White v Stephens (trading as GNS Cabinet Makers)
[2022] VCC 656
•19 May 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-21-01915
| MICHAEL JOHN WHITE | Plaintiff |
| v | |
| GREGORY and NICOLE STEPHENS (trading as GNS CABINET MAKERS) | First Defendants |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE LAURITSEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 January and 10 February 2022 | |
DATE OF JUDGMENT: | 19 May 2022 | |
CASE MAY BE CITED AS: | White v Stephens (trading as GNS Cabinet Makers) & Anor | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 656 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – permanent serious impairment or loss of a body function – body function relied on in the region of the neck and left shoulder – pain and suffering – loss of earning capacity test – aggregation of injuries – whether injuries constitute one body function
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s335
Cases Cited:O’Donnell v Reichard [1975] VR 916; Ansett Australia Ltd v Taylor [2006] VSCA 171; Victorian WorkCover Authority v Brassington [2021] VSCA 236; Martin v VWA [2021] VCC 293; Lu v Mediterranean Shoes Pty Ltd (2000) 1 VR 511; Lexa v Transport Accident Commission [2019] VSCA 123; Geogopoulos v Silaforts Pty Ltd [2012] VSCA 179; Richter v Driscoll [2016] 51 VR 95
Judgment: Leave granted to the plaintiff to bring proceedings for pain and suffering and economic loss damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Broadfoot QC with Mr L Howe | Robinson Gill |
| For the Defendants | Mr J L Batten | Wisewould Mahony |
HIS HONOUR:
Introduction
1Under s335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”), Michael White seeks leave to commence a proceeding to recover damages for personal injury. He says he suffered a “serious injury” as defined in paragraph (a) of s325(1), being a permanent serious impairment or loss of body function. The body function is said to involve the region of his neck and left shoulder. As to the term “serious” in the expression “serious injury”, he relies on the consequences with respect to pain and suffering and loss of earning capacity.[1]
[1] Originally, there was a claim under paragraph (c) of the definition but that was not pursued
2The first defendants were his employers. At least part of their business involved the making of cabinets for kitchens, bathrooms and bedrooms.
Circumstances
3Mr White is now forty-six. He is in relationship with Audra Williams and has a five-year-old child. He is ambidextrous, in that he writes with his right hand and plays ball with his left. I would not call him right-hand dominant.
4Mr White was born in England and came to this country at the age of six. He had limited secondary education, leaving school at fifteen. He started but did not pass Year 10. Later, he attempted to complete his Higher School Certificate at a TAFE but failed.
5At nineteen, Mr White started an apprenticeship in cabinet making. However, he interrupted the apprenticeship to join the Army as an infantryman, where he stayed for about three-and-a-half years. He resumed his apprenticeship after leaving the Army with a firm called C.G and B.S Koumos. He stayed at that firm for five or six years. While there, he had apprentices. This involved largely showing the apprentices how to use the tools of their trade.
6As to his stint in the Army, he acquired no particular skills in the Army other than those associated with being in the infantry. I daresay those would include the skills of fighting, including the use of weapons and tactics, discipline and physical fitness and stamina.
7He was then employed by an entity called “Body Ripped Sports Nutrition”, a sports nutritional business, for three months. His duties were picking and packing orders. Leaving that employment upon the death of its owner, he joined a business called “Darrington Cabinetmakers” and worked there for year. He left there to work at NSA Cabinets because it was closer to his home.
2006 injury
8While at NSA Cabinets, on 7 December 2006, Mr White injured his left hand when it was caught in a machine. He suffered compound fractures to his index and middle fingers. There was surgery at the time and further operations in the following years. Incidentally, there was further surgery on his left hand on 7 April 2021 including removal of the fractured plate and inserting a new one.
9By July 2021, the fracture had healed well. Mr White was left with some limits on the extension of his left middle finger due to the shortening of the proximal phalanx.[2] Interestingly, both before and after the operation, he did not suffer pain in the hand. It was the increased crookedness of his middle finger which ultimately led to the surgery.
[2] Report of Associate Professor Ek dated 15 July 2021
10The injury caused an absence from work for three to four months. He continued that employment until its owner also died.
GNS Cabinet Makers
11On 11 September 2011, Mr White started his employment with the Defendant. It trades under the name, GNS Cabinet Makers. It was full-time employment.
12Pausing there. Mr White gained extensive experience as a cabinet maker and agreed with the description of being a highly skilled cabinetmaker. He trained apprentices.
7 July 2016
13Mr White relies upon an incident at work on 7 July 2016. In his first affidavit, he described it:[3]
“… On 7 July 2016 I suffered injury as a result of my work. I was lifting a cupboard above my head. There was a cupboard that stood 2.4 m high. I had to put another cupboard on top of that one which required me to lift the cupboard well above shoulder and head height.
I have had pain in my upper back ever since … It was a very heavy and difficult task insofar as the cabinet was heavy and required me to lift it very high above my shoulders … I believe that the cabinet weighed approximately 40 kg.”
[3] Affidavit sworn 3 October 2020 at paragraphs 6 and 7
14To Mr Simm, he gave an account, focussing on the physical effects of the lifting:[4]
“On 7 July 2016, he was placing a cupboard on top of another 2.4 metre cupboard, when he experienced the acute onset of symptoms. The cupboard he was lifting weighed about 40 kgs and, as he placed it on top of the other cupboard, he felt a pop and a sharp pain in the region of the left scapula, more to the medial and superior region of the scapula … The pain subsequently extended proximally up into the base of his neck. He sat down and rested for a while after the incident and then continued working. He hoped that the symptoms would settle spontaneously. He then had time off on annual leave.”
[4] Report dated 31 March 2021 at page 3
15Having expected his injury to resolve, when it did not, Mr White attended his general practitioner, Dr Leow, on 5 August 2016. He was prescribed Prednisolone and referred to a physiotherapist.
16Mr White attended Dr Oakes, a sports physician, who injected his scapular region with steroid. The injections reduced the level of his pain. He certified Mr White unfit for about four weeks. The rest improved his condition but, on returning to work, the level of pain increased. His duties were modified, in the sense he was assisted with lifting.
17In November 2016, Mr White saw Dr du Toit, a pain specialist. Although Dr du Toit recommended medial blocks from T5 to T8, these were not performed. In May 2017, following MRI scans, Dr du Toit prescribed Lyrica for the relief of his neuropathic pain.
