Patel v Victorian WorkCover Authority [2026] VCC 19

(a) firstly, whether his current right shoulder condition relates to his employment at Bega (causation); and

(b) secondly, if Mr Patel sustained injury at Bega by way of aggravation of his pre-existing right shoulder condition, whether any additional impairment from this aggravation is "serious" within the meaning of the Act.[1]

1. In summary, I find Mr Patel suffers from an ongoing compensable injury sustained in the course of his employment at Bega, in the nature of a complete rupture of several tendons in his right shoulder; and that the consequences of that injury are "serious".

1. The plaintiff bears the onus of demonstrating that his impairment is permanent, and that the consequences are serious.
2. Mr Patel must establish, by reference to the consequences to him, with respect to pain and suffering, when judged by comparison with other cases in the range of possible impairments or losses of a body function, are fairly described as being at least "very considerable" and certainly more than "significant or marked",[2] in accordance with the narrative test set out in s325(2)(a), (b) and (c) of the Act.
3. In accordance with Petkovski v Galletti, I must make findings as to the nature and extent of Mr Patel's right shoulder condition before the Bega employment, and any aggravation to that condition.
4. In serious injury applications, the credit of the applicant is of great importance. I find Mr Patel to be an honest witness. At all times he made appropriate concessions, and did his best to provide a frank account of his circumstances. While there were some inconsistencies in his oral evidence - perhaps explained by his difficulty in following certain questions - overall I accept the reliability of both his oral evidence and, in particular, what is contained in his affidavits.

1. Mr Patel relied on his affidavits affirmed 29 March 2024 and 5 July 2025; and the affidavit of his wife, Sharda Patel, affirmed 9 July 2025. Together with the other tendered material, this evidence establishes the following factual matters.[3]
2. Mr Patel was born and raised in Fiji, and came to Australia with his wife and children in January 1986. He attended school in Fiji to the equivalent of Year 9 in Australia.
3. Upon arriving in Australia, Mr Patel started a business with his brother-in-law in Sydney, but soon moved to Melbourne, where he worked in casual labouring roles. He went on to purchase a delicatessen, selling Indian spices and other foodstuffs for fourteen years.[4]
4. Mr Patel commenced at Kraft/Mondelez in 2000, initially as a machine operator, later in the case-packing and palletisation area.[5]
5. Mr Patel has an extensive history of ischaemic heart disease, which includes the need for triple bypass surgery in 2009 and 2017. He also suffers from diabetes, asthma, hypertension and thyroid disease. On the evidence and submissions before me, these conditions are not relevant to the application, save that diabetes is a contra-indicator to shoulder surgery.[6]

