Tawakuli v Victorian WorkCover Authority [2019] VCC 354

4 The Court must not give leave unless it is satisfied, on the balance of probabilities, that "the injury" is a "serious injury" within the meaning of the definition of "serious injury" contained in s134AB(37) of the Act.[3]

5 The plaintiff only relies on paragraph (a) of the definition of "serious injury" contained in s134AB(37) of the Act. That paragraph reads:

"serious injury means -

(a) permanent serious impairment or loss of a body function; ... ."

6 The part of the body said to be impaired for the purposes of paragraph (a) is the upper-right arm and, more particularly, the right shoulder of the plaintiff. Initially, the plaintiff also claimed a "serious injury" in relation to his cervical spine, but at the end of the evidence Senior Counsel for the plaintiff advised the Court that that aspect was withdrawn.[4]

7 In order to succeed, the plaintiff must prove, on the balance of probabilities, that:

(a) The "injury" suffered by him arose out of, or in the course of, or due to the nature of, his employment with the defendant on or after 20 October 1999;[5]

(b) The "injury" and the resulting impairment under paragraph (a) must be "permanent", that is, permanent in the sense that it is "likely to last for the foreseeable future";[6]

(c) The "consequences" to the plaintiff of the injury in relation to "pain and suffering" and "pecuniary loss" must be "serious". That is:

"... when judged by comparison with other cases in the range of possible impairments ... as the case may be ... [can be], fairly described as being more than significant or marked, and as being at least very considerable."[7]

8 Section 134AB(38)(b) of the Act provides that the consequences of an injury and impairment in terms of "pain and suffering" and "loss of earning capacity" are to be considered separately. In the event that a worker satisfies sub-paragraph (i) but not sub-paragraph (ii) of s134AB(38)(b) of the Act, the worker is entitled to have leave to bring proceedings for recovery of "pain and suffering damages" only. A worker who satisfies the loss of earning capacity requirements of s134AB is entitled as a "matter of statutory construction" to have leave to bring proceedings for "pain and suffering damages" and "pecuniary loss damages".[8]

9 In addition, in relation to "loss of earning capacity consequences", the plaintiff has a specific burden[9] to establish:

(a) That as at the date of hearing, he has a loss of earning capacity of 40 per cent or more measured (subject to certain relevant exceptions) as set out in paragraph (f) of s134AB(38) of the Act;[10]

(b) That after the date of the hearing, he will continue to permanently have a loss of earning capacity which will be productive of a financial loss of 40 per cent or more.[11]

(a) Must not take into account psychological or psychiatric consequences of the "injury" for the purposes of paragraph (a) of the definition of "serious injury". These can only be taken into account for the purposes for the disturbance or disorder within the meaning of paragraph (c) of the definition of "serious injury;[12]

(b) Must make the assessment of "serious injury" at the time the application is heard;[13]

(c) Must give reasons that disclose the pathway of reasoning in dealing with the evidence, and the issues raised by the application.[14]

11 Senior Counsel for the defendant informed the Court - in part, in response to the Opening by Senior Counsel for the plaintiff and in part during his final address - that the issues were:

(a) although there was no issue that the plaintiff suffered a compensable physical injury to his right shoulder arising out of his employment with the defendant, there was "at this time" a "stark difference" between the findings of doctors who have examined the plaintiff on his behalf and those who have examined him on behalf of the defendant;

(b) Senior Counsel for the defendant stressed that the defendant's doctors could not find any ongoing organic basis for the symptoms claimed by the plaintiff, which were described variously as either examples of exaggeration on examination, abnormal illness behaviour and the suggestion of a "Pain Syndrome";

(c) The reliability and credibility of the plaintiff was brought into issue and it would be necessary for the Court to evaluate the complaints of the alleged pain in the shoulder by the plaintiff and the restriction of shoulder movement;

(d) In the event that the Court accepted that the plaintiff did experience pain in the shoulder region and/or restriction of that joint caused by a "Pain Syndrome", such was brought about by psychological mechanisms rather than having any organic basis;

(e) In particular, in relation to any issue of the plaintiff establishing a right to claim pecuniary loss damages, it was alleged that the plaintiff had failed to discharge his onus in undergoing rehabilitation and retraining to fit him for suitable employment.

