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Schulz v Cool Breeze Rentals Pty Ltd [2023] VCC 722 (10 May 2023)

Last Updated: 11 May 2023

IN THE COUNTY COURT OF VICTORIA
AT MELBOURNE
COMMON LAW DIVISION
Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-21-05417

JASON SCHULZ
Plaintiff


v


COOL BREEZE RENTALS PTY LTD
Defendant

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JUDGE:
HIS HONOUR JUDGE PILLAY
WHERE HELD:
Melbourne
DATE OF HEARING:
27 March 2023
DATE OF JUDGMENT:
10 May 2023
CASE MAY BE CITED AS:
Schulz v Cool Breeze Rentals Pty Ltd
MEDIUM NEUTRAL CITATION:

REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION

Catchwords: Serious injury – injury to the left shoulder – multiple prior injuries – disentanglement of injuries and impairment consequences – credible plaintiff – whether impairment consequences are more than significant or marked

Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013 (Vic)

Cases Cited: Yirga-Denbu v Victorian Workcover Authority (2018) 57 VR 545

Judgment: Application granted

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APPEARANCES:
Counsel
Solicitors
For the Plaintiff
Mr S Dawson
Rubicon Compensation Lawyers



For the Defendant
Mr B McKenzie
IDP Lawyers


HIS HONOUR:[1]

  1. Jason Schulz claims to have suffered a serious injury to his left shoulder arising in August 2016 while employed by Cool Breeze Rentals Pty Ltd (“Cool Breeze”) as an air conditioning technician. The defendant denies that Mr Schulz has suffered a serious injury to his left shoulder. This is because he changed jobs shortly after the injury in August 2016 and performed similar work for another employer called Active Air Rentals (“Active”). The defendant’s argument is that this further work caused an aggravation to Mr Schulz’s left arm injury; so much so that the consequences he currently complains of in the left shoulder are caused by an admixture of both the injury arising at Cool Breeze and Active. The issue before the Court is whether Mr Schulz can identify the impairment consequences arising from the Cool Breeze employment and if so, whether they rise to the level to be considered a serious injury. For the reasons which follow, I find that Mr Schulz has been able to adequately identify those impairment consequences said to arise from his employment at Cool Breeze. Further, I find that those isolated impairment consequences rise to the level necessary to be considered serious when regard is had to the relevant test in the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (“WIRCA”).

Brief relevant facts

  1. Mr Schulz was born in October 1969. He completed school to Year 12 and then became a laser printer operator between 1990 and about 2002. In 2003 he began employment at Airaid Pty Ltd as a delivery driver and technician installing air conditioning units. He worked in this position until about 2010. He hurt his right knee in February 2010. Shortly afterwards he began employment with Cool Breeze as an air conditioning technician and driver. He remained with Cool Breeze between March 2010 and 30 January 2017.
  2. In this position, he was required to attend various commercial sites to repair and install air conditioning units and ducts. This was at times heavy work, often requiring overhead use of the arms to lift equipment and repair machinery. He was also required to attend at sites where large scale events were occurring to install air conditioning units and run ducts. These were commercial ducting systems and often involved heavy and awkward work.[2]
  3. In June 2014 he ruptured his right ankle and had an arthroscopy. In February 2016 he hurt his right shoulder while playing cricket for Knox Cricket Club.
  4. On 8 August 2016 he had the injury which is at the centre of this dispute. The injury occurred while he was servicing a wall mounted heater at the Croydon Uniting Church. He was working overhead, trying to manually handle a unit when he felt a pinch in his left shoulder.[3] He saw his treating doctor, Dr Tharesh Iddagoda, and was prescribed Lyrica and sent for an ultrasound.[4] The ultrasound showed tears in the supraspinatus and subscapularis tendons with impingement and bursitis.[5] He had an injection of steroid into the left shoulder.[6] He lodged a WorkCover claim which was accepted and was placed on modified duties. In his WorkCover claim, Mr Schulz wrote the following:

“Thought at first it was a strain and that it might improve with rest. Didn’t believe it was anything too serious.”[7]

