syndrome with some somatic and neuropathic features. It is not entirely clear in his report whether his reference to a chronic pain syndrome is a term of art to designate a primarily psychiatric condition or was used to identify a pain response to a physical injury. In any event, his diagnosis of neuropathic features indicates a physical injury.
28Also in 2020, Dr Slesenger diagnosed a soft tissue injury to the right shoulder, with possible rotator cuff tear and dislocation. He noted symptoms consistent with neuropathy or brachial plexus injury. In 2021, Dr Baynes diagnosed a soft tissue injury but says the cause of the plaintiff’s ongoing pain was not clear, and he considered it could best be described as a chronic pain syndrome. As I understand it, chronic pain syndrome is understood by at least some doctors to be primarily a psychological disorder.
29Other doctors would consider it to be a physical disorder, which disrupts the pain pathways to the brain, sending pain signals in the absence of a pathological or radiological explanation for the pain. It is not apparent from Dr Baynes’ report whether he considers the pain syndrome to be primarily physical or psychological.
30In 2024, Mr Graham Brown diagnosed complex regional pain syndrome, which as I understand it, is a pain syndrome with an organic basis. That is, the pain is caused by an organic function, although, as he sets out in his report, the experience of pain may be increased by psychiatric conditions such as depression.
31Also in 2024, Dr Rahgozar diagnosed chronic non-specific pain that is not attributable to any structural abnormality of the cervical spine, shoulder girdle, or upper limb. He said the plaintiff's presentation raises possibility of a non‑organic component to his presentation and illness behaviour.
32He noted that it is possible that the plaintiff has had a musculoligamentous injury to his right shoulder, but now considers significant neuropathic pain unlikely. Although there is some discussion about pain syndrome, whether that is a chronic pain syndrome or a complex regional pain syndrome or some other pain syndrome, there is agreement that there was a precipitating event that caused a soft tissue injury, also possibly a rotator cuff injury, and that this has been productive of pain. Even if I accepted Dr Rahgozar’s assessment that there is a possibility of a non-organic component, there is, implicit in that observation, an underlying organic component.
33The plaintiff's history, the medical records of his attendances on his general practitioner since his injury, the surgery and treatment he has undergone, and the opinions of both treaters and medico-legal doctors satisfy me that he has a physical impairment to his right shoulder which produces pain. The next issue is whether this pain causes him to be incapacitated for suitable employment that meets the relevant test. That is, that he has sustained 40 per cent or more permanent loss of earning capacity.
34The plaintiff must establish a prima facie case that no suitable employment exists. If he does so, the onus then shifts to the defendant to establish that such suitable employment does exist. I turn now to look at the plaintiff's complaints of pain. The plaintiff says that he has constant six out of 10 pain which worsens with use and radiates from the shoulder into his fingers. He is prescribed OxyContin daily, Endone for bad flare-ups, Duloxetine daily and Endep daily, along with Nurofen and Panadol.
35In 2023, he did a pain management program. He has previously had physiotherapy two to three times a week, but this is reduced now to about monthly. His sleep is affected due to his pain and also his mental state. He says he gets about five hours of sleep a night, and at least every couple of weeks, he wakes in pain that is severe. He describes these days as flare ups which can last up to three days. He says, at that time, the pain is intense, and he cannot do much. He takes additional medication and waits for the pain to pass.
36He said that he tries to confine his use of additional opioid medication to about 10 times a month by getting scripts only for that amount, but that, on average, he will need to use, in addition to his daily medication, extra opioid medication about 10 times a month.
Attempts to return to work
37The plaintiff has made several attempts to return to work, and there are various records in the clinical notes of his general practitioner that note his keenness to do so. For example, on 16 March 2020, he is noted to be participating in a new skills training program. On 4 May 2020, he was noted to be waiting for COVID restrictions to lift to get a truck license.
38On 18 May 2020, he was noted to be keen to get to work, and a discussion was had about the issue of his use of OxyContin while driving trucks, and about plans to reduce the OxyContin. On 4 June 2020, he is noted to have asked his general practitioner whether his certificate of capacity for work would allow him to work as an estimator.
39On 15 June 2020, he was noted to have tried out with two companies and “another this week supervising, driving, excavating, et cetera”. Then, on 23 June 2020, he was noted to have taken up modified duties in concrete construction, working at that stage a few hours weekly. On 2 July 2020, his general practitioner has noted that he was asking what to do as he was not sleeping at night, he was using OxyContin at night with improvement, but he had been pushing himself during the day. He was noted to be starting a new job on Monday, supervising concrete.
