Harris v Victorian WorkCover Authority [2025] VCC 1759

(a) Was Mr Harris a reliable witness?

(b) Did Mr Harris suffer an aggravation injury to his left shoulder in an incident at work in early September 2020?

(c) If yes, what was the aggravation injury and what are the permanent impairment consequences of the aggravation injury?

(d) Are the permanent impairment consequences of the compensable left shoulder injury "serious"?

(e) What permanent impairment consequences are due to psychological injury consequent upon the compensable injury?

(f) Is Mr Harris permanently unable to earn at least 60 per cent of his "without injury" income because of the impairment consequences of the compensable psychological injury; and, is the loss of earning capacity consequence of Mr Harris' compensable psychological injury "severe"?

(g) Are the permanent impairment consequences of the compensable psychological injury "severe"?

1. For the reasons that follow, I find that Mr Harris suffered an aggravation injury to his left shoulder in an incident at work in early September 2020. He has satisfied his onus to establish that the permanent impairment consequences of that aggravation injury are "serious". However, I am not satisfied that Mr Harris is unable to earn at least 60 per cent of his "without injury" income because of the impairment consequences of the compensable consequential psychological injury.
2. Mr Harris is granted leave to issue proceedings claiming pain and suffering damages for the injuries suffered in the incident at work in September 2020.

1. The following, I believe, are uncontroversial matters. As far as any were contested, these represent my findings unless otherwise stated.
2. Mr Harris was born and brought up in Albury, New South Wales. He left school halfway through Year 10. He is right handed.
3. Since aged seventeen or eighteen, Mr Harris worked for the employer on and off as a welder and steel fabricator. He did not undertake formal training or a formal apprenticeship, but trained on the job.
4. Mr Harris played football in his youth. In the early 2000s, when Mr Harris was in his twenties, he suffered an injury to his left shoulder playing football.
5. Between 2014 and about March 2018, Mr Harris was unable to work due to pain and restriction in his left shoulder, and consequential psychological difficulties. During this period, Mr Harris consulted Mr Jim Kiellerup, orthopaedic surgeon, who advised him to undergo arthroscopic surgery to remove loose bodies. Mr Harris did not undergo the recommended surgery at that time. I should note at this point, that although these circumstances were not in controversy during the hearing, there was an issue about the extent to which Mr Harris had deposed to these matters in his affidavits, and reported them to doctors.
6. In March 2018, Mr Harris returned to work for the employer. He then undertook steel fabrication work for Altro Engineering for about six months in 2018/2019. He resumed work for the employer again in about March 2020.
7. Mr Harris claims that in the incident in early September 2020, a tip truck came to the employer's premises for repair of its two-way tail door. Mr Harris said he tried to get the tail door open. There was no handle on the outside of the tail door, and it was stuck. Mr Harris claims that in the process of pulling the tail door, gaining leverage with his foot on the rear right tyre, he felt a pop and experienced pain in his left shoulder.
8. Mr Harris submitted a Worker's Injury Claim Form on 2 October 2020 in which he claimed that on 14 September 2020, he "[w]as putting a piece of wood under tail door ... lifted up a tail door, and felt my left shoulder pop".[2]
9. The authorised insurer accepted the claim on 5 October 2020.
10. Mr Harris ceased work on about 9 September 2020. He returned to work performing modified duties on reduced hours in about March 2021, but ceased in August 2021 due to his left shoulder condition. Mr Harris has not returned to work since that time.
11. In December 2020, Mr Duy Thai, orthopaedic surgeon, performed a left shoulder arthroscopy to remove loose bodies and transfer the long head biceps tendon to a new subpectoral location.
12. On 22 June 2022, Mr Harris underwent total left shoulder replacement surgery performed by Mr Thai.
13. Mr Harris had physiotherapy treatment before and after his surgeries. He ceased that treatment in about October 2022.
14. Mr Harris was referred to a psychologist and psychiatrist for treatment. He consulted Dr Karuppiah Jagadheesan, psychiatrist, on 1 October 2022. He is currently awaiting an appointment with a psychiatrist and psychologist, but has had difficulties getting an appointment due to his location.
15. Currently, Mr Harris attends his general practitioner ("GP") approximately monthly. He takes Panadol or Nurofen for pain every second day, and Palexia occasionally. He lives with his partner and two young children in Kilmore.

1. Counsel for the VWA submitted that Mr Harris was not a credible or reliable witness.
2. The primary contention made regarding Mr Harris' reliability was that his affidavits did not provide a full and accurate history of the prior difficulties he had with his left shoulder.
3. In his first affidavit, affirmed on 2 June 2023, Mr Harris relevantly deposed:[3]

"5. I can't recall specific pain in my left shoulder before early September 2020. I had some back pain in 2018 and 2019 I am told as referred to in my GPs notes. I accept that is correct.

4. 6. I have lived an active life including playing footy. I had a left shoulder injury back in those days but don't believe it was a dislocation. I recall it as being more of a ligament injury.
5. 7. I'm pretty tough when it comes to getting on with things. My memory for old injuries is not specific. It wasn't too serious although I believe but I did have an MRI or a CT scan on my left shoulder at one stage after the footy incident - I can't recall which."

1. In cross-examination, Mr Harris agreed that he did not give a full and accurate history of the symptoms in his left shoulder prior to September 2020.[4] When asked whether there was a reason he did not provide a full history in his first affidavit, Mr Harris said:[5]

"Like I said, I'm pretty tough and I just keep moving on. I forget about it and go. > > ... > > I don't think about things like that. I just go to the doctor, they say this is the problem. If I don't get it fixed then I just keep moving forward."

2. In his second affidavit, affirmed on 16 August 2024, Mr Harris deposed to his then current impairment consequences, and did not revisit his prior medical history.
3. During cross-examination, Mr Harris was reminded that his second affidavit made no mention of any prior left shoulder symptoms. The following exchange then occurred:[6]

Q: "Is there any reason why, Mr Harris, you didn't provide a full history in your second affidavit?--- > > A: No. > > Q: No reason for her Honour in relation to that?--- > > A: I just - I got asked questions and - I don't know, I am not very good with paperwork and stuff."

4. In his third affidavit, affirmed on 22 August 2025, Mr Harris relevantly deposed:[7]

"7. Since I affirmed my previous affidavits I have been shown the clinical records of Mr. Jim Kiellerup, the medical records of St Vincent's hospital, Austin Health and the Victorian Aboriginal Health Service. After reviewing these medical records I can now recall that I did attend Mr. Kiellerup in about late 2014 because of intermittent pain in my left shoulder. I can recall having an MRI done on my left shoulder in about late 2014. I recall being told by Mr. Kiellerup that I could have surgery on my left shoulder but I didn't have to have surgery. I did not have private health insurance and he told me that I could look into having surgery done in the public system. I then attended the Victorian Aboriginal Health Service and I got referral letters to attend the Orthopaedics clinics at St Vincent's hospital and Austin health but I do not believe I ever attended St Vincent's hospital or Austin health. I believe that I was placed on the waiting lists for the Orthopaedics clinics at both hospitals but the waiting lists at both hospitals were very long and in the end I did not attend the Orthopaedic clinics at either hospitals because the pain had settled down.

5. 8. In 2015 when my partner had our baby girl, she returned to work and I was a stay at home dad for a few years and in this time I completed a course in Civil Construction Certificate III. I was able to return to work for Gorski in about March 2018 as steel fabricator/welder. ...
6. 9. I continued to suffer ongoing niggles in my left shoulder but I was able to resume playing snooker and ride my dirt bike prior to suffering my injury in about September 2020. ...
7. 10. Prior to suffering my injury to my left shoulder in about September 2020, I was not having any treatment and I was not taking any medication for left shoulder pain."