18On 7 June 2017, Mr White was examined by Mr Li, an orthopaedic surgeon. There followed injections of local anaesthetic and steroid into the subacromial region of his left shoulder and left acromioclavicular joint. The injection into subacromial region gave about ten days’ relief from pain while the injection into the acromioclavicular joint gave no relief.
19By mid-2018, he experienced pain in his scapula and along his arm. He experienced headaches and facial paraesthesia. Botox was injected into his neck.
20The failure of these measures led to Mr Li operating on 17 October 2018, when he performed a subacromial decompression. The operation enabled Mr Li to diagnose the condition of the left shoulder as impingement and subacromial bursitis. There was some improvement in his condition after the operation. However, over time, his original symptoms re-emerged to such an extent that Mr White believes the operation may have worsened his symptoms, at least, in relation to movements of the left shoulder.
21Mr White underwent a pain management programme at Advanced Healthcare which assisted only a little.
22Prior to this surgery, he was supposed to perform modified duties but ended up often performing his normal duties and working normal hours. However, he was supported by another worker. At times he was close to tears at work. He ceased this work on the day before his surgery.
23Following the surgery, he was not allowed to return to his workplace unless he was fully fit to return to his pre-injury duties. Since he could not comply, he has not returned to work.
24No return to work plans were submitted to him. About a year after the surgery, the Defendant dismissed him from its employ. He continued to receive weekly payments of compensation and still does.
Consequences
Pain
25In his Affidavits and his oral evidence, Mr White described and even demonstrated the areas of pain:[5]
“The pain is in the same place it has always been, located between my shoulder and neck on the left side…”
[5] Affidavit sworn 3 December 2020 at paragraph 25
26In his evidence in chief, he said:[6]
“…Sort of between the sort of upper back, between the, the spine and to the shoulder as such. So in the upper shoulder section.”
[6] Transcript (“T”) at p 29
27He was then asked to show with his right hand where the painful areas were. What he demonstrated is described by his counsel:[7]
“…Behind your scapula from the neck, going down almost to the shoulder”.
[7] T30
28To Mr Simm, a careful examiner, he described his most severe pain starting across the top of his left scapula, then extending to the left side of his neck and then to the occiput. The pain is experienced across the occiput and in the form of a headache. The headache is accompanied by numbness on the left side of the face.[8] When this happens, he experiences a “pins and needles” sensation in his left arm and hand.
[8] Report dated 31 March 2021 at page 5.
29Although his experience of pain is constant, its level fluctuates. On a good day, it is three out of 10. On a bad day, it can reach eight out of 10, which he describes as an intense burning pain.
30He cannot lift his left arm above shoulder height. His pain increases during the day. It can be so bad he nearly cries. He changes his posture constantly to avoid aggravating his pain and to find a comfortable position.
31When his pain is extremely bad, he experiences numbness in his hand and, sometimes, loss of strength in the hand.
Treatment
32Mr White has had various treatments over the years including surgery and attending a pain management programme. None of these measures has lessened his level of pain. He now attends a general practitioner monthly for certificates of capacity and prescription of medicines. The certificates certify a current work capacity with restrictions as to the use of his left arm.
Medicine
33He takes Lyrica for neuropathic pain, Tramadol for pain relief, and Norgesic to relax his muscles. The pain relief relates to his upper back. Each of these are taken daily. He also takes six to eight Nurofen tablets and Panadol tablets daily. There are side effects from the Tramadol and Lyrica. The former tends to “knock” him out while the latter leaves him very tired and confused. On the advice of his general practitioner, he reduced his intake of Lyrica after falling asleep a “couple of times” at the wheel of his car. Overall, the medicines affect his concentration: he cannot concentrate for more than 20 to 30 minutes.
34Mr White has tried three to six times to cut back on the medicines he takes but was forced to resume his previous dosages. The pain specialist, Dr McCallum, recommended ceasing Norgesic.
Sleep
35Mr White’s sleep is interrupted or, as his partner puts it, terrible. Most nights he sleeps for one to two hours before waking due to pain. He does go back to sleep but will rarely get more than four to five hours’ sleep in all. He feels fatigued in the morning. Owing to his sleeping difficulties, he and his partner have occupied separate bedrooms because, as she says:[9]
“…I just could no longer cope with Michael’s tossing and turning, trying to get comfortable, getting up to take painkillers.”
[9] Affidavit sworn 14 January 2022 at paragraph 7
Motorbikes
36Mr White owns two motorbikes. He no longer restores motorbikes because they are too heavy and awkward.
37He has ridden his motorbikes two or three times in the last twelve months. He barely rides his motorbikes now. When he does, his enjoyment is lessened through pain. Leaning forward causes pain in his back and shoulders. The rides are shortened, no longer than 20 minutes.
38There is no maintenance of these motorbikes because he rarely rides them. He does “tinker” with them, such as changing the oil.
39After his 2006 injury, Mr White continued restoring motorbikes. However, he stopped before the 2016 incident.
40Owing to the 2006 injury, other recreational activities stopped: line hockey; ice skating; and lifting weights in a gymnasium. However, he was funded to attend the Spartans Gym in Kilsyth for three months. He attended seven or eight times but stopped because the exercise “flared up” his pain. This was paid on behalf of the Defendant.
Gemstones
41Mr White occasionally facets gemstones. Faceting requires the use of a machine and adopting awkward sitting positions which are painful. He last faceted in late 2021. Once faceted, he keeps the stone for display. He does not sell them.
42An aspect of Mr White’s evidence, oral or written, was his understatement. His partner gives an interesting insight into this hobby:[10]
“Despite his previous hand injury, he still got a lot of enjoyment out of this hobby and could use the machines. Since this injury, he has stopped enjoying this hobby. It is now painful for him to sit for extended periods of time. When he tries to do this, he often comes out in a worse mood than when he started.”
[10] Affidavit sworn 14 January 2022 at paragraph 8
43Since a hobby is meant to be relaxing, this is an unfortunate consequence.
Target shooting
44This was an activity he previously engaged in but no longer. He cannot get into the position to shoot.
Domestic duties
45He assists with household chores, including shopping, cooking and cleaning.
46Previously, he enjoyed gardening, spending hours in the garden. He stills gardens but in short bursts so he can rest between. To him, he performs basic tasks in gardening. He still mows the nature strip. Sometimes he does not judge when he has done enough. If he does too much, he will need to take extra pain-relieving medicines.