40The following week on 13 July 2020, the general practitioner has noted, “At work!, has a few days off this week, only taking OxyContin 10 in the evening, discussed weaning off.” On 12 August 2020, the general practitioner has noted, “Work going really well,” and that he was working up to five days a fortnight, “Consider increasing.”
41The general practitioner has noted that his shoulder was holding up better than he thought, and his movement was improving, but he still had “night pain and shooting nerve pain into his fourth and fifth fingers with passing hand over his body”.
42On 31 August 2020, his general practitioner has noted that he did not go to work because of his pain. On 9 September 2020, he was noted to be struggling but getting there slowly, and that he had to take five days off over the last three weeks because of right shoulder pain and tightness, but that he was managing a lot better with OxyContin 10. The plaintiff's evidence was that he returned to work in mid‑2020, working as a supervisor for a friend. He was not required to do manual handling type work, but he says he still struggled with that work. He said that working over uneven ground worsened the pain in his shoulder, and having to do even light tasks involved in the job meant that, “By lunchtime, I was buggered, and I was starting - once my shoulder starts burning, it gets to point where I just have to stop. I can restrict myself and have breaks, but then at the same time, when I have the breaks, it's not like it's going - the pain is going away. It's just giving me a bit of a rest at that time. So I found a lot of the time I was wearing out by lunchtime, sometimes earlier and then it would be - I would be in pain, and I wouldn't be able to keep going after a certain point.”[1]
[1] Transcript (“T”) 87
43The medical notes of 7 October 2020 note: “Four days too much for shoulder, happy with three days. Some weeks better than others, still having OxyContin 10 and needing Endone three weeks ago.”
44The medical notes of 7 October 2020 note: “Four days too much for shoulder, happy with three days. Some weeks better than others, still having OxyContin 10 and needing Endone three weeks ago.”
45On 30 November 2020 the medical practitioner has noted: “Struggling with doing extra days. Did full week last week and still sore. Managing four days but struggling at times. Can't see current job as being forever and considering doing a truck license.”
46On 4 January 2021, he reported to his general practitioner that, “unfortunately, he feels the pain is worsening”. Later that month on 20 January 2021, he reported to his general practitioner that his pain had been more severe since Christmas, and though he was still working, he was looking to get his truck licence. He was noted to have pain on forming a fist.
47On 29 January 2021, he was noted to need medical clearance for VicRoads to get a heavy truck license due to Oxycontin and Endone use. He was noted to be working three days, but that “his shoulder is painful”.
48On 4 February 2021, he attended and he is noted to have asked for medical clearance for a course for truck driving, and further, the note that the doctor has recorded is that “the work he is doing is aggravating his arm pain, feeling he is going backwards, and he is desperate to change jobs”.
49On 15 February 2021, his general practitioner has recorded that he has been sleeping better and not taking Circadin and little Endone, and had four Endone left, but noted as well that the pain was “still uncomfortable, pretty bad at times, aching in front shoulder and burning down arm. Work has been a lot more physical, and he is keen to change jobs”. His mental health was good, and he was feeling positive. On 25 February 2021, he was noted to have hurt himself putting on gumboots and was diagnosed with a muscle strain.
On 1 March 2021, he was noted to have had a terrible weekend with right hand tingling and right neck, shoulder, arm, and forearm pain. By 22 March 2021, his general practitioner had noted that he had, “...worked Thursday and Friday and again Monday and Tuesday, and was getting worse around the right shoulder blade. Wednesday, didn't do much work and off Thursday and Friday and in pain today. Had a lot of therapy today. Seeing Dr McCoy on 12 April, feeling like a lump under his right shoulder blade after reaching down and standing up, and tingles in right hand, tingling and going cold”.
50On 29 March 2021, he was noted to have “not slept since the last visit, pain in his right shoulder and scapula pain”. He had been doing stretching every morning, but had otherwise been very inactive, was mentally struggling, and lost motivation, and was seeing his psychologist and Dr McCoy. His doctor has noted that he wanted to retrained and to be considering a work safety role.
51Although the plaintiff is uncertain on the dates, it was around this time, in March 2021, that it appears that he finished up in the role as a supervisor for his friend. He says that he made a “big mistake”, and essentially was fired. Whatever the reason for the termination of that employment, I accept that, while he was performing the role of supervisor for a period of some eight to 10 months, he was attending frequently to his doctor, complaining of ongoing and increasing pain.