1. As a result of his duties at Kraft/Mondelez, which included putting bottle caps in a hopper above shoulder height, loading cardboard packaging into a machine and lifting boxes of differing weights, Mr Patel began to suffer from bilateral shoulder pain.[7]
2. It is not in dispute Mr Patel's employment to 2010 was a contributing factor to his bilateral supraspinatus tendon tears.[8]
3. On or about 20 September 2010, Mr Patel ceased work as a result of this pain, and first consulted his general practitioner, Dr Aejaz Sheriff, the next day.[9] Subsequent scans confirmed the presence of mild left biceps tenosynovitis, bilateral full thickness supraspinatus tendon tears on a background of calcific tendinosis and sub deltoid bursitis.[10] No degenerative changes were noted in the right shoulder.
4. Dr Sheriff prescribed Mobic and, based on a history on 1 October 2010 of "right shoulder pain is restricted and very painful aggravated by normal duties", provided a WorkCover certificate.[11] Mr Patel ceased taking Mobic due to its side effects, but from 2010 took Panadol as required.
5. On 10 October 2010, Mr Patel completed a Worker's Injury Claim Form claiming injuries to the neck, both arms (including shoulders) and a psychological injury had occurred due to repetitive work throughout the course of his employment, including an incident on or about 20 September 2010.[12]
6. After a few days off, Mr Patel returned to work on restricted duties.[13]
7. On 29 October 2010, an x-ray of Mr Patel's shoulders revealed no acute abnormalities, but the presence of subacromial bony spurring on the right side, and accessory ossicles near the acromial processes, bilaterally.[14]
8. An ultrasound of his right shoulder on the same day revealed mild bicep tenosynovitis, a full-thickness supraspinatus tear and subacromial bursitis. The radiologist, Dr Nitin Gupta, suggested that an ultrasound-guided steroid injection may be useful, if clinically indicated.[15]
9. An ultrasound of Mr Patel's left shoulder on 1 November 2010 similarly revealed mild biceps tenosynovitis, a small full-thickness supraspinatus tear and subacromial bursitis. The radiologist again suggested that an ultrasound-guided steroid injection may be useful.[16]
10. On 12 November 2010, Mr Patel was administered an ultrasound-guided steroid injection in his left shoulder,[17] which provided him some relief for approximately three months.[18]
11. Kraft rotated Mr Patel through different duties; however, the work remained somewhat repetitive, often requiring overhead use of his shoulders, and, occasionally, heavy lifting.[19]
12. On 21 November 2010, Dr Sheriff noted progressively worsening bilateral shoulder and neck pain due to repetitive heavy work, with a guarded prognosis considering Mr Patel was then 61 years of age.[20]
13. In a report dated 25 November 2010,[21] Dr Peter Battlay noted Mr Patel was undertaking light duties, which Dr Battlay considered did "not seem to be aggravating his symptoms."[22]
14. On 11 January 2011, WorkSafe accepted Mr Patel's claim for weekly payments and medical and like expenses.[23]
15. Between February and October 2011, Mr Patel undertook physiotherapy, acupuncture and remedial massage.[24]
16. Mr Patel continued to see Dr Sheriff regarding his injury in relation to ongoing bilateral shoulder symptoms. The pain sometimes radiated from his shoulders up to his neck and down both arms.
17. In March 2011, Mr Patel consulted occupational therapist, Sandy Aggarwal, and later, Mr Frank Lyons, an orthopaedic surgeon. Mr Lyons did not recommend surgery for either shoulder.[25]
18. On 28 July 2011, Dr Sheriff confirmed his previous diagnosis, noting the left shoulder was worse than the right. Then current treatment was conservative, with Panadol, Mobic and Voltaren as required.
19. In November 2014, Mr Patel consulted Dr Sheriff due to ongoing pain.
20. On 21 November 2014, a right shoulder ultrasound revealed mild bicep tenosynovitis, infraspinatus calcific tendinosis, full-thickness incomplete supraspinatus tendon tear on background of calcific tendinosis, and subdeltoid bursitis with impingement.[26]
21. Mr Patel subsequently received a further ultrasound-guided cortisone and local anaesthetic injection into the left subacromial-subdeltoid bursa on 12 January 2015,[27] which provided him with some relief.
22. He returned to Dr Sheriff with ongoing left shoulder pain in March 2016 and was referred for x-ray of his neck and ultrasound of his left shoulder.[28] Dr Sheriff noted that the pain was having a psychological impact on Mr Patel.[29]
23. On 31 March 2016, the x-ray of his neck revealed:

"Cervical vertebrae normal in height and alignment. No compression fracture. Mild decrease in C5/6 and C6/7 disc spaces suggesting early disc degeneration. Rest of disc spaces normal. No spondylolisthesis. No definite bony impingement detected on exit foraminae on oblique views."[30]

24. The ultrasound of his left shoulder on the same day revealed mild biceps tenosynovitis, large full-thickness incomplete supraspinatus tendon tear on a background of calcific tendinosis, subdeltoid bursitis and early AC joint degeneration. Mr Patel was then experiencing left shoulder pain on abduction, and the AC joint was tender and irregular.
25. Dr Sheriff considered Mr Patel's "considerable pain and discomfort was secondary to a demonstrated larger tear",[31] in context a reference to the left shoulder.