In cross-examination, Mr Harris said that information was in his third affidavit because he had been reminded that he went to see a doctor. The following exchange then took place:[8]

Q: "So you are saying that it's because you were reminded of it?--- > > A: Yes > > Q: Is it your evidence that you had actually forgotten those attendances?--- > > A: I probably just - I didn't go back to see him again so it wasn't in my mind. I seen him once and that was the only time I seen him. > > Q: So you say you only seen him once and that was it?--- > > A: For the MRI and stuff, yes. > > Q: My question was is there a reason why it's not in the affidavit. Are you saying that you had forgotten about it?--- > > A: Yes. > > Q: So your evidence to her Honour is that between when you saw him in 2014 or 2015 and then up until you affirmed this affidavit in August of 2025 it's something that had slipped your mind?--- > > A: Yes." > > (emphasis added) > > (sic)

Mr Harris was then shown the clinical record of his attendance upon Mr Duy Thai, orthopaedic surgeon, on 1 October 2020. That clinical entry relevantly stated as follows:[9]

"L shoulder problem > > OA with loose bodies and lhb tendinopathy > > too young for shoulder replacement > > for arthroscopic debridement, removal loose bodies tendon subpec transfer > > boilermaker - makes truck bodies > > 15 years > > age 20's football - ? dislocated left shoulder > > told to come off field > > hit shoulder against wall, felt it pop back in and continued playing > > 10 years ago had issues with shoulder > > saw specialist who advised surgery to remove loose bodies > > did not go through with it as shoulder was not too bad..."

There then followed the following question and answers:[10]

Q: "You would accept, Mr Harris, that certainly as of October 2020 you clearly had a memory of a shoulder injury and then further issues with you left shoulder after that; you would accept that?--- > > A: Yes. > > Q: And that you also had a memory of seeing a specialist who advised you to have surgery?--- > > A: Yes. > > Q: So you would accept, Mr Harris, that when you say to her Honour that you have no memory or you had no memory and the reason for the absences in your first and second affidavits was because you had no memory of the 2014 and 2015 treatment, obviously it's very much the case that at least in October of 2020 you had a clear memory of that time. You would accept that?--- > > A: Yes." > > (emphasis added)

With respect to the account given in Mr Harris' third affidavit, the following evidence was given:[11]

Q: "In relation to that third affidavit, Mr Harris, if we can just go back to it at PCB16, that paragraph, paragraph 7 that I read out to you, it's certainly factual, it contains all the factual components of what you say happened, et cetera, ... , but you would agree that it certainly doesn't provide any great detail as to the symptoms that you were experiencing in your left shoulder? You would agree with that?--- > > A: Yes. > > Q: It certainly doesn't talk about, for example, the pain that you were in; you would accept that?--- > > A: (No audible response). > > Q: It certainly doesn't provide any information to the reader that you were off work for quite a significant period of time in relation to your left shoulder symptoms from about 2014 through to 2017?--- > > A: Yes. > > ... > > Q: Is there a reason why again, Mr Harris, that it doesn't say anything in relation to you being off work in relation to your left shoulder symptoms between 2014 and 2017?--- > > A: Like the question you asked before about Kiellerup, I didn't remember about him until [M]r Thai asked me had I ever hurt myself before on that shoulder. I said I remember one time at football was the only time I ever really hurt it but it wasn't that bad. I played the rest of the game. That's when my memory jogged and I understood, that's right, that happened and it came back to me that he gave me an MRI and that's how I've told [M]r Thai. If he didn't ask me that question I wouldn't have remembered it. He put it into my head, oh, that happened them. > > Q: So you are saying that the reason why it's not in your affidavit that you were off work for such a significant period of time is because it just simply slipped your mind?--- > > A: It was becoming normal. > > Q: It what, sorry?--- > > A: It was just like a normal thing. It's three years I've spent more frustrated and depressed than was worrying about my shoulder. > > ... > > Q: You say it's potentially because you were struggling with your mental health; is that right?--- > > A: Yes. > > Q: And there was a downturn in your mental health because of the symptoms of your left shoulder?--- > > A: Not working was the depression part. > > Q: So realistically, whether it be your physical health of your psychological health, it all came back to your left shoulder, didn't it?--- > > A: No. > > Q: No?--- > > A: Because after a few years it got better." > > (emphasis added)

Mr Harris went on to say that the reason he was off work during the 2014 to 2017 period was mainly because his partner went back to work and she earned more, so he was a stay at home father, but said "I still had niggles in my arm".[12] 6. Mr Harris was taken through various clinical records of his attendances on medical practitioners on and after 1 July 2014, which in summary contained the following information:

(a) 1 July 2014, attendance upon Dr Naeem Chaudhry, GP, at High Street Medical Clinic, reporting pain and difficulty abducting the left arm after playing snooker on the weekend. X-ray requested;

(b) 1 July 2014, x-ray performed of left shoulder reported to reveal early degenerative change in the left shoulder, several calcified bodies with doubt about their clinical significance;

(c) 2 July 2014, ultrasound performed of left shoulder reported to reveal sheath effusion, subacromial/subdeltoid bursitis;

(d) 3 July 2014, attended Dr Chaudhry at High Street Medical Clinic regarding his left shoulder problem;

(e) 14 July 2014, attended Dr Chaudhry at High Street Medical Clinic reporting ongoing left shoulder pain and seeking referral to an orthopaedic surgeon. Tramal was prescribed;

(f) 5 August 2014, attended Dr Kiellerup. Dr Kiellerup noted Mr Harris was experiencing "acute disabling left shoulder pain ... He has a lot of trouble with his snooker and his quality of life is suffering."[13] Dr Kiellerup recommended an MRI scan;

(g) 14 August 2014, attended Dr Mabo, Mill Park Clinic, seeking a Centrelink medical certificate;

(h) 25 November 2014, attended Josie Lee, physiotherapist, at the Aboriginal Health Service. Mr Harris described left shoulder stiffness, a feeling that a bone fragment was loose, and pain when sleeping. The note of the attendance recorded that prior to the incident, Mr Harris was having time off work for training, and had one week to go before the injury. Although he had finished training, he had not been able to work since.

(i) 8 December 2014, an MRI scan was performed of the left shoulder. The clinical note recorded "1 ½ years of intermittent pain and decreased range of movement, especially abduction";[14]

(j) 12 December 2014, Mr Harris re-attended Dr Kiellerup. He advised Mr Harris that he could either put up with his shoulder problem or have it addressed by an operation;

(k) February 2015, Mr Harris was referred to the Austin and St Vincent's Hospitals;

(l) 22 June 2016, Mr Harris re-attended the Aboriginal Health Service. He had not yet been seen at the Austin or St Vincent's Hospitals. He complained that he was unable to work as a boilermaker due to pain with repetitive movements, instability, and pain with any lifting. It was noted that he required Nurofen and occasional Panadeine Forte. Mr Harris had a meeting with Centrelink and was reportedly exempt from providing certificates for a year;

(m) 11 October 2016, a three-month Centrelink medical certificate was provided referencing the left shoulder condition;

(n) 12 December 2016, Mr Harris re-attended the Aboriginal Health Service. He reported a left shoulder injury two years previously, and pain most days, including at night. He said he was taking NSAIDs and occasional Panadeine. Mr Harris reported that he was on Centrelink as he was unable to work, and was "frustrated +++".[15]

1. When asked by medico-legal practitioners about any pre-existing difficulties with his left shoulder, Mr Harris did not give a full history. For example:

(a) July 2022, Mr Thomas Kossmann, orthopaedic surgeon, recorded only a history of the football injury;

(b) September 2022, Dr Tony Menz, orthopaedic surgeon.[16] Mr Harris reportedly disclaimed any prior injury or problem involving his left shoulder. Mr Harris denied giving that history to Dr Menz, and said:[17]

"Every doctor has asked me how I hurt my arm before and I said yes, I knocked it when I was playing football when I was younger. That's all I've ever said to anyone. The dislocations have come out, this has come out. All I said was I remember hurting myself once when I played football and then there's dislocations and other stuff and I never knew it was dislocated. No-one told me it was dislocated, and I went and seen doctors about that. I never said to him that I hadn't hurt myself before. He asked me if I hurt myself and I said I remember hurting myself when I played football. That's the same thing I told every doctor."

(c) December 2022, Dr Rowe, occupational physician,[18] noted the football injury and that in 2010, Mr Harris was advised to have surgery to remove loose bodies. He reportedly did not go through with the operation as his shoulder symptoms were manageable at the time.

