Yarevski v Victorian WorkCover Authority
[2020] VCC 190
•5 March 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-17-05501
| MICHAEL YAREVSKI | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE BROOKES | |
WHERE HELD: | Geelong | |
DATE OF HEARING: | 29 to 30 April and 1 May 2019 | |
DATE OF JUDGMENT: | 5 March 2020 | |
CASE MAY BE CITED AS: | Yarevski v Victorian WorkCover Authority | |
| MEDIUM NEUTRAL CITATION: [First revision 6 May 2020] | [2020] VCC 190 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – right shoulder injury – impairment to left and right shoulders – loss of earning capacity – plaintiff under 26 years of age
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Humphries & Anor v Poljak [1992] 2 VR 129; Ansett Australia Ltd v Taylor [2006] VSCA 171; ACN 005 565 926 Pty Ltd v Snibson [2012] VSCA 31; State of New South Wales v Moss (2000) 54 NSWLR 536; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170
Judgment: Leave granted for pain and suffering damages and loss of earning capacity damages*
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J H Mighell QC with Ms N Crowe | Maurice Blackburn Lawyers |
| For the Defendant | Ms R Annesley QC with Ms F Crock | Russell Kennedy |
HIS HONOUR:
1 The plaintiff in this action seeks leave to commence common law proceedings against his former employer, AHS Limited, pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) in respect of both pain and suffering and loss of earning capacity damages.
2 The application relates to an injury to the plaintiff’s right shoulder which he claims he sustained on 18 April 2011 while performing his duties as a plumber. He alleges being up a ladder, pulling on a gas line, when it gave way, causing him to fall. He reached out to grab onto the other wall and cut his finger on a sharp metal object and completed the fall to the ground, falling on his right side.[1]
[1]Exhibit “A, affidavit sworn 12 July 2017, paragraph [8] at Plaintiff’s Court Book (“PCB”) 7
3 As a result of a right shoulder injury either caused by the torsion injury in grabbing the wall or, alternatively, falling on his right side on the ground, the plaintiff alleges he has suffered a permanent impairment to the right shoulder and, later, a permanent impairment to the left shoulder, as a result of overuse of that shoulder due to the first injury.
4 At the hearing, it was not in dispute that the plaintiff suffered a compensable injury in the course of his employment to his finger on the date alleged. What was in contention was whether the plaintiff suffered an injury to his right shoulder in the manner and time and place alleged (causation). If, in fact, the plaintiff did suffer an injury to his right shoulder as alleged, the defendant alleges that it is no more than a temporary aggravation of a pre-existing condition and would not itself satisfy the definition of “serious injury”. Further, the defendant does not concede that the left-shoulder injury is causally related to the right-shoulder injury in any event. Finally, the defendant does not concede that the has suffered a 40 per cent of loss of earning capacity, as required by the Act.
5 “Serious injury”, within the meaning of s134AB(37)(a) of the Act means:
“(a) permanent serious impairment or loss of a body function … .”[2]
[2]Section 134AB(38)(b) of the Act
The right-shoulder injury
6 Following the incident on 18 November 2011, the plaintiff swore:
“… The other workers came over to me straight away. The foreman came over. The supervisor from the construction company came over too. The bleeding continued. I was given some tissue for the cut and some duct tape to wrap around it. I was worried about stopping the bleeding. I had been knocked about by the fall and felt winded. I did not think about other parts of my body which might have been injured because there was so much blood coming from my right little finger.”[3]
[3]Exhibit “A” (supra), paragraph [9] at PCB 7-8
7 Thereafter, the plaintiff swore:
“Phil [his boss] took me to a doctor nearby. He name was Dr Stesin. He stitched the wound in my right little finger and put a dressing on it. I cannot remember if I had an xray at that time. The doctor said I should go to the hospital to have the tendons stitched. Phil just took me back to work.”[4]
[4]Exhibit “A” (supra), paragraph [10] at PCB 8
8 When asked in re-examination whether Phil knew about his right-shoulder problem, the plaintiff replied:
“Yeah. He sort of shrugged it off but I definitely told him about it, otherwise he wouldn’t have (inaudible), but yeah.”[5]
[5]Transcript (“T”) 136, Lines (“L”) 16-18
9 Thereafter, the plaintiff returned to work, but was still having problems. He swore:
“I was still seeing doctors for my right hand. I also noticed persistent right shoulder problems. I got some acupuncture. I was sent for an ultrasound. I tried to convince a doctor to try steroid injections in my right shoulder but he would not do it.”[6]
[6]Exhibit “A” (supra), paragraph [13] at PCB 8
10 The plaintiff eventually had surgery to his right little finger on 21 November 2012, which consisted of a graft of a tendon from his right wrist. Thereafter, he swore:
“I was able to get back to work. I was back doing normal plumbing work. I continued to have problems with my right little finger and right shoulder. I continued to get acupuncture. I complained to Phil but he said ‘have a few tablespoons of cement and harden up’.