  1. He remained on modified duties of about four hours per day, but soon returned to full time duties involving events work. He found these duties to be very difficult and as such, searched for alternative employment.[8] His treating doctor referred him to see a specialist, Mr Richard Large, an orthopaedic surgeon. Mr Large recommended that he begin physiotherapy. Mr Schulz subsequently began attending Back In Motion Physiotherapy in November 2016. He attended the clinic 11 times in 2016, 12 times in 2017, 2 times in 2018, 12 times in 2019 and 2 times in 2020. Mr Schulz saw Mr Large again on 9 January 2017. Mr Large noted that there had been a great deal of improvement and there was little role for surgery. He recommended a follow up review in 2 months’ time.[9] Mr Schulz did not return to see Mr Large.
  2. On 23 January 2017, Mr Large wrote answers to a questionnaire posed by the WorkCover insurer for Cool Breeze. He wrote the following to describe Mr Schulz’s situation as at January 2017:

“Pain. Cannot lift.

Should avoid overhead work. Lifting.”[10]

  1. Mr Large considered that he would be able to return to his pre-injury duties in 9-12 weeks.[11]
  2. At around this time Mr Schulz made contact with a former work colleague, Mr Scott Pinnegar. Mr Pinnegar worked for Active. It performed similar work to that of Cool Breeze. However, the role that Mr Pinnegar offered to Mr Schulz was as a site supervisor, which involved less hands on work. Mr Schulz gave evidence that he was keen to do lighter work as he was struggling with the employment duties at Cool Breeze. He was good friends with Mr Pinnegar who knew of his left shoulder problems. He talked to Mr Pinnegar about his left shoulder problems.[12] Mr Pinnegar said that he was aware of these problems and they would be no difficulty in the work that Mr Schulz was required to perform at Active.[13]
  3. On that basis, Mr Schulz filled out a pre-employment medical declaration noting that he had no pre-existing medical problems.[14] He was given the job and commenced at Cool Breeze in later January 2017.
  4. During 2017, Mr Schulz continued to attend Back In Motion Physiotherapy several times per month.[15] He continued working at Active but found that his duties were more than simply supervisory, and that he had to do a large amount of installation, maintenance and event work.[16] On 10 November 2017 he had an ultrasound on his left shoulder which showed continuing impingement. No change in his treatment or work occurred. He found the work increasingly difficult.[17] In October 2018, the WorkCover insurer for Cool Breeze ceased paying for his physiotherapy. Mr Schulz began paying for his own physiotherapy and was having it about once per month. It was focussed primarily on his left shoulder.[18] His physiotherapist noted that he had an ongoing reduction in strength on his left side.
  5. In mid-2019 he consulted his treating doctor with persisting left shoulder problems and was referred to Mr Peter Moran, the orthopaedic surgeon who had performed earlier surgery on his right knee. After having an MRI performed in August 2019, Mr Moran recommended that he have surgery on the left shoulder to deal with the impingement and bursitis. Mr Moran’s view was that such surgery was necessary to avoid a full thickness rotator cuff tear. Mr Moran sought approval from the Cool Breeze WorkCover insurer to perform such surgery.
  6. Mr Schulz was terminated by Active on 18 September 2019. On 3 November 2019, Mr Schulz registered an ABN number. He gave evidence that it was registered to allow him to perform side jobs such as installation and air conditioning maintenance. He started work at Climate Rental Pty Ltd (“Climate”) on 29 February 2020 as a test and tag technician for air-conditioning units.
  7. The WorkCover insurer for Cool Breeze refused to pay for the surgery proposed by Mr Moran. As a result, Mr Schulz paid for the surgery himself. It was performed by Mr Moran on 19 May 2020.[19] Shortly after, on the advice of his solicitor, Mr Schulz lodged a worker’s injury claim form against Active claiming that the heavy and awkward work required at Active had led to an aggravation or exacerbation of his left shoulder symptoms.[20] [21]
  8. That claim was accepted. The surgery performed was only partially successful and Mr Moran recommended further surgery to deal with ongoing impingement, which was performed on 15 September 2020. Mr Schulz had a further hydrodilatation performed after that surgery. He commenced physiotherapy with Mr David Allen and has been regularly attending since. He returned to work at Climate on 6 November 2020 on modified duties work. He progressed to full duties work as at February 2021 doing test and tag work. He gave evidence that this was lighter work than that which he had previously been engaged in.[22] As at June 2021, Mr Allen considered he had no capacity to lift on the left side more than 5 kilograms.[23] The Medical Panel found on examination he had mild bilateral restriction of the left shoulder with weakness and discomfort. They found there was no neurological deficit.