(d) June 2023, Dr Umberto Boffa, occupational physician, recorded a history of no problems with the left shoulder prior to 2020. Mr Harris said that he gave Dr Boffa a history of the football injury;

(e) August 2025, Dr Boffa re-examined Mr Harris, and noted a history of the football injury and symptoms in 2010 when Mr Harris was told he had loose bodies in the shoulder joint but eschewed surgery. The symptoms reportedly remained manageable until 2020;

(f) July 2024, Dr Robyn Horsley, occupational physician, noted a history of the football injury and "no other recollection of left shoulder injuries related to falls or sporting injuries".[19]

1. Mr Harris' evidence about the date on which the alleged incident occurred was inconsistent. There were different and inconsistent dates in his Claim Form. His Impairment Benefit Claim Form referred to a different date again.
2. The clock-on/clock-off records show that he did not work on the claimed incident dates of 2, 4, or 14 September 2020.
3. In cross-examination, Mr Harris said that he went to his GP the same day the incident occurred, returned to work for half a day the following day, and then ceased work. In contrast to this, the first GP attendance note referred to "3 days of L[eft] shoulder pain post heavy lifting ~80 kg".[20]
4. Senior Counsel for Mr Harris submitted that he was an unsophisticated and essentially guileless man, "Anyone with any measure of guile would have, you would think, been far more evasive and far less frank in the witness box."[21]

1. I find that Mr Harris was not a reliable witness.
2. Of most significant concern was his failure to give a full and frank account of the problems he had with his left shoulder and consequential psychological difficulties between 2014 and 2018, in either his first or second affidavit. Whilst his third affidavit did contain a better history, it was still materially deficient.
3. I reject the contention that Mr Harris had forgotten about these matters. First, that explanation is implausible. Mr Harris had a prolonged period out of the workforce, and I do not accept that would have slipped his mind. Second, I note that in October 2020, Mr Harris gave a history to Mr Thai of having difficulties with his shoulder ten years or so previously, and being advised that surgery was required. Mr Harris was able to recall having difficulties between the football injury and his alleged workplace injury at that time.
4. I find that Mr Harris' contention in his third affidavit that he was a stay at home father for a few years was a misstatement of the true position.
5. In addition, I find that Mr Harris did not provide a full history of his prior left shoulder and psychological difficulties to the medico-legal doctors who examined him for the purpose of this claim.
6. Mr Harris' evidence as to the date of the alleged incident was inconsistent and contradictory.
7. Given my finding that Mr Harris was an unreliable witness, I find that, except where Mr Harris made an admission against interest, I am unable to accept Mr Harris' evidence on a matter absent objective or contemporaneous evidence to support it.

Did Mr Harris suffer an aggravation injury to his left shoulder in an incident at work in early September 2020?

1. The contemporaneous documents tendered relevant to the claimed incident comprise Mr Harris' clock-in and clock-out records for the period 30 July 2020 to 9 September 2020, a Worker's Injury Claim Form dated 2 October 2020, and the clinical records of Kilmore Medical Centre dated September 2020.
2. The clock-in and clock-out records relevantly revealed:[22]

(a) Monday, 31 August - no work;

(b) Tuesday, 1 September - in 06:51, out 15:47;

(c) Wednesday, 2 September - no work;

(d) Thursday, 3 September - in 07:03, out 15:50;

(e) Friday, 4 September - no work has medical certificate;

(f) Tuesday, 8 September - in 07:00;

(g) Wednesday, 9 September - in 07:03, out 12:52.

1. Mr Harris signed a Worker's Injury Claim Form on 2 October 2020. The nominated date and time of the incident was 14 September 2020 at 10.30am. The date and time Mr Harris stopped work was said to be 5 September 2020, "next day".[23] The injury was said to have been reported to Alex Powell and John Psaila on 14 September 2020, and to have been witnessed by Stuart Cracknell. In answer to the question, "Have you previously had another injury/condition or personal injury claim that relates to this injury/condition?", Mr Harris responded "No".[24] The employer lodgement detail section of the form was completed by John Psaila, manager. He noted that he received the worker's medical certificate on 4 September 2020.
2. The clinical records reveal that Mr Harris attended Dr Shama Parveen on 4 September 2020. He reported "3 days of L shoulder pain post heavy lifting ~80kg non radiating". He was prescribed Panadeine, sent for a left shoulder ultrasound, and given a medical certificate.[25]
3. Mr Harris had the ultrasound scan of his left shoulder on 8 September 2020.[26]
4. On 10 September 2020, Mr Harris had a Telehealth appointment at the Kilmore Medical Centre with Dr Mahjabeen Mazhar. The results of the ultrasound were discussed. Mr Harris reported that he suffered his left shoulder injury at work. He was provided with a seven-day medical certificate and sent for a steroid injection into his left shoulder.
5. On 15 September 2020, Mr Harris had the ultrasound-guided steroid injection.
6. In his first affidavit, Mr Harris deposed that he suffered a left shoulder injury in an incident at work at the start of September 2020.
7. As to the specific circumstances of the incident, Mr Harris deposed:[27]

"... a tip truck came in for repair to its back two-way tail door. The truck was empty. To see what was wrong with it I needed to get the tail door open. Sometimes the tail door of a truck will have a handle on the outside.

This truck didn't and it was difficult to open - it was basically stuck. I pulled on it with both hands and one foot braced on the truck's tyre to give me more push force.

As I opened it to get a piece of wood behind it, I felt a pop in my shoulder. ...

I submitted a claim form dated 2 October 2020 which was accepted by X-changing. ... ."

1. As to the date of the incident, Mr Harris deposed:[28]

"18. My claim form says the injury was 14 September 2020. I'm told that the first doctor's note from Dr Shama Parveen (who I do recall) is dated 4 September 2020. I'm not good with dates. The entry I am told says 'heavy lifting - 80kgs'. The gate would be very heavy, but I wasn't lifting it as such I was pulling it apart.

2. I had stayed on working the next day etc after the incident. Dr Parveen will be a good guide rather than my work cover claim..."
3. As I have said, Mr Harris did not revisit the prior condition of his left shoulder or the circumstances of the incident in his second affidavit.
4. In his oral evidence, Mr Harris said that when he reported the happening of the incident to his employer on the day it occurred, he was told not to submit a WorkCover claim until it was known whether the injury was serious.[29]
5. The VWA tendered a Victoria Police summary report dated 7 September 2020.[30] It described an incident on Sunday, 6 September 2020 in which Mr Harris had a physical altercation with one of his sons. Mr Harris was held in police custody overnight and subsequently could not attend work on Monday, 7 September 2020.
6. Mr Harris tendered an affidavit from his partner, Sharni Williams, affirmed on 22 August 2025. Ms Williams deposed that she was "aware that ... [Mr Harris] suffered an injury to his left shoulder in approximately September 2020 when he was working at Gorskis".[31]
7. Mr Harris tendered an affidavit affirmed by Stuart Cracknell on 17 September 2025. The affidavit was obtained during the course of the hearing, after Mr Harris had given evidence and been cross-examined. Mr Cracknell gave evidence and was cross-examined.
8. Mr Cracknell said that he recalled Mr Harris suffered an injury to his left shoulder at work in about September 2020. He said:[32]

"... I was walking out of the office when I saw the plaintiff working on a repair of a truck near the front office. He was pulling open the tail door at the rear of the truck. I was familiar with this task because I had done it many times the same way. I saw him attempt to pull open the tail door of the truck when I heard a 'pop' sound and I heard him cry out in pain. I was walking past at the time and I immediately moved over and grabbed the tail door and grabbed a block to wedge underneath the door so that it wouldn't shut.

I could tell immediately that he had hurt his shoulder by the way he was grimacing and I heard the 'pop' sound. I told him to go and see John Psaila and report the incident, but at that time he told me he would keep working and see how he went."

1. Mr Cracknell said that he saw Mr Harris grab his left shoulder when he cried out in pain.
2. The VWA tendered an affidavit sworn by Alex Powell on 23 May 2024. Mr Powell gave evidence and was cross-examined. He deposed that he did not believe the incident occurred as the plaintiff alleged. He gave the reasons for holding this belief, one of which was:[33]

"Around the time of the incident, I do not recall the Plaintiff's deposed version of events being reported to me. I believe John and the Plaintiff told me that the Plaintiff was injured when using a bar with a clamp. I do not believe this is a task that you could injure your shoulder doing as it requires light pressure only. I do not believe I was present during the incident."

