Sawyer v Victorian Workcover Authority [2025] VCC 875

1. The application was heard on 12 March 2025. Mr Richard McGarvie KC and Ms Sonari Fernando of Counsel appeared for the plaintiff. Mr Nick Dunstan of Counsel appeared for the defendant.
2. The plaintiff adopted and tendered two affidavits affirmed on 31 January 2024 and 17 February 2025. He tendered an Injury Claim Form, material from treating practitioners, radiological reports and medico-legal reports.
3. The plaintiff was the only witness called and cross-examined. He was not re-examined.
4. The defendant tendered a Medical Panel Opinion, medico-legal reports, material from the plaintiff's treating physiotherapist, extracts from the plaintiff's medical records, collated payslips and a pay-run history report from the employer.

1. The plaintiff attended Monterey Technical School for his secondary education and left school at the end of Year 8.
2. He has no formal qualifications. After leaving school, he worked in manual jobs. He has worked as a slaughterman, a fencer, a labourer, and a truck driver/tractor driver.
3. He commenced working for the employer in about 2000 when the employer conducted business under a different name. He continued to work for the employer when it started operating under the name Aussie Drain Pty Ltd in November 2017.
4. He worked as truck driver/tractor driver which he says involved a lot of heavy repetitive work.
5. He remains employed by the employer as a driver transporting parts and running errands.

1. The key issue in this case was whether the plaintiff's pain and suffering consequences satisfied the narrative test. This issue is often referred to in shorthand as "range".

1. The plaintiff deposed in his affidavits that his left shoulder became progressively sore over time in about 2018/early 2019. He said his work involved a lot of heavy, repetitive lifting of loads, drainage pipes, digging trenches and carrying and using tools and equipment (shovels and sledgehammers), as well as truck and tractor driving.
2. The plaintiff said the pain in his left shoulder became intolerable on 14 January 2019, when he was working for the employer on a job in Queensland and was moving digging chains for a half-tonne truck.

1. The plaintiff first consulted a general practitioner ("GP") about his left shoulder on 15 January 2019.
2. The plaintiff attended Mr Austin Vo, orthopaedic surgeon, on 7 February 2019. He recommended a cortisone injection and physiotherapy.
3. The records show the plaintiff had cortisone injections on 11 February 2019 and 12 July 2021.[2] The plaintiff thought he had undergone three injections, but could not recall the exact dates of the injections. The plaintiff said the cortisone injections helped him for around six months.
4. He commenced physiotherapy on 25 February 2019. He changed physiotherapists in April 2021. He attended physiotherapy for "a while", but did not find it helpful.
5. The plaintiff attends his GP infrequently.[3]

1. In his first affidavit, the plaintiff deposed he had intermittent pain in his left shoulder, which was often worse with any increased activity in his left arm. The pain was mostly located around the front of his left shoulder. He could lift his left arm to about shoulder height - if he lifted above this, his pain increased dramatically. He could no longer comfortably lift anything above 5 kilograms in his left arm. The plaintiff could push with his left arm, but his condition was aggravated by pulling motions.
2. The plaintiff deposed, in his second affidavit, that his pain and limitations had not changed.

1. At the time of his first affidavit, the plaintiff had not returned to work. He had ceased work in November 2021 because his left shoulder pain had become progressively worse from about July 2021.
2. By the time of his second affidavit, the plaintiff had resumed work with the employer.
3. The plaintiff said:

"In my current job, I have to drive a lot. However, there is a lot of downtime between errands and tasks, so I spend that time recovering. The employer has been very supportive of me and has accommodated my restrictions. Everyone is aware of what I can and can't do, and I'm often told not to do things and to wait for someone to help so I don't hurt my shoulder. > > I worry about what would happen if I lost my job with the employer. I doubt any other employer would be as supportive to me as it has been. It allows me to work as much or as little as I like and at my own pace. Everyone helps me. I can't see another role coming up where I would have as much freedom and support which allows me to manage my injuries. > > My work hours varied. The employer moved premises recently and there was a lot more work to do. I was probably working 30 hours a week during those weeks, with frequent rests and by pacing things. I don't think I could sustain working like that for too long. On average, I work between 15 and 20 hours a week. I am comfortable working this much and it's manageable with my symptoms. ... I'm earning much less than I was prior to my injuries and it has been very difficult to make ends meet.

