Muller v VWA; Muller v TAC [2025] VCC 989

(a) Section 93(17) of the Transport Accident Act 1986 (Vic) ("the TA Act") arising from his transport accident;

(b) Section 335 of the Workplace Injury Rehabilitation and Compensation Act 2013 ("the WIRC Act") arising from his industrial accident; and

(c) Section 335 of the WIRC Act arising from his exposure to silica dust in the course of his employment.

1. The Victorian WorkCover Authority ("VWA") was satisfied that the silicosis injury was a serious injury and granted a certificate to Mr Muller to bring proceedings pursuant to s335(2)(c) of the WIRC Act for both his pain and suffering and loss of earning capacity. Thus, that application was not before the Court.
2. However, his applications for injuries arising from the transport accident and the industrial accident were denied. Thus, Mr Muller issued proceedings seeking a determination from the Court that he was entitled to leave to proceed for both injuries.
3. Mr Muller's application arising from the transport accident was for his physical injury, relying on the psychological consequences in accordance with the reasoning in Richards v Wylie.[7]
4. Mr Muller's application arising from his industrial accident was also for his physical injury, seeking a determination that he was entitled to leave to proceed for his pain and suffering and loss of earning capacity consequences.
5. In each application, the body part said to be impaired was the right shoulder and arm.
6. There was no issue taken with Mr Muller's credibility and reliability by either Counsel for the Transport Accident Commission ("TAC") or the VWA, nor was there any dispute that as at the date of the hearing, Mr Muller's symptoms and consequences would meet the test for 'serious injury'.
7. The real issue was whether the transport accident, the industrial accident, or both, were the cause of Mr Muller's serious injury.
8. Counsel for the TAC submitted that:

(a) the transport accident did not cause the serious injury;

(b) it was not open to the Court to infer that absent the industrial accident, Mr Muller would have been left with a serious long-term impairment of the right shoulder;

(c) the consequences of the transport accident were not long-term based on:

(i) the evidence that Mr Muller was continuing to improve at the time of the industrial accident;

(ii) the evidence that the injuries Mr Muller sustained in the transport accident had not stabilised at the time of the industrial accident;

(iii) the weight of the medical evidence supporting that the cause of Mr Muller's impairment was the industrial accident; and

(d) Mr Muller could not aggregate the consequences arising from the transport accident and the industrial accident to establish that he had met the threshold for serious injury. Mr Muller had failed to disentangle the consequences arising from the transport accident and the industrial accident.

(a) if Mr Muller had a serious injury, it was due to the transport accident;

(b) while the industrial accident aggravated Mr Muller's injury, the aggravation (in the form of a rotator cuff tear) was addressed by the two surgeries Mr Muller underwent, and the bicep problem had resolved if not by the first surgery then by the second.[8] Following these surgeries, Mr Muller returned to the level of functioning that he had before the transport accident;

(c) the Court should prefer the expert opinion of Dr Flynn, the orthopaedic surgeon commissioned jointly by the TAC and Mr Muller's solicitors, rather than the other medico-legal experts, due to deficiencies in their histories or their pathway of reasoning not being clear;

(d) the earlier decision of EML as the authorised insurer of the employer to accept liability for weekly payments and medical and like expenses should not be used as an admission in these proceedings, as they did not have access to all the material that has been relied on and exchanged in these proceedings. Had they had that material, they would not have accepted liability;

(e) Mr Muller had failed to disentangle the consequences arising from the transport accident and the industrial accident; and

(f) Mr Muller's 'without injury' earnings should be based on Mr Muller's income from the 2021 financial year of $75,739, representing $1,456 per week, 60 per cent of which is $873 per week.

1. Thus, the issues for resolution in this case were:

(a) In relation to the transport accident:

(i) Was the transport accident a material cause of Mr Muller's right shoulder injury and impairment?

(ii) If yes:

(a) what were the consequences of that impairment?

(b) Were the consequences of that impairment long-term?

(b) In relation to the industrial accident:

(i) Was the industrial accident a material cause of the aggravation of Mr Muller's right shoulder injury and impairment?

(ii) If yes:

(a) What were the consequences of that impairment?

(b) Were the consequences of that impairment permanent?

(c) Did Mr Muller meet the test for serious injury by way of loss of earning capacity consequences or pain and suffering consequences?

1. The hearing proceeded in the usual way. Mr Muller was the only witness to give oral evidence. The parties otherwise tendered various reports from their respective court books.
2. I have considered the affidavits, the evidence of Mr Muller at the hearing and the evidence of the experts relied upon at the hearing. While I do not propose to refer to all the evidence in providing my reasons, I shall refer to the evidence to the extent necessary to explain my reasons.
3. For the reasons set out below, I find that Mr Muller is entitled to leave to proceed with a claim for damages arising from his transport accident and his industrial accident. In relation to his industrial accident, he is entitled to leave to proceed for both his pain and suffering and his loss of earning capacity.

1. Mr Muller swore three affidavits in support of his applications. Two of those were in near-identical terms, save that one was in support of his application pursuant to the TA Act and the other in support of his application pursuant to the WIRC Act. They were both sworn on 16 May 2024. The third affidavit was sworn on 10 June 2025.

1. Mr Muller currently lives with his partner, Janelle, and her three children.
2. He completed an apprenticeship as a carpenter after finishing school.
3. He worked for an employer for a few years, and then worked for his own company in domestic and commercial building projects.[9]
4. He continued working as a domestic builder until 2014, following which he operated a mobile bar and pizza business. From 2017 to 2019, he established a wine bar in Cowes until his marriage broke down.[10] He then moved back to Melbourne and returned to construction work.
5. In 2019, he commenced employment with the employer as a supervisor on a full-time basis and was earning approximately $1,470 per week after tax at the time he ceased work.[11]
6. He had no problems with his right arm or shoulder prior to the transport accident.[12] He experienced depression in the context of his relationship problems in about 2019, for which he attended a psychiatrist and was prescribed medication which he took until his problems stabilised.
7. Following the transport accident, he was taken to Maroondah Hospital by ambulance. His shoulder was "very sore and bruised", and he was unable to work for a few months.[13] He made a TAC claim.
8. When he could not work, he became very depressed and attempted suicide in October 2020 by overdosing on medications and alcohol.[14] He was taken to Maroondah Hospital and referred to Dr Anupam Pokharel, a psychiatrist, for treatment, and supported as an outpatient at the Eastern Hospital.
9. He had physiotherapy and hydrotherapy on his right shoulder. He made some progress, but it was slow. In December 2020, he had an injection into his right shoulder. He underwent investigations which he believed showed tendon damage,[15] and was told that he might need surgery but to wait and see.
10. In early 2021, he returned to work on light duties as a supervisor, with limited work "on the tools".[16] He tried to reduce or avoid any tasks which involved lifting or repetitive or forceful right arm movement.[17]
11. As previously described, he sustained further injury to the right shoulder on 14 July 2021 in the industrial accident. He was taken to the Royal Melbourne Hospital by ambulance. He was advised that as his shoulder was dislocated, he would need to undergo an operation, but the swelling would need to go down first. His WorkCover claim was accepted.
12. On 2 September 2021, he had arthroscopic surgery performed by Mr Thomas Treseder, orthopaedic surgeon.[18] He returned to work after a few months, but continued to have pain in the shoulder. He was referred to Mr Christopher Pullen, orthopaedic surgeon, for a second opinion. He had further surgery performed by Mr Treseder on 9 June 2022.[19]
13. In or about November 2022, he returned to work on light duties but was struggling with ongoing problems with his right shoulder, shortness of breath and fatigue.[20] In March 2023, he resigned because he could not cope with the pain in the shoulder and the resultant fatigue and lack of sleep.[21] He has been unable to work since that time.
14. Following this, he was diagnosed with silicosis. His respiratory condition has deteriorated rapidly over the past few years.
15. He has the following consequences arising from his shoulder injury:

(a) He has constant right shoulder pain which is worse at the end of the day or after any activity using the right arm;[22]

(b) He cannot raise the right arm above shoulder height, and any forceful movement is painful;[23]

(c) He struggles with sleep due to shoulder pain, and often only gets two to three hours of sleep per night. He frequently wakes with pain when he rolls onto his right side;[24]

(d) He chooses not to take pain medication, because he tried to overdose on pain medication and sleeping tablets in the past, so he avoids having access to them;

(e) His partner performs most of the domestic tasks such as gardening, mowing, and cleaning, as he cannot manage much. He can cook, but he relies heavily on his left hand;[25]

(f) He can drive, but relies mostly on his left hand, and finds that his shoulder becomes uncomfortable at first, and then painful after a while;[26] and

(g) He is no longer able to go kayaking, play golf, go hiking, play football with his kids or coach junior football as a result of his right shoulder pain.[27]