3. During cross-examination, Mr Powell agreed that he believed he had a conversation with John Psaila in which the fact of Mr Harris being injured at work came up. He was unable to recall the date. He had no recollection of Mr Harris talking to him about being injured in an incident at work. He had no recollection of the circumstances of the injury. He agreed that Mr Harris may have spoken to him about it, but he had no recollection of such a conversation with Mr Harris.
4. Mr Powell agreed that Mr Cracknell would collect stickers for trucks from the office.
5. Mr Powell agreed that very rarely a tipper truck may not have a handle on the tail door at the back. He agreed that one method for getting a jammed tail door open would be to pull the tail door as hard as possible and then jam a bit of wood into the gap. He agreed that from time to time mud flaps fall off trucks, and trucks have variable lengths of overhang at the rear. However, Mr Powell did not agree that it was possible to brace one foot on the back tyre of a truck in the process of trying to open the tail door.
6. Counsel for the VWA informed the Court, and I accept, that no employer claim report was completed or received.[34]

1. Senior Counsel for Mr Harris submitted that it was likely that the incident occurred on 1 September 2020.
2. Senior Counsel for Mr Harris did not make any submissions about the acceptance of the claim and did not seek to rely upon the acceptance of the claim as an admission in this proceeding.
3. Counsel for the VWA submitted Mr Harris was an unreliable witness and his account of the alleged incident, including when it occurred, ought not to be accepted.
4. I bear in mind that this is a gateway proceeding.
5. I am satisfied, on a consideration of the whole of the evidence, that Mr Harris suffered an aggravation injury to his left shoulder in an incident at work in early September 2020. That determination is based on the following matters:

(a) Mr Harris' account of the circumstances of the incident, and his injury, are corroborated by Mr Cracknell;

(b) Ms Williams' evidence also corroborates Mr Harris' account of suffering an injury to his left shoulder in an incident at work in September 2020;

(c) The clinical records of the Kilmore Medical Centre support the occurrence of an injury in early September 2020. Whilst a specific work incident was not mentioned in the first attendance upon Dr Parveen, Mr Harris reported suffering injury at work when seen by Dr Mazhar on 10 September 2020;

(d) On 1 October 2020, Mr Harris gave a history to Mr Thai that three weeks previously he lifted a heavy truck door at work which was stuck, and felt and heard a sound in his left shoulder;[35]

(e) Mr Powell's evidence was that he recalled an incident being reported in which Mr Harris suffered injury, but did not recall the circumstances that were reported being the version Mr Harris deposed to.

What was the aggravation injury and what are the permanent impairment consequences of the aggravation injury?

1. Mr Harris relied upon three affidavits affirmed by him on 2 March 2023, 16 August 2024 and 22 August 2025.
2. Mr Harris described the current impairment consequences of his left shoulder condition as follows:

(a) Daily pain, varying in severity depending on activity. The pain is exacerbated unpredictably;

(b) Daily Panadol or Nurofen and occasional Palexia;

(c) Inability to ride his dirt bike;

(d) Inability to play snooker and competitive snooker;

(e) Intimate relations with his wife are badly affected;

(f) Terrible sleep, including an inability to sleep on his left shoulder;

(g) Inability to work as a steel fabricator;

(h) Difficulty playing actively with his children, and lifting them.

1. As I have noted above, Mr Harris also relied upon an affidavit affirmed by his partner, Sharni Williams. Ms Williams relevantly deposed:[36]

"3. I am aware that ... [Mr Harris] suffered an injury to his left shoulder in approximately September 2020 when he was working at Gorskis. I do not recall Bradley complaining of any pain in his left shoulder prior to this injury.

2. I do not recall ... [Mr Harris] complaining of any pain or injury to his left shoulder in about 2014/2015. I was pregnant at this time giving birth to a child in March 2015. I recall that ... [Mr Harris] was able to help me with looking after the child including taking care of the infant baby in 2015 and he did not complain to me of any limitations he had because of his left shoulder.
3. I recall ... [Mr Harris] playing snooker between 2015 and suffering his injury in about September 2020. He used to play at the local RSL club and he would also play socially. I often used to go and see him play snooker during this period."
4. This is a convenient point at which to consider the medical evidence tendered by the parties relevant to the left shoulder injury.

1. Five letters and reports were tendered from Dr Memon, dated 24 September 2020, 29 March 2021, 31 August 2021, 16 November 2022 and 15 January 2024. Three reports were tendered from Dr Prathiepan, dated 2 August 2022, 16 November 2022 and 17 July 2025. In addition, extracts of clinical records were tendered.
2. In his referral letter to Mr Thai on 24 September 2020, Dr Memon relevantly noted that an MRI scan of the left shoulder showed extensive damage.
3. In November 2022, Dr Prathiepan opined that Mr Harris was unfit for his pre-injury duties. He said repetitive heavy use of his left arm may lead to excessive damage to his left shoulder in the future, and further surgery. He opined he was fit for alternate duties.
4. In January 2024, Dr Prathiepan opined that Mr Harris was unable to perform his normal duties. There was a high likelihood of long-term deterioration.
5. In July 2025, Dr Prathiepan opined that Mr Harris' left shoulder condition had stabilised. He was unfit for his pre-injury duties. He recommended an assessment by an occupational therapist to evaluate Mr Harris' capacity for suitable employment.

1. Nine reports were tendered from Mr Thai, dated 1 October 2020, 13 October 2020, 14 October 2020, 27 October 2020, 5 January 2021, 25 February 2021, 2 March 2021, 3 March 2021 and 9 October 2022.
2. Mr Thai treated Mr Harris between 1 October 2020 and September 2022. In October 2020, he noted that Mr Harris would require a total shoulder replacement at some stage, but was too young and active to consider this at the time. He recommended an arthroscopic debridement and the removal of loose bodies, and the transfer of the biceps tendon. Mr Thai performed that surgery on 9 December 2020.
3. When Mr Thai reviewed Mr Harris in January 2021, he noted Mr Harris had regained a full range of motion on his left shoulder. There was some tightness and weakness along the biceps muscle. Mr Thai anticipated a return to pre-injury duties. He noted Mr Harris had underlying severe osteoarthritis.
4. In March 2020, Mr Thai opined that in order to avoid accelerated decline and deterioration of Mr Harris' underlying shoulder osteoarthritis, he should permanently refrain from heavy lifting in excess of 10 kilograms
5. In his most recent report dated 9 October 2022, Mr Thai reported that Mr Harris had returned to work following his first surgery, but his left shoulder worsened and he had to cease work. He performed a left total shoulder replacement on 22 June 2022. By September 2022, Mr Harris had regained good functional range of motion, and had less pain. Mr Thai opined that Mr Harris should permanently avoid any repetitive heavy lifting, pushing or pulling using his left arm, with a load limit of 5 kilograms. If he observed those limits, the shoulder replacement should last him his lifetime. He opined that Mr Harris was permanently unfit to resume his pre-injury duties, but was fit for roles within his physical restrictions. He was unfit to participate in contact sports or overhead sporting activities. He noted there was minimal pain.

1. Two reports were tendered from Ms Lee, dated 30 September 2021 and 25 November 2022. Ms Lee treated Mr Harris between March and October 2021, and September and October 2022.
2. In her report dated 25 November 2022, Ms Lee opined that Mr Harris' left shoulder condition had stabilised. He was unfit for his pre-injury work, but fit for work that did not involve heavy or repetitive shoulder movements.

1. One report was tendered from Dr Doig, dated 8 March 2023. Dr Doig examined Mr Harris on 22 February 2023 for the purpose of an impairment assessment.
2. Dr Doig did not record a history of any prior left shoulder problems in his report. He diagnosed an aggravation of degenerative glenohumeral joint at the non-dominant left shoulder with a reasonable outcome from arthroplasty surgery. He noted "the worker continues to suffer from intermittent flare-ups of pain with loss of function".[37] He opined the condition was stable.

1. Four reports were tendered from Dr Menz, dated 13 September 2022, 14 June 2024, 23 July 2024 and 21 July 2025. Dr Menz examined Mr Harris on 13 September 2022, 11 June 2024 and 8 July 2025.
2. In his first report dated 13 September 2022, Dr Menz noted that Mr Harris reported that prior to September 2020, he had never had any prior problems. He gave a history of working for the employer for twenty years.
3. Dr Menz concluded that Mr Harris had made an excellent recovery from his total shoulder replacement surgery. He said:[38]

"This man hurt his left shoulder lifting a door in September 2020 and radiological investigations showed that he had significant pre-existing and severe shoulder joint arthritis.