... I planned on working as a truck driver for a long time, really until I couldn't any longer. I didn't have a plan for retirement, I would have just kept working. Now, that's all uncertain. I hope I can continue doing what I currently am, but any change to the business or management and I might not have that luxury. ... ."[4]

1. The plaintiff said he had disjointed sleep and would wake during the night when he rolled onto his left shoulder. He was fatigued throughout the day.

1. In the plaintiff's first affidavit, which was affirmed when he was residing on his own in a house on his brother's farm, the plaintiff said he was limited in what assistance he could give his brother with livestock.
2. By the time of his second affidavit, the plaintiff was no longer living with his brother. He was living alone on a coaster bus. He did not mention farming in his second affidavit.

1. The plaintiff said, in his first affidavit, that he had trouble hanging washing on the line. He cooked on a barbeque, which was located at a convenient height. He carried heavy grocery bags with his right arm.
2. In his second affidavit, he did not comment on whether there had been any change to his domestic activities since moving into the coaster bus.

1. The plaintiff said he was a keen fisherman prior to his injury. He would surf fish with his friends for salmon and sharks, using "quite heavy and larger fishing rods".[5] The plaintiff was now unable to go fishing because he could not hold the fishing rods.
2. Prior to the injury, he would often go on camping trips with his friends. He continued with these activities, but he could no longer sleep in swags on the beach as a result of his left shoulder.[6] He did not say how frequently he went on such trips.

1. The plaintiff said his "only real hobby now" was drinking.[7] Prior to injury, he would usually drink each night, but limited himself to two stubbies. Following his injury, he would drink "maybe 6 stubbies a night and go a bit harder on weekends".[8]

1. The plaintiff was cross-examined briefly.
2. The plaintiff confirmed in cross-examination that he would take two tablets of Panadol "probably once a week".[9]
3. The plaintiff could not explain why the payslips and pay-run history demonstrated the plaintiff had been working an average of twenty-five hours per week ꟷ whereas he had deposed in his affidavit of 17 February 2025 that he had recently been working about thirty hours per week while the employer was moving premises.
4. The plaintiff was taken to a payslip which showed he worked thirty-five base hours and five hours of overtime. The plaintiff said this was when his employer was moving premises and he was driving.[10]
5. The plaintiff was taken to a report of Mr Dean McCluskey, physiotherapist, dated 20 January 2022.[11] The report was not tendered. It was put to the plaintiff that Mr McCluskey reported the plaintiff had "good strength levels in his shoulder now" and recommended discharge from physiotherapy within six weeks.[12] The plaintiff said he had not seen Mr McCluskey since about approximately March 2022. The plaintiff said it was "possible" he agreed with Mr McCluskey's assessment that he had good strength levels in his left shoulder.[13]
6. The plaintiff was cross-examined about attendances on his GP at the Medical Centre Frankston. The clinical records suggest the plaintiff had not attended in the year between 19 December 2023 and December 2024.
7. The plaintiff agreed he had probably not seen his GP since December 2024.[14]
8. The plaintiff disagreed with Mr Ash Chehata's assessment, in November 2024, that he had full range of movement in his left shoulder.

Radiological reports and injection procedure reports

1. The plaintiff tendered the following radiology:

(a) a left shoulder x-ray and ultrasound said to be dated 10 January 2019.[15] On close inspection, this appears to be a copy of the x-ray and ultrasound of the left shoulder dated 16 January 2019;

(b) a left shoulder x-ray, dated 16 January 2019 was reported to conclude there was no bone or joint abnormality seen. No degenerative changes were seen;[16]

(c) a left shoulder ultrasound dated 16 January 2019 was reported to show a normal acromioclavicular ("AC") joint. It was noted the AC joint was slightly tender;[17]

(d) a chest x-ray, dated 29 January 2019 was reported to reveal hyperinflated lungs with flattening of the diaphragm, suggesting an element of obstructive pulmonary disease. There was no collapse or consolidation. There was no other pulmonary abnormality seen, and no sign of a pleural effusion.[18] The relevance of this x-ray was not explained;

(e) a left sternoclavicular ultrasound was performed on 25 January 2019. The report of the scan was dated 29 January 2019.[19] It was reported to show a "prominent clavicle". No soft-tissue mass or collection was demonstrated. Comparative imaging of the sternoclavicular joints and a CT were recommended for clarification;

(f) a left clavicle CT scan dated 31 January 2019.[20] It was reported to show the presence of "presumably degenerative" left sternoclavicular arthritis. The report also referred to left sternoclavicular dislocation. The left sternoclavicular space was widened and the medial end of the left clavicle was subluxed forwards and upwards.