1. In his affidavit sworn 10 June 2025, he deposed that he continues to have constant or near constant pain in his right shoulder, and if anything, it was a bit worse than when he swore his earlier affidavits.[28] He had recently commenced needling treatment with his physiotherapist, once every three weeks.
2. He continues to experience problems with his sleep, and is constantly tired as a result.[29]
3. He continues to avoid the use of strong pain medications because of his past mental health history and suicide attempt using medication. He takes Panadeine Forte rarely, but finds that it is not very effective in managing his pain.[30]
4. He remains unable to perform many of the household tasks referred to in his earlier affidavit, but tries to cook, as he can manage to do so if he takes care to use his left hand.[31]
5. He continues to have problems with driving, and described this as one of the biggest problems for him. The action of reaching with his right hand to operate the indicator, or holding the wheel and turning, is enough to cause an increase in his pain, and as a result driving is painful for him. Consequently, he does as little of this as he can manage.[32] He said he was a poor passenger because he gets anxious, so he generally drives, but limits himself to local drives.
6. He continues to be unable to engage in the recreational pursuits outlined in his prior affidavit. This was a huge adjustment, and distressing for him, as he used to be very fit and active, but there is no way he could manage that now. He tried to play lawn bowls a few times, hoping that it might provide an outlet for his sporting interest, but it caused right shoulder pain and he did not proceed with it.[33]
7. He said there was no way he could do physical work or any work, given his painful right shoulder.
8. He was unable to say whether his shoulder injury arising only from his transport accident would ever have recovered sufficiently to allow him to return to his normal work duties. He had improved and was doing some light work, but was never able to lift heavy tools or materials, pull or push forcefully, perform repetitive tasks or do overhead work.[34]
9. Being a carpenter required the full, unrestricted use of both arms and particularly the dominant arm.[35] It was a very physical occupation which he enjoyed, and he believed he was good at it. He took pride in his work and his ability to perform hard physical work. His work was a central part of his identity, and it provided stability and a routine during his period of depression in 2019. He believes that is why his mental health deteriorated after his transport accident to the point of suicidal ideation. When he returned to work after the transport accident he was in protected and largely supervisory work, but was pleased to be back at work, even in a limited capacity, before the workplace accident.[36]

1. In summary, he gave the following evidence regarding the transport accident and its consequences, and the industrial accident and its consequences.

1. He believed the police officer who attended the transport accident told him that the skid marks suggested that the car that crashed into his was going at 80 kilometres per hour.[37] He did not realise he had been in a transport accident until the police officer told him and he realised he had blood coming "from the back of [his] head".[38]
2. He was off work for six months.[39]
3. At about the end of January 2021, he returned to work.[40] He returned as a supervisor on light duties, working full-time from 7.00am until 3.30pm, those being his normal hours. He chose not to do overtime, other than on limited occasions when his employer asked him to work on a Saturday to supervise workers.[41]
4. His suicidal ideation had been caused by the fact he could not go to work and could not pick up his kids. That caused his depression to come back.[42]
5. He stopped taking medication after he was discharged from hospital following his depression. He had all the medication taken out of his house.[43] From October 2020, he started to reduce the number of times he attended physiotherapy.[44]
6. The ultrasound-guided injection on 1 December 2020 provided him with benefit for about one to two weeks, but then it ceased being of benefit.[45] He took anti-depressants until about December 2020, and then he was off them for about five to six weeks before going back to work.[46] He did not take sleeping tablets after that.[47]
7. He asked to go back to work after the transport accident for mental health reasons, and his physiotherapist stated that he had to return on light duties. He was not cleared for normal duties at the time of the industrial accident. It was his goal to return to full-time normal duties.[48]
8. He was not able to lift heavy tools after returning to work in January 2021, and that remained the case up until the industrial accident.[49] His employer was "easing on" the sort of jobs they expected him to do, and he was in a protected position and a largely supervisory role after the transport accident and prior to the industrial accident.[50]
9. After returning to work in early 2021, leading up to the industrial accident, he could use the power saw and cordless drills, so he gave himself tasks where he could use those tools. They were light and easy for him to operate.[51]
10. He agreed with the entry in his physiotherapist's notes from 19 May 2021 which said that he was managing work okay, but overhead lifting gave him some problems.[52] He agreed he was going to physiotherapy fortnightly, and hydrotherapy weekly.[53] He agreed with the entry recorded on 13 June 2021 that he was improving.[54] He agreed that when he saw his physiotherapist on 23 June 2021 his pain was persisting, and that he was not doing any lifting above shoulder level.[55] He also agreed with the entry notes of 7 July 2021 that said "generally going well, still ongoing pain."[56]
11. It was his intention to see the physiotherapist for as long as required.[57] His physiotherapist had asked the TAC to continue his physiotherapy into September 2021 at least.[58]
12. Just before the workplace accident, he was considering surgery as his shoulder was not healing as well as hoped.[59] While he did not recall telling Dr Flynn that his shoulder was progressing poorly after the transport accident and that it had been recommended that he see a surgeon, he accepted that if she had recorded that, he must have said that.[60]
13. On 13 July 2021 (the day prior to the industrial accident), he was working with the power saw, which he could operate with his left hand.[61] The saw ran along a guide. If he had to do a small cut, then he could guide the saw with his right hand.[62] He was not the supervisor on that job.[63] He had been on that job for a couple of months.[64]
14. He agreed that prior to his industrial accident, his range of movement had gradually improved over the passage of time with physiotherapy.[65]
15. He was a hands-on supervisor. That was part of their job.[66] He did not have full unrestricted use of his right arm prior to his industrial accident.[67] He was still trying to avoid work on the tools right before the industrial accident.[68]
16. He did not get back to doing any of the activities he did prior to his transport accident such as golf, kayaking, coaching football for his kids, running around and kicking a football with them.[69]
17. His right shoulder was causing him trouble prior to his work injury.[70] He could "do stuff", but then he would suffer at night time, because once he had stopped working he had a lot more pain.[71] He was limited with his lifting. He thought he had improved a little bit before the industrial accident, compared to when he first had the transport accident. He was hoping it was going to improve more so he could get back to some kind of normality.[72] It was still causing him considerable trouble up until the point of the industrial accident.[73]

1. When he attended hospital following the industrial accident, they could not figure out why he was in so much pain. He had a lot of layers on, and it was not until he had undergone x‑rays that they worked out that his bone was hanging down.
2. He would not have been supervising the job site that he was on when he had his industrial accident if he was not on light duties. He would have been doing something much more useful than cutting materials.[74]
3. He agreed his major problem was ache, discomfort and pain in his right shoulder, which was worse with repetitive and overhead activities, and that his shoulder felt stiff, sore and weak.[75] He stated that his symptoms had deteriorated following the industrial accident, whereas he had been improving (albeit slowly) following the transport accident. This improvement had allowed him to return to work full-time on modified duties with some tool work.[76]
4. He tried Panadol Optizorb for about a week, about five weeks prior to the hearing, but it did not do anything, so he stopped taking the medication.[77]
5. When he returned to work in November 2022, he returned to full-time duties and was in charge of the job.[78] He remained there until 23 March 2023.[79]
6. He received weekly payments of compensation from WorkSafe until it was superseded by the silicosis claim.[80]
7. He loved his work because he had "amazing bosses" and "amazing people" he worked with, and without the support of his bosses, the time prior to the industrial accident could have been worse.[81] When he had to give up working in March 2023, he felt ashamed about not being able to work, as he had always loved his it.[82]
8. He said that he was worse after the industrial accident, as he could not lift like he could before. Following the transport accident, he could still do light weight lifting (albeit limited), but after the industrial accident, he was restricted to four kilograms.[83] Following his surgeries, his range of motion improved slightly, but then went "totally backwards."[84]
9. He said he did not say any of the things that Dr Siva Chandrasekaran reported following his consultation with him.[85]
10. He said that he had never felt pain like he felt in the industrial accident in his entire life.[86] He disagreed that the two surgeries performed by Mr Treseder improved his situation considerably, as he was having constant bicep pain and nerve pain at the front of his shoulder. Because of this, he kept seeing Mr Treseder.[87]
11. He believed he might have retorn his shoulder with his hydrotherapy.[88] He said that if he had one wish in his life it would be that had not injured his shoulder and that he was still at work.
12. He only sleeps for two to three hours a night as a result of his shoulder pain, which causes him more grief than his silicosis. His silicosis is under control with medication. In the absence of the silicosis, he did not think he would be working.
13. He did not have computer skills. He could not draw or write with his right arm for long periods as it would cause a lot of pain. He said he would have to be hands-on as a trade teacher and training apprentices.[89] If he were a retail assistant at Bunnings, he would have to do packing and "all that kind of stuff".[90] Site supervisors were hands-on.[91]
14. He tried playing lawn bowls after his industrial accident but it was too heavy and he could not do it.[92] He went fishing twice but stopped after he cast four times due to the motion.[93] He stated that he loves cooking, and so persists with it even though it hurts. He had not been kayaking, golfing, or coached football since his transport accident.[94]
15. He could not work as a supervisor, even if it did not involve hands-on work, because of his lack of sleep and resulting tiredness. He also found sitting in court difficult with his pain, and he just did not think he would be able to work as a supervisor as a result.[95]

1. The discharge summary contained the history of the presenting complaint, being that he was rear-ended by another four-wheel drive at a police check, and that the speed of the other car was about 40 kilometres per hour.[96] No airbags were deployed. It noted that the back tray of his vehicle hit the back windscreen, causing the glass to break which then lacerated his head. He was complaining of headache and right shoulder pain.[97]

1. Four documents were tendered from Mr de Soysa dated 22 October 2020, 16 November 2020, 12 May 2021 and 1 October 2021.
2. In his correspondence of 22 October 2020, Mr de Soysa said he was not making much progress with Mr Muller's right shoulder at present. He suspected a rotator cuff tear and probable labral damage, and thought he might need a referral to a specialist if significant damage was seen.
3. In his correspondence of 16 November 2020, he repeated that Mr Muller was making slow progress and struggling with abduction, particularly with internal rotation.
4. In a document entitled "Allied Health Treatment and Recovery Plan" for the TAC dated 12 May 2021, he outlined Mr Muller's current activity, functional limitations and short-term activity goals. At that time, his limitations were that he could not lift five kilograms above his shoulder, he could not reach the high shelf, he could not lie on his right side and could not sleep greater than four hours at a time. He anticipated his discharge date would be 7 September to November 2021.
5. In his correspondence of 1 October 2021 to the TAC, he advised that Mr Muller had had a significant injury to the right shoulder at work which required surgery and his rehabilitation was being funded by WorkSafe. He said that despite no longer charging TAC for the physiotherapy treatment, Mr Muller had significant ongoing issues which might require the support of TAC in the future.