1. The evidence relied upon by the Victorian WorkCover Authority in relation to the extent of the pre-existing shoulder condition was concentrated, in part, upon an acute exacerbation of the left shoulder condition in 2016. The report of Dr Sheriff dated 7 May 2021 records:

(a) "2014/2015 was particularly bad with severe problems with his left shoulder";

(b) left shoulder injection in January 2015, and his symptoms justified a further ultrasound of the left shoulder in March 2016;[32] and

(c) March 2016 - headaches, neck pain and bilateral severe shoulder pains, with a neural condition in his hands.

1. The left arm is Mr Patel's non-dominant arm, and was not the focus of this application. Mr Patel's evidence is that his left shoulder pain is intermittent, and the right shoulder pain much worse.
2. I find that as at May 2017, Mr Patel:

(a) had a base level of shoulder pain, which increased upon undertaking heavier activities, with episodes of severe bilateral shoulder pain. The pain and restricted range of motion was "impacting on all walks of life";[33]

(b) took pain medication as required;

(c) was able to discharge his usual domestic activities such as cooking and housework;

(d) from 2016, found working in the garden challenging, as was travelling back to see family in Fiji due to difficulties handling luggage, and although he could still drive, he was no longer doing long road trips;

(e) struggled with heavier tasks at home and with his grandchildren, which had a psychological impact on him; and

(f) had received significant conservative treatment, treatment from his general practitioner and been referred to specialist, Mr Lyons.

(a) was coping with full-time hours on restricted duties, including in the dry ingredients room at Kraft/Mondelez, often doing overtime;[34] and

(b) was unable to perform unrestricted duties on the case packaging machine, but was able to perform light duties involving less heavy lifting, less repetitive duties, and less work above shoulder height.

1. In 2017, Mondelez Australia Pty Ltd (Kraft) was purchased by Bega, and Mr Patel commenced his employment with Bega on 17 May 2017.[35]
2. During 2017, Mr Patel had five months off work recovering from his second bypass surgery, followed by one month of very light duties with Bega before returning to his previous modified duties in the dry ingredients room.
3. According to Mr Patel, he was also frequently required to perform other work, both heavier and repetitive in nature, at Bega.[36]
4. In September 2018, Dr Sheriff wrote a letter to the employer requesting a worksite visit due to Mr Patel's concerns that Bega was not respecting his restricted duties.[37]
5. In March 2019, Dr Sheriff placed Mr Patel on further restricted duties as his condition worsened.
6. In August 2019, Mr Patel was referred to Life Physio for physiotherapy treatment, and commenced treatment the following month.[38]
7. In September 2020, Bega requested Mr Patel return to his pre-injury duties; however, due to his physical incapacities, he declined and was subsequently made redundant.[39] Mr Patel has not worked since.
8. On 11 November 2020, Dr Sheriff certified Mr Patel fit only for alternative duties, noting he would never be able to return to normal duties.[40]
9. In his report dated 7 May 2021, Dr Sheriff set out his opinion as follows:

"In essence this unfortunate man also worked diligently for several years despite well past his retirement age and if not for his injury would have continued his duties. > > His injuries to his neck and shoulders were indeed contributed by his work at Bega in a very demanding job. > > The impact of these injuries are permanent."[41]

10. Dr Sheriff recorded his opinion that although Mr Patel's "shoulder problem persisted, his work did not honour the work restriction placed on his certificate". Dr Sheriff requested a worksite visit to assess duties by an occupational therapist, but this request was refused. He notes that "[i]n 2018 his work did become a concern, I told him to seek legal advice".[42]
11. On 8 February 2022, an MRI report of his left shoulder included the following findings:

"Large full-thickness tear involves the mid to posterior fibres of the supraspinatus, with partial thickness tearing and tendinosis of the more anterior fibres. High-grade partial thickness tearing is evident at the deep insertional fibres of the subscapularis while an interstitial tear is visible at the infraspinatus. > > The biceps tendon is medially subluxed from the bicipital groove with partial tearing and tendinotic change."[43]