1. The plaintiff tendered a letter from Dr Porter addressed to the plaintiff's solicitors dated 9 November 2021.[21] The letter appears to answer a number of questions from the plaintiff's solicitors which were not provided to the Court.
2. Dr Porter opined the plaintiff appeared to have an impingement syndrome, rotator cuff damage and arthritis in the left AC joint.
3. Regarding prognosis, Dr Porter opined the plaintiff would have a gradual worsening of symptoms over the next few years. He opined the plaintiff should be restricted from elevating his left arm over 90 degrees and from lifting above 5 kilograms. He recommended the plaintiff self-monitor his actions.
4. Dr Porter doubted whether further treatment would change the plaintiff's condition, but said the plaintiff would need ongoing physiotherapy to maintain his current state.

1. The plaintiff tendered letters from Mr Vo addressed to Dr Porter, dated 7 February 2019 and 3 May 2019.[22]
2. In February 2019, Mr Vo said that, on clinical examination, he found tenderness at the AC joint. The plaintiff had some prominence over the left sternoclavicular joint, which appeared stable, but possibly slightly subluxated. The long head of the biceps was also tender. Abduction of the left shoulder was limited to 130 degrees with a painful arc, external rotation was limited to 45 degrees and internal rotation limited to L5. The rotator cuff strength was well-preserved, but impingement signs were mild.[23]
3. Mr Vo opined an x-ray performed showed mild AC joint osteoarthritis, but was otherwise unremarkable. The ultrasound showed no significant rotator cuff pathology.[24]
4. Mr Vo further opined that the plaintiff's left shoulder symptoms may be related to mild AC joint osteoarthritis and impingement syndrome, while the left sternoclavicular joint may be chronically anteriorly subluxated or arthritic.[25]
5. The plaintiff was reported to be taking oral prednisolone at the time.[26]
6. Mr Vo recommended non-operative treatment for the sternoclavicular joint and considered that the adjacent structures were at risk.[27]
7. Mr Vo recommended a cortisone injection for the subacromial space of the left shoulder, with physiotherapy follow-up. Mr Vo said he was happy to review the plaintiff again to discuss surgical options if there was to be no improvement in the next few months.[28]
8. Mr Vo's letter dated 3 May 2019 noted the plaintiff's cortisone injection into the subacromial space provided good, but temporary, relief for the plaintiff's symptoms.[29]
9. On clinical examination, the left shoulder had an improved range of motion and less impingement.[30]
10. Mr Vo's plan was to continue with non-operative treatment given the shoulder had shown some progress.[31]

Physiotherapy Management Plan, Mr Dean McCluskey

1. The defendant tendered a physiotherapy management plan prepared by Mr McCluskey dated 31 May 2021.[32]
2. It was proposed the plaintiff would have fourteen physiotherapy sessions from 26 April 2021 until 26 July 2021. The proposed treatment methods and self-management strategies included soft-tissue release, joint mobilisation, exercise and stretching.[33]
3. The Plan set out goals, which included being able to lift loads of 20 kilograms from floor to waist height, being able to strap down chains, and being able to lift coils from overhead to the ground. The goals were set to be achieved by July 2021.[34]
4. No further material from Mr McCluskey was tendered.

Associate Professor Evange Romas, rheumatologist

1. The plaintiff tendered a report from Associate Professor Romas dated 8 August 2022.[35]
2. Associate Professor Romas examined the plaintiff on 8 August 2022. The opinions expressed by Associate Professor Romas as to an AMA whole person impairment do not assist the Court in this application.
3. The plaintiff described symptoms of his left shoulder catching, and pain and interference with sleep.
4. On clinical examination, Associate Professor Romas found the plaintiff's AC joint was swollen and tender. The range of left shoulder motion was recorded as flexion 130 degrees, extension 50 degrees, adduction 20 degrees, abduction 140 degrees, internal rotation 90 degrees and external rotation 90 degrees.[36]
5. Associate Professor Romas diagnosed the plaintiff with unresolved soft-tissue injury of the left shoulder. He commented that the plaintiff's main problem appeared to be centred on the arthritic left sternoclavicular joint, which is a part of the shoulder joint complex.[37]