Relationship with Partner
47His intimacy with his partner has been significantly reduced due to pain and lack of energy. They sleep in different bedrooms because he keeps her awake through his restlessness.
48To me, his tendency to understate emerges in his comments on his non-intimate relations with his son. He says he is frustrated by being injured and unable to work and shows his frustration to his partner. It adversely affects his relationship with her. To her:[11]
“Michael’s mood has changed a lot. He is now angrier and much more short-tempered. He will lose his temper over relatively minor incidents. I understand that he is in pain and tired, so I try my best to be patient and understanding, but it has made things difficult for me.”
[11] Affidavit sworn 14 January 2022 at paragraph 10
Driving
49Mr White owns a motor car. Owing to his back pain, he cannot drive for more than an hour. He and his partner now share the driving.
Range of movement
50The range of movement of his left shoulder is restricted. Due to pain, it is difficult to raise his left arm above shoulder height, especially with the arm held out straight in front. Any type of repetitive lifting worsens the pain.
Sitting
51He can sit for about 30 minutes before needing to change his posture because of increased pain.
Headaches
52Often flare-ups of his pain cause headaches. These happen up to five times a week. Once they start, he lies down.
Child
53His son, Ethan, is five. His injuries prevent him from being a proper hands-on father. He can play with him but only for short periods. During 2021, he took Ethan to kindergarten. Some of the time, he collected him from kindergarten. He could have collected the child more often but his partner did most of the collecting.
Employment
54Mr White did not return to work after his shoulder surgery. Since the injury, he has obtained truck and forklift licences. With or without the help of IPAR, he has applied for more than 100 jobs without success. He met briefly with AMS Consultants in February 2020. His contact, Zamira Reshtovski, has sent him a large number of job advertisements and still does. He ignores those which are labour intensive. He applied for those positions using the website, Seek. When asked, he provided AMS Consulting of screenshots of jobs he had applied for. He has applied unsuccessfully for jobs of a gardener or general hand in a nursery, or groundsman.
55He has had three or four job interviews. One of the interviews was at a business called Demak Timbers; another at Bunnings; and a third was for the position of a foreman at a cabinet making company. Unfortunately, the last job was not confined to supervision but involved working with tools in “quiet times”. Following the interview, Mr White did not receive the courtesy of a response from this prospective employer.
56During cross-examination, Mr White thought he might be able to work as an estimator in carpentry or cabinet making in the building industry.
57He now believes he is unable to work because of his unreliability, lack of concentration and constant pain. In re-examination:[12]
Q:“And what about the gatehouse security officer job that I think you said you applied for or was referred to? Do you say you could do that job or not?---
A:…, for an hour or two I think so before – once again if I start taking my medication, I get very drowsy and fall asleep and you know things like that start getting affected with the medication. So it’s – to say I could do a job for eight hours is very different to saying yes, I could do it for an hour or so.”
[12] T94-95
58Despite this, he would like to return to work. Such is his desire, he applied for jobs which he was uncertain he could perform due to his restrictions and experience. He applied for a truck driving position. When he found out the job involved assisting in the loading and unloading of cargo, he realised it was beyond his capacities.
59His general practitioner agreed Mr White should seek a truck driver’s licence. Mr White explained the background:[13]
“… At the time, he didn’t want to sign it but, as I explained to him, Zamira explained to me at the time that it would just be good to, you know, keep me active, keep me moving, keep my mind active, and it’d just be something good to add to your resume.”
[13] T75-76
60At the suggestion of Ms Reshtovski, in 2020, he obtained a heavy rigid driver licence. After obtaining this licence, he did apply unsuccessfully for a part-time position as the driver of medium rigid truck for a nursery.[14]
[14]T58
61He did not apply for any of the jobs set out in the AMS Consulting Job Seeking Review Report, which included:[15]
[15]Report dated 23 December 2020.
(a) Timber Sales Representative, Hume Doors & Timber;
(b) Timber Truss Detailer / Estimator - NSW Key;
(c) Accounts- Employer of Choice Company, Boyd Recruitment;
(d) Timber worker - Assembly, Commercial Systems Australia;
(e) Internal sales - Timber and Building materials, Dahlsens Building Centres;
(f) Product Category Assistant (Timber), Bowens;
(g) Forklift Driver - Timber Industry, Hurford Wholesale Pty Ltd;
(h) Timber Yard Person, McCormack Hardwood Sales;
(i) Timber Sales Representative, Hume Doors & Timber;
(j) Design Colour Consultant - Leading Timber Flooring Company, Simplerecruit;
(k) Trade counter sales - Timber industry, Radial timber Sales;
(l) Customer Service - Timber and Hardware, Private Advertiser;
(m) Infrared Sauna Assembler & Timber Repairer, Private Advertiser;
(n) CNC Operators and Timber Joiners, Onsite Recruitment;
(o) HR/ HC Driver's wanted, Shanon Group;
(p) Driver Timber Warehouse, Top Class Fencing and Gates;
(q) Timber Truss Detailer, Dynamic Staffing Solutions;
(r) Yard person - Timber and Hardware, Dahlsens Building Centres;
(s) Internal Sales - Timber Industry, Simmonds Lumber; and,
(t) Account Manager / Sales Rep - Building Products, Private Advertiser.
62He had obtained a forklift driver licence some twenty years earlier. He allowed it to lapse. He obtained the licence again at about the same time he obtained the other licence. He has not sought a job involving his forklift licence.
63Although the defendants appeared sceptical about Mr White’s desire to return to work, from his partner’s perspective:[16]
“Since being injured, Michael has regularly told me of his desire to return to work. We will often discuss roles that he is applying for, and he asks for my opinion about whether he would be able to do the job based on the limited information provided in the job description. He often hears nothing back. Despite undergoing a number of job interviews he was ultimately unsuccessful each time.”
[16] Affidavit sworn 14 January 2022 at paragraph 11
64He is currently registered with SEEK. This is an online business which allows persons to sign up for the application and:[17]
“… put in your details into there, your resume, and then you can put in parameter searches of what you’re looking for as a job, part time, full time and then that goes into your profile and then literally it will show you every job within that profile that had come up within the last 24 hours.”