I stopped work on 15 January 2015. Phil had made me work through Christmas while everyone else was off work. He told me that he could not keep someone on with only one arm. He told me it was the insurance company’s job to fix me, not his. I remained out of work and in receipt of weekly payments of compensation. I was told by the WorkCover insurance people that I needed to put in a separate claim for my right shoulder. I did that on 13 May 2015. That claim was accepted too.”[7]
[7]Exhibit “A” (supra), paragraph [17] at PCB 9-10
11 The defendant challenges this narrative in the following manner. At various times, the plaintiff attended three different general practices, being the Mill Park Superclinic, Epping Plaza Medical and Dental Centre (“Epping Plaza”) and the Summerhill Medical Centre. On 28 November 2018, Dr Das from the Mill Park Superclinic, has taken a history:
“Ongoing pain on right shoulder for 6 months, plumber by trade.”[8]
[8]Exhibit 15
12 On this occasion, Dr Das also considered a formal assessment was required for the plaintiff’s psychological status and also issued a referral for “diagnostic imaging requested: ultrasound right shoulder”.[9]
[9]Exhibit 15
13 Thereafter, Dr Das records, on 23 April 2011:
“1. had stitched from workplace last monday, here to rv, due to ros, on thursday, looks ok, nil disch, nil tender, no red, reassured … .”[10]
(sic)
[10]Exhibit 15
14 There was no mention of right-shoulder pain.
15 When seen again on 28 April 2011, Dr Das notes:
“2. removal of suture, dry and clean, done by Practice Nurse.”[11]
[11]Exhibit 15
16 Once again, no mention of shoulder pain.
17 Dr Das next saw the plaintiff on 6 June 2011, with the following history:
“infected skin lesion of prox phalanx of rt little finger the lasdt few days, started with a small lesion at work, gradually big[g]er.”[12]
(sic)
[12]Exhibit 15
18 Once again, no mention of any shoulder pain.
19 On 11 June 2011, Dr Das has noted “infection healed on finger”.[13] Dr Das also notes histories to do with bowel motions and flu-like symptoms, but no mention of a sore shoulder.
[13]Exhibit 15
20 It is not until 5 August 2011 that there is mention of the shoulder. The history taken is:
“pt with USS of the shoulder
showed subacromial bursitis.
Plan
Anti-inflammatories.”[14]
[14]Exhibit 15
21 Thereafter, there was an entry on 7 November 2011 to the following effect:
“had ? steroid inj few days ago, given by his friend on rt shoulder and opain better, niow likes to chck it out … .”[15]
(sic)
[15]Exhibit 15
22 Thereafter, there is an entry on 17 November 2011 with respect to abdominal cramps and no mention of right-shoulder pain.
23 There is then a gap in the clinical record for any health reason until 20 August 2012, when the plaintiff attends the practice with respect to:
“Injured right little finger at work a year ago
Now has deformity of prox IP joint”[16]
with no mention of shoulder pain.
[16]Exhibit 15
24 Then, on 21 September 2012, there was an attendance to do with a “logn term hx of abdominal pains / bloating and Bleeding”.[17] No mention of shoulder pain.
[17]Exhibit 15
25 There are then three attendances on 21 March 2013, 3 April 2013 and 9 April 2013, with no mention of shoulder pain. There is then a final note on 21 October 2014, with a history of a foreign body in his eye.[18]
[18]Exhibit 15
26 It would appear that after 21 September 2012, the plaintiff sought alternative general practice treatment from Epping Plaza, where the first entry is dated 26 November 2016, where there is an entry to the effect:
“Disease; gastro – oesophagus reflux together with right little finger volar plate reconstruction … reconstruction with tendon graft. Surgery uneventful. Now in splint.”[19]
[19]Exhibit 14
27 Once again, no mention of shoulder pain.
28 Thereafter, there is an attendance on 7 January 2013 seeking a WorkCover Certificate for the right fifth finger tendon injury at work, operation on 21 November 2012. Three medical certificates were required from 21 November 2012 until 1 February 2013, inclusive, and all to do with the right finger and not with the right shoulder.[20]
[20]Exhibit 14
29 Thereafter, from 9 January 2013 until 25 March 2013, there are some twenty-five consultations to do with either the finger injury of abdominal cramps or other unrelated matters, with no mention of right-shoulder pain.
30 On 4 June 2013, there is the following history:
“sudden R/shoulder pain while moving heavy toilet at work, heard a click pain since
tender R/anterior shoulder
pain reproduction on anterior and post R/shoulder on active flex to 90, abdu to 90 flex and abdu to 120 on passive movements
a/
R/shoulder sprain
want to do uss”.[21]
(sic)
[21]Exhibit 14
31 Senior Counsel for the defendant therefore submits that on the clinical history referred to above, it would appear that the plaintiff had six months of right shoulder pain as at 28 November 2010 and was referred for an ultrasound. It is submitted the plaintiff elected not to undergo the ultrasound until 3 August 2011[22] and then presented the same to the Mill Park practice on 5 August 2011. By that time, the only clinical reference to shoulder pain was in November 2010, and following the fall from the ladder in 2011 the only clinical complaints were to do with the finger. Further, there is no history, it is submitted, linking the right-shoulder pain and injection as recorded on 7 November 2011 with the subject accident.
[22]Exhibit “F”
32 In any event, from 17 November 2011 until 20 August 2012, there is a complete gap in the clinical record to do with any health concern whatsoever.
33 Further, it is submitted that from 20 August 2012 until 4 June 2013, there are numerous attendances at both the Mill Park Clinic and Epping Plaza, where there is no mention of shoulder pain.
34 It is then submitted that the history taken at Epping Plaza on 4 June 2013 with the history recording a “sudden” right-shoulder pain while moving “heavy toilet at work”, is consistent with a new injury to the shoulder requiring reactive treatment thereafter.
35 Further, on 14 June 2013, the clinical record shows:
“Injured his rt. shoulder on 3/6/ He had 2 days off work … He was moving brand new toilets when he developed sudden pain in the rt shoulder. Had 2 days off work and working full time at present. Pain is present all the time and gets worst with movts … uses left sh. which is getting sore … .”[23]
(sic)
[23]Exhibit 14
36 It is further submitted that insofar as the plaintiff was using his left shoulder to cover for his right shoulder, the first time he complained of this connection was after moving the heavy toilet at work.