1. The plaintiff tendered a report from Mr Chehata dated 20 November 2024.[38] He assessed the plaintiff on 20 November 2024.
2. Mr Chehata commented that the imaging confirmed early degenerative change in the AC joint.[39]
3. The plaintiff reported an ongoing ache in the delta pectoral region, as well as an intermittent ache near the sternoclavicular joint. He described pain, particularly across the sternoclavicular joint, as ranging between 4-5/10. The pain did not radiate. The plaintiff said he was unable to lift above shoulder height. He struggled with pushing and pulling, particularly with the hand away from his body. He complained of intermittent insomnia and often felt his shoulder was quite stiff in the morning and required warming up.[40]
4. On clinical examination, Mr Chehata found clear signs of left sternoclavicular joint arthritis, and noted the left AC joint was slightly prominent. There was no muscle wasting. There was full range of movement in the left shoulder with external rotation to 60 degrees and internal rotation to 90 degrees. There were no signs of effusion or crepitus. There was full range of movement in the cervical spine, left elbow and left wrist, with median, ulnar, and radial nerves intact. There were no signs of cubital or carpal tunnel syndrome.[41]
5. Mr Chehata said there was no pain avoidance behaviour.[42]
6. Mr Chehata opined the ultimate diagnosis was an aggravation of pre-existing constitutional age-related changes at the level of the AC joint and sternoclavicular joint caused by heavy manual and repetitive work.[43]
7. It was his opinion that both the left AC joint arthritis and the left sternoclavicular joint arthritis had been aggravated by manual labour. In addition, there was intermittent flaring of the left shoulder and left sternoclavicular joint as a result of repetitive manual work.[44]
8. The plaintiff was unable to load through the left shoulder or push/pull above shoulder height as a result of the arthritic change at the sternoclavicular joint and the AC joint.[45]
9. Mr Chehata opined that the plaintiff would not be able to return to his pre-injury employment. His current capacity to work was dependant on finding a sympathetic employer. He noted the plaintiff was working fifteen to twenty hours as a delivery driver, using only his car, and was not required to drive trucks, or load or unload heavy equipment.[46]
10. Mr Chehata considered the prognosis was "quite reasonable" considering the plaintiff's positive attitude, as well as his ability to gain further employment. [47]

1. The plaintiff tendered a report from Dr Awad dated 5 December 2024.[48] Dr Awad examined the plaintiff on the same date.
2. At the time of Dr Awad's report, the plaintiff was living in the coaster bus. He did not have a garden and had little to do in the way of domestic chores. The plaintiff's bus was parked at his employer's premises. He used the employer's bathroom and did not need to clean it. He relied on a tumble dryer at a laundromat, so did not need to hang his washing out.
3. Regarding current treatment, Dr Awad recorded the plaintiff was under the care of his GP, and took paracetamol as and when needed. Dr Awad did not mention physiotherapy or self-managed exercises.
4. On clinical examination, Dr Awad noted the plaintiff had a prominent left AC joint with an almost expected range of movement of his left shoulder. Moving his arm above shoulder height elicited pain.[49]
5. Dr Awad found the plaintiff to be an honest, straightforward historian, and detected no illness behaviour.[50]
6. Dr Awad diagnosed aggravation of previously asymptomatic osteoarthritis of the left AC joint. She also diagnosed soft-tissue injury of the left shoulder.[51]
7. Dr Awad opined the plaintiff's prognosis was poor and he was likely to live with a degree of pain and disability for the foreseeable future.[52]
8. Dr Awad opined the plaintiff had no capacity for pre-injury duties. She recommended the plaintiff be "permanently medically restricted ... for the foreseeable future" from undertaking any roles that require him to push, pull, lift, carry above 10 kilograms, reach forward, reach overhead, or use repetitive movements of his left arm.[53]
9. Dr Awad opined the plaintiff's current employment - that is, his part-time delivery driver work up to twenty-five hours per week - was likely to be his maximum capacity.[54]
10. Dr Awad was told that the plaintiff was unable to read or write very well, could only read parts of a newspaper, and could not spell. He had never been tested for dyslexia. He had no IT skills.[55]
11. It was Dr Awad's opinion that, when taking into account the plaintiff's age, the nature of his injuries, his poor literacy, his occupational history of manual labour, his lack of qualifications and his lack of education, the plaintiff was fortunate to have found suitable employment. She opined that if the plaintiff lost his current job he would be unlikely to find any other employment given his age, his medical restrictions and his lack of qualifications.[56]