12 The plaintiff relies on his affidavits affirmed on 8 September 2017 and 13 November 2018.[15] The plaintiff affirmed the affidavits through an interpreter and, indeed, an interpreter was present to assist him during the course of the proceeding. The plaintiff gave evidence that he had read these affidavits on the morning of the commencement of the hearing and that the contents were "true and correct".[16]

13 I refer to the following salient evidence in the first affidavit:

• The plaintiff is now forty-two years of age, having been born on 1 January 1977 in Afghanistan. He is a married man with two children, all of whom live in Pakistan.
• He did not complete any formal primary or secondary school education, but has undertaken English classes in Australia and has also completed a Certificate I in EAL, an English course at Chisholm Institute, in 2015 as part of his involvement with WorkStreams.
• He came to Australia on or about 14 October 2012 by way of a boat that capsized in about mid-2012, resulting in a large number of deaths. He describes undergoing trauma counselling and mental health supports, which included counselling in detention.
• Prior to his arrival in Australia he worked as a panel beater in Pakistan for approximately twenty-seven years, although he had no formal training in such work and was self-taught.
• He commenced work with the defendant on or around 28 February 2013 as a fencing/factory hand, and such work was his first job in Australia. He generally worked on rotating shifts on different duties involving four machines, all involved in the process of making wooden lattices.
• Much of the work involved handling and manoeuvring large pieces of wood which would involve him using both hands. He is right-handed.
• Over the course of his employment he recalls feeling pain in his right shoulder which became progressively worse, and on or about 6 September 2013, when he was using a nail gun to make lattices, the pain became "unbearable". He also recalls having some pain in his left forearm, however such pain has resolved.
• He ceased work with the defendant on or about 6 December 2013 and thereafter attempted returns to work as follows:

(a) On 4 March 2014, he returned to work for four hours a day, three days a week, however ceased on 14 March as he was unable to complete the full four hours of work on 12 and 14 March 2014 as he was feeling dizzy and sleepy because of the painkillers and because of the pain in his right shoulder. His duties at that time were cleaning duties, which involved sweeping the scrap wood from the floor with a broom, which does involve some shoulder force;

(b) On 10 June 2014, he returned to work for two hours a day, two days per week, but ceased work on 19 June 2014, as he felt "significant soreness" in his right shoulder because of the sweeping duties.

• When he first arrived in Australia after the capsizing of the boat, he was involved with a number of community health services, including Cardinia-Casey Community Health Service and the Refugee Health Clinic at Dandenong Hospital. Initially he had suffered an injury to his right heel when the boat capsized, but this resolved.
• Among other things, he was initially treated for sore feet, kidney stones and dental issues, and also underwent treatment in relation to bilateral leg pain in late 2012. He was treated with Panadol and also trialled with Mobic. He found that this pain improved after his release from detention.
• On release from detention, he was also engaged with a refugee health nurse, Ms Ellen Rugara.[17] The plaintiff notes that he did have an appointment with her on 10 January 2014, but did not attend as he was "focused on finding work" and did not feel he needed the support. He did attend an appointment on 22 January 2013, but has not attended that service any further as his focus was on finding work.
• In particular, he was anxious about finding a job so that he would be able to support his wife and children back home in Pakistan and he notes that he did become emotional at the last appointment with Ms Rugara, thinking about his family back in Pakistan.
• He commenced to experience pain in his right shoulder in approximately 2013, and thereafter the following has occurred.

• he underwent an ultrasound to his right shoulder on 26 March 2013

• he underwent an injection to his right shoulder on 9 April 2013

• on 6 September 2013, he attended at Dandenong Super Clinic as the pain in his right shoulder had become unbearable, and he was advised to take Ibuprofen and Panadol, as well as to use Deep Heat.

• because the pain did not subside he again attended on 29 September 2013 and was referred to physiotherapist, Mr Simon Li at the Dandenong Clinic, but found physiotherapy treatment increased his pain.

• a few weeks later he again attended his then general practitioner and was referred to have an ultrasound of his right shoulder and an x-ray of his left elbow, after which he was prescribed Voltaren tablets.

• he started to see the general practitioner, Dr Martin Hill, who referred him to Mr Patrick Byrne, an orthopaedic surgeon. He continued to see Dr Hill every week or so to manage the pain and began to trial different medications including Mobil, Tramadol and Panadeine Forte.

• on 30 October 2013, Dr Hill injected cortisone into his right shoulder, which did provide some short-lived relief of his pain symptoms.