At the moment this man has no work capacity and probably should not return to pre-injury duties when he does. ... ."

1. When examined on the second occasion on 11 June 2024, Mr Harris reported that his left shoulder symptoms were variable. At rest he had no pain, and when he started to use it, he could have pain of a variable nature.
2. On this occasion, Mr Harris acknowledged that he had suffered a shoulder injury playing football, but had no recollection of a flare-up of his left shoulder in 2010, with a recommendation for surgery to remove loose bodies.
3. Dr Menz opined that at the worst, Mr Harris would have aggravated pre-existing and significant pathology in his left shoulder. Further:[39]

"There was no doubt this man would have required surgery anyway without the effects of the alleged incident.

This man was offered arthroscopic surgery in 2010 and refused it and so he just continued to put up with what would have been recurrent locking and pain within his shoulder prior to the incident of 02.09.20."

1. Dr Menz opined that Mr Harris had regained a good range of movement as at September 2022, and it had improved further in the intervening period. Dr Menz was of the view that Mr Harris had a good result from his surgery and had the physical capacity to work full time in each of the roles suggested in the Recovre report dated 17 May 2024.
2. In his supplementary report dated 23 July 2024, Dr Menz opined as to the role of the injury sustained by Mr Harris in 2000 in the development of his severe arthritis.
3. Dr Menz last examined Mr Harris on 8 July 2025.

1. Three reports were tendered from Mr Kossmann, dated 26 July 2022, 23 August 2023 and 3 July 2025. Mr Kossman examined Mr Harris on each of those dates.
2. In his first report, Mr Kossmann stated that Mr Harris had difficulty recalling his medical history. Mr Kossmann therefore relied upon the documentation he was given. He noted the past history of a left shoulder dislocation whilst playing football when Mr Harris was twenty years old.
3. Mr Kossmann undertook a limited examination, given it was only four weeks after Mr Harris' second surgery. He diagnosed an aggravation of pre-existing but symptomless osteoarthritis of the left shoulder joint. He opined that Mr Harris would be unfit for any work for 12 months given the recent surgery.
4. Mr Kossmann reassessed Mr Harris in August 2023. Mr Harris complained of intermittent pain in his left shoulder, and some restriction of movement. Mr Kossmann's diagnosis remained unchanged. He opined that he was unfit for his pre-injury duties, but had a capacity for part-time work in suitable sedentary employment.
5. Mr Kossmann most recently assessed Mr Harris in July 2025. On this occasion, Mr Kossmann noted various matters of past history, including a suicide attempt in August 2012 when Mr Harris cut his left wrist with a kitchen knife; left shoulder investigations in 2014; a referral to St Vincent's Hospital for treatment for his left shoulder in February 2015, and a referral to the Austin Hospital in March 2015 for treatment for his left shoulder.
6. Mr Harris complained of intermittent pain in his left shoulder. On examination, Mr Kossmann found a slightly decreased range of movement compared to his previous assessment.
7. Mr Kossmann's diagnosis and view of Mr Harris' work capacity remained the same.

1. Mr Harris first injured his left shoulder playing football in the early 2000s. I find that in 2014, he began to experience significant symptoms in his left shoulder. He was unable to work between 2014 and early 2018 by reason of a combination of his left shoulder condition and consequential psychological difficulties.
2. Mr Harris' left shoulder problems were investigated and he was referred to Mr Kiellerup for treatment. Mr Kiellerup recommended arthroscopic surgery to remove loose bodies in the left shoulder joint. Mr Harris was on the waiting list for surgery at both St Vincent's and the Austin Hospitals.
3. I find that Mr Harris' left shoulder symptoms had significantly settled by March 2018, and he was able to resume his heavy manual work on a full-time basis.
4. Doing the best I can on the evidence, I find that Mr Harris worked full time between March 2018 and September 2020. I find that he was experiencing symptoms of pain and fatigue in his left shoulder but he did not require medication, did not seek treatment, and was generally able to complete his work duties.
5. In the incident in September 2020, Mr Harris aggravated the pre-existing osteoarthritis in his left shoulder which was once again rendered significantly symptomatic.

Are the permanent impairment consequences of the compensable left shoulder injury "serious"?

1. In my view, the permanent impairment consequences of Mr Harris' left shoulder aggravation injury are "serious" in the requisite sense.
2. I make that finding because Mr Harris has undergone initial arthroscopic surgery and then total left shoulder replacement surgery. He suffers from regular pain and functional limitations. He is permanently unfit to work as a steel fabricator and welder. In my view, those impairment consequences alone are sufficient to satisfy the statutory threshold. In addition, he has lost the ability to play snooker. I am satisfied that is also a significant matter for Mr Harris.
3. During the hearing, Mr Harris appropriately abandoned his claim for leave to seek loss of earning capacity damages on account of his left shoulder impairment. I am satisfied on the evidence that Mr Harris has the physical capacity and aptitude to work in suitable alternative employment, as a driver, pathology courier, car park attendant and/or meter reader.

What permanent impairment consequences are due to psychological injury consequent upon the compensable injury?

1. As I have said, Mr Harris relied upon three affidavits. Relevant to his claimed psychological injury, Mr Harris deposed:

(a) He feels useless;

(b) His pain has affected his temper;

(c) He has been drinking too much alcohol;

(d) He is worried about his future work prospects.

1. In her affidavit, Ms Williams deposed that Mr Harris is a very different person since suffering his shoulder injury in 2020. His pain has affected his mood and temperament.
2. This is a convenient point at which to consider the medical evidence tendered relevant to the claimed psychological condition.

1. Mr Harris saw a psychiatrist and psychologist once in 2023. However, no reports were tendered from any treating psychologist or psychiatrist.

1. Dr Parameswaran Prathiepan's report dated 16 November 2022 noted that Mr Harris was then:

"... [U]nder a clinical psychologist and psychiatrist. > > ... > > ... He is undergoing significant mental stress due to his limited earning capacity and restricted parental activities like carrying and playing with his kids."[40]

2. Dr Memon's report dated 15 January 2024 relevantly noted that Mr Harris' left shoulder injury had -

"... caused significant distress and anxiety ... due to loss of finances and the general alleged mistreatment of his employer."[41]

3. Dr Prathiepan's report dated 17 July 2025 relevantly noted:[42]

"[Mr Harris] has been experiencing ongoing pain, which is reasonably controlled with analgesia. However, his limited activities have contributed to symptoms of anxiety and acute stress. Consequently, he was referred to a psychologist.

Financial difficulties resulting from his injury, along with anxiety and stress, have negatively impacted ... [Mr Harris'] family relationships and social interactions. At times, he has become highly emotional, and his family was reportedly on the verge of separation."

1. A report was tendered from Dr Entwisle dated 14 June 2023. Dr Entwisle noted the following background:[43]

"Mr Bradley Harris is a 41 year old, partnered, boilermaker welder with ... [the employer] where he worked from approximately 2000 on a full-time basis. Mr Harris' work involved hands on duties together with supervisory activities with a claim date of 2 September 2020 in relation to an injury to his non-dominant left shoulder."

"Mr Harris denied any previous personal psychiatric illness. He indicated that he was restless and wouldn't sit still (? ADHD) when younger. He has been referred to a psychiatrist and a psychologist but no appointments have occurred at this point. [His partner] is very keen for him to speak to a mental health professional as she is concerned about him - his declining mood, his lack of interest and his general moody and avoidant tendencies.

Mr Harris indicated that he was not interested in psychiatric treatment with medication ..."