12. An MRI scan of his right shoulder on the same day revealed:

"Complete rupture of the supraspinatus tendon with marked atrophy and fatty infiltration. Near complete tearing of the subscapularis. The biceps tendon is ruptured."[44]

13. In March 2022, Mr Patel was referred to orthopaedic surgeon, Mr Ash Chehata. The predominant presenting problem was the right shoulder, with constant pain and mobility limitations, Mr Chehata noting the left shoulder and neck pain "comes and goes".
14. In Mr Chehata's opinion, Mr Patel suffered complete ruptures of his supraspinatus, subscapularis and biceps tendons in his right shoulder which represent the most severe form of rotative cuff pathology.[45] These complete ruptures have resulted in marked muscle atrophy and fatty infiltration, indicating irreversible structural damage that precludes normal shoulder functioning. The presence of fatty infiltration is particularly significant as it indicates that even with surgical intervention, normal function could not be restored. I accept the opinion of Mr Patel's treating surgeon.
15. Cortisone injections into Mr Patel's right shoulder administered by Mr Chehata resulted in minimal improvement.[46]
16. Mr Chehata discussed various treatment options with Mr Patel, and advised that a shoulder decompression and bursectomy may improve his pain. Mr Patel declined to pursue any surgical operation given the lack of reliability and reproducibility.[47] In the context of his age and comorbid condition of diabetes, this was a reasonable decision, and not criticised by the Victorian WorkCover Authority. Dr Sheriff advised against surgery given the inherent risks, Mr Patel's diabetes and is age.[48]
17. On 10 September 2022, Dr Sheriff again referred Mr Patel to Mr Chehata, and Mr Patel underwent an x-ray of both his shoulders on 14 September 2022.[49] These x-rays show minimal arthritis.[50]
18. On 4 May 2023, Bega notified Mr Patel that based on the information available to it at the time, Bega considered Mr Patel's incapacity meant he could not undertake the requirements of his employment, and his employment was terminated effective 8 June 2023.[51]
19. Mr Patel reached retirement age in late September 2024.

1. In terms of the pathology, from 2010, Mr Patel's right shoulder injury progressed as follows:

(a) As at 29 October 2010, a normal subscapularis and bicep, mild biceps tenosynovitis, and a full-thickness tear measuring 1.5 x 0.5 centimetres of the supraspinatus, with subacromial bursitis;[52]

(b) On 21 November 2014, a full-thickness incomplete tear of the right shoulder supraspinatus tendon measuring 2.2 x 0.9 x 0.4 centimetres. There was no tear to the infraspinatus, with some tendinosis; mild biceps tenosynovitis and subdeltoid bursitis with impingement;

(c) By 8 February 2022, Mr Patel's right shoulder was catastrophically injured. He had suffered a complete rupture of the supraspinatus tendon with marked atrophy and fatty infiltration, near complete tearing of the subscapularis, and rupture of the biceps tendon.

1. Dr Sheriff considers Mr Patel's employment with Bega from May 2017 was a significant contributing factor in the aetiology of his injury to the right shoulder, in particular its aggravation; and that his severe right shoulder pain is materially contributed to by that employment.[53] This opinion is supported by his clinical notes, which include:

(a) 13 March 2018 - "I have added further restrictions ... no pushing nor pulling as his shoulders are getting tethered";

(b) 2 July 2018 - "work does not respect the [WorkC]over cert[ificate] provided ... he feels he is doing normal duties which is aggravating his pain ... he needs a work site assessment";

(c) 13 August 2018 - "severe shoulder pain bilateral his duties are repetitive and putting considerable starin [scil strain] on his shoulders. He needs a visit by an OT";

(d) 7 September 2019 - work continues to aggravate symptoms; and

(e) 19 September 2020 - "yesterday back to case stacker ... work renegging [sic] their commitments ... he is to avoid above shoulder duties ... in sig[nificant] pain".[54]