[17] T71
Medical practitioners
Dr David Ringelblum
65Dr Ringelblum is a general practitioner.[18] He practises as part of a large clinic called Wellness on Wellington. While Mr White has been a patient of the clinic since 2013, Dr Ringelblum has treated him since January 2019. Mr White was first seen about this matter on 5 August 2016 by another practitioner.
[18] Reports dated 15 August 2019 and 12 December 2021
66Dr Ringelblum was uncertain as to the work-related injuries suffered by Mr White. He could not say whether the cervical disc bulges were related but thought the shoulder impingement was.
67Equally, he was uncertain as to the degree of attribution of Mr White’s pain to organic or non-organic causes. He believed Mr White was depressed due to the lengthy process of injury and the failure of treatment and rehabilitation to enable him to regain employment.
68His prognosis was uncertain, although the resolution of what he calls “the medico-legal issues” is a pre-condition to any improvement in his mental state.
69As to capacity for work, Mr White should avoid overhead work, heavy lifting or any other work which may aggravate his shoulder. Working as a forklift driver and truck driver may be possible “if there are restrictions in his arm movements, and freedom to stretch and walk during work tasks to prevent musculoskeletal aggravation”.[19]
[19] Report dated 12 December 2021 at page 2
Dr Barry Oakes
70Dr Oakes is an orthopaedic physician. He practises at Life Care Croydon Sports Medicine. He took over the treatment of Mr White after Dr McKenzie retired from the practice. He first saw Mr White on 25 October 2016 and his last session was on 21 February 2017.
71To Dr Oakes, Mr White complained of posterior thoracic pain which was probably due to bilateral Rhomboid muscles tears to the medial border of both scapulae. The tears went from the base of the scapula to its superior angle.
72With the left upper limb, Mr White complained of left-sided “ulnar type” nerve pain. This suggested nerve root compression in the cervical or thoracic spine.
73At Dr Oakes’ instigation, MRI scans were performed on the thoracic and cervical spines. The results were unremarkable.
74Due to persisting symptoms, on 8 February 2017, Dr Oakes injected a mixture of steroid and anaesthetic into the region of the medial borders of the left scapula. Seven days later, Mr White reported a 30 to 40 per cent improvement. He prescribed an anti-inflammatory medicine. Six days later and after using the medicine, Mr White said the posterior T4 aching was settling but there was persistent aching on the right side of the medial border of the scapular near the base of the spine at T2 and T3 levels. He recommended swimming and gymnasium work. Despite Dr Oakes’ wish to see him again, he has not.
75The tearing of the Rhomboids major and minor from the medial borders of both scapulae and from some of the thoracic vertebrae is uncommon. Dr Oakes spoke of another instance which took months to resolve with an older person.
Mr Douglas Li
76Mr Li is an orthopaedic surgeon, specialising in shoulders and knees.[20] He first examined Mr White on 7 June 2017 and performed surgery to his left shoulder on 17 October 2018. He was last seen by Mr Li on 13 February 2019. When he saw Mr White in July 2017, there had been a steroid injection into left subacromial space which gave only temporary relief.
[20] Report dated 24 September 2019
77MRI scans of the left shoulder showed acromioclavicular arthropathy, impingement with bursitis and rotator cuff tendinopathy without a tear.
78On 17 October 2018, Mr Li performed an arthroscopy to Mr White’s left shoulder. He found and did:[21]
“… the glenohumeral articular surfaces were intact. There was some minor labral fraying superiorly and anteriorly and this was debrided. The long head of the biceps tendon was intact. The rotator cuff was intact without inflammatory change nor tear.
At left subacromial bursoscopy there was significant subacromial bursitis and subacromial bursectomy was performed. The subacromial space was compromised due to an overhanging subacromial spur and acromioplasty with coracoacromial ligament release was performed to decompress the subacromial space. The acromioclavicular joint was mildly arthropathic.”
[21]Report at page 2
79When he last saw Mr White, Mr Li was told of aching about the shoulder but with a full range of movement. Disappointingly, Mr White still experienced an “ongoing creepy quality feelings about the scapula”. Mr Li felt he might benefit from pain management. He considered Mr White was unfit for his pre-injury duties but harboured the hope he could return to light duties if such were available. However, later in his report, Mr Li said:[22]
“At last review on 13 February 2019 Mr White had ongoing left shoulder pain and creepy feelings about the scapula which has left him totally incapacitated from his previous employment and such that he is incapacitated permanently for any future employment.”
[22]Report at page 4
80Mr Li did not think further surgery was required.
Luke Surkitt
81Mr Surkitt is a pain physiologist.[23] A physiotherapist, Jaya Gaillard, referred Mr White to Advance Healthcare Boronia to undertake a multi-disciplinary pain management programme. On 1 May 2019, Mr White attended for assessment, and his last attendance was on 18 November 2019. Mr Surkitt reported the findings and views of the pain management team.
[23] Report dated 30 March 2020
82The team’s diagnosis was Mr White suffered from non-specific left medial scapular, shoulder and upper limb pain and dysfunction. This condition was moderately severe and persistent. It was associated with left-sided headaches.
83During the programme, Mr White undertook sessions, physical and psychological, on an individual and group basis. Despite this programme, there was no substantial improvement in his condition because:[24]
“… He reports significantly high levels of persistent pain and functional limitation. Given the longstanding nature of his symptoms and poor response to evidence-based treatment including surgery it is considered that Mr White has a poor prognosis.
… Significant improvement appears unlikely. It is possible his pain and function may deteriorate with time.”
[24] At p 2
84The team considered Mr White was unable to return to his pre-injury duties, noting its understanding of the physical requirements of those duties.
85Using the old language of worker’s compensation, the team considered Mr White had a partial incapacity for work, highly likely to be permanent and requiring these restrictions – sitting for 30 to 60 minutes and then changing his position; driving limited to 30 to 60 minutes; no repetitive left upper limb movements; avoidance of lifting with the left upper limb over shoulder height; no lifting of weights greater than 5 kilograms on an occasional basis, and no forceful pushing or pulling with the left upper limb,
Mr Ash Moaveni
86Mr Moaveni is an orthopaedic surgeon, specialising in the shoulder, elbow and wrist. On 9 April 2019, he examined Mr Whiteat the request of his general practitioner.[25] He was asked to give a “second” opinion.
[25] Report dated 13 May 2020.