37 Accordingly, it is submitted that either a right-shoulder injury did not occur in the fall from the ladder in April 2011 or, alternatively, it may have been a temporary aggravation of a pre-existing condition which was present as at November 2010, but which did not require any clinical treatment until the new injury on 4 June 2013.
38 In any event, after 14 June 2013, the plaintiff again attended this practice for his right-shoulder pain on 17 June 2013 and not again until 23 February 2015, where he gave a history of an injury to his right shoulder consequential upon a fall from a ladder whereby he “hit rt shoulder and injured R 5th finger”.[24] It was further recorded on this date:
[24]Exhibit 14 (ibid)
“Required surgery to R little finger
…
Now needing to use L Hand more
currently not wroking (sic)
Dismissed 2/52 ago
Feels employer did not like him due to injury
Difficulty with repeated tasks such as drilling
Feels pain down R arm and forearm
OE R shoulder painful abduction
…
Note date of injury 18 -4-2011
Worked for a while prior to presentation
For US Right shoulder.”[25]
[25]Exhibit 14
39 Between 14 June 2013 and 23 February 2015, the plaintiff had some twenty-three attendances at this general practice for complaints other than his right shoulder or right-finger injury.
40 In the meantime, the plaintiff had commenced attending the Summerhill Medical Centre from 13 February 2014, when he attended for flu-like symptoms.[26]
[26]Exhibit 13
41 On 10 March 2015, the plaintiff first attended Dr Chan at this practice and gave a history as follows:
“Right shoulder pain, injured 2 years
seeing specialist in Northpark
Already had operation
now exac and unable to work.”[27]
[27]Exhibit 13 (ibid)
42 On this occasion, there is no mechanism of injury, but Senior defence Counsel submits it is at least consistent with the toilet incident in June 2013.
43 In any event, on 18 March 2015, the plaintiff gives the following history to Dr Chan:
“Right shoulder injury. Fall off ladder Feb 2011
Injured Right little finger and Right shoulder
TF doctors bc moved to this area.”[28]
[28](Ibid)
44 Senior Counsel for the defendant submits that this is the first time that there is a clinical record of the plaintiff linking his right-shoulder pain from the fall from the ladder in 2011, some four years after the event. In the meantime, it is submitted, the plaintiff has attended the three general practices with no complaint of right-shoulder pain being linked to this event.
45 On the other hand, Senior Counsel for the plaintiff, in written and oral submissions before the Court, submits that I should accept the plaintiff’s sworn evidence that when he fell from the ladder onto his right side in April 2011, he noted persistent right-shoulder problems thereafter. Secondly, it is submitted that all of the medical practitioners in this matter are of the opinion that the right-shoulder injury was caused by the subject accident and that there was no medical evidence to suggest that it was unrelated to the accident. Thirdly, it was submitted that when the plaintiff lodged a Claim for Compensation in 2015, he alleged that the incident was reported on the date of the accident to George Beltoski and Fab Gaglardi, and there was no evidence before the Court from these gentlemen with respect to a right-shoulder injury. Senior Counsel submits that having nominated two witnesses to the event, and then the claim for the right shoulder being accepted, is of forensic importance to the plaintiff. Further, the plaintiff alleges he advised “Phil”, who is a director of the company, about his right-shoulder injury and, once again, there is no rebuttal evidence from this person.
46 Next, the fact that the plaintiff underwent an ultrasound of his right shoulder on 3 August 2011 and underwent a steroid injection in early November 2011, is at least consistent with shoulder pain at that time, within some months after the subject accident.
47 As to a pre-existing condition in the shoulder, Senior Counsel points to the fact that the plaintiff had seen the general practitioner five times for other things such as colds or stomach problems between November 2010 and April 2011, so that the inference is that any right-shoulder pain occurring in November 2010 was of a self-limiting effect.
48 It is submitted that the lack of complaint might be explicable in terms that the plaintiff wishes to keep working and does not want to lose his job.
49 As to the toilet incident in June 2013, it was submitted I should accept the plaintiff’s evidence that he had pain before and after this incident and it was not new pain.
50 Finally, it was submitted that although the history of medical treatment is not helpful to the plaintiff he, in turn, relies “very strongly on the medical evidence [being] the doctor’s medical opinions”.[29]
[29]T194, L22-25
The medical opinion of doctors
51 The plaintiff tendered in evidence eight reports from the treating practitioner, Dr Kong Chan, between the dates 13 July 2015 and 15 February 2019.[30] In his first report, dated 13 July 2015, Dr Chan confirmed the plaintiff only started consulting him at the end of 2014, after moving to the area. His clinical notes reveal the first history of the right-shoulder pain was on 10 March 2015, with a history of:
“Right shoulder pain, injured 2 year[s] [ago]
Seeing specialist in Northpark
Already had operation.”[31]
[30]Exhibit “B”
[31]Exhibit “B”
52 Dr Chan apparently took the following history:
“According to Mr Yarevski, he had a fall of[f] a ladder at work about two years ago and sustained an injury to his right 5th finger and right shoulder. Mr Yareveski (sic) stated that following the accident he underwent an operation to repair his right 5th finger. Mr Yarevski explained that following the operation, because he was not using his right upper limb therefore the right shoulder was not causing significant problem. Mr Yarevski stated 6 months after the operation he was having acupuncture and physiotherapy treatment. After starting to use his right upper limb more, Mr Yarevski started experiencing right shoulder pain.