1. In Mr Chehata's opinion, Mr Patel's employment as a manual worker with Bega from 2017 to September 2020 precipitated further ongoing tearing of rotator cuff tendons, and was a significant contributing factor to his catastrophic right shoulder injury and related restrictions in terms of ongoing pain, mobility and loss of movement. Mr Chehata based this opinion on the repetitive nature of Mr Patel's work duties, as well as overhead lifting, and manoeuvring heavy weights of up to 8 kilograms. In his view, the progressive deterioration correlated with continued occupational exposure which had caused him pain from 2010.[55]
2. In his most recent and more detailed report to the plaintiff's solicitors dated 12 May 2025, Mr Chehata analyses available records and files, and confirms his opinion as to Mr Patel's right shoulder condition, and the causal relationship between Mr Patel's occupational duties at Bega and his deteriorating right shoulder pathology.[56] In his view, the length of this occupational exposure period is significant as it allowed for cumulative mechanical stress to be applied to already compromised anatomical structures over an extended timeframe. He states:

"... significantly, despite formal restrictions being implemented in March 2019 that included no pushing or pulling activities, workplace demands and staffing shortages meant that Mr. Patel was frequently required to exceed these limitations, thereby continuing to expose his compromised shoulder structures to harmful mechanical stress."[57]

"The dramatic progression from incomplete partial thickness tears in 2016 to complete ruptures of multiple tendons by 2022 represents an acceleration of pathology that cannot be explained by natural degenerative processes alone. > > Without the mechanical stress imposed by his employment duties, particularly during the period from May 2017 to September 2020, it is probable that his shoulder function would have remained at a manageable level for a significantly longer period."[58]

4. In his opinion, Mr Patel does not have realistic capacity for suitable employment on a permanent, sustained, reliable and consistent basis as a settled member of the workforce without risk of re-injury and deterioration of his right shoulder injury.[59]
5. Although Mr Chehata appears to refer to a right shoulder scan in 2016, based upon the materials provided to him, I infer that he was referring to the November 2014 scan of the right shoulder. A left shoulder scan was subsequently conducted in 2016. Nothing turns on this, each scan showing similar pathology.

1. Surgeon, Mr Peter Battlay's historical reports from 2010 set out his opinion that Mr Patel's employment was a contributing factor to his bilateral supraspinatus tendon tears, being an aggravation of underlying age-related degenerative changes.[60]
2. In his report dated 16 December 2021, general surgeon, Dr Timothy Gale, notes:

"... the worker has had ongoing bilateral shoulder symptoms since prior to September 2010, and once his employment ceased in September 2020 his symptoms have increased, suggesting that to a significant degree the current shoulder symptoms are a consequence of age-related constitutionally-based degenerative changes within the shoulder girdle and that the effects of his employment may have resolved."[61]

3. I reject Dr Gale's evidence that Mr Patel's work-related injury has resolved as being against the weight of other and more specialised opinion.
4. Orthopaedic surgeon, Ash Moaveni, who specialises in shoulder surgery, expressed a careful opinion as to the contribution of Mr Patel's employment with Kraft between 2000 and 2017 and with Bega from May 2017 to September 2020. Mr Moaveni considers Mr Patel's shoulder conditions were not significantly aggravated during his employment with Bega, "as he was accommodated with suitable duties".[62]
5. This opinion, however, is based upon a history of Mr Patel performing only light work at Bega.[63] I reject this history, and therefore the opinion of Mr Moaveni. I rely in particular upon Dr Sheriff's clinical notes set out at paragraph 67 above in relation to the failure of Bega to comply with workplace restrictions, and I accept that Mr Patel's worsening pain was caused by his work with Bega.
6. According to Mr Moaveni, Mr Patel's injuries are consistent with permanent structural damage that would prevent Mr Patel from performing his pre-injury employment duties.[64]
7. Mr Patel, in turn, relies upon two medico-legal assessments.
8. Dr Symon McCallum, pain physician, relevantly diagnosed right shoulder pain related to rotator cuff pathology and possible acromioclavicular joint pathology, and a chronic pain syndrome, with a poor prognosis.[65]
9. Dr McCallum supports the application on the issue of causation, stating:

"... between May 2017 and September 2020, his employment has been a significant contributing factor. The client is quite clear that they had to do heavy repetitive manual tasks on a regular basis, and this will have clearly flared up their neck pain and shoulder pain. I believe the restrictions imposed on his employment should have been followed much more closely."