87His examination revealed pain centred on the superior medial aspect of the scapula with tightness of the muscles there. The scapula moved abnormally, consistent with scapular dyskinesia. There had been, but not on that day, clunking or catching in that area. He noted scans of the area (including MRI and bone scans) were normal.
88Mr Moaveni’s diagnosis was left shoulder scapular dyskinesia,[26] possibly secondary to supero-medial scapular impingement. He added it was difficult to quantify the extent of the injury because the symptoms had failed to improve over four years and imaging did not show a possible cause for ongoing symptoms.
[26] Dyskinesia is a movement disorder characterised by involuntary muscle movements
89Further surgery was unwarranted, and the prognosis was poor.
Dr Joseph Slesenger
90Dr Slesenger is an occupational physician. At the request of Mr White’s solicitors, he examined him on 23 September 2021.
91As is his practice, Dr Slesenger carried out a detailed examination of Mr White, reviewed various imaging, medical and other reports. He was uncertain as to the diagnosis of Mr White’s condition. Within his area of expertise, for the thoracic spine, he opted for a soft tissue injury with chronic spinal and paraspinal pain; for the left shoulder, a soft tissue injury with chronic pain and evidence of adhesive capsulitis.
92Notwithstanding his uncertainty, Dr Slesenger considered Mr White was unsuitable for his pre-injury duties and for suitable alternative duties. To the latter, he added “on a consistent and reliable basis” after considering his skills, past employment, age, residence, the variable and unpredictable nature of his symptoms and the side effects of his medicines.
93Dr Slesenger considered twenty-one different jobs and rejected each. He did so for a combination of reasons involving lack of previous experience, beyond his physical capacity or his unlikelihood of being able to attend work consistently and reliably.
94Apart from cautioning that Mr White is unlikely to attend work on a consistent and reliable basis, Dr Slesenger recommended a series of physical restrictions: no pushing, pulling, carrying or lifting of over 5 kilograms; avoiding sustained forward reaching; avoiding over the shoulder reaching; avoiding repetitive bending and twisting; avoiding prolonged static positions, and avoiding exposure to whole body vibrations.
95Finally, he recommended Mr White see a pain specialist to address his pain control and the side effects of his medicines.
96Dr Slesenger provided a supplementary report.[27] He was given the Recovre Suitable Employment report dated 6 January 2022 and a report of Dr Boffa dated 20 January 2022. He did not re-examine Mr White.
[27] Report dated 23 January 2022
97Dr Slesenger considered and rejected as unsuitable the jobs of site foreman, electrical assembler, tester and tagger, vocational educator, courier driver, traffic controller, showroom retail, maintenance co-ordinator, security front desk concierge, production manager, logistic operational manager, small engine mechanic, product manager, quality controller, estimator, coater, green keeper, handy person, fire protection equipment technician, earthmoving plant operator and truck driver.
98As to the four jobs suggested by Dr Boffa, Dr Slesenger rejected each for various reasons. A consistent reason for each was Mr White’s inability to attend consistently and reliably.
Dr Symon McCallum
99Dr McCallum is an anaesthetist and pain specialist. At the request of Mr White’s solicitors, he examined him on 17 December 2021.[28]
[28] Report dated 17 December 2021
100Dr McCallum diagnosed left-sided lower cervical and upper thoracic paravertebral muscle pain. This pain causes cervicogenic headache. As to the left shoulder, Dr McCallum is somewhat vague:[29]
“… which may be related to the findings on the scan and there will be a postsurgical component to the chronic pain. There will be a muscular component to this pain”.
[29] Report at page 4
101He believes it is very likely Mr White has undergone the process of central sensitisation. Unfortunately, he does not explain what he means by “central sensitisation”. In my experience, this is a common failing of pain specialists. Undoubtedly, they know what they mean but it does not help the parties of me in knowing whether he is referring to a physical or psychological state.
102As to future treatment, his recommendations largely relate to the changing of medicines.
103His prognosis is poor.
104As to capacity for work, Mr White is incapacitated for his pre-injury duties. As to suitable employment, he said:[30]
“I think the likelihood of him being able to find any job that is even sedentary and for him to be able to maintain it in a part-time manner is going to be close to zero.”
[30] Report at page 5
Mr Russell Miller
105Mr Miller is an orthopaedic surgeon. On 16 December 2021, he examined Mr White at the request of his solicitors.[31]
[31] Report dated 5 January 2022
106Relating to his employment with the defendant, Mr White said his main problem was with his neck and upper back. The left shoulder presented a lesser problem but there had not been a sustained improvement since the surgery.
107For the cervical spine, Mr Miller diagnosed a musculo-ligamentous strain and aggravation of degenerative disease in the cervical spine. There is radiation of pain into the left upper limb. He has developed a Chronic Regional Pain Syndrome. Mr Miller does not explain what he means by a regional pain syndrome. Apparently, he assumes the reader will know. Where, in these cases, the distinction between the physical and psychological is important, it causes me to disregard that particular diagnosis.
108For the left shoulder, Mr Miller adopts the operational findings of Mr Li. He attributes Mr White’s persisting problems to rotator cuff dysfunction, capsulitis and “manifestation of chronic regional pain syndrome”.
109Mr Miller regards the current state of Mr White’s cervical spine and left shoulder as substantially work related and the prognosis for both as fair.
110As to future treatment, Mr White requires continuing conservative treatment possibly including pain management and rehabilitation. Mr Miller did not see the need for surgery, either to the neck or left shoulder.
111As to capacity for work, Mr Miller considered Mr White would be unable to return to his pre-injury duties on “any significant full-time or part-time basis”.
112As to suitable employment, Mr Miller set out the restrictions due to the injuries to the cervical spine and left shoulder separately. For the former, Mr White would experience difficulty with work involving large amounts of repetitive bending, repetitive lifting of weights greater than 5 kilograms and he will need to shift his posture on a regular basis. For the latter, there would be difficulty with large amounts of repetitive actions of the left arm, using it above shoulder height and lifting weights greater than 5 kilograms. Since the Regional Pain Syndrome affected both body parts, it would further impact on his capacity for work.
Dr Umberto Boffa
113Dr Boffa is a consultant occupational and environmental physician. On 21 May 2020, he interviewed Mr White by telephone.[32]
[32] Report dated 11 December 2021
114Dr Boffa diagnosed left upper quarter Myofascial Pain Syndrome which was possibly due to the entrapment of the left dorsal scapular nerve.[33] He gave no prognosis.