Clinical record entries from Active Sports & Spinal Physiotherapy consultations

1. Extracts of Mr de Soysa's clinical notes were tendered in the hearing from 21 April 2021 to 28 July 2021.
2. The first entry of 21 April 2021 noted that Mr Muller was able to do more, but he had ongoing pain, which affected his sleep.[98] He had to lie on his opposite side, as he felt pain when lying on his right side.
3. The entry of 28 April 2021 noted there was slow progress.[99] On 12 May 2021, it was noted that there was still persisting pain, especially at the end of the day, but he was assisted by treatment.[100] The entry for 19 May 2021 noted that Mr Muller was "managing work ok" but overhead lifting caused some pain.[101]
4. On 2 June 2021, the entry noted that Mr Muller had "persisting pinching pain",[102] and persisting pain was also noted on 23 June 2021.[103]
5. On 30 June 2021, Mr Muller had gradual improvement, and Mr de Soysa had been sent a letter from the TAC regarding ongoing physiotherapy.[104] The entry of 7 July 2021 noted that Mr Muller was generally going well, however there was still ongoing pain.[105]
6. On 28 July 2021, Mr Muller attended Mr de Soysa, who noted that he had dislocated his right shoulder and was knocked unconscious after being hit on the head from a 30 kilogram plastersheet.[106] It was noted that Mr Muller was sore and stiff in the mornings and had difficulties with sleeping. He also struggled to move his shoulder, particularly with abducting, external rotation and elevation.[107]

Dr Han San Aw Yeang, treating general practitioner

1. There was correspondence of Dr Yeang dated 29 October 2020 tendered, as well as a report dated 18 March 2021.
2. His correspondence dated 29 October 2020 related to Mr Muller's mental health deterioration following his transport accident.
3. In his report of 18 March 2021, Dr Yeang said that he was uncertain of Mr Muller's current condition since he had last reviewed him on 23 November 2020. He noted that his depression was based on his attempt at self-harm and that his sense of wellbeing was tied in with his ability to work.[108] After being unable to work following his accident, Mr Muller became depressed again. He said his right shoulder soft tissue injury was initially diagnosed as "an acromioclavicular joint injury but subsequently revised a partial tear supraspinatus tendon, subacromial bursal effusion, ACJ mild osteoarthritis and suspicion of tiny labral tears" after undergoing an MRI scan.[109]

Nursing discharge summary - Melbourne Private Hospital

1. This summary was in connection with Mr Muller's right shoulder arthroscopic rotator cuff repair undertaken on 2 September 2021.

1. There were six pieces of correspondence and two reports tendered from Mr Treseder.
2. In his correspondence of 24 November 2021, which was written after the right arthroscopic supraspinatus repair and biceps tenodesis, he wrote that Mr Muller was recovering slower than he would like and still had sleep disturbance.[110]
3. He repeated these sentiments in his correspondence of 11 January 2022.
4. He said that he was going to perform an MRI to ensure that the rotator cuff repair was intact. He thought that most of Mr Muller's pain was related to the tenodesis site which should settle in time.[111] He was happy for him to return to light duties with no restriction other than what he could tolerate.
5. In his correspondence of 8 February 2022, Mr Treseder noted that there was further deterioration, despite the MRI showing intact repair and no concerning features.[112] Mr Muller had returned to work and increased his load, and was complaining of worsening tricipital pain that was interfering with his sleep, which was a significant issue.[113] Mr Muller reported that he did not have shoulder pain or pain at the biceps insertion and that all of his pain was located in the posterior arm, and Mr Treseder noted that the worsening symptoms were difficult for him to explain. Mr Treseder advised Mr Muller to cease work and he completed a certificate to this effect, and was hopeful that with rest, Mr Muller could return to work. Noting that the MRI showed a healed repair, he was optimistic that Mr Muller would have a long-term positive outcome.[114]
6. Mr Treseder wrote to Mr Pullen on 27 April 2022, seeking a second opinion, indicating that he had been struggling to find a cause for Mr Muller's significant ongoing pain and dysfunction.[115] He also sought his opinion on whether he should explore the tenodesis or tenotomise tendon and accept the cramping and cosmetic change that was possible.
7. Mr Treseder next wrote to Dr Yeang on 28 June 2022, following the right shoulder tenotomy and exploration of the tenodesis on 30 May 2022.[116] It was reported that the plan was for Mr Muller to be subject to a five-kilogram lifting restriction for four weeks, and then returning to normal duties in a graduated fashion. Mr Muller was also advised to engage in core and Pilates retraining, as well as a obtaining a gym membership.[117] Mr Treseder noted that Mr Muller had a "very good" result from surgery, and was now pain-free and getting a full night's sleep. He had also ceased all pain medication. His shoulder power was "near normal" and he had a "near full range of motion."[118]
8. In his correspondence of 15 April 2025 to Dr Yeang, Mr Treseder wrote that in the workplace accident Mr Muller sustained a right shoulder dislocation with a large rupture of his rotator cuff.[119] Mr Muller underwent a rotator cuff repair acutely for a large supraspinatus and infraspinatus tear, but he ultimately had to have exploration of his site due to ongoing anterior pain.[120] Mr Treseder noted that Mr Muller was "generally doing very poorly" from an injury that he should have improved significantly from, as Mr Muller had pain in his right shoulder, poor sleep and poor function.[121] Mr Treseder noted that he was not confident any further surgery would be effective, but was willing to consider a diagnostic arthroscopy and arthroscopic repair.[122] However, this was dependent on whether he could be cleared for the use of anaesthesia, noting his silicosis.
9. Mr Treseder provided a report of 18 June 2025 to Mr Muller's solicitors. In that report, he noted that when he reviewed him for the first time approximately four weeks after his injury, Mr Muller was not able to move his shoulder actively more than 40 degrees of forward flexion, 30 degrees of abduction and 10 degrees of external rotation.[123]
10. He noted that he obtained a history of the prior transport accident where Mr Muller had a seatbelt-type injury and had apparently been told that he had a rotator cuff tear. He had had a prior MRI which Mr Treseder did not have access to. He said that Mr Muller was clear that this pain was much worse than the previous injury and was a new injury that he had not had before. He had new x-ray evidence of a dislocation.[124]
11. He noted that when Mr Muller underwent operative repair of the tear on 2 September 2021:

"The tear was found to be larger than the MRI suggested and was involving the whole of the anterior posterior width of supraspinatus and it required a margin convergence suture to achieve reduction. There was also an upper subscapularis split tear and subluxation of the biceps tendon into that tear on dynamic movement."[125]

1. His opinion was that Mr Muller had "an acute rotator cuff tear and biceps subluxation in a setting of a traumatic anterior inferior shoulder dislocation of his right shoulder sustained in the workplace accident."[126]
2. He concluded that Mr Muller had significant ongoing disability in his right shoulder and arm following the workplace injury. He noted that Mr Muller had been unable to return to his former duties, and that the cause of his ongoing pain was unclear, but that it could relate to residential rotator cuff disease.[127]
3. He did not think that Mr Muller would be able to return to his pre-injury functioning, but that he did have capacity to work in other roles that did not require manual tasks.[128] He opined that it was likely Mr Muller would need further treatment of his rotator cuff, either non-operatively or operatively. He noted that Mr Muller's prognosis was poor, but he did expect the level of disability to be stable over the ensuring years.[129]
4. On 20 June 2025, he provided a supplementary report to Mr Muller's solicitors. He noted that Mr Muller's injury was clearly a new one that had occurred on 14 July 2025.[130] This opinion was based on the clinical history, treatment events and imaging results. An MRI performed on 17 August 2021 showed a complete, full thickness supraspinatus tear, whilst an MRI from 27 October 2020 showed a partial, low-grade supraspinatus tear.[131] He stated that there was a clear progression of changes from one scan to the next. Additionally, there was a new traumatic Hill-Sachs fracture on the humeral head.[132]
5. He concluded that the treatment Mr Muller had received was directly and solely for the injury sustained on 14 July 2025.[133]

1. On 19 May 2022, Mr Pullen examined Mr Muller following a referral from Mr Treseder and provided his report on the same day.
2. He reviewed the right shoulder and humeral MRI scans, which confirmed his rotator cuff and biceps tenodesis as intact. As such, Mr Pullen diagnosed Mr Muller as suffering from biceps pain of unclear aetiology, and discussed both non-operative and operative treatment with him.[134]
3. Mr Pullen advised that Mr Muller may benefit from a right biceps tenotomy and shoulder manipulation, and advised him to discuss that further with Mr Treseder.[135]

1. There were two treating physiotherapists' questionnaires addressed to EML from Mr Davies dated 17 May 2023 and 27 October 2023, correspondence from Mr Davies dated 9 April 2025 and a report of Mr Davies dated 29 May 2025 that were tendered at the hearing.
2. His opinion was that Mr Muller's current condition was due to the work injury sustained on 14 July 2021 and the subsequent surgeries performed after that.[136]

1. There were two pieces of correspondence tendered from Dr Kolli, dated 3 March 2025 and 23 September 2024.
2. In the correspondence of 23 September 2024, he sought approval for a hydro dilatation given Mr Muller's lack of response to the cortisone injection.[137]
3. In Dr Kolli's correspondence of 3 March 2025, he sought a second opinion on further management options from Mr Matthew Evans.