Mr Yarevski presented with ongoing right shoulder pain. Mr Yarevski was seen by Orthopaedic surgeon -Mr Westh. Mr Westh diagnosed a probable ‘superior SLAP rear’ and referred Mr Yarevski to another orthopaedic surgeon (Mr Shane Blackmore) for opinion and management.”[32]
[32]Exhibit “B” at PCB 19
53 Dr Chan provided a similar history to the defendant’s insurer on 21 February 2018, wherein he stated:
“Mr Yarevski has no current work capacity because:
• Ongoing chronic right shoulder pain
• Ongoing anxiety, stress and depression symptoms (under psychiatrist care- Dr Ibrahim)
• Left shoulder condition and waiting for operation repair (under Orthopaedic surgeon- Mr Blackmore).”[33]
[33]Exhibit “B” at PCB 30
54 The plaintiff did not tender a report from the previous treating general practitioners from Epping Plaza or Mill Park practices.
55 The plaintiff tendered five reports from the treating orthopaedic surgeon, Mr Shane Blackmore, from 9 May 2016 until 26 April 2019.[34] In his first report dated 9 May 2016, Mr Blackmore recorded a history of seeing the plaintiff on 1 June 2015 and took the following history:
“… He had injured his right shoulder at work two years earlier, after falling from a ladder. At that time, from what he described, it seems he had an extension injury of his shoulder. He reached out to catch himself as he fell off an edge and this stretched his shoulder. He had had ongoing trouble with his shoulder, particularly with overhead activities and reaching out to grab things and with his boxing. I noted that he had some conservative treatment, such as physiotherapy, that hadn’t improved his symptoms.”[35]
[34]Exhibit “C”
[35]Exhibit “C” at PCB 32
56 After examining the plaintiff and examining an MRI scan, Mr Blackmore’s diagnosis was a SLAP tear of his right shoulder with an associated para-labral cyst, measuring 5 millimetres.[36]
[36]Exhibit “C” at PCB 33
57 At arthroscopic operation on 27 July 2015, Mr Blackmore noted posterior instability of the shoulder and a full-thickness tear of his superior labrum, extending into his posterior labrum and down to the 7 o’clock position. The biceps was cut for a sub pec tenodesis and the SLAP area. The posterior labrum was also repaired. Mr Blackmore also noted:
“The subacromial space was entered and found to have a degree of bursitis, so a subacromial decompression and bursectomy were completed in this space.”[37]
[37]Exhibit “C” at PCB 33
58 At this stage, there was no examination by Mr Blackmore of the clinical record from any of the three general practitioners referred to above and, in particular, no mention of the toilet incident of 4 June 2013. In any event, on the history provided, Mr Blackmore stated:
“… SLAP tears and posterior labral tears can come from hypertension of the shoulder, which were described by Michael when he fell from the ladder.” [38]
[38]Exhibit “C” at PCB 33
59 When he reviewed the plaintiff on 15 December 2015, Mr Blackmore noted:
“… At that stage he said that he had no pain in his shoulder, but hadn’t got back to boxing.”[39]
[39]Exhibit “C” at PCB 34
60 When Mr Blackmore reported to Dr Chan on 10 February 2017, Mr Blackmore noted:
“… [It] is his left shoulder that Michael has felt trouble with for some time with no specific incident. It is likely that he has had a significant episode with his shoulder with a probable dislocation. Michael feels that a lot of his symptoms have been due to compensating with this left shoulder while his right shoulder has been recovering.
In terms of his right shoulder, the MRI is relatively normal with no signs of problems at the biceps tenodesis site or at the superior labrum. He does have some changes consistent with sub-acromial impingement and, as such, I have organised an injection of his right shoulder.
We will be writing to WorkCover in regards to his left shoulder, as Michael feels that the pain is due to compensating for his problematic right shoulder.
… .”[40]
[40]Exhibit “C” at PCB 35
61 Mr Blackmore wrote to the plaintiff’s solicitors on 26 February 2009, where he related that having written to WorkCover on 1 June 2015 seeking approval for the surgery, it was approved on 2 July 2015. Further, as at 16 October 2015, he “felt that Michael would be able to return to normal function and full work duties over the following 10-12 weeks, as he continued to strengthen”.[41] Following the examination on 15 December 2015, although he had no pain in the shoulder at that stage, Mr Blackmore noted:
“… he had since returned to boxing and noticed his biceps did not feel as strong as it did in the past. I felt that Michael still had some strengthening to do with his biceps. In comparison to the opposite side, his muscle bulk had not returned at that stage. I encouraged Michael to continue strengthening his biceps. Given his pain had dissipated I felt that he would have a great recovery once he put some strength back on.”[42]
[41]Exhibit “C” at PCB 38
[42]Exhibit “C” at PCB 40
62 Mr Blackmore saw the plaintiff again on 20 December 2016 with the following history:
“His left shoulder had been troubling him for the previous three and a half weeks. He reported simply moving shoulder around when he heard a sudden click and pain over the antero lateral aspect of his shoulder. He had an MRI, which showed a small labral tear anteriorly, but I felt could also be a sub-labral hole.
In terms of his right shoulder, he had been experiencing some ongoing burning pain at his subpec region. His shoulder felt fine but his biceps continued to give him trouble.
On examination that day he had excellent biceps bulk and a well-healed wound. He had excellent range of motion of the shoulder and the elbow. He had excellent strength and contouring of the biceps and a normal musculocutaneous nerve examination with no paraesthesia of his forearm.”[43]
[43]Exhibit “C” at PCB 38
63 When the plaintiff returned with both his MRI scans on 10 February 2017, Mr Blackmore noted:
“The left shoulder MRI reported a labral tear but we thought it to be more a posterior than an anterior tear. I felt it was likely that he had had a significant episode with his shoulder with a probable dislocation. Michael felt that a lot of his symptoms were due to compensating with his left shoulder while his right shoulder had been recovering.”[44]
[44]Exhibit “C” at PCB 39
64 On 26 April 2019, Mr Blackmore wrote to the plaintiff’s solicitors with the following opinion:
“Mr Yarevski’s left shoulder may have been aggravated from overuse while protecting his right shoulder.