[33] The myofascial involves muscle and its sheath of connective tissue
115Although Dr Boffa did not give a prognosis or recommend any treatment, he considered Mr White presently unfit to return to the pre-injury duties and hours of work. However, he considered him currently fit to return to work four hours per day, five days a week “in duties that avoid repetitive left shoulder elevation, reaching, pulling, pushing, lifting and carrying more than two kilograms in the left hand”.
116In a supplementary report,[34] Dr Boffa considered a Recovre Suitable Employment Report dated 6 January 2022. He considered Mr White was fit to return to work on a graduated basis in the jobs of a concierge in a high rise building, an order clerk with a retail hardware chain, a security officer in the gatehouse of a manufacturing business and a showroom salesperson with a soft furnishing business.
[34] Report dated 10 January 2022
117As to these jobs, Mr White would have difficulty typing for prolonged periods in the clerical job and reaching for fabric samples in the showroom job. He would need computer training for the clerical job and a certificate in security for the concierge and gatehouse jobs.
Mr Rodney Simm
118Mr Simm is an orthopaedic surgeon. At the request of the defendants’ solicitors, he examined Mr White on 31 March 2021.[35]
[35] Report dated 31 March 2021
119On examination, apart from the restrictions on movement due to pain except for extension, Mr White said his maximum point of pain and tenderness is across the top of his left scapula and extending into the left side of the base of the neck.
120As to his left shoulder, various movements were restricted by pain or discomfort except adduction and external rotation. To Mr Simm, his movements did not suggest impingement.
121Mr Simm reviewed the reports of imaging between August 2016 and April 2019 and a nerve conduction study. He concluded:
(a) the pain coming from the left side of the neck and left scapular region is consistent with an origin in a degenerate cervical disc, likely to be the C5-6 disc. This does not explain the restriction of left shoulder movement due to pain;
(b) the pain generated by movement of the left shoulder could be due to impingement where surgery has not reduced the pain. Mr White has difficulty adducting his left arm above shoulder height;
(c) aspects of his clinical course suggest the development of a chronic adverse pain response. Although he did not observe abnormal illness behaviour and only mild pain behaviour, Mr Simm considered non-organic and/or psychological factors contributed to Mr White’s chronic symptoms. He recommended an investigation by a psychiatrist;
(d) he noted the 2006 injury to the left hand which left Mr White with contractures of the index and middle fingers.
122The defendants’ solicitor posed three questions to Mr Simm about four MRI and CT scans taken between August 2016 and April 2019 and a nerve conduction study. To the question: “Please comment on the association between these findings and the work injury complained of”, Mr Simm replied:[36]
“There is no association at all between the findings on any of the investigations and the work injury, other than the potential for the work injury to exacerbate cervical and scapular pain from the pre-existing early degenerative cervical disc pathology.”
[36] Report at page 8
123It is fair to say Mr Simm was puzzled by Mr White’s condition. His chronic cervico-scapular pain was consistent with pain from the cervical spine. However, the resistance to treatment, his inability to explain some of the pain and the changing pattern of symptoms suggested a chronic adverse pain response despite a lack of overt abnormal illness behaviour and only mild pain behaviour.
124Mr Simm considered Mr White could return to full-time duties that had minimal demands on his left arm. This arm could only do light activities close to the body and below shoulder height. He could intermittently lift 5 kilograms if the arm was close to the body.
Recovre Report
125Ms Janette Ash is an occupational therapist and injury management consultant. At the request of the defendants’ solicitors, without interviewing Mr White, she wrote a report entitled “Suitable Employment Report”.[37]
[37] Report dated 6 January 2022
126Apart from a letter of instructions, Ms Ash was given a report of Dr Boffa dated 11 December 2021 and Mr Simm, dated 31 March 2021, and quoted passages from each report concerning Mr White’s capacity for work.
127Ms Ash conducted four worksite assessments of actual jobs. These were historical assessments.
128First, there was a job of building concierge located within a high-rise office building in the Central Business District of Melbourne. This job was assessed on 3 June 2019 but I was told it remained the same as at 19 August 2020. The employer is contracted to provide building security to a large multi-story building.
129Ms Ash classified the tasks of this job into two categories of activities – desk based and concierge. She analysed it in terms of its functional requirements, concluding the job was sedentary and allows for regular postural changes without significant manual handling.
130She then examined the job of customer service and order clerk in a retail premise. The assessment was in 2019 but the role was unchanged in July 2020. In the business she examined, the job is shared among staff members, one at a time.
131Again, Ms Ash segregated the job into categories of tasks – customer service; computer based tasks. After looking at the physical demands, she concluded the primary physical demands were sedentary and involve movement within the immediate office area. There were no significant manual handling demands and tasks were completed mostly at or below desk height.
132Although the job of security officer (gatehouse) was assessed in November 2020, it remained the same a year later. It was a job at a manufacturing plant at Dandenong. Since the job operated around the clock, there were three eight-hour shifts. The shifts are the same except the evening shift needs to undertake a patrol of site.
133The tasks of this job were categorised as vehicle management, movement of people, administration, patrol and “ad-hoc” activities. Overall, Ms Ash expressed the same view of the requirements of this job as she did with the previous job.
134With the job of showroom salesperson, this was an old assessment but affirmed as unchanged in October 2021. There are two areas of work, customer service and computer-based tasks. Her overall assessment was the primary physical demands were sedentary to light and varied across the working day and requiring, alternatively, computer and desk-based tasks and standing and walking when assisting customers.
135If a position of instructor in woodwork or carpentry at Holmesglen TAFE arose, he would apply.
Legal considerations
136The defendant was at pains to point out, correctly, that Mr White has the burden of proof.
Pain and suffering
137Turning to paragraph (a) of the definition of “serious injury”, the word “serious” is explained in two further paragraphs of s325(2). First, relevantly, it is satisfied by reference to the consequences to Mr White of any impairment or loss of a body function with respect to pain and suffering or loss of earning capacity when judged by comparison with other cases in the range of possible impairment or loss of body function. Second, an impairment or loss of a body function is not serious unless the pain and suffering consequence or the loss of earning capacity consequence is, when judged by comparison with other cases, in the range of possible impairments or losses of a body function, fairly described as being more than significant or marked, and as being at least very considerable.