1. Mr Miller saw Mr Muller on 1 May 2025 and he provided a report that same day.
2. Mr Miller took a history of the transport accident and the industrial accident. He recorded that Mr Muller's primary complaint was his right shoulder, as there was ache, discomfort and pain, which was worse with repetitive and overhead activities.[138] He reported that his shoulder was stiff, sore and weak, and that his shoulder was "pretty good" after the transport accident until the industrial accident.[139]
3. Mr Miller noted that Mr Muller reported problems with anxiety and depression, and there was probable Chronic Regional Pain Syndrome, which complicated the assessment and management of his condition.
4. Mr Miller recorded his abduction as being 80 degrees and his forward elevation as 80 degrees.[140]
5. He said that at the time of the transport accident, Mr Muller was working on a full-time basis. Approximately six months after the transport accident, Mr Muller returned to slightly modified duties with the intention to eventually return to his pre-injury duties.[141]
6. In terms of the diagnosis, Mr Miller said that following the transport accident, it was likely that Mr Muller had low-grade rotator cuff injury and capsulitis from which he was making a good recovery. It was anticipated that the prognosis for that injury at that time would have been good or excellent.[142]
7. It was his opinion that the current clinical status of the right shoulder related substantially to the effects of the industrial accident. He said it was likely that, had the industrial accident injury not occurred, Mr Muller's shoulder would have regained near normal function with no ongoing functional limitations, allowing a return to normal work activities.[143]
8. He thought Mr Muller would require ongoing conservative treatment and that his current conservative regime was appropriate and would need to continue indefinitely.

1. Mr Muller saw Dr Epstein on 1 February 2023 via Facetime video conferencing for the purposes of Mr Muller's TAC claim, and provided his report to the TAC and Mr Muller's solicitors on the same day.
2. He said that Mr Muller continued to have a post-traumatic stress disorder, partially contributed to by his work injury.[144]
3. He also said Mr Muller had suffered a severe depressive disorder prior to his transport accident that was exacerbated by the effects of the transport accident leading to him having intense suicidal ideation, but there had been no recurrence of that severe depressive disorder since then.[145]

1. Three reports of Dr Flynn were tendered in this matter, dated 8 February 2023, 28 June 2023 and 25 February 2024. All three reports were provided to the TAC and Mr Muller's solicitors.
2. In her first report, Dr Flynn first examined Mr Muller on 9 November 2022 and diagnosed him with the following injuries:

(a) right shoulder AC joint arthritis aggravation, rotator cuff tear and biceps tendonitis;

(b) right shoulder dislocation, without labral tear; and

(c) adhesive capsulitis with incomplete resolution.[146]

1. She stated that disentanglement of the two injuries was difficult, as both had contributed to Mr Muller's clinical course and need for treatment.[147] She noted that the current problem that Mr Muller suffered from was "residual capsulitis and glenohumeral neuropathic pain."[148] She did not feel that there was an indication for further surgery.
2. She also noted that his clinical history suggested there were capsulitis problems after the transport accident, which continued to be problematic. She noted that after the transport accident, he had restricted movement and pain, which was likely to be related to adhesive capsulitis in the setting of a shoulder injury.[149] After the industrial accident, he suffered a "shoulder subluxation episode without labral tear" and although it was painful and there was restricted movement, there was gradual improvement prior to surgery.[150]
3. She concluded that any apportionment was "probably arbitrary and subjective" and she considered Mr Muller's current upper right limb impairment to be substantially related to the transport accident.[151]
4. In her supplementary report of 28 June 2023, she provided further opinion after reviewing the radiological report of the MRI of the right shoulder of 27 October 2020 and the later MRI of 17 August 2021.
5. She noted that her opinions provided in her prior report had not altered following review of this further material. She reiterated the difficulty to disentangle the two injuries, as both had clearly contributed to Mr Muller's clinical course and need for treatment.[152]
6. She noted that:

"It is difficult to be certain, however, it may have been that he would have come to surgical management of the shoulder even in the absence of the workplace injury, given ongoing problems with the shoulder and inability to return to full-duties at work."[153]

1. In her third report, she said that the pertinent matters she had considered in arriving at her opinion were as follows:

(a) Mr Muller had not returned to full duties and was restricted to modified duties due to his right shoulder condition, ongoing pain and restricted movement after the transport accident (but prior to the industrial accident).

(b) The significant mechanism of injury of the transport accident, in that Mr Muller reportedly had a relatively new vehicle written off. However, she did note a discrepancy, as the ambulance record reported the speed as less than 40 kilometres per hour, but was unsure what, if any, significance to attach to that description.

(c) Mr Muller reported poor progression following the transport accident, and prior to the industrial accident, and he continued to be managed by a physiotherapist despite a referral to a surgeon being suggested.

(d) The examination she performed on 9 November 2022 ("the first examination") was consistent with her diagnosis of residual capsulitis, noting that there was restricted movement in all directions and his presentation likely suggested a degree of neuropathic pain contributing. She also suggested a review by an interventional pain management specialist.

(e) The MRIs she reviewed in her earlier report of 27 October 2020 and 17 August 2021.

(f) The fact that Mr Muller had undergone two procedures, being a rotator cuff repair and biceps tenodesis on 2 September 2021, and a biceps tenotomy on 19 May 2022,

(g) In the examination, Mr Muller described the status of his shoulder as being similar to how it was prior to the industrial accident and multiple surgeries, as his anterior shoulder pain was similar, and had a similar (albeit slightly better) range of motion.

(h) The clinical history suggested capsulitis after the transport accident, and prior to the industrial accident, and similar problems at the time of the examination of 9 November 2022.[154]

1. She was asked to consider a comment by Dr Chandrasekaran, who noted that Mr Muller had "an acromioclavicular joint sprain that was treated nonoperatively" following the transport accident.[155] She noted that this was misleading, as Mr Treseder treated a rotator cuff tear, and the rotator cuff tear predated the workplace injury. He did not treat a shoulder dislocation nor shoulder instability.
2. As best as she could assess retrospectively, she opined that prior to the industrial accident, Mr Muller had likely suffered from "adhesive capsulitis/neuropathic pain in the setting of a shoulder injury, partial rotator cuff tear and bursitis".[156]
3. Regarding the apportionment of impairment, she outlined that she made the following assumptions based on the facts presented in the medical records:

(a) The right shoulder surgery undertaken was to treat a pre-existing, though slightly larger, rotator cuff tear and that this surgical intervention may have been required even in the absence of the industrial accident, as there was ongoing pain.[157]

(b) The following ranges of motion were documented in the months prior to the industrial accident:

(i) abduction 145

(ii) flexion 150; and

(iii) internal rotation to T8.[158]

(c) Prior to the initial surgery, and after the industrial accident, Mr Muller's shoulder range of motion gradually increased, and the following ranges of motion were documented:

(i) flexion 115;

(ii) abduction 80;

(iii) external rotation 70; and

(iv) internal rotation to T12.[159]

(d) In the examination conducted on 9 November 2022, the following ranges of motion were documented:

(i) flexion 120;

(ii) extension 40;

(iii) abduction 110;

(iv) adduction 20;

(v) internal rotation 20; and

(vi) external rotation 30.[160]

1. She again reiterated that any apportionment was relatively arbitrary and subjective as both injuries had clearly contributed to the status of the shoulder.[161]
2. Nonetheless, her opinion remained that the transport accident injury of the right shoulder was a significant injury in terms of the ongoing status of the right shoulder condition and upper limb symptoms.[162]

1. There was one report tendered from Mr Chandrasekaran dated 30 March 2023.
2. He recorded a history that Mr Muller did not have any residual symptoms from his transport accident. He diagnosed him as having a dislocation of the right shoulder with traumatic rotator cuff and biceps tear, which he said was consistent with the industrial accident.[163]