10. Orthopaedic surgeon, Dr Phillip Sheard, found Mr Patel to be a stoic man who underplays his disability. In his report dated 20 May 2025, Dr Sheard records a history that Mr Patel initially sustained bilateral shoulder tendonitis whilst working at Kraft. In his opinion:

(a) the tendonitis has progressed through to massive rotator cuff tears and probable rotator cuff arthropathy;

(b) the injuries Mr Patel sustained are entirely consistent with the job he described, and continuing in that job without modifications over the years would have caused increasing damage to the rotator cuff;

(c) the work duties at Bega are a significant contributing factor to the cause of the injury;

(d) his employment with Bega materially contributed to his current impairment;

(e) taking into account the right shoulder injury alone, Mr Patel does not have capacity for any employment without the risk of re-injury and/or deterioration of his right shoulder injury; and

(f) his only treatment option at the present time is reverse total shoulder replacement.[66]

1. In the circumstances, I prefer the evidence of the treating surgeon, Mr Chehata, Dr Sheard and Dr Sheriff over that of Mr Moaveni, and find that Mr Patel suffered an ongoing compensable injury in the course of his employment with Bega from May 2017 to September 2020 in the nature of complete ruptures of his supraspinatus, subscapularis and biceps tendons in his right shoulder against a background of a pre-existing full thickness incomplete tear of the supraspinatus tendon of the right shoulder and tendonitis.

1. Mr Patel continues to suffer from very significant pathology, with resultant pain and restriction of movement in his right shoulder. He is never free of right shoulder pain; it interferes with everything he does. His domestic duties have been considerably limited since 2017.
2. His sleep was affected between 2010 and 2017, but not as much as his right shoulder affects it now. He is often tired because of this.
3. Mr Patel was previously very involved in the household. When working nightshift, he would cook and clean whilst his wife was at work. He particularly enjoyed cooking Fijian Indian foods for his wife, family and friends. He now avoids cooking and cleaning, mainly due to his right shoulder pain and limitations.
4. He prefers to be less social, given the pain in his right shoulder.
5. He is still able to drive a car but the distance he travels has been limited because of the increase in right shoulder pain since 2017.
6. He continues to take Panadol daily, around four to six tablets per day, but very substantially limits his intake of prescription medication (Mobic/Lyrica) due to side effects.
7. Mr Patel's wife's affidavit corroborates his account of his pain, and how he was able to manage at home. She also states her husband:

"... often does not want to go out because of shoulder pain, particularly the right. When we do go out, he will also want to come home early because of the pain in his right shoulder. Before this, we were very social and would have friends over or go to their houses every weekend. Hosting friends at our house is also hard on Kantilal and he was in pain when doing things like helping with cooking and serving food and drinks to our guests, so we have stopped asking people to come around very often. What happened in 2010 to Kantilal's shoulders did not really affect this aspect of our life.

Before his right shoulder got worse when Bega took over, Kantilal sometimes had difficulties sleeping because of the pain in his shoulder. He would sometimes wake up at night, but it was not frequent and I did not notice it affect his mood. Now, he will wake up in pain almost every night and this in turn wakes me up. This usually happens about 3 hours or so after we go to bed. I will often get up to get a heat pack for him, which he uses on his right shoulder to ease the pain."

1. Mrs Patel says she started to notice changes in about 2018 and 2019, and things became worse throughout 2019 and 2020 until her husband stopped working.