52It may be that there were increased physical demands from the role, as recorded in the GP note “work being a lot more physical”, and as recorded in the report of Dr Baynes who noted the plaintiff’s history that the work was light initially but ultimately he started doing chopper finishing, and tying up steel as well as some boxing up of frames. However, even when the work was light, he was complaining about increased pain from walking over uneven surfaces. I accept his evidence that, by lunchtime, even when the work was light he was struggling to manage.
53While one can put up with a degree of pain on a fairly short-term basis hoping that things will improve, it is inherently unlikely that one can continue to cope with such pain when one's underlying condition is deteriorating.
54The plaintiff undertook a traffic management course in late 2021.
55He said that although he easily completed the course, the actual work involved a lot more physical demands than he had anticipated, and he could not get a medical clearance required to say that he was capable of lifting and moving many bollards a day. He did a short stint as an election official, but found that this aggravated his pain, and he was unable to complete his contract.
56In February 2023, his general practitioner notes that he was looking for work in an auto parts shop, and then in February, the general practitioner has noted that he was unable to work because of pain. He attempted a further return to work in May 2023, which he described as just a few days for the same friend he had previously worked for as a supervisor, this time on that friend's personal house as a supervisor while concreting was being undertaken.
57The general practitioner has noted that he was “helping out a friend with concreting, one more week to go, pain worse but mentally feels better”. The plaintiff says he could not cope physically with that work. There is some uncertainty about how long this work went for. The plaintiff said it was two days. There is reference in the medical notes to four days in the last few weeks.
58In any event, the medical records accord generally with his evidence that that work aggravated his shoulder pain. For example, a note on 15 June 2023, 'Shoulder playing up more since trying to return to some work last month, has now stopped again.'
Capacity for suitable employment
59Based on the contemporaneous medical records, which are consistent with his evidence in both his affidavits and in court about his experience when attempting to return to work, I am satisfied that a supervisory position in concreting was not a long-term proposition, and that even if he had not been fired, he would not have been able to continue in that position indefinitely. I am satisfied that the plaintiff does not have capacity for any suitable employment.
60I am satisfied of this because I accept his evidence about the degree and frequency of his pain. His evidence concurs with the contemporaneous records of his treating general practitioner. He requires significant amounts of opioid medication to manage his pain, which I accept has at least some impact on his concentration and mental functioning. I accept his evidence as to the impact of his attempts to return to work on his pain, which is that, overall, it has caused increased pain, even though, for periods of time, he was able to manage, and on occasion was able to manage better than he expected.
61For example, a note on 6 May 2022, 'Pain not good, but doing more and managing… left arm taking over, adjusting.' The general progression has consistently been one where his levels of pain increased with activity and required increased medication. Although there are occasions in the medical notes that can be pointed to where the plaintiff may have done things he says he cannot do - for example, a clinical note on 11 January 2022 'Pain has been bad because of increased activity, had to work on car et cetera’ - the consistent picture is that when he does do additional activities, he experiences increased pain.[2]
[2][plaintiff's court book 254]
62Dr Howell, the general practitioner, and Dr McCoy, his treating pain specialist, as treating practitioners, have had the long-term care of the plaintiff, and are best placed to offer opinions about his work capacity. In particular, they have seen him during his attempts to return to work and have shared his occasional optimism that he can return to work.
63They have both concluded that he has no capacity for suitable employment. To the extent that others have concluded that he does have a work capacity, these opinions are based on:
(a) A non-acceptance of the plaintiff's complaint of pain having a primarily organic basis. For example, Mr Raghozar's conclusion as to the plaintiff’s work capacity comes in the context of his view that the plaintiff’s pain is impacted by a number of psychosocial risk factors, and his conclusion that, as a consequence, the plaintiff is likely to have significant better functional capacity compared to what is reported formally. I have accepted the plaintiff's claims about his pain, and therefore do not accept the opinion that he has significantly better functional capacity than he says; and
(b) An opinion that is out of date. For example, Dr Baynes expressed an opinion, first, in February 2021, when the plaintiff was working in a supervisory capacity, and then in September 2021, about the plaintiff's work capacity. That opinion is now more than three years out of date, and the plaintiff's evidence is that his condition has worsened over time.
64While Dr Horsley notes that the goal of a return to work in the first instance would be on a part-time basis of 15 to 20 hours per week in a supervisory role without the hands-on component and goes through the work restrictions that she says should be imposed, she also says that the plaintiff presents with no work capacity.
65While there have been no recent attempts to return to work, because I accept the plaintiff's evidence about the extent and frequency of his pain, and because he has made several attempts to return to work which have not been successful, and his condition has remained either unchanged, or on his evidence has worsened, I am satisfied that more recent attempts, on the balance of probabilities, would have resulted in the same outcome, which is a worsening of his pain.