1. There was one report tendered from Dr Gee dated 16 October 2023. Mr Muller saw him on the same day.
2. His opinion was that Mr Muller had a failed reconstruction of his right shoulder following traumatic dislocation and a diagnosis of silicosis.[164] He said he did not have the capacity to return to work in his pre-injury duties, and that this was permanent and unlikely to change in the foreseeable future. He thought that Mr Muller's shoulder condition required intensive treatment, and perhaps further surgery, before he would have the capacity to return to any type of work. His assessment of Mr Muller's secondary condition of silicosis was that he did not have a capacity for work as a result of that diagnosis as well.
3. Dr Gee said that Mr Muller had no current work capacity and that this would be indefinite. He thought there could be hope of improving his function with major surgery, such as a reverse shoulder joint replacement, but this was out of the question due to his significantly and rapidly deteriorating lung condition.[165]
4. He thought Mr Muller's shoulder condition was due to a serious work injury which occurred in the workplace. The shoulder injury was solely related to the workplace incident. His silicosis was also related to work but not directly as a result of the injury he sustained.[166]

1. As outlined above, neither Counsel for the TAC nor Counsel for WorkCover submitted that Mr Muller lacked credibility or was an unreliable witness.
2. I found him to be an impressive witness, who did his best to answer questions in a straightforward and honest way. Where he could not recall having provided a history to a medical practitioner, he said so, and readily accepted that the entry in their clinical records was likely to be correct. His evidence regarding the change in his symptoms and restrictions after his transport accident and industrial accident was clear, consistent and easy to understand.
3. I also found that he was a highly motivated and stoic worker, who did all he could to return to work following both accidents. I formed this view both on the basis of his expressed love of his work and affection for his employer, and also from the determination he showed to return to work following his suicide attempt.
4. Mr Muller's account of his injury and his symptoms was consistent with that obtained by the medical experts whose opinions were tendered as evidence that I relied on in this hearing.
5. For these reasons, I was satisfied I could rely on Mr Muller's evidence, and I accept his evidence in full.

1. As outlined above, it was conceded that Mr Muller sustained a compensable injury in both the transport accident and the industrial accident.
2. It was not in dispute that the consequences of Mr Muller's impairment to the right shoulder and arm met the test for 'serious injury' as at the date of the hearing.
3. The real issue in dispute was whether either or both the TAC or VWA were liable for his serious injury.
4. I was impressed with Mr Muller's presentation in the witness box. He was clear about the about the consequences he was left with after the transport accident compared with the consequences he was left with after the industrial accident.
5. Those consequences were that following the transport accident, he had a modified work capacity which allowed him to work as a supervisor on construction sites after up until his industrial accident. Following his industrial accident, he lost that work capacity, and effectively came to the end of his working life, with a lifting limit of four kilograms. This was a fact that he came to realise after he tried his best to return to work, which was unsuccessful.
6. Given the effluxion of time, and the different histories recorded by the various practitioners who were relied on in this case, I placed weight on the contemporaneous notes of Mr de Soysa when arriving at my conclusion about whether I could infer that Mr Muller's right shoulder and arm impairment was 'long-term' and the consequences that followed.
7. I found that these records were consistent with Mr Muller's evidence regarding his symptoms and presentation at that time.
8. Both Counsel for the TAC and VWA placed a great deal of emphasis on the medical evidence they tendered, which they argued showed that the other statutory authority was responsible for Mr Muller's serious injury. Counsel for the TAC submitted that I should prefer Mr Miller and Mr Treseder to Dr Flynn, whereas Counsel for the VWA submitted that I should prefer Dr Flynn to Mr Miller and Mr Treseder.
9. Having carefully reviewed the medical evidence, and being mindful that the applications before me are gateway applications, and the fact that the applications proceeded in the ordinary way, I found that the opinions of Dr Flynn, Mr Miller and Mr Treseder sat comfortably with one another and were consistent with the contemporaneous evidence of Mr de Soysa, who was the treating physiotherapist in the period leading up to the industrial accident, and the evidence of Mr Muller.
10. I was satisfied that on balance, the evidence established that Mr Muller was left with a long-term impairment of the right shoulder and arm following the transport accident and sustained an aggravation of his right shoulder and arm in the industrial accident, the aggravation itself being permanent.[167]
11. I was satisfied that the consequences of each of the impairments met the legal test for serious injury. I was thus satisfied that he was entitled to leave to proceed with a claim for damages for each of the applications.
12. I will now turn to provide full reasons for my decision.

1. As outlined above, the real dispute in the case regarding the transport accident was not whether Mr Muller sustained an injury in the transport accident, but rather whether the consequences of that injury were long-term.
2. There was no controversy about the opinions of Dr Yeang and Mr de Soysa, with respect to the diagnosis of the injury, with each relying on the MRI findings of 27 October 2020. That MRI reported fluid on the sub-acromial and sub-deltoid bursa with thickness up to three millimetres, a partial thickness surface tear of the anterior and mid supraspinatus insertion, and no definite full-thickness tear of the rotator cuff tendon.[168]
3. Dr Yeang noted that Mr Muller's right shoulder soft tissue injury was initially diagnosed as an acromioclavicular joint injury, but subsequently revised his diagnosis to a "partial tear of the supraspinatus tendon, subacromial bursal effusion, ACJ mild OA and suspicion of tiny labral tears" after the MRI was undertaken.[169] Dr Yeang last saw Mr Muller on 23 November 2020, and thus did not shed any light on the question of whether Mr Muller had a 'long-term impairment' arising from this injury.
4. Mr de Soysa diagnosed Mr Muller's injury as a right shoulder supraspinatus tear, subacromial bursitis and labral tears when he wrote to the TAC on 12 May 2021.[170]
5. The remaining treating practitioners and medico-legal experts provided their opinion on the injury Mr Muller sustained in the transport accident after the industrial accident had occurred.
6. Dr Flynn took a history from Mr Muller, reviewed the material she was provided, and conducted her own examination. She provided a detailed explanation for her reasons and opinion, detailing the assumptions she relied upon and why she did so.
7. Significantly, she noted that Mr Muller advised her that he had poor progression after the transport accident. While Mr Muller did not recall advising Dr Flynn of this, he did not dispute the accuracy of her record taking.[171] She also recorded that Mr Muller described the status of his shoulder (at the time of the independent assessment in November 2022) as being similar to that prior to the industrial accident and surgeries, in that the anterior shoulder pain was similar, and he had similar, though slightly better, range of motion prior to the workplace incident.[172] When this was put to Mr Muller, he agreed that the state of his shoulder was similar to how it was prior to the industrial accident, the only difference being that he had more bicep pain.[173]
8. She noted that Mr Muller had a workplace shoulder injury and suffered a shoulder subluxation episode without labral tear. The shoulder was painful and movement was restricted, though this gradually improved prior to surgery. He attended Mr Treseder, and subsequently underwent surgical treatment of the rotator cuff tear and bicep problems.
9. She thought Mr Muller may have come to surgical management of his shoulder in the absence of workplace injury.[174]
10. She noted that Mr Treseder treated a rotator cuff tear, and the rotator cuff tear predated the workplace injury. He did not treat a shoulder dislocation or shoulder instability.[175]
11. Dr Flynn went on to note the difficulty associated with disentangling the two injuries when both had contributed to the clinical course.[176] She compared the MRI imaging of 27 October 2020 and 17 August 2021, noting that the supraspinatus tear had progressed to full thickness in the region of approximately three to four millimetres, and that the previously intact bursal sided fibres had been disputed, making this a full-thickness tear.[177]
12. She thought that the clinical history suggested capsulitis problems after the transport accident, which continued to be problematic.[178]
13. Having considered all of the material she had been provided with, together with the history she had obtained from Mr Muller and her own examinations, she formed the view that it was more likely than not that Mr Muller had an "adhesive capsulitis/neuropathic pain in the setting of the shoulder injury, partial rotator cuff tear and bursitis" arising from the transport accident.[179]
14. Her opinion was that the transport accident injury of the right shoulder was a significant injury in terms of the ongoing status of the right shoulder condition and upper limb symptoms.
15. The balance of the expert opinions was focussed on the industrial accident, rather than the transport accident.
16. As I read them, they were not in conflict with Dr Flynn on the question of diagnosis of injury.
17. Mr Treseder concluded that the injury of 14 July 2021 was a new one, and he based his opinion on the clinical history, the treatment events and the imaging results.
18. With respect to the imaging results, he noted the change from a partial to a full tear between the MRI imaging of 27 October 2020 and 17 August 2021, just as Dr Flynn had.[180]
19. The treatment events were also the same as those recorded by Dr Flynn, which was not unsurprising given that Mr Treseder was the orthopaedic surgeon who performed the two surgeries.
20. Mr Treseder took Mr Muller's history on 13 August 2021,[181] approximately one month after the industrial accident and approximately fifteen months before Dr Flynn took her history from Mr Muller.
21. He noted that Mr Muller was clear that the pain was much worse than the previous injury and this was a new injury that he had not had before.[182]
22. While on first reading, this history appears to conflict with that of Dr Flynn, on closer examination I found it was not.
23. Firstly, Mr Muller's oral evidence about the pain from the industrial accident was that he had not felt pain like that in his entire life,[183] which is consistent with the history obtained by Mr Treseder and made sense in the context of the Mr Treseder having taken that history one month after the industrial accident.
24. Secondly, Dr Flynn took her history after Mr Muller had undergone his two surgical procedures, when Mr Muller was understandably focussed on the symptoms post-operatively, rather than the pain he was experiencing in the month after the industrial accident as Mr Treseder noted in his report.
25. Thirdly, Mr Treseder went on to note that post-operatively, Mr Muller continued to complain of persistent pain around the bicipital tenodesis, for which he could not find a structural cause. This is consistent with Mr Muller's evidence as outlined above, and consistent with the opinion of Dr Flynn.[184]
26. Finally, Mr Treseder stated that the treatment Mr Muller had was directly and solely for the injury he sustained on 14 July 2021,[185] a view that Dr Flynn agreed with and partly based her ultimate opinion on.
27. Ultimately, Dr Flynn formed the view that the residual symptoms were best explained by adhesive capsulitis and neuropathic pain, whereas Mr Treseder formed the view that the cause of the ongoing pain was unclear but may relate to residual rotator cuff disease.[186]
28. Importantly, Dr Flynn was of the view that both injuries had contributed to the status of the shoulder.[187] There was nothing in Mr Treseder's reports that led me to conclude that he disagreed with this opinion. While he was clear that Mr Muller sustained a new injury in the industrial accident leading to the need for surgery, he remained silent on the contribution of the transport accident. This was significant, as the only expert to offer an opinion on whether both accidents played a role in Mr Muller's current shoulder injury was Dr Flynn.
29. I have noted the correspondence of Dr Kolli, Mr Muller's current general practitioner, and Mr Davies, Mr Muller's current physiotherapist, neither of whom referred to the transport accident in their correspondence, or in the case of Mr Davies, his report. I am conscious that both started treating Mr Muller sometime after the industrial accident. I have also viewed their correspondence in the context for which it was written, which was either for approval for services or referral for advice, not for medico-legal purposes, other than for one short report from Mr Davies where he attributed Mr Muller's current condition to his work injury of 14 July 2021 and the surgeries performed thereafter. I have placed limited weight on his opinion given the absence of reference to the transport accident and comparison of the radiological material and clinical history as provided by Dr Flynn.
30. While I will consider the opinions of Mr Miller, Dr Gee, Mr Davies and Dr Chandrasekaran further when addressing the injury and impairment arising from the industrial accident below, it is sufficient for me to say at this point that I did not find that they added anything further than that offered by Mr Treseder and Dr Flynn in resolving this question.
31. In arriving at my conclusion, I was conscious that a serious injury application is a gateway proceeding, and that I was required to consider the evidence tendered in light of the limited purpose for which the question on causation was being asked, and in light of the more limited scope of the evidence adduced on this issue than that which might be adduced in a full trial.[188]
32. Dr Flynn was the only orthopaedic surgeon to offer an opinion on the diagnosis of the injury arising from the transport accident.
33. I have accepted Dr Flynn's opinion on diagnosis of injury, because her pathway of reasoning was clear and consistent with the evidence. That is, I accept and find that Mr Muller sustained a partial rotator cuff tear, adhesive capsulitis, neuropathic pain and bursitis in the transport accident.
34. As I will set out below in my reasons regarding the injury sustained in the industrial accident, this is in contrast to the injury Mr Muller sustained in the industrial accident, which was an acute rotator cuff (full) tear and biceps subluxation in the setting of traumatic anterior inferior shoulder dislocation of his right shoulder, with traumatic Hill-Sachs fracture of the humeral head.
35. Her opinion, together with the evidence of Mr Muller and Mr de Soysa, led me to conclude that Mr Muller was left with a long-term impairment of the right shoulder because of the transport accident.