The Medical Panel

  1. In order to resolve some of the issues between the parties and narrow the scope of the dispute, several medical questions were referred to the Medical Panel. The Medical Panel provided its opinion on 20 October 2022 (“the Opinion”)

“Question 1. What is the nature of the medical condition of the Plaintiff’s:

(a) left shoulder; and

(b) right shoulder?

Answer:

(a) The Panel is of the opinion that the Plaintiff is suffering from residual dysfunction of the left shoulder secondary to a rotator cuff injury and impingement treated operatively.

(b) The Panel is of the opinion that the Plaintiff is suffering from residual dysfunction of the right shoulder secondary to a rotator cuff injury and impingement treated operatively.

Question 2.

(a) Was the Plaintiff’s employment with Cool Breeze Rentals Pty Ltd (“the employer”) on 8 August 2016 in fact; or

(b) Could his employment with the employer on 8 August 2016 possibly have been –

a significant contributing factor to any and if so what injury (including recurrence, aggravation, acceleration, exacerbation or deterioration of a pre-existing condition) to the Plaintiff’s left shoulder?

Answer:

(a) In the Panel’s opinion the Plaintiff’s employment with Cool Breeze Rentals Pty Ltd (“the employer”) on 8 August 2016 was in fact a significant contributing factor to the Plaintiff’s residual dysfunction of the left shoulder secondary to a rotator cuff injury and impingement treated operatively.

(b) In the Panel’s opinion the Plaintiff’s employment with Cool Breeze Rentals Pty Ltd (“the employer”) on 8 August 2016 could possibly have been a significant contributing factor to the Plaintiff’s residual dysfunction of the left shoulder secondary to a rotator cuff injury and impingement treated operatively.

Question 3. If “yes” to:

(a) Question 2(a), does any medical condition of the Plaintiff’s left shoulder continue to result from or be materially contributed to by the injury suffered in employment with the employer on 8 August 2016?

(b) Question 2(b), does any medical condition of the Plaintiff’s left shoulder continue to result from or be materially contributed to by the injury suffered in employment with the employer on 8 August 2016?

Answer:

(a) The Panel is of the opinion that the Plaintiff’s residual dysfunction of the left shoulder secondary to a rotator cuff injury and impingement treated operatively results from and is still materially contributed to by the injury suffered in employment with the employer 8 August 2016.

(b) The Panel is of the opinion that the Plaintiff’s residual dysfunction of the left shoulder secondary to a rotator cuff injury and impingement treated operatively results from and is still materially contributed to by the injury suffered in employment with the employer 8 August 2016.

Question 4. If “yes” to:

(a) Question 2(a), does any medical condition of the Plaintiff’s right shoulder result from or is it materially contributed to by injury to the left shoulder on 8 August 2016?

(b) Question 2(b), does any medical condition of the Plaintiff’s right shoulder result from or is it materially contributed to by injury to the left shoulder on 8 August 2016?

Answer:

(a) No.

(b) No.

Question 5. Is any medical condition of the Plaintiff’s:

(a) left shoulder identified by the Medical Panel in answer to Question 3; or

(b) right shoulder identified by the Medical Panel in answer to Question 4 –

“permanent” meaning likely to last for, during or through the foreseeable future?

Answer:

(a) Yes.

(b) Not Applicable.”[24]

The Opinion

  1. It can be seen that the Opinion identifies that the employment at Cool Breeze caused injury to the plaintiff’s left shoulder. That injury impairs the function of the left shoulder. The Opinion determines that that injury has impairment consequences which the plaintiff suffers from today. The Opinion determines that the left shoulder injury caused by employment at Cool Breeze is permanent.
  2. By reason of the Opinion, the defendant’s primary contention was focussed on what was the nature and extent of the left shoulder injury which occurred in employment with Cool Breeze.[25] The defendant then argued sequentially in the following way. First, the evidence was not specific enough to allow the court to make findings as to what impairment consequences flowed from the Cool Breeze employment or the Active employment. Secondly, that if the evidence was specific enough to isolate those impairment consequences referrable to the Cool Breeze employment, then those consequences did not rise to the level required to satisfy the test of being a serious injury.