1. The plaintiff tendered a report from Ms George dated 19 December 2024.[57] Ms George conducted an interview with the plaintiff for one hour on 3 December 2024.
2. The plaintiff reported he experienced increased left shoulder pain when driving a manual vehicle, which required him to frequently change gears. He avoided holding the steering wheel at the 9-o'clock position with his left hand due to his injury.[58]
3. Based on the medical material before her, Ms George recommended the plaintiff should avoid, for the foreseeable future, tasks involving:

(a) frequent or prolonged left shoulder movements;

(b) heavy manual handling including lifting, carrying, pushing or pulling;

(c) reaching about shoulder height with the left arm.[59]

1. Ms George said that occupations which required the plaintiff to perform tasks repetitively, or where sustained force or carrying was involved which might lead the plaintiff to protect his left shoulder by using only his right arm, would not be suitable.[60]
2. Ms George concluded there were no unrestricted recognised suitable occupations for the plaintiff. It was her view the plaintiff's maximum vocational potential would be working part time in supported or protected employment, where there was empathy for his condition and duties provided within his functional capacity for the foreseeable future.[61]
3. Ms George considered the roles of truck driver, forklift driver, fencer, cement and concrete plant worker and slaughterer. Ms George opined none of those roles were suitable.[62]
4. Ms George considered alternative roles where no specific qualification or work experience was required, such as mail clerk, filing or registry clerk, laundry worker, checkout operator, shelf filler, food process worker, and school-crossing supervisor. Ms George opined none of the roles were suitable for the plaintiff after considering the plaintiff's education, transferable skills and functional capacity.[63]
5. Ms George was asked to consider other roles identified in vocational reports which are not before the Court. These included pilot driver, spare parts interpreter, fire extinguisher equipment technician, excavator/bobcat operator, ride-on mower operator and garden labourer. Ms George considered these roles in detail and opined each of the roles were unsuitable for the plaintiff.[64]

1. The defendant tendered a Medical Panel Opinion dated 9 February 2023,[65] which primarily dealt with the plaintiff's impairment benefits claim. The Medial Panel's opinion regarding impairment benefits is not relevant to the issues for determination in this application.
2. The plaintiff's complaints to the Medical Panel about his shoulder pain, his shoulder function and limitations on his activities of daily living were largely consistent with what he has deposed to in his affidavits.
3. After conducting a clinical examination, the Medical Panel concluded the plaintiff was suffering from residual pain and dysfunction of the left shoulder due to aggravation of pre-existing osteoarthritis of the AC joint and sternoclavicular joint.[66]

1. The defendant tendered two reports from Dr Slesenger.[67] The first, dated 26 September 2022 related to an examination on 23 September 2022. The second report, dated 27 February 2025 related to an examination on 22 February 2025.
2. On clinical examination in February 2025, Dr Slesenger observed no trophic changes and no scarring. Dr Slesenger observed swelling over the medial clavicle at the sternoclavicular joint, which was prominent on the left side when compared to the right. On palpation, there was tenderness over the AC joint and the lateral clavicle. There was left shoulder flexion of 170 degrees and right shoulder flexion of 160 degrees. Extension of both shoulders was recorded at 70 degrees, internal rotation at 90 degrees and external rotation at 80 degrees. Abduction of the left shoulder was 130 degrees and the right shoulder 170 degrees.[68]
3. Dr Slesenger opined that the plaintiff had suffered a left shoulder soft-tissue injury with AC joint and sternoclavicular joint arthropathy. It was his opinion the soft-tissue injury had resolved and any residual AC joint pain was constitutional and not work related.[69]
4. Dr Slesenger commented that there may be other factors impacting on the plaintiff's presentation, not least his alcohol use. In relation to alcohol use, the plaintiff had reported he was drinking up to six units a day, often drinking in excess.[70]
5. Dr Slesenger opined there was evidence of bimanual tasks currently being performed with no evidence of avoidance of the left side.[71]
6. Dr Slesenger opined in both reports that the plaintiff could perform pre-injury duties and pre-injury hours.[72]
7. Dr Slesenger opined the plaintiff also had capacity to return to the following roles at pre-injury hours: truck driver (general), pilot escort driver, fire protection equipment technician, earthmoving plant operator, motor vehicle parts interpreter (though retraining would be required) and ride-on mower operator/greenkeeper.[73] Dr Slesenger also opined the plaintiff could return to work in a packing or assembly role/warehouse role.[74]