Did the injury arising from the transport accident cause a long-term impairment to the right shoulder and arm?

1. In essence, this question is really directed to what impairment, if any, Mr Muller would have been left with had the industrial accident not occurred.
2. To answer this question, I have considered both the medical evidence and Mr Muller's evidence.
3. As outlined above, Mr Muller was consistently having[189] physiotherapy treatment at the time of his industrial accident.
4. The records reveal that Mr Muller was advising Mr de Soysa that he was suffering from persisting or ongoing pain. At his attendance on 7 July 2021, which was his last attendance before the industrial accident of 14 July 2021, Mr de Soysa recorded that Mr Muller said he was generally going well and still had ongoing pain. Mr de Soysa recorded at Mr Muller's attendance on 23 June 2021 that Mr Muller was not doing any lifting above shoulder level, which accorded with Mr Muller's evidence.
5. Mr de Soysa completed an Allied health treatment and recovery plan on 12 May 2021 seeking approval for 12 to 14 further services over 16 weeks from 13 May 2021 to 10 September 2021.[190] This was approved by the TAC.[191]
6. In that correspondence, he described Mr Muller's current activity and functional limitations, and his short time goals, with an estimate of the date of achievement. I have reproduced the table here:[192]

Short-term activity goals (include ADL and work/travel goal)

1. This suggested to me that while some improvement was expected, it was modest. It also suggested to me that the hoped-for improvement would arise before the proposed number of treatment services concluded. That is, the estimated date of achievement was either 30 June 2021 or 30 July 2021, whereas the request for approval of services was through until 10 September 2021.
2. In his correspondence of 1 October 2021, Mr de Soysa wrote to the TAC informing them that he was still seeing Mr Muller, but it was now in connection with his industrial accident and his treatment was being funded by WorkCover.[193] Significantly, he said:

"Despite no longer charging TAC for his physiotherapy treatment he has some significant ongoing issues which may required the support of TAC in the future."[194]

1. I have inferred from the evidence of Mr de Soysa that he was expecting some, but not complete, improvement of symptoms arising from the transport accident.
2. I have also placed weight on Mr Muller's evidence that he was looking at the option of surgery prior to the workplace accident, albeit that he had not yet been referred to a surgeon.[195] I have inferred that this discussion occurred with this physiotherapist, given that he referred to the possibility of it in his note of 22 October 2020.[196]
3. At the time of the industrial accident, Mr Muller had not been cleared fit for normal duties, although his evidence was that it was his goal to get back to full-time normal duties. While I accept his evidence that this was his goal, it is not clear to me that he would have, based on the short-term activity goals outlined by Mr de Soysa in his plan of 12 May 2021.
4. As outlined above, I have accepted the opinion of Dr Flynn regarding the diagnosis of Mr Muller's injury. Her view was that Mr Muller's prognosis was guarded. She thought he was likely to continue to experience pain and functional limitation due to residual capsulitis and that there was a low risk of deterioration in the future.[197] She assessed him as having a 19 per cent whole person (permanent) impairment in relation to the transport accident in her report of 8 February 2023,[198] revising this to 17 per cent in her report of 25 February 2024 after further review of the abduction and flexion values documented prior to the workplace injury.[199]
5. As outlined above, I have accepted Mr Muller's evidence. In arriving at my conclusion, I have considered the following:

(a) The work he was doing was protected and largely supervisory up until the time of the industrial accident.[200]

(b) He was suffering during the night while working because his pain increased once he stopped working for the day. I accept he was limited with his lifting. I accept that he thought he had improved after the transport accident but only "a little bit". He nonetheless remained optimistic that he would improve further so he could get back to some kind of normality.

(i) I note that Mr Miller recorded that Mr Muller felt that the shoulder was "pretty good" following the motor vehicle accident at the time he saw him on 1 May 2025.[201] This does not accord with Mr Muller's oral evidence outlined above, which I accept and prefer. I should note at this point that there were other inaccuracies in Mr Miller's report, such as noting that Mr Muller had no prior mental health issues, that led me to place less weight on Mr Miller's ultimate opinion than that of other experts.

(c) Although he had improved following the transport accident, he had not improved "that much".

(d) He was managing full-time modified duties using his left arm and shoulder, and only using his right arm and shoulder to provide support for his left.

(e) He only accepted overtime when his employer asked him to supervise workers on a Saturday.

(f) He had increased pain in the evenings.

(g) He was contemplating seeking a referral for advice on surgery at the time of the transport accident.

1. His evidence, together with the contemporaneous records of Mr de Soysa and the opinion of Dr Flynn, has led me to infer, and conclude, that on balance, Mr Muller would not have made a full recovery from the injury he sustained in the transport accident, and would have been left with long term restrictions and impairment to his right shoulder.
2. I thus find that he was left with a long-term impairment of the right shoulder arising from the transport accident of 23 August 2020.

What are the consequences of the long-term impairment, and are they very considerable?

1. Based on Mr Muller's evidence, the contemporaneous records of Mr de Soysa, and the opinion of Dr Flynn, I find that the consequences of Mr Muller's right shoulder impairment arising from the transport accident were:

(a) He was fit for full-time modified duties, largely working as a supervisor.

(b) He was unable to lift heavy tools.

(c) He relied on his left arm and shoulder, using his right arm and shoulder to support the left shoulder.

(d) He was unable to lift above shoulder level.

(e) He had constant pain which varied in severity.

(f) He had a restricted range of motion.

(g) He was unable to push or pull forcefully, perform repetitive tasks or do overhead work.

(h) He had undergone regular physiotherapy which was to continue into the foreseeable future.

(i) He underwent an ultrasound-guided injection on 1 December 2020 which provided him with limited benefit.

(j) He suffered increased pain during the evenings after working during the day.