That said, an MRI report of this shoulder (19/12/16) did show a posterior labral tear as well as a reverse Hills Sachs injury consistent with a specific injury episode. That may have meant his left shoulder had less capacity to cope with protecting his right shoulder leading to an exacerbation of symptoms.
The MRI did also note signs of subacromial impingement with a mild sub-acromial bursitis and supraspinatus tendinosis. This can come from overuse.
It is always hard to say what has caused an opposite shoulder to flair (sic) up but, if it occurs in the period protecting the opposite shoulder, it[’]s hard for it not to have some type of connection.”[45]
[45]Exhibit “C” at PCB 161
65 I note that Mr Blackmore had not been provided with the clinical records of the three general practitioners, nor with a history of the toilet incident of 4 June 2013.
66 The defendant also tendered two reports from plastic surgeon, Mr Anand Ramakrishnan, dated 13 November 2012 and 28 January 2016.[46] Mr Ramakrishnan treated the plaintiff for his finger injury on 20 August 2012, 18 September 2012, 21 November 2012, 11 December 2012, 17 January 2013 and 14 February 2013. At the first consultation, he took a history, in the:
“… year prior to this presentation he had lost balance on a ladder and struck his right little finger against a metal framework and sustained a laceration to the radial side of his proximal and phalangeal joint of that finger. He stated this occurred in April of 2011. He was reviewed by a General Practitioner at that time and his wound cleaned and sutured.”[47]
[46]Exhibit 11
[47]Exhibit “C” at PCB 70
67 There was no mention of the plaintiff falling onto his right side, or of any right shoulder or other pain, as a result of this incident.
68 The plaintiff tendered two reports of specialist occupational and environmental physician, Dr Robyn MacBeth, dated 4 February 2019 and 24 April 2019.[48] In her first report, she was provided with the plaintiff’s affidavit sworn 12 July 2017, MRI scan of the right shoulder dated 24 January 2017, ultrasound of the left shoulder dated 28 November 2016, three reports from Mr Shane Blackmore and six reports from Dr Chan.
[48]Exhibit “D”
69 Dr MacBeth took a consistent history of a fall at work on 18 April 2011 leading to a claim on 13 May 2015 for a right-shoulder injury he sustained at work on the first date. He ceased work on 15 January 2015 because he was struggling to perform his pre-injury plumbing duties due to ongoing symptoms related to his right fifth finger and right shoulder injuries. He had not returned to work since then.[49]
[49]Exhibit “D” at PCB 85 and 86
70 Dr MacBeth’s opinion was as follows:
“… Mr Yarevski sustained the following acute traumatic right shoulder and right fifth injuries at work on 18 April 2011, when he was standing on a ladder trying to pull a gas line through a suspended ceiling when the gas line unexpectedly came loose, and grabbed onto a wall to prevent himself from falling and cut his right fifth finger on the sharp metal protruding from the wall, and then fell about 1.5 metres to the floor.”[50]
[50]Exhibit “D” at PCB 99
71 Relevantly, her diagnosis was, inter alia:
“• Right shoulder posterior instability and full thickness tear of his superior labrum extending into the posterior labrum.
• Right shoulder bursitis.
…
• Probable haematoma post right shoulder surgery over the bicipital surgical incision.
• Chronic right shoulder pain.
• Right shoulder dysfunction, right upper limb deconditioning, and associated disability.
• Left shoulder labral tear most likely secondary to compensatory overuse of his left upper limb as a result of his right shoulder injury.
• Chronic left shoulder pain.
• Left shoulder dysfunction, and associated disability.”[51]
[51]Exhibit “D” at PCB 99
72 As to work relationship, Dr MacBeth stated:
“In my opinion, Mr Yarevski’s employment with Liquid Vision Plumbing Pty Ltd was and continues to be a cause of his right shoulder, right fifth finger and left upper limb injuries.”[52]
[52]Exhibit “D” at PCB 99
73 The defendant tendered three reports of Associate Professor Bruce Love, consultant orthopaedic surgeon, dated 5 June 2015, 1 July 2015 and 27 February 2019, together with two emails of 29 April 2019 and an email from the defendant’s instructing solicitor, dated 26 April 2019.[53] In his first report, Associate Professor Love considered the plaintiff was suffering from subacromial bursitis of the right shoulder and he was of the opinion that the condition had commenced as a result of the incident of 18 April 2011.[54]
[53]Exhibit 1
[54]Exhibit 1 at DCB 4 and 5
74 In his third report, dated 27 February 2019, Associate Professor Love confirmed he re-examined the plaintiff on 26 February 2019 and he had perused “the large quantity of accompanying material” (unspecified).