1. The defendant tendered weekly payslips for the period commencing 3 May 2024 and concluding on 27 February 2025.[75]
2. Of those payslips, there were eight weeks where the plaintiff worked less than twenty hours a week.
3. The defendant asserted the plaintiff was working an average of twenty-five hours a week and was regularly working thirty hours a week. The defendant submitted these hours were contrary to the histories many of the medical practitioners were given.[76]

1. Counsel for the plaintiff submitted the plaintiff's evidence could be readily accepted as accurate, and that his pain and suffering consequences met the statutory threshold.
2. The following consequences were identified:

(a) the impact of the plaintiff's shoulder injury on his work capacity. Specifically, it was said the plaintiff's work capacity was restricted to a smaller field. It was said the plaintiff was left-hand dominant, and his work history had involved heavy labouring-type roles of slaughterman, fencer and working with concrete panels. The plaintiff was fortunate to obtain a light driving job with the employer, which was subject to unchallenged accommodations made by the employer. The plaintiff had access to downtime between errands and tasks to recover;

(b) in addition, the plaintiff also relied on the opinions of Dr Awad and Ms George as to restricted work capacity (set out above);

(c) the plaintiff had ceased physiotherapy because the plaintiff had found it unhelpful;

(d) no further surgery was recommended and Mr Vo had opined that continuing non-surgical treatment was recommended, given his opinion that surgery was not appropriate, as the adjacent structures in the shoulder were at risk;

(e) the restrictions on fishing and camping; and

(f) the plaintiff now "struggles to drive anything more than an hour or two".[77]

1. The defendant accepted the plaintiff sustained a compensable left shoulder injury.
2. Counsel for the defendant did not challenge the plaintiff's credit or reliability.
3. Counsel for the defendant submitted the consequences of the injury did not meet the statutory threshold when having regard to the whole of the evidence, with particular regard to the treating medical evidence, and said there had been a lack of any treatment for the past three years.
4. In respect of pain, the plaintiff said his pain was not constant. In his first affidavit, he said that:

"The pain in the left shoulder comes and goes but is often worse with any increased activity of my left arm."[78]

5. Counsel for the defendant raised the following points regarding the plaintiff's medical treatment:

(a) the plaintiff was taking minimal over-the-counter medication in the form of Panadol probably once a week, two tablets;

(b) the last material from Mr Vo was dated 3 May 2019;

(c) the plaintiff's last injection was in July 2021;

(d) the plaintiff's physiotherapy treatment ceased in January 2022; and

(e) the plaintiff had had no GP treatment of his left shoulder since 2023.

(a) the plaintiff's payslips and pay-run history demonstrated the plaintiff was working an average of twenty-five hours a week;

(b) there was no evidence the plaintiff had experienced an increase in symptoms, such that the plaintiff had to return to a physiotherapist or doctor, or had to take any medications as a result of working; and

(c) the plaintiff was working more hours (averaging twenty-five hours a week and sometimes working more than thirty hours a week) than Mr Chehata and Dr Slesenger had been made aware.[79]

1. The defendant relied on Mr Chehata's clinical finding the plaintiff had a full range of movement. The defendant also relied on Dr Slesenger finding the plaintiff's left shoulder had a similar range of motion to this right shoulder.

1. Bearing in mind that this is a gateway application and consistent with what was said by the Court of Appeal in TTB SMS Pty Ltd v Reading:[80]

"... The evaluation required of the trial judge, and this Court, involves a comparison of the worker's impairment not just with other impairments of the hand, but also with other types of physical impairment that may be suffered, including impairment of the brain, the spine and large joints such as the knee and shoulder. Those other physical impairments may involve constant pain, significant medical treatment and medication. They may involve sleep deprivation, or an inability or reduced ability to socialise or work."