Loss of earning capacity
138There are two aspects of loss of earning capacity consequence. Mr White must satisfy the test contained in s325(2)(c), the narrative test, and the test in s325(2)(e). The former requires his loss of earning capacity consequence to be more than significant or marked and as being at least very considerable when compared with other cases in the range of possible impairments or losses of a body function.
139Essentially, the latter requires Mr White to establish a loss of earning capacity of 40 per cent or more and a loss of 40 per cent or more will continue permanently. The measurement of the extent of his loss of earning capacity is done by comparing two things:
(a) his gross income from personal exertion he earns or is capable of earning in suitable employment, whichever is the greater. Since he is earning nothing at present, one looks at what he is capable of earning in suitable employment; and
(b) his gross income from personal exertion earned or capable of earning from personal exertion within the period three years before and three years after the injury that most fairly reflects his earning capacity had the injury not occurred.
Absent witness
140The defendants relied upon the unexplained absence or reports from certain practitioners. Its counsel referred to O’Donnell v Reichard.[38] At page 929, there appears a well-known passage dealing with this issue. It is unnecessary for me to quote it.
[38] [1975] VR 916
Discussion
Credit
141Watching, listening and reading the transcript of his evidence, I consider Mr White is a credible witness, in that he is both truthful and reliable. He stood his ground under strong cross-examination.
142The imperfections of his affidavits do not cause me to doubt his creditworthiness. From experience, they may be a function of the person taking the instructions for their preparation. The lack of documentary evidence of his job applications is explained by the medium through which he made them. In the absence of cogent evidence to the contrary, I have no reason to doubt Mr White’s explanation.
Injury
143I have already referred to how Mr White describes the areas of pain in his affidavits and his oral evidence.
Left shoulder
144For the left shoulder, Mr Li found impingement and subacromial bursitis. He could not determine the cause of the “creepy” feelings.
145Mr Moaveni considered left shoulder scapular dyskinesia, possibly secondary to superomedial scapular impingement. The finding of dyskinesia derived from the abnormal movements of his left shoulder.
146Mr Miller adopted the operational findings of Mr Li and attributed Mr White’s persisting problems to rotator cuff dysfunction, capsulitis and “manifestation of chronic regional pain syndrome”.
147Dr McCallum does not really diagnose the problem with the left shoulder. To him, it may be related to the scan findings. Post-surgical pain may be part of the chronic pain. Part of the pain is due to the muscles.
148Dr Slesenger diagnoses a soft tissue injury with chronic pain, adding there is evidence of adhesive capsulitis. To me, evidence of something is not the same as saying it exists.
149Dr Boffa diagnosed left upper quarter Myofascial Pain Syndrome which was possibly due to the entrapment of the left dorsal scapular nerve.
150To Mr Simm, Mr White’s chronic cervico-scapular pain was consistent with pain from the cervical spine. He does not implicate the shoulder directly. There was, however, a suggestion of a chronic adverse pain response notwithstanding the absence of overt abnormal illness behaviour and only mild pain behaviour.
151Through his counsel, Mr White submitted he suffered an impingement of his left shoulder, musculoligamentous strain, and an aggravation of the degenerative disease in his cervical spine which radiates pain into his left shoulder and arm. The defendants do not accept the diagnosis of rotator cuff dysfunction and any pathology affecting the tendons. It accepts an initial soft tissue injury in the region of the scapula, severe for three days.
152The original problem was impingement and subacromial bursitis. This is Mr Li’s operational finding. The continuing problem has as many explanations as there are practitioners offering opinions. Whether one would diagnose it as an impingement injury or not, nevertheless, I am satisfied Mr White suffered an injury to his left shoulder arising out of, or in the course of his employment with the defendant and still suffers pain there.
153Pausing there, the defendants submitted Mr White’s experience of pain does not have, or largely does not have an organic cause. Its counsel invited me to find there is some form of non-organic pain syndrome at work. He relied upon Dr Ringelblum’s diagnosis of depression and view as to the end of litigation, past treatment by two psychologists, the suggestions of Mr Miller and Mr Simm of a review by a psychiatrist, the inability of MRI scans to show an organic basis and the abandonment of the claim under paragraph (c) of the definition of “serious injury”.
154The evidence supporting this submission is slender. Mr Simm is a careful observer. Despite suggesting a psychiatric examination, he found little to suggest a psychological basis. The opinions of the practitioners were influenced by the findings of scans. It would be wrong for me to use the findings of the scans as evidence of something other than that which the practitioners put forward. The existence, and later abandonment, of a claim in a court document is evidence of nothing. In the same way, a pleading is evidence of nothing.
Spine
155In the context of an injury arising out of, or in the course of employment, Dr Ringelblum could not advance the issue, saying he could not say whether the cervical disc bulges were related to his employment. Mr Miller diagnosed a musculo-ligamentous strain and aggravation of degenerative disease in the cervical spine with radiation into the left upper extremity and the development of a chronic regional pain syndrome. Dr McCallum diagnosed paravertebral muscle pain of the cervical and upper thoracic spines and causing headache. Dr Slesenger diagnosed a soft tissue injury causing chronic spinal and paraspinal pain.
156Dr Boffa originally diagnosed aggravation of pre-existing spondylosis of the cervical spine. By his last report, this had become a Myofascial Pain Syndrome. As I said earlier, Mr Simm implicated the cervical spine as the source of the pain in the neck and left shoulder.
157Except for Dr Ringelblum, who expresses no opinion, each of the others diagnose a form of soft tissue injury to the spine.
158Again, I am satisfied Mr White suffered an injury to his cervical spine arising out of or in the course of his employment with the defendant.
159I consider the impairments to the left shoulder and cervical spine as being permanent. Dr Ringelblum’s view as to the end of litigation is nebulous and does not affect my finding of permanency.
160There was a half-hearted reliance by Mr White upon Ansett Australia Ltd v Taylor.[39] I do not subscribe to the view that the Supreme Court or the Court of Appeal have watered down the views of Ashley JA.[40] In any event, it is unnecessary to express a view about an alleged admission made in relation to an impairment benefits’ claim because there was no evidence regarding it. The submission assumed an acceptance of liability and there was nothing more.
[39] [2006] VSCA 171
[40]I discuss this aspect in Martin v VWA [2021] VCC 293.