75 Associate Professor Love took a history that it was the right shoulder which gave the plaintiff the most difficulties and it was principally the pain in that shoulder that prevented him from seeking employment. At the present time, his treatment consisted of the use of analgesic medication and antidepressants, and he attends a psychiatrist on a weekly basis and his general practitioner regularly each month.[55]
[55]Exhibit 1 at DCB 11
76 On examination, Associate Professor Love noted there were significant restrictions of motion in each shoulder and scars were present from prior surgery, and impingement signs were present in both the right and left shoulder.[56]
[56]Exhibit 1 at DCB 11
77 Associate Professor Love was also of the opinion that alternative treatment did not exist that had a high probability of relieving him of his current symptoms, and if he was to return to the workforce, it would have to be in an occupation that did not involve forceful use of either upper limb and, in particular, repetitive use or working with his arms out or above shoulder height.[57]
[57]Exhibit 1 at DCB 11
78 Associate Professor Love further noted that his current treatment included medications for pain and treatment of Depression and on several days a week he took himself to a heated pool to engage in his own hydrotherapy program.[58]
[58]Exhibit 1 at DCB 12
79 Associate Professor Love’s current clinical diagnosis was:
“… he has severe dysfunction of both shoulders and the condition is an ongoing one since the incident of 2011. The incident of 2011 continues to materially contribute to his current condition.”[59]
[59]Exhibit 1 at DCB 12
80 The defendant also tendered in evidence four reports from occupational health consultant, Dr Andrew Miller, dated 21 April 2017, 8 June 2017, 9 June 2017 and 15 September 2017.[60]
[60]Exhibit 2
81 In essence, Dr Miller took a history of overuse of the left shoulder and formed the opinion that employment remained a contributing factor to the plaintiff’s current condition.[61]
[61]Exhibit 1 at DCB 26 and 29
82 The defendant also tendered the report of Dr Mary Wyatt, occupational physician, dated 9 March 2019.[62] Included in the materials with which she was provided were the clinical notes of the physiotherapist, clinical notes of Epping Plaza, clinical notes from Dr Chan and clinical notes from the Summerhill Medical Centre.[63]
[62]Exhibit 4
[63]Exhibits 13, 14, 15 and 16
83 Relevant to her specialty, Dr Wyatt took an occupational history as follows:
“Mr Yarevski did four years of a plumber’s apprenticeship. He worked doing commercial sanitary plumbing. His duties involved digging, jackhammering, grinding metal pipes, installation plumbing, drilling, passing tools and measuring.
Previously he did security work for four years but said he lost his security licence after being involved in an altercation at a wedding. He also has done retail work in a $2 Shop, concreting, painting and casual work.
Mr Yarevski completed his plumbing apprenticeship but was not able to sit the final examination in early 2015 and is therefore not a registered plumber.”[64]
[64]Exhibits 13, 14, 15 and 16 at DCB 82-83
84 Dr Wyatt reviewed all of the radiology contained in exhibit “F”. After reviewing all of the material, including a history that “he had previously played football regularly and was doing boxing training at around the time of his injury/ shoulder pain developing”,[65] Dr Wyatt gave the following opinion with respect to diagnosis and work relationship:
“On the balance of probabilities, Mr Yarevski’s fall of April 2011 has materially contributed to his right shoulder problem. Factors that support this are the complaints of right shoulder pain in August 2011, with further complaints noted in 2013 with treatment. It should be noted his shoulder problems could have arisen from sporting activities. At this review I have accepted Mr Yarevski’s advice he had shoulder complaints following his hand injury.”[66]
[65]Exhibits 13, 14, 15 and 16 at DCB 85
[66]Exhibits 13, 14, 15 and 16 at DCB 88
85 Dr Wyatt further stated:
“Accepting the right shoulder problem was caused by the fall of April 2011, the employment remains a material contributing factor.”[67]
[67]Exhibits 13, 14, 15 and 16 at DCB 89
86 It should be noted that Dr Wyatt thought, from a physical perspective, she considered the plaintiff could perform a wide range of lighter work on a full-time basis, including a range of retail activities, as he had done in the past.[68]
[68]Exhibits 13, 14, 15 and 16 at DCB 90
Analysis
87 In November 2010, the plaintiff reported to his then general practitioners that he had been suffering from six months of right-shoulder pain and he was engaged in a plumbing job. In that previous six months, he had not required medical treatment compared with his need to attend the practice for other ailments.
88 A referral for an ultrasound was generated at that time, but I infer the plaintiff felt no need to act on it with respect to symptoms then occurring until later in August 2011, some four months after the subject incident.
89 It is difficult to be certain whether the August 2011 consultation relates to the November 2010 condition in conjunction with the April 2011 condition, or, whether it relates solely to one or the other. No medical practitioner refers to it.
90 This state of affairs is consistent with symptoms being worse in August 2011 compared to November 2010, but there is no contemporaneous history in August 2011 of the connection with the subject injury as there was, arguably, in November 2010.
91 In any event, after the August 2011 ultrasound, there is no clinical treatment for the right shoulder until 4 June 2013. On that day, there is a history given entirely consistent with a new right shoulder injury or, at best, for the plaintiff, an aggravation of an underlying condition not then requiring treatment and not preventing the plaintiff from engaging in full-time plumbing duties.
92 There is no satisfactory analysis, in my opinion, from any medical practitioner, comparing impairments pre and post-June 2013, as required by authority.[69]
[69]See Petkovski v Galletti [1994] 1 VR 436
93 It is, of course, possible to have two causes of the impairment post-June 2013, but authority constrains me to undertake an analysis of the two impairments independent of each other.[70]
[70]Petkovski v Galletti (ibid)
94 The Injury Claim Form dated 14 September 2012[71] only relates to the right little finger with respect of the subject injury and nominates George Beltoski, foreman, and Fab Gaglardi as witnesses to the incident. There is no mention of a right-shoulder injury. This is, of course, seventeen months after the subject injury and during which time the plaintiff has been performing full duties and not seeking any treatment for a right-shoulder injury.
[71]Exhibit 7
95 The last consultation before 3 and 4 June 2013 was for abdominal cramps on 22 March 2013.[72]
[72]Exhibit 14
96 By this time, at best are the plaintiff’s post-hoc complaints that he was suffering chronic pain in the shoulder, but the same was not requiring of treatment in the face of his preparedness to consult three different general practices for other complaints.