Can the Plaintiff’s left shoulder impairment consequences referrable to Cool Breeze be isolated?

  1. Dealing with the first topic as to whether the plaintiff’s left shoulder impairment consequences can be isolated as referrable to the August 2016 Cool Breeze employment. For the reasons which follow, I find that the Cool Breeze employment has caused impairment consequences which can be isolated. I find that the current impairment consequences are almost totally related to the Cool Breeze employment and that the Active employment plays only a very minor role in the current presenting impairment consequences.
  2. The defendant first pointed to the fact that in January 2017 the plaintiff’s treating specialist, Mr Large, gave him a “clean bill of health” and asked him to come back for review in two months, but he did not. This was said by the defendant to demonstrate that at the time he left Cool Breeze, Mr Schulz had recovered. This was said to be supported by a statement from Mr Pinnegar which was tendered. The statement read as follows:

“I was aware that Jason had hurt his shoulder at Cool Breeze Rentals but my understanding of his injury at this time was that he had already had an operation to have it fixed and had recovered fully from it”.[26]

  1. I do not accept that characterisation of the evidence. The plaintiff’s evidence is that he left Cool Breeze because he was physically struggling.[27] His evidence is that he was approached by a colleague, Scott Pinnegar, at Active to take on a more supervisory role at Active. He disclosed his injury to Mr Pinnegar, who he said assured him that would not be a problem; as a result he filled out a pre-employment form with no reference to his pre-existing left shoulder injury. I accept that evidence because the statement tendered of Mr Pinnegar is clearly wrong.
  2. It suggests that as of January 2017 Mr Schulz had had surgery and fully recovered. It is patently wrong as the accepted history is that surgery was only performed in 2020. Mr Schulz’s evidence must be preferred to this. This is bolstered by the fact that the defendant has also failed to have adequate regard to the questionnaire filled out by Mr Large for the WorkCover insurer dated 23 January 2017 and set out below. In submissions the defendant took the Court only to Mr Large’s report of 9 January 2017. However, in his questionnaire response of 23 January 2017 Mr Large makes clear that Mr Schulz, as at that date, was dealing with significant left shoulder problems. He wrote, and I repeat:

“Pain. Cannot lift.

Should avoid overhead work. Lifting.”[28]

  1. This supports Mr Schulz’s evidence that as at January 2017 he was struggling with his normal duties, had decided to move on to an alternative lighter position, and supports his version of events over that put by the Defendant, that is he had made his difficulties known to Active.
  2. These difficulties are also apparent from the ongoing treatment that he had after August 2016. The first thing to note is that he was on modified duties under certification of his treating doctor.[29] He then had treatment with an ultrasound injection but it was of limited benefit. He began physiotherapy treatment with Back In Motion Physiotherapy in November 2016. No change in treatment occurred even after the ultrasound of 10 November 2017 for example. This lack of radiological change is significant because it supports the notion that the damage was done at Cool Breeze and not radiologically worsened by any work at Active. The physiotherapy also continued under the Cool Breeze accepted claim at a relatively regular pace until the insurer terminated his medical expense payments in October 2018. To underline the importance of that physiotherapy to the plaintiff, he then began paying for the sessions himself. It is true that he received little treatment through his treating doctor, but it is obvious that he derived the greatest benefit through physiotherapy, as Mr Large had previously noted.[30] The constancy of this treatment and the period of time over which it occurred I find indicates the injury at Cool Breeze was significant and continued to plague him to a considerable extent while he was at Active.
  3. To further its argument that the plaintiff could not adequately isolate the impairment consequences arising from the Cool Breeze employment, the defendant relied upon the plaintiff’s submission of the WorkCover claim form against Active. In that claim form the plaintiff had written:

“heavy and repetitive and awkward duties throughout the course of employment – gradual process injury”[31]