Aggregation
161Mr White’s counsel submitted there is in reality only one injury or one body function. Mr White’s descriptions of his areas of pain implicate a region between the neck and the shoulder but also extending into the head and down the left arm. Reliance was placed on VWA v Brassington[41].
[41] [2021] VSCA 236
162In that case, the Court disagreed with dicta of the majority in Lu v Mediterranean Shoes Pty Ltd[42]. The Court agreed with the view of Buchanan JA that an injured shoulder and elbow can properly be regarded as resulting in the impairment of the body function of the arm.[43] In arriving at that conclusion, the Court referred to Lexa v Transport Accident Commission[44], where it was decided injuries to the shoulders in the same accident do not give rise to impairments to the same body function.
[42] (2000) 1 VR 511
[43] At [49].
[44] [2019] VSCA 123
163In Lexa v Transport Accident Commission[45], the Court discussed the concept of “body function”, noting it denotes a physical act or operation and not some applied activity. It is easier to consider body function of an arm or leg than an impairment affecting an area encompassing a shoulder, the adjacent side of the neck and part of the area between them. In the sense that the expression “body function” is understood, is there a body function attributable to those areas of the body?. The Court in Brassington quoted a paragraph from Geogopoulos v Silaforts Pty Ltd[46]. Although speaking of injury in the quoted passage, in my opinion, the same consideration applies to the identification of a body function. That is, in a broad sense the impaired area can be considered a “body function”. I agree with Mr White, there is a single body function.
[45] Supra
[46] [2012] VSCA 179 at [68].
Consequences
164Earlier, I have set out the consequences for Mr White of his injuries. I will not repeat them and will focus on pain. Mr White’s experience of pain must be seen in the light of the medicines he takes to reduce its level. He takes Lyrica, Tramadol and Norgesic daily. He also takes six to eight Nurofen tablets and Panadol tablets daily.
165Turning to his experience of pain, Mr Simm recorded the most detailed description of Mr White’s most severe pain – starting across the top of his left scapula, extending to the left side of his neck and then to the occiput. The pain is experienced across the occiput as a headache. Accompanying the headache is numbness to the left side of the face. When this happens, he experiences a “pins and needles” sensation in his left arm and hand.
166Mr White’s pain is constant but its intensity varies. Nevertheless, its intensity increases during the day and can almost bring him to tears. He changes his posture constantly to avoid aggravating his pain and to find a comfortable position. When his pain is extremely bad, he experiences numbness in his hand and, sometimes, loss of strength in the hand.
167As can be seen, despite such an array of medicines taken daily, Mr White suffers very significant painful consequences. Two of the medicines have side effects. Tramadol tends to “knock” him out, while Lyrica leaves him very tired and confused. Overall, the medicines affect his concentration for he cannot concentrate for more than 20 to 30 minutes.
168In terms of pain and suffering consequences, in focussing on the experience of pain. I have not overlooked the other consequences for him. Overall, when judged by comparison with other cases, in the range of possible impairments or losses of a body function, then those consequences can be fairly described as being more than significant or marked, and as being at least very considerable.
169If I am incorrect in treating the affected area as associated with a body function, Mr White submitted he has suffered a “serious injury” due to either consequence if reference is only made to the shoulder. That means treating the shoulder as the subject of an injury and the impairment is to the body function associated with it.
170Mr White has had a good deal of treatment for his left shoulder, culminating in an operation. The opinions of the practitioners are broad and general. Only Mr Moaveni is more specific, diagnosing dyskinesia, which is possibly secondary to supero-medial scapular impingement. That diagnosis, if correct, places the shoulder and arm in an unusual position: they are the subject of abnormal, involuntary movements. Even if one segregates out a degree of pain attributable to the neck and ignore the headaches, Mr White has a “serious injury” in terms of the pain and suffering consequence in relation to his shoulder alone.
Loss of earning capacity consequence
171Mr White is now only forty-six. He has not worked since Mr Li’s operation. His qualifications and work history are undisputed. Until the operation, he had a continuous work history. He has a young son. He would like to return to work if only to be a provider to his family. It is a matter of how he sees himself. He has described his disabilities. He has applied for many jobs, without success. He has attended three or four job interviews and heard nothing more. He has left his résumé at gymnasiums, without response.
172Dr Slesenger considered and rejected as unsuitable the jobs of site foreman, electrical assembler, tester and tagger, vocational educator, courier driver, traffic controller, showroom retail, maintenance co-ordinator, security front desk concierge, production manager, logistic operational manager, small engine mechanic, product manager, quality controller, estimator, coater, greenkeeper, handyperson, fire protection equipment technician, earthmoving plant operator and truck driver. As to the four jobs suggested by Dr Boffa, Dr Slesenger rejected each for various reasons. A persistent reason for each rejection was Mr White’s inability to attend consistently and reliably.
173Mr White has pain after taking various medicines. The pain worsens during the day when he is relatively inactive compared with the degree of activity one would expect in paid employment. The same medicines may relieve his pain to an extent but impair his concentration. Dr Slesenger’s view of inconsistency and unreliability understates the true position of Mr White. To adapt the language used in Richter v Driscoll[47], his incapacity has destroyed his powers of labour as a merchantable article.
[47][2016] 51 VR 95
174I consider Mr White’s incapacity is permanent. In terms of the tests posed by the Act, he satisfies both the narrative and mathematical. As to the second, he earns nothing now and is incapable of earning anything in suitable employment. Now, and permanently, he has a loss of earning capacity of more than 40%.
175Again, if I were to look at the shoulder alone, and eliminate from consideration the neck and head, Mr White satisfies the loss of earning capacity consequence.
Rehabilitation and retraining
176In relation to rehabilitation and retraining, I consider Mr White has done as much as could be reasonably expected of him. He obtained licences but realised truck driving was unsuitable.
O’Donnell v Reichard[48]
[48]Supra
177For completeness, I would not draw any adverse inference through the failure to have an up-to-date report from Mr Li or a report from Dr du Toit. This application sees a wealth of material from both sides covering the issues in dispute. Given the nature of the application, I would not have such an expectation of the availability of such reports as to move to the stage of drawing adverse inferences.
Conclusion
178I will grant leave to Mr White to start a proceeding to recover damages for both pain and suffering consequence and loss of earning capacity consequence. I will hear the parties on the form of my orders and any other issue.
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