1. On mental state examination, Dr Entwisle noted a somewhat dishevelled appearance. Mr Harris' mood was depressed and anxious. His affect was restricted and preoccupied. His account was accompanied by distress. Eye contact and rapport were limited. Dr Entwistle said that his impression was that Mr Harris felt uncomfortable in the interview situation. His speech was normal in flow, rhythm, form and prosody. Thinking was linear. Thought, form and possession were normal. There were depressed and anxious themes secondary to pain, and incapacity and failure to progress following what appears to have been successful surgery. There were no unusual notions or ideas, evidence of thought disorder or delusional beliefs. Memory and concentration were intact. No perceptual abnormalities were noted.
2. Dr Entwisle diagnosed an Adjustment Disorder secondary to a work-related injury. He noted that Mr Harris presented as depressed when assessed. He opined that Mr Harris had no capacity for pre-injury or suitable employment. Inconsistently, Dr Entwisle then said:[45]

"Technically speaking, whilst Mr Harris would be deemed to have a suitable work capacity from a psychiatric perspective, his general presentation (tense, irritable and dishevelled), his partner's indications that he is depressed and not progressing, is not consistent with Mr Harris returning to work in the near future pending appropriate psychiatric/psychological treatment. > > ... Mr Harris's lack of work capacity is likely to continue indefinitely > > ... he could work as a parking officer, from a strictly psychiatric perspective. ... ."

1. Three reports were tendered from Dr Serry, dated 30 May 2022, 9 May 2024 and 10 July 2025. Dr Serry examined Mr Harris by videolink on each occasion.
2. The first occasion Dr Serry saw Mr Harris was about a month prior to his left total shoulder replacement surgery. Mr Harris complained of feeling worthless and inadequate at times. His "biggest concern" was his reduction in wages.[46] Mr Harris reported being able to enjoy himself only when his pain levels were light. He said his concentration and memory had been affected. His confidence and self-esteem levels had been significantly eroded, and he had suicidal thoughts. He was snappy and irritable. He was smoking more and drinking more alcohol.
3. As to pre-existing mental health issues, Dr Serry said:[47]

"... I questioned the claimant about whether he'd had any pre-existing mental health issues and he said that during his teenage years he had a lot of anger issues, given the fact that his parents had separated and there was little contact with [his] father. He recalls seeing a mental health professional but he cannot recall the detail."

4. On mental state examination, Dr Serry noted Mr Harris:[48]

"... conveyed the impression of reasonably maintained personal care. Speech was of normal rate, volume and fluency.

... a reasonably clear historian ... He maintained eye contact and developed an appropriate level of rapport ... He demonstrated a normal affective range but he described underlying depressive themes of fluctuating intensity and duration. The claimant was particularly anxious at presentation, this being consistent with self-report, the focus of his anxiety being on health, the future, work and especially finances.

There was no abnormality of thought stream or form but thought content revealed an ongoing preoccupation with the sequalae of his workplace injury. There were anxious concerns and morbid themes were acknowledged.

I did not detect the presence of any psychotic features and there was no suggestion of perceptual disturbance in terms of hallucinations in any sensory modality.

Cognitive assessment revealed the claimant to be alert and oriented. Mentation was of approximately normal speed ... Insight appeared to be coloured by both anxious concerns and morbid cognitions."

1. Dr Serry opined that from a psychiatric viewpoint, Mr Harris had become stressed, anxious, frustrated, irritable and intermittently low in mood. He noted that Mr Harris had been referred for mental health intervention. He diagnosed a chronic Adjustment Disorder with Anxious and Depressed Mood in addition to an Alcohol Use Disorder. Dr Serry opined that Mr Harris' condition was not stable. He recommended treatment from a psychiatrist.
2. As to work capacity, Dr Serry opined:[49]

"As a consequence of the claimant's psychiatric condition, he would not in my opinion be considered incapacitated from undertaking preinjury duties... > > ...

It's difficult to imagine what sort of alternate work the claimant would be able to undertake. I also reiterate the comments ... that the main employment restrictions for the claimant relate to his physical injury."

1. Dr Serry examined Mr Harris next on 9 May 2024. He reported that Mr Harris had not seen a mental health professional but his GP had prescribed escitalopram, 10 milligrams, which he had been taking in recent months.
2. Mr Harris reported that he continued to struggle psychologically and that he felt flat, lethargic and low all of the time. He reported only being motivated to go to football training with his children, and no longer pursued other interests. Mr Harris reported a significantly diminished energy level. He did not report memory problems, but said his concentration was rather selective. Mr Harris said he no longer challenged himself with anything new as he felt worthless. He reported not infrequent suicidal thoughts, being quite reactive and at times quite irritable. His cigarette intake fluctuated and he had a tendency to binge drink.
3. Dr Serry's mental state examination on this occasion was similar to his prior examination. He noted that Mr Harris remained stressed, anxious, irritable and quite low in mood, but thought he was more depressed than when previously seen. He diagnosed a moderately severe chronic Adjustment Disorder with Anxious and Depressed Mood and an Alcohol Use Disorder.
4. On this occasion, Dr Serry opined that Mr Harris had no capacity for pre-injury or suitable employment from a psychiatric perspective. His opinion as to suitable employment was expressed as follows:[50]

"As a consequence of the claimant's psychiatric condition and when taking into account his incapacity, age, education, place of residence, skill and work experience he would not be able to undertake suitable employment on a part time or full time basis an incapacity that is also likely to last for the foreseeable future.

The claimant has only ever worked as a boilermaker, does not have computer skills and struggles now physically and psychologically. He has not undertaken any retraining."

1. Dr Serry last examined Mr Harris on 10 July 2025. He noted that Mr Harris had been trying to arrange an appointment with a psychiatrist who visits Kilmore. He had ceased taking the escitalopram.
2. Dr Serry's findings on mental state examination were similar to his prior examinations. Mr Harris reported that he had cut back his cigarette intake and had stopped binge drinking.
3. Dr Serry again diagnosed a moderately severe Chronic Adjustment Disorder with Anxious and Depressed Mood. He opined that the Alcohol Use Disorder appeared to be under relative control. Dr Serry again opined that Mr Harris was psychiatrically unfit for pre-injury and suitable employment. He expressed his opinion regarding suitable employment in terms similar to those in his second report. He said the prognosis was guarded.

1. Two reports were tendered from Dr Dharwadkar, dated 31 May 2024 and 4 July 2025. Dr Dharwadkar examined Mr Harris on each of those dates via Zoom.
2. In his first report, dated 31 May 2024, Dr Dharwadkar noted that Mr Harris said he saw a psychiatrist and psychologist once in 2023. He had been prescribed escitalopram, 10 milligrams, which he took for five months. He reported he had increased his alcohol intake, having been a "social drinker"[51] prior to September 2020.
3. Mr Harris reported the following past psychiatric history:[52]

"Some years ago: 'I had an episode when I did something silly and saw a CAT team for a while, I was angry and depressed and wanted to kill myself and I have learnt from that to put things in perspective.'"

4. Mr Harris reported that he had lost his licence for four years for drink driving.
5. Mr Harris reported being able to drive and use public transport. He said there were no major problems with self-grooming. He reported going for walks, watching television, and using the internet.
6. On mental state examination, Dr Dharwadkar relevantly found:[53]

"... [He] appeared well kempt, casually dressed ... No pain behaviours were seen.

He appeared alert, cooperative, had an extremely confident, relaxed and quite an assertive manner, was witty and charming, at times and sometimes used irony when responding and then would immediately thereafter say that he was 'only joking', and smile.

Affect euthymic, warm and reactive. The range of affect was good and he had a well communicated Affect.

No evidence, on cross sectional examination, of depressed affect or anxious affect ... .

He was coherent and fluent and spoke spontaneously.

The examinee reported feelings of anger and frustration about restrictions.

There were no disorders of perception apparent such as illusions or hallucinations.

... could attend to matters and change the focus of his attention.

... organized a communicative and chronological account of his experience.

The examinee's insight appeared to be partial about his mental health albeit was insight less about his personality traits and also insight less about the effects of excessive alcohol on his mental health."

1. Dr Dharwadkar diagnosed a Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood and an Alcohol Use Disorder. He said that the history and mental state examination also indicated cluster B personality traits, albeit that was not a "DSM-5-TR" diagnosis.
2. Dr Dharwadkar was asked to specifically explore with Mr Harris why he had periods off work in the past (including only Centrelink income declared in his 2017 taxation returns). He reported:[54]

"He was not forthcoming about the specific details (of that period) and said that, 'I have worked all my life, in welding steel fabrication, boiler maker, everything to do with steel fabrication'."