1. One issue in the case is the extent to which Mr Patel's modified duties were observed during the course of his employment with Bega. In my view, Mr Patel has established that he was frequently required to do work that was relatively heavy and repetitive, even though this was against restrictions set out in regular WorkCover certificates of capacity completed by his longstanding general practitioner, Dr Sheriff. Such work included:

(a) one or two days per week on the case packer machine, which involved the duties which resulted in his previous workplace injury with Kraft in 2010. Mr Patel states:

"This was heavy and repetitive work. It involved me having to repetitively lift bundles of flat pack cardboard boxes onto magazines above shoulder height which were around 5kg, repetitively lift boxes of caps weighing around 5kg often from above, and at times, at shoulder height, and then repetitively drop caps into the hopper below shoulder height. I was also required to unjam boxes and jars from the case packer machine when the caser packer stopped working due a to a smash. A smash would usually happen multiple times a day. These duties made my shoulder pain, particularly in my right shoulder, worse."[67]

This work caused the plaintiff severe shoulder pain at times;

(b) repetitively filling, packing and lifting boxes of four 2.5-kilogram jars (a total of 10 kilograms) of Vegemite once or twice per week;

(c) manually stacking peanut boxes weighing around 5 kilograms when the palletiser broke down, which was common;

(d) pushing trolleys of rejected jars 10 to 15 metres to the dumpster on most days;

(e) cleaning of machines, which included washing the machine with rags and mopping the floor, involving repetitive movement of his arms; and

(f) some of his duties in the dry ingredients room were repetitive, involving hanging bags on hoists, which are part of a raised machine.

1. The defendant submitted that Mr Patel has not established a decrease in his capacity for employment by reason of any work duties at Bega. Further, that Mr Patel ceased work in September 2020 when requested to perform his pre-injury duties, which he would have been unable to perform had he been requested to do so prior to May 2017. I reject that submission.
2. The extent of his duties at Bega, which exceeded his workplace restrictions, and included some of his pre-injury duties in the case packaging area, resulted in further injury and incapacity for employment. His longtime general practitioner, Dr Sheriff, had to increase work restrictions in 2018, 2019 and 2020, which is reflective of this reduction in capacity. I find that if not for the aggravation-type injury sustained during the Bega employment period, Mr Patel would have continued working beyond 2020.
3. Before Bega, Mr Patel was able to cope at work, despite pain, some restriction in range of movement, and night pain which affected his sleep.[68]
4. I accept Mr Patel's evidence that his duties at Bega from May 2017 were repetitive and, at times, heavy and caused his right shoulder pain to become worse.[69] Mr Patel's evidence as to the extent and scope of his duties was not challenged.
5. The application is supported by his wife, who corroborates Mr Patel's account of increased pain during his employment at Bega, and the difficulties he experienced at home as a result of this pain.
6. Mr Patel's evidence is also corroborated by contemporaneous records taken by Dr Sheriff noting he was coping at work as at January 2017, and repeated observations of Bega not complying with workplace restrictions.
7. In the absence of any challenge to his evidence, or evidence to the contrary, I accept that Mr Patel's duties with Bega from 2017 upon his return to work following bypass surgery involved a degree of heavy, repetitive, and overhead shoulder work.
8. Although it was suggested that Mr Patel's evidence may not have been completely accurate in terms of the chronology of his symptoms over time and extending back some 15 years, the defendant made no challenge to his credibility. I accept he did his best to provide an honest account of the circumstances of his injuries and the progression of his symptoms over time and the effects of those symptoms.
9. Upon consideration of all the evidence, Mr Patel has established the following consequences of his right shoulder injury:

(a) Complete ruptures of his supraspinatus, subscapularis and biceps tendons in his right shoulder which represent the most severe form of rotative cuff pathology.[70] The irreversible structural damage that precludes normal shoulder functioning, which, even with surgical intervention, cannot be restored. This alone is at least a very considerable consequence;.