97 The “second” injury on 3 June 2013 resulted in the plaintiff having two days off work and being referred for a right-shoulder ultrasound, which showed “subacromial/subdeltoid bursitis”.[73] On 17 June 2013, it was noted “right shoulder pain has improved a lot”.[74]
[73]Exhibit 14
[74]Exhibit 14
98 Thereafter, there are over twenty consultations up until 29 January 2015 at the Epping practice and two attendances at the Summerhill practice before a history was taken at Epping on 23 February 2015 of a right-shoulder injury consequential to a fall from a ladder nearly four years earlier.[75] At the same consultation, it was noted the plaintiff had been dismissed two weeks ago and it was noted the date of injury was 18 April 2011 and the plaintiff had worked for a while prior to presentation. He was referred for an ultrasound of the right shoulder.[76]
[75]Exhibit 14
[76]Exhibit 14
99 It would appear that the three ultrasounds tendered in evidence, being 3 August 2011,[77] the ultrasound dated 7 June 2013[78] and the ultrasound dated 26 February 2015, are all reasonably similar, describing mild subacromial/subdeltoid bursitis.
[77]Exhibit “F”
[78]Exhibit 10
100 It should also be noted that the plaintiff was able to earn approximately $76,000 income for the year ending 30 June 2014 performing, essentially, full-time plumbing duties.
101 It should also be noted that between 6 May 2014, when the plaintiff attended his general practitioner for a colorectal problem, and 29 January 2015, when he attended for flu-like symptoms, there had been no attendance for any complaint, least of all a right-shoulder injury, in the meantime.
102 Accordingly, the clinical record until this time is consistent with the plaintiff having recovered from three incidents, being November 2010, April 2011 and June 2013, or at least none of the three amounted to a serious injury in terms of permanence.
103 Despite this clinical picture, there is the referral to Mr Blackmore in 2015, for a surgical procedure. Further, there is, apparently for the first time, an MRI scan taken on 16 May 2015, which revealed:
“SLAP tear with an associated para labral cyst measuring 5mm
…
Minimal subacromial/subdeltoid bursitis.”[79]
[79]Exhibit “F”
104 It seems from this time, all medical practitioners, both for the plaintiff and the defendant, accept the plaintiff’s history of right-shoulder pain subsisting from the time of the fall from the ladder in 2011 leading to a permanent impairment to the right shoulder, such that the plaintiff is no longer able to engage in heavy work such as plumbing duties that he had previously performed.
105 There is also general consensus that the state of the right shoulder extant in 2015 was responsible for the overuse of the left shoulder, which was reported on from at least 17 November 2016 to the Summerhill clinic.[80]
[80]Exhibit 13
106 Further, it would appear that the plaintiff was complaining of symptomatic left and right shoulders from this time on, and particularly 9 December 2016 and 18 January, 16 February, 7 March, 29 March, 26 April, 8 June, 22 June and 18 September 2017.
107 The opinions expressed by all medical practitioners who provided reports in the case are consistent with the November 2010 and June 2013 incidents being self-limiting aggravations of an underlying condition, such that the ongoing pain in the right shoulder which was chronic from the time of the fall from the ladder was reported to “Phil”, leading him to tell the plaintiff in or about January 2015 that he no longer wished to employ a one-armed man.[81]
[81]Exhibit “A”, affidavit sworn 12 July 2017
108 As noted in discussion with counsel, it would not have been surprising for the plaintiff to have claimed a general aggravation of his right shoulder due to the nature of his employment, but this was not pursued. The plaintiff was at all times adamant that his injury to the right shoulder had its genesis in April 2011 and he never recovered therefrom, despite a self-limiting aggravation in or about June 2013.
109 It is clear enough that the state of his shoulder post operation required intensive physiotherapy treatment at Total Physiocare Reservoir from 1 September 2015 until 22 August 2017.[82]
[82]Exhibit 16
110 The physiotherapist took a history on 1 September 2015 that the genesis of his complaint was a fall at work onto his outstretched arm. Then follows some forty-odd consultations between 1 September 2015 and 22 August 2017, consistent, in my view, with an underlying organic problem to both shoulders. In particular, there is evidence that the plaintiff was actively pursuing rehabilitation as per the consultations on 12 November 2015, 24 November 2015, 28 April 2016, 27 September 26, 5 October 2016, 18 October 2016, 21 March 2017 and 23 March 2017.
111 As stated above, there is medical support for the left-shoulder impairment, being a consequence of the right-shoulder impairment, due to overuse of the left shoulder as a result of pain in the right shoulder.[83]
[83]See Mr Blackmore and Dr Wyatt
112 Both counsel took opposing submissions with respect to the credit of the plaintiff. Senior defence Counsel tendered video surveillance films dated 23 November 2015, 21 February 2017, 9 March 2017, 22 September 2017, 26 September 2017, 24 October 2017, 27 October 2017, 26 February 2019, 28 February 2019, 14 March 2019, 16 April 2019 and 22 April 2019.[84] These films did show the plaintiff apparently present at an industrial site from time to time and using both hands and both arms, and at times showing an unrestricted movement of both shoulders (23 November 2015) and apparently in no apparent pain; however, the films do not show the plaintiff engaging in any vigorous activity with either arm and I do not consider that the films themselves are corroborative of either the plaintiff’s or defendant’s position.
[84]Exhibit 17
113 On balance, I am prepared to accept the plaintiff was a witness of truth with respect to the suffering of the symptoms as emanating permanently from the April 2011 injury. It is true enough that some of the histories to the doctors are consistent with the right-shoulder injury emanating from the June 2013 aggravation, but overall I consider the plaintiff was not necessarily accurate with respect to dates, but was not attempting to mislead the Court. I am prepared to accept that on balance, the plaintiff was stoic in not complaining of pain in his right shoulder to his general practitioners and that he continued to work in the face of pain up until he was retrenched in January 2015.