(k) He could not sleep greater than four hours at a time.

1. I also formed the impression that Mr Muller was a stoic,[202] who clearly loved both his job and his employer. This was particularly evident by his determination to return to and stay at work following his suicide attempt after the decline in his mental health. The loss of his ability to work in an unrestricted way as a carpenter to the high standard that he was used to was a significant consequence for him, particularly for a worker who, while not young, certainly had many years of employment ahead of him. I took all these factors into account when arriving at my conclusion.
2. In my view, these consequences were sufficient to establish that the impairment suffered by Mr Muller was very considerable, entitling him to leave to proceed.
3. However, I also accept that because of the transport accident, he is no longer able to go kayaking, play golf, go hiking, play football with his children, coach his children's football teams or go fishing. I have formed this view based on his evidence and based on my findings on the injury and impairment suffered by Mr Muller. On balance, I formed the view that these activities were incongruent with the long-term restrictions he was left with because of the transport accident.
4. In arriving at that conclusion, I was mindful that Mr Miller, Dr Gee and Dr Chandrasekaran appeared to attribute those consequences to the industrial accident. As outlined above, I have not relied on their opinions because of the deficiencies in their history and consequently have not relied on their opinions with respect to the cause of the loss of these recreational activities.
5. I have also considered the opinion of Dr Epstein, who diagnosed Mr Muller with post-traumatic stress disorder, characterised by recurrent intrusive thoughts about the accident, distress with reminders of it, increased concerns with regard to his own safety and security, hypervigilance, emotional withdrawal and a sense of bleakness in arriving at my decision. I have relied on his opinion in accordance with the principles outlined in Richards v Wylie.[203]
6. In considering what Mr Muller has lost, I am also required to consider what he retained following the transport accident.[204] I find that he retained:

(a) The ability to work, albeit in modified duties.

(b) The ability to lift unrestricted weights, albeit not above shoulder height with his right arm.

(c) The ability to supervise staff on site.

(d) The ability to sleep, albeit that he woke from pain at night. He ceased taking sleeping tablets after attempting to overdose on them.

(e) Some strength and use of his right hand, arm, and shoulder, albeit that he was limited in his ability to use his right arm.

(f) Independence in all his personal activities of daily living. He does not take medication for his pain because of his fear about the detrimental impact this may have on his mental health based on his prior experience.

1. While all the consequences arising from the transport accident are significant, Mr Muller's constant pain and the loss of his ability to work as a carpenter in an unrestricted way are particularly so. Given the impact of these consequences on Mr Muller, and when judged in comparison to other cases of injuries and impairments, I find that the consequences of Mr Muller's right shoulder and arm injury and impairment are fairly described as being at least very considerable and more than significant or marked.

1. It was not in dispute that Mr Muller sustained an injury in the industrial accident.
2. I have already traversed a great deal of the medical evidence regarding the industrial accident in addressing the injury arising from the transport accident.
3. As outlined above, I placed a great deal of weight on, and ultimately preferred, the opinion of Mr Treseder for the diagnosis of the injury arising from the industrial accident. To recap, he found that Mr Muller had an acute rotator cuff tear and biceps subluxation in a setting of a traumatic anterior inferior shoulder dislocation of his right shoulder.[205] He later noted that the MRI of 17 August 2021 showed a traumatic Hill-Sachs fracture of the humeral head.
4. As outlined above, Mr Treseder concluded that the injury sustained in the industrial accident of 14 July 2021 was a new one, basing his opinion on the clinical history, the treatment events and the imaging results.
5. While Mr Treseder thought the cause of the ongoing pain may relate to rotator cuff disease, he did not attribute this to the transport accident, despite having been provided with that history and the radiological material.
6. His opinion on diagnosis was supported by Mr Pullen, who he referred Mr Muller to for a second opinion. However, I note that Mr Pullen did not refer to the transport accident in the letter he sent to Mr Treseder, and thus have placed weight on his opinion only insofar as it supports Mr Treseder's diagnosis, rather than on apportionment or causation.[206]
7. Mr Treseder's opinion was also supported by Mr Miller, Dr Gee and Dr Chandrasekaran. I have placed some weight on the fact their clinical opinions supported Mr Treseder's opinion, albeit that there were other deficiencies in their reports regarding either the lack of reference to the transport accident, or in the case of Dr Chandrasekaran, inaccuracy regarding the symptoms he had following the transport accident.
8. Mr Miller noted that Mr Muller suffered a severe dislocation in the industrial accident requiring surgery, the first of which was supraspinatus tendon repair and tenodesis of a subluxed biceps tendon, and the second was bicipital tenodesis. He said there were ongoing problems attributed to rotator cuff dysfunction and capsulitis. He also believed that the injury had been associated with the development of a Chronic Regional Pain Syndrome.[207]
9. Thus, his opinion was consistent with Mr Treseder's, save that he was an outlier with respect to his opinion on Chronic Regional Pain Syndrome.
10. Dr Gee also noted the failed reconstruction of the right shoulder following traumatic dislocation, and Dr Chandrasekaran diagnosed Mr Muller as suffering from a dislocation of the right shoulder with traumatic rotator cuff and biceps tear,[208] attributable to the industrial accident.
11. It appears Mr Davies, physiotherapist, started treating Mr Muller in 2023. It was his view that the current condition was due to the work injury sustained on 14 July 2021 and the subsequent surgeries performed thereafter.[209]
12. Counsel for the VWA submitted that the hydrodilatations Mr Davies performed were likely for adhesive capsulitis, which I ought to find was due to the transport accident rather than the industrial accident. I could not find any evidentiary basis for this submission. To the contrary, it appeared Mr Davies was of the view that the treatment he performed was as a result of the industrial accident and the subsequent surgeries rather than any other incident, and to that extent, I find that his opinion was supportive of Mr Treseder's opinion on diagnosis of the injury.
13. As outlined previously, I did not find these opinions to be in conflict with that of Dr Flynn. While I do not propose to repeat my reasoning here, I found it significant that Dr Flynn agreed that the surgery undertaken by Mr Treseder was for the rotator cuff tear, the need for which she attributed to the industrial accident, with the qualification that Mr Muller may have come to surgery for the injury he sustained in the transport accident.
14. With respect to the diagnosis of the injury arising from the industrial accident, and the consequent surgery, I have preferred the opinion of Mr Treseder, as the treating orthopaedic surgeon.
15. When provided with the full history and all radiological material, he was clear that there had been a new injury, given that the MRI of 17 August 2021 showed the full thickness tear and that the treatment Mr Muller had in the form of the two surgeries was to treat that injury.
16. I therefore accept and find that Mr Muller sustained an acute rotator cuff tear and biceps subluxation in the setting of a traumatic anterior inferior shoulder dislocation of his right shoulder in the industrial accident, with traumatic Hill-Sachs fracture of the humeral head.

Did the right shoulder injury arising from industrial accident cause an aggravation of the prior right shoulder injury arising from the transport accident, and was the aggravation of itself serious?

1. While there was no dispute that Mr Muller sustained an injury to the right shoulder in the industrial accident, Counsel for the VWA submitted that following the surgeries, Mr Muller returned to the level of functioning he had after the transport accident.
2. In his report of 18 June 2025, Mr Treseder noted that the rotator cuff tear had healed, and thus the cause of the ongoing pain was unclear. He thought it might relate to residual rotator cuff disease. He thought it was likely that Mr Muller would need further treatment of his rotator cuff, either non-operatively or operatively, and that the prognosis was poor.
3. I found his opinion to be consistent with ongoing injury at the site of the rotator cuff, the rotator cuff having been aggravated in the industrial accident.
4. Given that he thought Mr Muller would need further treatment of the rotator cuff, and that Mr Muller's prognosis was poor, I found that Mr Treseder's opinion was consistent with both an aggravation of the prior right shoulder injury, and the consequences of that aggravation being permanent.
5. Mr Davies thought that Mr Muller would always have shoulder discomfort and decreased strength and range of motion in comparison to his left shoulder. While he did not refer to a history of the earlier transport accident, I nonetheless found that his opinion was not inconsistent with the opinion of Mr Treseder.
6. Dr Gee raised the prospect of Mr Muller improving his function with major surgery, such as a reverse shoulder joint replacement, however noted that that was out of the question due to his rapidly deteriorating lung condition arising from his silicosis.[210] His opinion was that Mr Muller's shoulder condition was due to a serious injury which occurred in the workplace, and that the shoulder injury was solely related to the workplace incident. While he did not have a history of the transport accident, I found that his opinion provided support for Mr Treseder's opinion and was not inconsistent with it.
7. For the same reason, I found that Mr Chandrasekaran provided support regarding causation and permanence for Mr Treseder's opinion, despite the deficiencies in the history he obtained. Mr Chandrasekaran was of the view that Mr Muller's injury was stable, and he had a nine per cent whole person impairment arising from it.
8. Mr Miller's opinion was also supportive of Mr Treseder's opinion, in that he found that the ongoing problems Mr Muller had were due to rotator cuff dysfunction and capsulitis following the work injury.
9. As outlined above, I did not find Mr Treseder's opinion to be inconsistent with the opinion of Dr Flynn. Dr Flynn expressly acknowledged that both incidents played a role in the state of Mr Muller's shoulder, which I have placed weight on.
10. However, I also considered Mr Muller's evidence before arriving at my conclusion on this question.
11. I accept Mr Muller's evidence regarding the permanent change he experienced in his work capacity and restrictions subsequent to the industrial accident. He went from having a capacity to perform modified duties in a supported and largely supervisory role, without a lifting restriction on a full-time basis, to having no capacity for work and, at most, a lifting limit of four kilograms.
12. He underwent two lots of surgery following the industrial accident, which Mr Treseder attributed to the consequences of the work injury. While Dr Flynn expressed a view that he may have come to surgery following his transport accident, she also said that the surgeries performed by Mr Treseder treated a rotator cuff tear which predated the workplace injury. While ultimately I do not believe Mr Treseder and Dr Flynn were in conflict on this point, I accept Mr Treseder's opinion on the reason for surgery, that being the injury arising from the industrial accident, given that he was the operating surgeon.
13. I therefore accept and find that because of the industrial accident, Mr Muller required two surgery on two occasions, which ultimately did not improve his symptoms.
14. Mr Treseder raised the prospect of revision surgery following a further MRI showing some retearing of the supraspinatus. However, Mr Muller will not be proceeding with this due to the complications that may arise because of his silicosis.
15. Mr Muller now has constant pain which varies in severity. I accept his evidence that:

(a) his symptoms became worse from 14 July 2021, albeit that there have been periods where there has been some improvement;

(b) despite trying to return to work, he was unable to continue with his modified duties as a supervisor, or work at all, from March 2023;

(c) his symptoms were worse after the industrial accident and he could not lift like he could before the industrial accident. Prior to the industrial accident, he could engage in limited weightlifting. After the industrial accident, he was limited to four kilograms. These restrictions continued to the date of the hearing and will continue into the future;

(d) his range of motion improved a bit after surgery but then it went totally backwards;

(e) he had constant bicep pain and nerve pain at the front of his shoulder after the two surgeries were performed by Mr Treseder, leading him to return to Mr Treseder for further opinion;

(f) he tried playing lawn bowls after his industrial accident but found it too heavy and could not do it;

(g) he continues to cook although it hurts, but he can manage it and he loves it;

(h) he only sleeps for two to three hours per night now, whereas prior to the industrial accident he could not sleep for greater than four hours per night;

(i) he could not work as a supervisor now even if it did not involve hands on work, because of his lack of sleep and resulting tiredness; and

(j) in the absence of the silicosis he would not be working, as he does not have computer skills, could not draw or write with his right arm for periods of time, and he would need to be hands on if he was a trades teacher training apprentices. If he were a retail assistant at Bunnings, he would have to do packing which he would not be able to do with his right arm injury. He could not work as a site supervisor as they were also required to be "hands on".

1. On the basis of his evidence, and the medical evidence, I find that the aggravation of Mr Muller's right shoulder injury was permanent.
2. The consequences of the aggravation have also informed my conclusion that they aggravation of itself was serious.
3. In considering this question, I have considered the impact on Mr Muller of losing his career as a carpenter following the industrial accident. Prior to the industrial accident, he was able to work full-time in modified duties onsite as a supervisor, a hands on role. It was clear that this provided him with some joy and purpose, albeit not as much as when he could work in an unrestricted way as a carpenter to the high standard he was able to prior to his transport accident. By reason of the industrial accident, he has lost the residual work capacity he had prior to the industrial accident. This is a very considerable consequence for a man who loved his career and had found a way to retain some satisfaction from it prior to the industrial accident.
4. I also find that he has effectively come to the end of his working life as a result of the aggravation of his right shoulder injury and the resulting impairment. While Mr Treseder was of the view that Mr Muller had the capacity to work in roles that did not require manual tasks, I was satisfied, on Mr Muller's evidence, taking into account his sleeping challenges, his lack of transferable skills and the inherent requirements of the roles put to him in the course of evidence, that he had no realistic capacity for work in the foreseeable future.
5. I also found him to be stoic with respect to this application given his determination to try and return to work on modified duties following the industrial accident in the face of pain.
6. While he might not be said to be a young man, he certainly is not old. Had he not been affected by silicosis, he would have looked forward to a number of years working as a carpenter ahead. I have placed weight on this in arriving at my conclusion.
7. I accept that Mr Muller does not regularly take analgesic medication out of fear that this could lead to a decline in his mental health condition given his perception of the dramatic impact this had on his mental health previously.
8. Taking all the evidence into account, I accept and find that the consequences of the aggravation of the right shoulder injury, and that aggravation alone, amounted to a very considerable permanent impairment of Mr Muller's right shoulder and right arm.
9. In considering what Mr Muller has lost, I am also required to consider what he has retained. I note that he is still able to cook even though it hurts. He can still drive, but limits himself to local drives. He can still attend the gym and undertake his exercises and hydrotherapy. He can vacuum. He can undertake domestic and gardening activities with his partner, albeit that he has difficulty with those activities and a reduced capacity for heavy and domestic gardening activities.
10. Taking into account all of the evidence, I am satisfied and find that Mr Muller sustained an aggravation of his pre-existing right shoulder injury in the incident of 14 July 2021, and that the consequences of that aggravation, and that aggravation alone, amounted to a very considerable long-term impairment of his right shoulder and right arm when judged in comparison to other cases of injuries and impairments.
11. I also accept and find that because of that aggravation, he has a 40 per cent or more loss of earning capacity, entitling him to leave to proceed for both his loss of earning capacity and his pain and suffering.

1. Mr Muller is granted leave to proceed with a claim for damages arising from his transport accident, and a claim for damages for both his pain and suffering and loss of earning capacity arising from his industrial accident.
2. I will hear from the parties on the question of costs.

[1] Transcript ("T") 25, Lines ("L") 25-26; T29, L14

[5] Exhibit P1, Amended Joint Court Book ("JCB") 239

[6] Exhibit P1, JCB 11 at paragraph [18]

[7] [2000] VSCA 50; [2000] 1 VR 79, 90 [28]

[9] Exhibit P1, JCB 9 at paragraph [4] and JCB 17 at paragraph [4]

[10] Exhibit P1, JCB 9 at paragraph [5] and JCB 17 at paragraph [5]

[11] Exhibit P1, JCB 9 at paragraph [6] and JCB 17 at paragraph [6]

[12] Exhibit P1, JCB 9 at paragraph [7] and JCB 17 at paragraph [7]

[13] Exhibit P1, JCB 10 at paragraph [10] and JCB 18 at paragraph [10]

[14] Exhibit P1, JCB 10 at paragraph [11] and JCB 18 at paragraph [11]

[15] Exhibit P1, JCB 10 at paragraph [12] and JCB 18 at paragraph [12]

[16] Exhibit P1, JCB 10 at paragraph [13] and JCB 18 at paragraph [13]

[18] Exhibit P1, JCB 11 at paragraph [16]-[17] and JCB 19 at paragraph [17]

[19] Exhibit P1, JCB 11 at paragraph [17] and JCB 19 at paragraph [17]

[20] Exhibit P1, JCB 11 at paragraph [18] and JCB 19 at paragraph [18]

[22] Exhibit P1, JCB 12-13 at paragraph [24] and JCB 21 at paragraph [24]

[23] Exhibit P1, JCB 13 at paragraph [25] and JCB 21 at paragraph [25]

[24] Exhibit P1, JCB 13 at paragraph [26] and JCB 21 at paragraph [26]

[25] Exhibit P1, JCB 13 at paragraph [27] and JCB 21 at paragraph [27]

[26] Exhibit P1, JCB 13 at paragraph [28] and JCB 21 at paragraph [28]

[27] Exhibit P1, JCB 13 at paragraph [29] and JCB 21 at paragraph [29]

[28] Exhibit P1, JCB 24 at paragraph [2]

[29] Exhibit P1, JCB 25 at paragraph [3]

[30] Exhibit P1, JCB 25 at paragraph [4]

[31] Exhibit P1, JCB 25 at paragraph [5]

[32] Exhibit P1, JCB 25 at paragraph [6]

[33] Exhibit P1, JCB 25-26 at paragraph [7]

[34] Exhibit P1, JCB 26 at paragraph [11]

[35] Exhibit P1, JCB 26 at paragraph [12]

[36] Exhibit P1, JCB 26-27 at paragraph [13]

[88] As shown on the MRI of 28 March 2025; T64, L16-21

[130] I note that in Mr Treseder's report it states the date as 14 July 2025, but it should be 14 July 2021.

[133] Exhibit P1, JCB 347; see footnote 130.

[167] Petkovski v Galletti [1994] VicRp 32; [1994] 1 VR 436, 443

[188] Findlay v Transport Accident Commission [2025] VSCA 126, [61]

[189] Although Mr Muller's evidence was that he was having treatment fortnightly, the clinical records reveal

he was treated weekly, fortnightly and on one occasion with a gap of three weeks in the lead up to his industrial accident.

[202] Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69; (2010) 31 VR 1, [42]; Sutton v Laminex Group Pty Ltd [2011] VSCA 52; (2011) 31 VR 100, [83]

[203] [2000] VSCA 50; (2000) 1 VR 79

[204] Dwyer v Calco Timbers (No 2) [2008] VSCA 260, [27]