3. Dr Dharwadkar opined that from a purely psychiatric perspective, Mr Harris was capable of performing his pre-injury duties and hours. He was also capable, from a psychiatric perspective, of performing the roles of automobile driver, pathology courier, car park attendant and meter reader on a full-time basis. He said that the earlier Mr Harris returned to suitable work, the better the prognosis. A referral to a psychiatrist for review and coordination of treatment was indicated. He needed to abstain from alcohol.
4. Dr Dharwadkar re-examined Mr Harris on 4 July 2025. He reported that he had stopped taking escitalopram, but could not recall when.
5. Mr Harris gave Dr Dharwadkar a reasonably detailed account of his day-to-day activities, including driving, light household chores, occasional cooking, walking the dog, sometimes riding a pushbike with his children, taking his children to their sporting activities, shopping, playing pool on a Monday night in a pub-against-pub competition, and socialising with other parents at his son's football practice. He reported a reduction in his alcohol intake. He reported feeling bored. Mr Harris said he was managing his pain better than he had been in May 2024.
6. Dr Dharwadkar's findings on mental state examination were similar to those from his previous examination. Objectively, Dr Dharwadkar was of the view that the plaintiff's psychiatric symptoms had improved since his prior examination.[55]
7. Dr Dharwadkar made the same diagnosis as previously, save that he was of the view that the Alcohol Use Disorder was in partial remission.
8. On this occasion, when asked about periods when he had not worked before September 2020, Mr Harris reportedly said:[56]

"'Prior, I never really worked for other employers doing similar work duties-welding. In my adult life I had heaps of periods when I was not working, when I did civil construction course for 3 - 4 months, 10 years ago, and moved away to NSW and stayed with family, for few times when I did not work ... the reason for not working was mainly, I could not find a job.'"

9. Dr Dharwadkar remained of the view that from a psychiatric perspective, Mr Harris was capable of performing both pre-injury and suitable employment on full-time hours.
10. Dr Dharwadkar recommended Mr Harris continue receiving low-grade support from his GP, and the addition of a "SNRI like Duloxetine is indicated".[57]

1. One report was tendered from Dr Rowe, dated 14 December 2022. Dr Rowe examined Mr Harris that day. This was about six months after the left total shoulder replacement surgery.
2. Dr Rowe was given a history that Mr Harris dislocated his shoulder playing football when aged twenty:[58]

"... He self-reduced the shoulder and had no further issues. In 2010, he was told that surgery was advised to remove loose bodies in the shoulder joint. He did not go through with the operation as his shoulder symptoms were manageable at that time."

3. Dr Rowe opined that on account of Mr Harris' left shoulder impairment, he was unfit for pre-injury duties and not fit to return to any work of a physically demanding nature. He said:[59]

"... He would be considered suitable for light, alternative employment where the use of his left arm in a forceful and/or repetitive manner can be avoided or eliminated."

4. Dr Rowe did not express any views regarding Mr Harris' capacity to work from a psychological perspective.

1. Two reports were tendered from Dr Horsley, dated 4 July 2024 and 13 August 2025. Dr Horsley examined Mr Harris on each occasion.
2. In her first report, Dr Horsley noted a history of the injury to the left shoulder playing football in about 2000. Mr Harris did not give any history of psychological difficulties prior to September 2020, or of the period between 2014 and 2018 when he was not working, and suffering left shoulder and psychological symptoms.
3. Dr Horsley said that she understood from reading the notes that Mr Harris' left shoulder was investigated by Mr Thai in 2010, and he was offered an arthroscopy but decided not to proceed.
4. Mr Harris told Dr Horsley that he had lost his licence for drink driving when aged 18 or 19, but it had not been an issue since.
5. Mr Harris reported to Dr Horsley that prior to September 2020:[60]

"... [H]e intermittently experienced 'fatigue' in the left shoulder and a 'sensation of soreness' at times, but he stated there was no pain. This particularly occurred if he tried to lift items above shoulder height or statically hold items. This occurred when holding 9-inch grinders that weighed a few kilograms and welders that also weighed a few kilograms.

He also stated that with prolonged use of grinders and sanders, he could experience the same 'tired soreness sensation'. His left shoulder 'clicked' at times and 'locked' at times, but he kept working. There was nothing persistent and permanent until after the events on the 2nd September 2020."

1. Dr Horsley noted that Mr Harris' mental health became an issue in about 2022. He was referred to a psychologist and psychiatrist, attended both on one occasion, but did not find them helpful.
2. Mr Harris reported that, from a psychological perspective:[61]

"He does not experience nightmares or flashbacks. He is irritable and short to temper 'every day'. He is emotional and tearful. He stated that he 'can often lay down and look at the wall,' up to two days per week. At those times, 'his mind brings up stuff in his head about not being able to provide for his family'. He 'does not want to speak to anyone'. He socially isolates.

He has a low frustration tolerance. He does not experience panic attacks. He sleeps poorly. His appetite is okay. He stated that he feels agitated and frustrated when he is asked to remember details. He stated that his memory for events is not very good."

1. Dr Horsley opined that Mr Harris presented with serious disadvantage, with significant literacy issues and lack of computer skills, and consequently an inability to return to a role that is more sedentary or administrative.
2. Dr Horsley opined that Mr Harris' mental health was "of concern".[62] She thought he would benefit from a referral to a treating psychiatrist for assessment and management, but noted his resistance to engaging with a psychologist or psychiatrist.
3. It is outside Dr Horsley's expertise to diagnose a psychological condition. Dr Horsley appropriately acknowledged that she relied upon the views of Dr Entwisle and Dr Serry regarding Mr Harris' psychological condition.
4. Dr Horsley re-examined Mr Harris on 13 August 2025. On this occasion, Dr Horsley was provided with additional information. This included a referral to Mr Kiellerup in 2014 regarding left shoulder symptoms, and the imaging undertaken at that time.
5. Dr Horsley was also provided with an Emergency Department attendance record of August 2012, noting:[63]

"... A police escort post-alcohol binge and self-harm attempt. He was home, teary and angry. He had cut his left wrist with a kitchen knife. He initially reported suicide intent, later stating it was secondary to anger and wanting to get back at his partner. Multiple stresses in his life."

6. Mr Harris reported that he gained a further drink driving charge three months prior, and the matter was yet to go to court. He reported that he was participating in a local pub pool league on Monday nights, and the socialisation was helping his mental health.
7. On this second occasion, Mr Harris' description of his psychological symptoms was similar to his description at the previous examination.
8. Dr Horsley opined that considering his left shoulder alone, from a functional perspective, Mr Harris likely had a capacity to work in the vicinity of 15 to 20 hours per week, but she thought he was unlikely to be a preferred candidate for a new employer given his significant literacy issues, lack of computer skills and five years out of the workforce.
9. Dr Horsley concluded as follows:[64]

"In summary, Mr Harris presents with significant disadvantage. At this stage, his prognosis for return to work in any capacity is really related to his mental health in the first instance. Without taking into account his mental health, and just considering his level of physical disability, and his overall presentation, there are significant barriers to returning to work. His opportunities for redeployment, even without his psychiatric disability, are very limited."

10. As previously, Dr Horsley appropriately acknowledged that her opinion related to the physical injury and she was reliant on the opinions of Dr Entwisle and Dr Serry as to the psychological condition.

1. Three reports were tendered from Dr Boffa, dated 8 June 2023, 24 June 2024 and 6 August 2025. Dr Boffa examined Mr Harris on each occasion.
2. In his report dated 8 June 2023, Dr Boffa noted that Mr Harris reported pain on activity. He remained independent in activities of daily living. He reportedly avoided reaching, pushing, lifting and carrying more than 3 kilograms with his left hand. He gave a history of having no shoulder symptoms prior to 2020.
3. Dr Boffa opined that Mr Harris was unfit for his pre-injury duties and hours, but fit for suitable duties on reduced hours. Dr Boffa said that Mr Harris was fit to work as a sales representative, spare parts interpreter, parking officer and purchasing officer following any relevant retraining.
4. Dr Boffa re-examined Mr Harris in June 2024. On this occasion, Dr Boffa noted the history of the football injury, and further symptoms in 2010 when "he was told he had loose bodies in the shoulder joint. He eschewed surgery at the time and symptoms remained manageable until 2020."[65]
5. On this occasion, Dr Boffa noted moderately restricted left shoulder internal rotation, supraspinatus subscapularis and external rotator weakness and pain on resisted external rotation, consistent with rotator cuff injury.
6. Dr Boffa was of the view that the major contributors to the development of osteoarthritis in Mr Harris' left shoulder was the manual handling in the course of his work as a steel fabricator as well as the work incident in September 2020. Dr Boffa suspected that surgery would have eventuated even if the work incident had not occurred.
7. Dr Boffa again opined that Mr Harris was unfit for pre-injury duties but fit for suitable employment on reduced hours. He said the roles of automobile driver, pathology courier, car park attendant and meter reader were each suitable.
8. In his most recent report, Dr Boffa noted that left shoulder exacerbations stopped Mr Harris working and playing snooker in 2014, 2015 and 2016.
9. Dr Boffa noted that Mr Harris' condition and functional tolerances were essentially unchanged since his previous assessment. His views as to work capacity remained the same.
10. Dr Boffa did not express any views regarding Mr Harris' capacity to work from a psychological perspective.