114 As stated before, it was open to the plaintiff in the face of the clinical record outlined, to have argued that his clinical position as at 2015 was a result of the general nature of his work duties as distinct from a fall from the ladder in April 2011. On balance, I accept his history, as did all the medical practitioners who gave opinions on both sides in this matter, that the chronic pain proceeded from the fall from the ladder in April 2011.
115 Accordingly, it is not in contention that the plaintiff has a permanent impairment in terms of his right-shoulder injury and I am prepared to accept the nexus with the left-shoulder injury being a consequence of the April 2011 injury.
116 That being the case, I am satisfied that the consequences with respect to the two shoulder injuries for the plaintiff can fairly be described, when judged by comparison with other cases in the range of possible impairments or losses, as being “more than significant or marked” and as being “at least very considerable”.
117 I also accept that the plaintiff does suffer from permanent daily pain, requiring frequent medication and that this does in fact raise a real prospect of a “very considerable” consequence as cited by Kyrou J in CAN 005 565 926 Pty Ltd v Snibson.[85]
[85][2012] VSCA 31 at paragraph [71]
118 I find that the plaintiff is entitled to leave to proceed for common law pain and suffering damages, on account of an injury to his right shoulder suffered in April 2011.
Loss of earning capacity
119 It is common ground that the plaintiff was under twenty-six years of age at the time of suffering his injury and, as such, the formula in s135AB(38)(f) of the Act does not apply. This means the Court:
“… may have regard to the probable income from personal exertion which the plaintiff would have earned but for the injury over the worker’s probable earning life. This means the usual common law position prevails”.[86]
[86]See Accident Compensation (Common Law and Benefits) Bill Second Reading Speech, 23 May 2000.
120 Accordingly, in considering a loss of earning capacity and whether the plaintiff has a permanent loss of earning capacity of 40 per cent or more after the date of hearing and into the future,[87] I find:
(a)the “three years before and three years post-injury period” is irrelevant;
(b)the issue of “suitable employment” is not relevant save for by reference to s134AB(38)(g) of the Act;
(c)a court can have regard to the availability of employment. In this regard, I note that the plaintiff has always worked in a physical capacity where the unfettered use of his shoulders and arms is necessary and as such I find it would be very difficult for the plaintiff to find employment in an industry for which he has qualifications by reason of his age and training;
(d)the plaintiff has attempted to avail himself of all reasonable rehabilitation and, in particular, I refer to the physiotherapy notes tendered in evidence[88] and the particulars referred to above.
[87]Section 134AB(3)(iii) of the Act
[88]Exhibit 16
121 As to the principles applicable concerning loss of earning capacity, I was referred to the judgment of Heydon J (as he then was) in State of New South Wales v Moss[89] as follows:
[89](2000) 54 NSWLR 536
(i) evidence of past economic loss is some, though not conclusive, evidence of reduced earning capacity;[90]
[90]State of New South Wales v Moss (ibid) at paragraph [64]
(ii) it is generally desirable to have precise evidence of what the plaintiff would have been likely to have earned before the injury and what he is likely to earn after it;[91]
[91]State of New South Wales v Moss (ibid) at paragraph [66]
(iii) where a plaintiff has suffered a significant disabling injury which affects the range and nature of the work he can perform, a court can, without specific evidence as to what other persons with that kind of disability can earn, make a judgment and assessment, on a percentage basis, or otherwise, of the value of the lost capacity;[92]
[92]State of New South Wales v Moss (ibid) at paragraph [69]
(iv) the compensable loss is not a loss of income, but a loss of capacity to earn income in a manner productive of financial loss. It is an issue of calculating the damage to a capacity to carry on various careers. It is an exercise in estimation of possibilities, not proof of possibilities;[93]
[93]State of New South Wales v Moss (ibid) at paragraph [71]
(v) the mere fact that the quantum of damages is difficult to assess does not mean that the plaintiff is only entitled to a nominal sum;[94]
(vi) the task for the trial of fact is to perform a discretionary judgment by reference to two not-wholly-determinant criteria within fairly-wide parameters.[95]
[94]State of New South Wales v Moss (ibid) at paragraphs [72] and [74]
[95]State of New South Wales v Moss (ibid) at paragraph [87]
122 The following evidence concerning loss of earning capacity, in my view, is of relevance in determining whether the plaintiff has suffered a permanent 40 per cent loss:
(a)at the time of suffering his injury, the plaintiff was engaged in heavy, repetitive work of a type that he cannot return to and which, in turn, was specialised and remunerative;
(b)the plaintiff ceased schooling at the end of Year 11 and has no other formal training or tertiary education apart from training to be an apprentice plumber;
(c)all of the medical evidence supports the proposition that the plaintiff cannot resume his pre-injury employment or heavy or physical work;
(d)in relation to the plaintiff’s pre-injury employment, it is not in dispute that on current earnings he would be capable of earning in the region of $113,000 gross and that the threshold pursuant to the Act is approximately $67,000 gross.
Findings
123 Upon finding that the plaintiff has suffered a compensable impairment to his right and left shoulders due to injuries suffered in the course of his employment with the former employer has produced pain and limitation of movement, such that he has a permanent “light work capacity”. The effect of all of the evidence is that he will be permanently unable to return to his pre-injury employment requiring physical repetitive work on a full-time basis. I am satisfied that the plaintiff will continue to suffer pain and disability due to the injury and that this will be permanent, and that he is likely to be able to return to light physical work only in the future, and probably on a part-time basis. Accordingly, that capacity, in my view, is well below the threshold sum of $67,000 required at law.
124 Accordingly, there will be leave for the plaintiff to issue proceedings at common law for loss of earning capacity.
125 I will hear the parties as to consequential orders.
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