(b) I accept Mr Chehata's evidence that from a functional perspective, Mr Patel experiences constant pain in his right shoulder that significantly impacts his ability to sustain any meaningful activity. Any attempt to use his right arm for work-related activities results in immediate exacerbation of pain, which would make sustained employment impossible. Dr Sheard supports this opinion;

(c) Total incapacity for employment. Although the claim was not put on the basis of loss of earnings given his age (seventy-six at the date of hearing), this incapacity reflects the degree of restriction in day-to-day function of the shoulder. Mr Patel worked to age seventy-one, until his employer ultimately sent him home in September 2020. I infer that his employment was a matter of great importance to him. He has not worked since;

(d) The additional effects of the deterioration in his right shoulder and increased pain upon his sleep, driving, cooking and all areas of his day-to-day living;[71]

(e) Some need for increased Panadol to control his pain.

1. I place particular emphasis on the evidence of his wife, who was not cross-examined. I accept Mrs Patel's evidence as to the effects of her husband's employment with Bega, which are consistent with a serious injury.
2. As at the date of the hearing, Mr Patel has suffered an aggravation-type injury involving complete rupture of several tendons in his right shoulder, has no work capacity, and has a dramatically reduced capacity and enjoyment of life. I find this level of impairment satisfies the serious injury narrative test.
3. A combination of the evidence of the plaintiff, both his affidavit and oral evidence, the corroborative evidence of his wife, the regular complaints recorded in the general practitioner's notes as to Bega's lack of compliance with workplace restrictions, and the frank and stark pathology changes referred to in the evidence of the ultrasound in 2014 (before the Bega employment period) and the MRI scan in 2022 (after the Bega employment period) referred to by Mr Chehata, support my finding that Mr Patel suffered a compensable injury to his right shoulder in the course of his employment with Bega.[72]
4. I find Mr Patel is a stoic individual, putting up with pain and coping with work and his other daily activities as best he could. That should not be held against him.[73] The defendant appropriately conceded that Mr Patel is a stoic, having worked with pain and loss of function for many years.
5. I grant Mr Patel's application for leave to commence common law proceedings for pain and suffering damages.
6. I will hear the parties as to the form of final orders, and costs.

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

[2] Humphries and Anor v Poljak [1992] VicRp 58; [1992] 2 VR 129 at 140

[3] The plaintiff also relied upon a written chronology

[4] Affidavit of plaintiff affirmed 28 March 2024 ("plaintiff's first affidavit") at paragraph [5]

[5] Plaintiff's first affidavit, at paragraph [6]

[7] Plaintiff's first affidavit, at paragraphs [18]-[19]

[8] Report of Dr Battlay dated 13 December 2010, DCB 48

[10] Report of Dr Sheriff dated 8 January 2021, Plaintiff's Court Book ("PCB") 42

[19] Plaintiff's first affidavit at paragraph [20]

[24] Plaintiff's first affidavit 2024 at paragraph [22]; PCB 68

[26] PCB 160 [although there are inconsistent references to the left and right shoulder in the ultrasound report, the application proceeded on the basis that the November 2014 procedure and report related to the right shoulder]

[28] Plaintiff's first affidavit at paragraph [25]

[31] Report of Dr Sheriff dated 7 May 2021, PCB 50

[34] Plaintiff's second affidavit at paragraph [4]

[35] DCB 76-77; Plaintiff's first affidavit at paragraph [5]

[36] Plaintiff's second affidavit at paragraph [3]-[6]; Transcript ("T") 19-20

[37] PCB 44; plaintiff's first affidavit at paragraph [27]

[39] PCB 86; DCB 68; plaintiff's first affidavit at paragraph [31]

[47] PCB 84; plaintiff's first affidavit at paragraph [35]

[48] DCB 44; plaintiff's second affidavit at paragraph [13]

[52] Right shoulder ultrasound dated 29 October 2010, PCB 151

[53] PCB 58, report dated 28 September 2024

[55] Report dated 12 September 2024, PCB 98-99

[67] Plaintiff's second affidavit at paragraph [6]

[68] History to Dr Sheriff, 17 January 2017, PCB 252

[69] Plaintiff's second affidavit at paragraph [11]

[72] See Findlay v Transport Accident Commission [2025] VSCA 126 at paragraphs [59]-[61]

[73] Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 (supra) per Nettle JA at paragraph [3]