66I accept the plaintiff's evidence that although, even now, he thinks about jobs he might have the capacity to do, for the sake of his mental health, he has had to accept that he was not going to be able to perform those jobs because trying and failing was damaging to his mental health. And he says: “I had to make the decision. It was keep going and letting myself down and getting like - yes, I kept building myself up and trying these different things and kept getting shut down. It was ruining me mentally, and it got to the point where I had to stop doing it to myself. Physically, I have always been restricted. But it is the added mental part that it is bad enough physically not being able to do the job, let alone always being in pain and constant.”[3]
[3] T86
67I do not take from that that, because he had considered or mentioned to doctors from time to time his thoughts about undertaking various types of courses or attempting to get various other jobs, he considers he has the capacity for those jobs. If he did consider he has that capacity I do not accept that this this means that, in fact, he does have the capacity for those jobs.
68As for the plaintiff saying, “If I wanted to work, I could have worked,” and that, in the defendant's submission, he then “caught himself” and altered what he was saying to, “If I could work, I would work,”[4] I am satisfied it was clear that what he was talking about was the restrictions imposed during the COVID-19 lockdowns and his evidence was going to the question of whether his inability to work was because of those restrictions; that is, that even if he had the capacity to work he would have been unable to work because of restrictions, or because of his incapacity.
[4] T36
Suitable Employment
69I am not satisfied that the positions identified by the defendant represent suitable employment. This is because I accept the plaintiff's evidence about the likely impact on his level of pain in undertaking those identified tasks:
(a) He has said having to walk constantly throughout the day would increase the pain in his shoulder. Having to constantly lift items even of just one kilogram from floor to waist height would increase his pain, and reaching frequently would increase his pain in the shoulder and brachial plexus area.
(b) He says that although he can do a lot of stuff with his left arm, he would struggle if he had to use both arms to lift or reach from waist to shoulder height. He said that even if the task involved him exclusively lifting and reaching with his left arm, “It all starts pulling right in the centre of my back”, and that this increases the pain in his right shoulder.
(c) Sitting or standing still for long periods increases his pain because he gets tight in the middle of his back and his shoulder area. He said any repetitive movement creates more pain and he would struggle a lot having to keep moving after a couple of hours in the same repetitive fashion.
(d) He described the pain after repetitive movement as, 'It gets a lot worse and starts creating more of an issue with something that runs down your arm', which he described as a similar feeling to the sense of blood pumping to the area when he slammed two fingers in a door. He said if he overdoes it he gets increased pain, not just in his shoulder but into the hand and neck.
(e) He also said that he has lots of different issues from the medication, including concentration difficulties and fatigue, and that driving long distances does concern him because he tires out very quickly. He says that the medication can affect his judgment.
70Accordingly, I am not persuaded that the defendant has identified suitable employment for the plaintiff and he meets the test for pecuniary loss. This necessarily represents a consequence for him in terms of his pain and suffering that is at least very considerable.
71The plaintiff is granted leave to bring common law proceedings for pain and suffering due to his physical injury and pecuniary loss.
Psychiatric Impairment
72Because I have granted leave for the plaintiff to bring a claim for common law damages for pain and suffering and pecuniary loss, it is not necessary for me to deal in comprehensive detail with the claim that he makes for a severe psychiatric impairment. However, I make the following brief comments.
73I accept that there is a live disentanglement issue here and I am not satisfied that the medico-legal material that I have been provided with adequately deals with it.
74It is not clear to me from the material that Dr Schutz was informed comprehensively about other unrelated stressors in the plaintiff's life so as to articulate what of his psychiatric injury arises from his work injury and what arises from those other matters. It was not apparent from the material that Dr Schutz has taken these following matters into account in reaching his conclusion:
(a) the relationship stress with his partner;
(b) the situation with his stepson;
(c) the stress arising from assault charges and court proceedings;
(d) the underlying psychological factors that caused the assault incident to arise;
(e) the stress caused by COVID and his fears of getting COVID; and
(f) the plaintiff's own evidence that he has in the past had a short fuse, that he tended to get snappy and that in the past he had not succeeded in sales because he could not deal with people.
75While I accept that there is a psychological component to the plaintiff's injury, and that the experience of constant pain and the consequences of that pain including on his capacity to work have caused psychological sequelae, I am not persuaded on the material before me that I could be satisfied that he has a severe psychological disorder that meets the test of “at least very considerable” that arises as a result of the work injury.
76Nor am I persuaded that his psychiatric condition, in the absence of physical injury, would preclude him from suitable employment.
77Those are my reasons
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