  1. It was submitted that the plaintiff did heavy work with Active that had aggravated his condition so that by mid-2020 his situation was such that he needed surgery for a materially worsened condition. This submission must be assessed in the context of the plaintiff’s legal and financial situation at that time. As set out above, the plaintiff had by January 2017 significant pain, limitation of movement and difficulty with overhead weight. He had been on an ongoing course of physiotherapy through 2017, 2018 and 2019. Even when this stopped being paid by Cool Breeze’s WorkCover insurer, he then continued to self-fund it. This consistency of treatment and determination by him, that it was necessary for his function, indicates strongly that his 2016 problems had not gone away. In this situation he consulted Mr Moran in mid-2019 on referral from his treating doctor and had an MRI. Mr Moran recommended surgery given his history and chronicity of subacromial impingement and bursitis.[32] The MRI identified pathological problems related to his Cool Breeze employment. It was Mr Moran’s view that there had been some deterioration of the rotator cuff complex, but the primary need for surgery was the subacromial impingement and bursitis and its possible threat to the rotator cuff complex overall. That was a situation which had arisen by reason of the Cool Breeze employment and it was for this reason that Mr Moran sought approval for surgery.[33] Mr Moran’s opinion that the surgery was necessary for the 2016 injury is a crucial finding. This is because he is the treating specialist who has seen the plaintiff on two occasions under surgery. His opinion is informed by both clinical examination, surgical findings and the unique insight afforded to a treating specialist over time. This places him in a preferable position to all other medico-legal practitioners who have opined in this case. In particular, to the extent that Mr Perera suggests that the surgery was occasioned by an aggravation of his condition at Active.[34] I would reject that evidence and prefer the evidence of Mr Moran, that the surgery occurred due to the injury at Cool Breeze for the reasons just given. Similarly, I put aside Dr Sanjay Joshi’s opinion. In addition, I would not accept Dr Joshi’s opinion as he is the only doctor to opine Mr Schulz has no ongoing work-related component to his symptoms.[35] This is so at odds with the opinions of others, it cannot be accepted and overall undermines his opinion.
  2. Something must also be said about the plaintiff’s evidence. He was cross-examined for two hours. He conceded matters when appropriate, such as failing to inform the Medical Panel about his ABN.[36] Similarly when asked about his other medical conditions such as his gout problems, he conceded there was no mention of this in his affidavit material.[37] And similarly he accepted that the treating doctor notes do not disclose much in the way of attendances for left shoulder pain.[38] He also conceded he had chronic right knee pain[39] and low back pain,[40] yet none of this was mentioned in the affidavit material when identifying the medication he took or why he took it. I accept the defendant’s submission that despite there being three affidavits, they did not give the full picture of his current physical state. However, turning to whether these matters are material omissions. The issue of his initial right knee problems were featured in Mr Moran’s reporting (he having been the treating surgeon); in his affidavit; he also gave a history to Mr Travis Perera of ongoing right knee troubles being significant now[41] and also, to Dr Joshi[42] – so it is clear that he had not hidden that particular injury. As for his gout – he had identified for the Medical Panel that he was on medication for it since 2017.[43] This was not hidden. I accept his back issues were not adequately disclosed in either his affidavit or in his history to various doctors. However he gave evidence that he did not have chronic low back pain.[44] So it was not a real feature of his life or impacted his work. As for the lack of attendances on his treating doctor for his left shoulder pain, it is clear he was having treatment with his physiotherapist as his main treatment modality in preference to his treating doctor. Balancing all these matters, I consider the plaintiff to be a witness of truth and the identified omissions, I do not consider are significant or materially impact my overall assessment of the evidence of Mr Schulz. He gave evidence I consider in a direct and honest way. He did not embellish or exaggerate in any way. This presentation is consistent with the views of Mr Perera specifically and is not contradicted by any other medico-legal examiner who took his history.[45] Overall, I find he completed the claim form on the advice of solicitors in order to obtain the medical treatment he needed and to enliven his entitlement to physiotherapy. This is entirely understandable.
  3. Turning to assess the impairment consequences associated with the left shoulder injury which occurred at Cool Breeze. I find the injury is as identified by the Opinion, that is a rotator cuff injury with impingement on the left side.
  4. I find the impairment consequences of that injury are permanent. I adopt the Opinion in this regard. As at January 2017 the injury was causing impairment as identified by Mr Large and set out above. The functional impact was so significant that Mr Schulz moved to a site supervisor role which was less hands on. He struggled with his left shoulder and had physiotherapy on a regular basis through Back In Motion Physiotherapy. In cross-examination it was suggested that his work at Cool Breeze and Active was similar. The Plaintiff accepted that after the initial period at Active, the work became similar to that at Cool Breeze. However he was clear in his affidavit that his left shoulder was not improving over time and that he needed ongoing physiotherapy,[46] and that this ultimately became so problematic he sought further review from Mr Moran. This review resulted in the two surgeries and hydrodilatation in 2020. As Mr Schulz said, he was then required to look for “even lighter work”.[47] This was with Climate where he continued primarily as a test and tag technician.[48] I find this is a significantly lighter role than he did at Cool Breeze. I accept his evidence that his functional capacity has been significantly diminished as a result of the injury at Cool Breeze and this is the permanent situation. This is particularly important because since 2002 at least, he has worked in this field. He was skilled and experienced in it. I accept that he registered an ABN number to do air conditioning and heater installations and maintenance. This was in 2019 but he had surgery the year after and gave evidence that he was only ever able to do four to six instalments a year. He said that now he just passes up this work so that he can rest. I accept that evidence and it reinforces my finding that this once fit and capable, skilled air conditioning technician has lost a significant part of his functional capacity because of the left shoulder injury occasioned by his work at Cool Breeze.