2. The fact the plaintiff has returned to alternate work does not preclude a finding that he satisfies the statutory test. It is just one matter to consider.
3. I must consider what has been lost and what has been retained.
4. There was a dispute on the medical evidence as to whether the plaintiff had an ongoing injury to his left shoulder productive of impairment consequences.
5. Dr Slesenger considered the plaintiff suffered a work-related soft-tissue injury which had resolved and any residual AC joint pain was constitutional and unrelated to his work.
6. I reject Dr Slesenger's opinion that any residual AC joint pain was constitutional and unrelated to his work. He was the only medical practitioner who expressed this view. He did not provide a clear path of reasoning as to why he formed such a view. He accepted the plaintiff continued to have symptoms in his left shoulder.
7. Dr Slesenger's opinion was in contrast to the Medical Panel Opinion that the plaintiff was suffering from residual pain and dysfunction of his left shoulder due to an aggravation of pre-existing osteoarthritis of the AC joint and the sternoclavicular joint. It is also in contrast to the opinions of Dr Awad and Mr Chehata.
8. Dr Awad opined that the plaintiff has suffered an aggravation of previously asymptomatic osteoarthritis in the left AC joint, as well as a soft-tissue injury in the left shoulder.
9. Mr Chehata expressed the opinion the plaintiff's pre-existing asymptomatic joint arthritis and left sternoclavicular joint arthritis had been aggravated by his employment. I accept Mr Chehata's diagnosis given his speciality.
10. Considering the whole of the medical evidence, I find the plaintiff continues to suffer from an aggravation of pre-existing asymptomatic joint arthritis and left sternoclavicular joint arthritis.
11. I accept the plaintiff's left shoulder condition is permanent in the requisite sense ꟷ that is, that it is likely to continue into the foreseeable future.
12. I accept the medical evidence that there are no further treatment options available to the plaintiff.
13. I also accept the unchallenged impairment consequences claimed by the plaintiff that he experiences intermittent, not constant, pain in his left shoulder, which can be made worse with any increased activity of his left arm. His capacity to lift is restricted to a "couple of kilos"[81] above shoulder height. He tries to avoid symptoms by avoiding doing any lifting above shoulder height.
14. The plaintiff takes two Panadol about once per week. This is an extremely modest medication regime. The plaintiff said he avoided taking medication as much as possible and tried to avoid activities which would exacerbate his pain.
15. The plaintiff's unchallenged evidence was that he now used alcohol to numb his pain. He said he used to drink two stubbies of beer per night and now drinks "maybe 6 stubbies a night and go a bit harder on the weekends".[82]
16. I find the plaintiff's self-medication with alcohol is a better indicator of his level of pain than his modest medication use.
17. I note the impairment consequences include a restriction on the type of employment the plaintiff can undertake. I accept he cannot return to his pre-injury employment and continues to work in protected alternative employment provided by the employer. There is no evidence from the employer contradicting what the plaintiff says about his current job. I accept the employer is aware of the plaintiff's restrictions and has made accommodations for him in his current job.
18. This restriction on the plaintiff's ability to undertake work, given his work history and his low level of education, is a significant impairment consequence.
19. In making the value judgement required of me, I find that the impairment consequences of the plaintiff's left shoulder injury reach the threshold of "at least very considerable" when compared with the range of possible impairments, including those which do not come before the Court.

1. The plaintiff's application succeeds.
2. I will hear the parties on question of costs.

[1] Paragraph 2(b) of the definition of "serious injury" in s325 of the Act.

[3] Plaintiff Exhibit P1 at Plaintiff's Court Book ("PCB") 10, paragraph [22(c)] and PCB 15, paragraph [9].

[4] (Ibid) at PCB 16-17, paragraphs [16]-[18] and [24].

[5] (Ibid) at PCB 12, paragraph [43].

[7] (Ibid) at PCB 16, paragraph [22].

[8] (Ibid) at PCB 17, paragraph [23].

[9] Transcript ("T") 23, Lines ("L") 31.

[54] (Ibid) at PCB 52. Both Dr Awad and Ms George considered the plaintiff's capacity for work. Their opinions have been summarised, even though there was no pecuniary loss claim, as the plaintiff relied upon a restriction of his employment capacity as a pain and suffering consequence.

[78] Plaintiff Exhibit P1 at PCB 11, paragraph [30].

[79] Mr Chehata recorded an average of fifteen to twenty hours a week, while Dr Slesenger recorded three to four hours a day, four to five days a week.

[80] [2020] VSCA 203 at paragraph [31].

[81] Plaintiff Exhibit P1 at PCB 15, paragraph [11].

[82] (Ibid) at PCB 17, paragraph [23].