1. In Petrovic v Victorian WorkCover Authority,[66] the Court of Appeal said:

"As has been said many times before, in a personal injury proceeding, the evidence of the plaintiff (and whether that evidence is accepted by the trier of fact) is often critical to the success or otherwise of the plaintiff's proceeding. This is particularly so in cases involving psychiatric injuries. Additionally, in such cases, the opinions of medical experts (and the question of whether those opinions should be accepted) are often also heavily dependent upon the acceptance of the plaintiff's account. Put shortly, the opinion of any particular expert opinion in a case like the present is usually only as good as the underlying history upon which it is based."

2. Mr Harris referred to psychological consequences in very brief terms in his affidavits. Ms Williams' affidavit had only a brief reference to psychological difficulties.
3. The evidence from treating practitioners regarding Mr Harris' psychological condition was unsatisfactory. The reports from Mr Harris' GPs at Kilmore Medical Centre dealt with his psychological condition in very brief terms. Although Mr Harris saw a psychologist and psychiatrist in 2023, no report was tendered from those practitioners.
4. I find that Mr Harris is suffering from an Adjustment Disorder with Depressed and Anxious Mood as a consequence of his compensable left shoulder injury. That diagnosis was made by each of the medico-legal psychiatrists that has examined Mr Harris.
5. Dr Serry and Dr Dharwadkar each diagnosed an Alcohol Use Disorder. Dr Dharwadkar thought this was in partial remission when he last examined Mr Harris. Dr Serry was of the view that it had "come under control".[67] I accept that Mr Harris suffers from an Alcohol Use Disorder, in partial remission. On the whole of the evidence, it appears that Mr Harris also experienced some problems with binge drinking prior to September 2020.
6. I acknowledge that Mr Harris has been referred for treatment, and accept that he has had some difficulty accessing mental health services; however, I find that the primary reason that Mr Harris has not attended a psychologist or psychiatrist is that he has not found such treatment helpful in the past.
7. Mr Harris is not taking any medication for his psychological condition.
8. A significant component of Mr Harris' Adjustment Disorder appears to be due to not working since August 2021. After completion of the oral evidence, Mr Harris abandoned his claim for leave to seek loss of earning capacity damages due to his physical injury. Mr Harris said during cross-examination that he was willing to try the various roles which had been suggested as suitable for him.
9. None of the medico-legal psychiatrists or occupational physicians had a full and complete history of Mr Harris' prior work and psychological condition. The medical opinions have reduced weight in light of the deficiencies in the history.

Is Mr Harris permanently unable to earn at least 60 per cent of his "without injury" income because of the impairment consequences of the compensable psychological injury; and, is the loss of earning capacity consequence of Mr Harris' compensable psychological injury "severe"?

1. The VWA tendered a Recovre Vocational Assessment report dated 17 May 2024, authored by Larissa Griffiths, Janette Ash and Robyn Willett.
2. Recovre suggested the roles of driver and pathology courier may be suitable. Each role requires minimal manual handling and only basic communication skills. The role of car park attendant and meter reader (with training) were also suggested as suitable. Worksite assessments were provided for each role, outlining the required tolerance for each physical demand of the role.
3. The average gross weekly wage for each of the roles taken from Jobmarkets.com.au relevant for the 2024/2025 period was stated to be:[68]
   • Automobile driver - $1,295
   • Pathology courier - $1,310
   • Car Park attendant - $1,166
   • Meter reader - $1,190.
4. On the basis of those figures representing a 38-hour week, counsel for the VWA suggested that working 20 hours per week as an automobile driver or pathology courier, or 22 hours a week as a car park attendant or meter reader, would exceed the $670 threshold figure.
5. Senior Counsel for Mr Harris submitted that different earnings figures appeared in the body of the Recovre report. Based on those lower hourly rates, Mr Harris would have to work 20.5 hours a week as an automobile driver, 21 hours a week as a pathology courier, 30 hours a week as a car park attendant, and 22.5 hours a week as a meter reader to exceed the statutory threshold.

1. Dr Entwisle's opinion is now more than two years ago. He only saw Mr Harris on one occasion. As noted above, Dr Entwisle's opinions were inconsistent and insufficiently explained.
2. Whilst Dr Serry saw Mr Harris on three occasions, he was not given a history of Mr Harris' inability to work between 2014 and 2018, the consequential psychological difficulties he suffered from in that period, and his improvement, both physically and psychologically, such that he was able to resume work in 2018.
3. In his first report, prior to the shoulder replacement surgery, Dr Serry was of the view that Mr Harris had the psychological capacity to perform his pre-injury duties. In Dr Serry's second report, his opinion that Mr Harris was then incapacitated for suitable employment was stated to be based upon a consideration of a broad range of factors, none of which were sufficiently articulated or explained. Further, given the similarity in his mental state examination findings on each occasion, Dr Serry did not sufficiently explain the reason for the change in his opinion as to work capacity between his first and second reports. Dr Serry appears not to have been provided with the Recovre Vocational Assessment Report or considered Mr Harrris' capacity to perform the roles identified.
4. As I have said, neither Dr Boffa nor Dr Rowe expressed an opinion as to Mr Harris' work capacity from a psychological perspective.
5. Dr Horsley is not a psychiatrist or psychologist. As she acknowledged, her opinion regarding Mr Harris' work capacity from a psychological perspective was dependent upon her acceptance of the opinions of Dr Entwisle and Dr Serry.
6. I prefer the opinion of Dr Dharwadkar that Mr Harris is fit for full-time suitable employment. I do so because he made detailed examination findings and better explained his conclusions. Dr Dharwadkar was provided with, and considered, the suitable employment options outlined in the Recovre Vocational Assessment Report.
7. It follows that I am not persuaded that Mr Harris' consequential psychological condition renders him permanently unfit for suitable employment.
8. I note that the relevant worksite assessments and the related pay figures were from 2022 and 2023. I am required to assess the comparator figure as at the date of trial.[69] I therefore prefer the 2024/2025 figures for each role.
9. I am not persuaded that Mr Harris' consequential psychological condition prevents him from working 20 to 22 hours per week as a driver, pathology courier, car park attendant and/or meter reader.
10. I am not satisfied that the permanent impairment consequences of Mr Harris' mental or behavioural disturbance or disorder cause an incapacity for suitable employment or are "severe" in the requisite sense.

Are the permanent impairment consequences of the compensable psychological injury "severe"?

1. As Mr Harris is granted leave to issue proceedings claiming pain and suffering damages in respect of the left shoulder injury sustained in September 2020, such leave entitles Mr Harris to claim damages for the consequential psychological injury.[70] It is therefore unnecessary to consider this aspect of his claim.

1. Mr Harris is granted leave to seek pain and suffering damages for the injuries sustained in the incident in September 2020. His application for leave to claim loss of earning capacity damages is dismissed.
2. I will hear the parties on the issue of costs.

[1] At the close of evidence, Mr Harris abandoned his claim for loss of earning capacity damages by reason of the claimed left shoulder impairment

[2] Defendant's Further Amended Court Book ("DCB") 381

[3] Plaintiff's Second Further Amended Court Book ("PCB") 6-7

[66] [2018] VSCA 243 at paragraph [74]

[69] Kianzadeh v Victorian WorkCover Authority [2025] VSCA 240 at paragraph [115]

[70] Georgopoulos v Silaforts Painting Pty Ltd [2012] VSCA 179; (2012) 37 VR 232