  5. As to treatment, I find that he needs ongoing physiotherapy and massage for the left shoulder injury. The physiotherapy has been a constant for over six years. This is a substantial period of time and speaks to the significance of the injury at Cool Breeze. As to massages, he told the Medical Panel he tries to have it weekly.[49] In evidence, he deposed to also having it for his neck and shoulders.[50] I accept that the massage is for other body parts, but during the massage the left shoulder is massaged and is relieved by that massage. I consider I am entitled to rely on the fact that the massage is a treatment modality he uses to relieve the residual dysfunction the Medical Panel found he suffers from in the left shoulder, and is associated with the injury he sustained at Cool Breeze.
  6. The lack of clinical notes from the treating doctor’s clinic and a report after 6 January 2020 from Dr Iddagoda make findings about the continuity of care difficult. However, the Plaintiff gave evidence that Dr Iddagoda had left the clinic about 2 years after the date of injury.[51] Since then he has seen various other doctors there. He has relied on his physiotherapist Mr Allen and then Ms Williams as his primary treatment form, so the lack of treating doctors reports is less significant than might otherwise be.
  7. As to pain, I find that it is intermittent over the anterior aspect of the left shoulder but increases after use.[52] I am unable to find how often this is. He notes in his first affidavit that his pain is constant, fluctuates in intensity and varies from day to day[53] and is at the level of 3 to 4 out of 10 at its lowest and 8 out of 10 at its highest.[54] However, in cross-examination he accepted the Medical Panel history[55] and I accept that is the true picture, of intermittent pain rather than constant pain. I accept also that such pain is at the level of 3 to 4 out of 10 as he deposed in his first affidavit as this was not challenged. I accept that the pain worsens with strenuous physical activity. As to what level, I am unable to make a finding. It may be that the pain increases as a result of work or some other activity. As to how often those spikes in pain occur, I am unable to make a finding.
  8. I find he gets pins and needles in the left arm if he lies on it.[56] It is unclear to me how often this is, however. I find the left arm fatigues more readily than the right. I accept his evidence in that regard. As to medication, it is the case that he takes Panadeine Forte, two tablets over two nights per week, and otherwise uses Mersynofen at 20 tablets over about two to three weeks to cope with his pain. He gave evidence that he keeps some in his lunchbox every day at work just in case the pain in the left shoulder worsens. In cross-examination he accepted this was also to help with his osteoarthritic and right shoulder pain. As best I can find, and acknowledging, I cannot specifically find how many tablets are taken for the left shoulder each day, his pain is such as to require regular pain medication.
  9. I find that he has also lost the ability to play cricket at the seniors level as he used to.[57] He gave evidence that he was a left-handed batsman, batting at number three, and a left arm medium pacer. He gave evidence that despite his right shoulder, gout and right ankle problems, he would be able to play cricket but for the left arm injury. I accept that evidence. I find this is a significant recreational past time that he has been deprived of.
  10. Similarly I find that he has lost the ability to play golf. He used to play on occasion and it was a pastime that he enjoyed. I find that he is not able to do weights and gym work as he used to because of problems with lifting heavy weights on the left side. He gave evidence that his right shoulder was now in the process of healing after surgery which he had recently and he was regaining good function on that side. However, he rejected counsel’s suggestion that his left shoulder had also similarly improved after surgery. I accept that evidence.
  11. It is also necessary to examine what functions he has retained. I find that he has retained the ability to cycle and do spin classes. He has maintained the ability to work full time in a job which is not modified for him. I accept that he has a boss who understands he has some limitations and co-workers who assist him with heavier tasks. He can drive normally. He has retained the capacity to do side jobs in air conditioning but does not do them currently because of general tiredness associated with his left shoulder injury. He is able to travel and has been on interstate and overseas trips.
  12. I find that his sleep is affected by both his left and right shoulders. His evidence is that his right shoulder is recovering well after surgery. This may mean his right shoulder is not as troublesome at night. However as at the date of this hearing this was unclear too. I am therefore only able to find that his sleep is disrupted by his left and right shoulders and no more.
  1. The Plaintiff conceded in cross-examination that his capacity to engage in fishing and kayaking, and as well as handyman and housework activities, remained as normal up until 2019.[58] Having accepted above Mr Moran’s view that there was some deterioration in the Plaintiff’s rotator cuff injury as at around September 2019, I find that thereafter the Plaintiff’s ability to engage in these activities as he did is attributable to his injury sustained during his employment with Cool Breeze. To this extent I find that he still retains the ability to kayak.
  2. Overall, given the significant impact on his work function, especially on his left dominant side, the two surgical procedures and the ongoing intensive physiotherapy over five years primarily. I find that the plaintiff’s impairment consequences when balanced against those functions which he has retained clearly identify the plaintiff’s impairment consequences as meeting the threshold for being considered a serious injury.

[1] The footnotes in this judgment refer to the electronic numbering of the Plaintiff’s Court Book tendered at the hearing on 27 March 2023

[2] Plaintiff’s Court Book (“PCB”) 92

[3] PCB 7, at paragraph [10]

[4] PCB 7, at paragraph [12]

[5] PCB 62

[6] PCB 63

[7] PCB 55

[8] PCB 8, at paragraph [19]

[9] Defendant’s Court Book (“DCB”) 9

[10] DCB 10

[11] DCB 10

[12] The footnotes in this judgment refer to the electronic numbering of the transcript of the hearing on 27 March 2023; Transcript (“T) 70, Line (“L”) 29-31; DCB 31, at paragraph [15]

[13] T71, L12-15

[14] DCB 14

[15] PCB 142; PCB 174; PCB 147; PCB 156; PCB 162; PCB 170

[16] PCB 43

[17] T69, L6-7

[18] PCB 148; PCB 143; PCB 149

[19] PCB 9, at paragraph [34]

[20] DCB 16

[21] PCB 9 at [31] the Plaintiff confirmed that Active ultimately paid for the surgery after he lodged his claim with them on 27 May 2020 – which is after the surgery was conducted and paid for. DCB16

[22] PCB 10, paragraph [38]

[23] PCB 84

[24] PCB 38-39

[25] Yirga-Denbu v Victorian Workcover Authority (2018) 57 VR 545

[26] DCB 31, at paragraph [15]

[27] T70, L120-22

[28] DCB 10

[29] PCB 242; PCB 257

[30] DCB 9

[31] DCB 16

[32] PCB 69

[33] Ibid

[34] PCB 101

[35] PCB 129

[36] T18, L18-19

[37] T40, L10

[38] T25, L5-6

[39] T25, L22; PCB 249

[40] T36, L30; PCB 251

[41] PCB 99

[42] PCB 122

[43] PCB 42

[44] T38, L14

[45] PCB 100

[46] PCB 8, at paragraph [23]-[24]

[47] PCB 9, at paragraph [32]

[48] PCB 35, at paragraph [13]; See joint statement

[49] PCB 44

[50] T38, L10-11

[51] T22, L7-8

[52] PCB 45

[53] PCB 10, at paragraph [40]

[54] PCB 11, at paragraph [42]

[55] T55, L25

[56] T56, L11-14

[57] T60, L31

[58] T50 L25 – T51 L7

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