• he underwent a guided right-shoulder injection on 10 January 2014, but consider this did not provide any pain relief, save for a minimal period of time.

• he underwent one acupuncture session with Dr John Mok on 17 January 2014.

• he attended physiotherapy treatment from Dandenong East Physiotherapy in approximately January 2014, but found the physiotherapy treatment aggravated the pain.

• On 26 April 2014, he changed general practitioners and commenced to consult with Dr Anthony Karantonis at the Dandenong City Clinic, who has continued to treat him to date. In particular, Dr Karantonis has:

• referred the plaintiff to the orthopaedic surgeon, Mr Christopher Pullen, who initially consulted with him on 6 February 2014. On 25 September 2014, Mr Pullen performed an arthroscopy, decompression and debridement of his right shoulder, and thereafter continued to consult with the plaintiff for post-operative appointments

• Mr Pullen also performed a right-shoulder hydrodilatation to assist the post-operative frozen right shoulder

• referred the plaintiff to the pain specialist, Dr Clayton Thomas, in July 2015, who consulted the plaintiff on a number of occasions.

• The plaintiff also independently attended the Dandenong Hospital Emergency Department on 10 October 2014 and 20 November 2014 due to his pain being so bad, and he was given painkillers.
• He attended the Victorian Rehabilitation Centre for assessment on 6 January 2016 on referral from Dr Thomas. He attended one appointment and an Outpatient Pain Management Program, however felt he did not obtain any benefit from the program and did not continue.
• At the time of the swearing of his first affidavit, the plaintiff was taking the following medication in relation to his right shoulder and psychological injury:
  • Panadol Osteo - four to five a day
  • Gabapentin - one in the morning, one at night
  • Panadeine Forte - one in the morning, one at night
  • Endone - one tablet a day
  • Somac - one tablet a day
  • Nexium - one in the morning, one at night
  • Anaprox - one in the morning, one at night
  • Deep Heat - at night as requested
  • Mylanta - at night as requested.

He used to see his general practitioner for treatment and prescriptions approximately once a week.

• At the time of swearing his first affidavit, the plaintiff deposed that:

• he currently feels pain in his right shoulder, which radiates into the right side of his neck and down his right shoulder into the arm

• using his shoulder aggravates the pain and he feels a burning-like pain in his right shoulder all the time

• he struggles to lift anything more than approximately 2 kilograms as it aggravates his pain, and as much as he can he tries to avoid lifting anything heavy

• he finds using his right hand to write difficult, and can only write one to two sentences before the pain is aggravated

• he has not cooked a lot since the injury because he finds such movements involved in cooking, such as stirring and chopping, aggravate the pain in his right shoulder. He tries to use his left hand as much as possible, but being right-hand dominant this is awkward and difficult

• he can raise his right arm to just below shoulder height but tries to avoid raising it any higher as this aggravates the pain. He now generally relies on his left hand to wash his hair and wash himself in the shower

• he finds that taking off a jumper can sometimes cause pain if he accidently moves his right shoulder quickly

• he tries to drive using only his left hand, as using his right hand and shoulder can cause right-shoulder pain

• he finds that sleeping is difficult because of the constant pain in his right shoulder. He often wakes up in the middle of the night with pain shooting through the shoulder and a feeling of numbness if he has actually slept on his right shoulder

• he has stomach reflux because of the painkillers that he takes

• He notes that prior to the injury he had lots of friends, would attend barbeques on weekends, played soccer with his friends once or twice a week and spent time with friends in parks, again, once or twice a week. He no longer does this because he does not enjoy anything anymore because of the Depression and does not want to do anything.
• He feels that because he is constantly depressed he has a short fuse and temper, and he tends to fight more with his friends.
• In relation to rehabilitation, he was involved with WorkStreams, as requested by the insurer, and WorkStreams told him to apply for jobs, and they assisted him to prepare a résumé.
• He does not believe he is capable of manual work anymore because of his right-shoulder pain and psychological injury. He would go back to work if he could as he has noted that not working has resulted in financial difficulties for his wife and children living in Pakistan, which makes him upset and angry.

14 In his second affidavit, the plaintiff gives the following salient evidence:

• He lives in a share house with a number of other men, continues to see his general practitioner and also engages in physiotherapy treatment.
• Currently he takes the following medication:

• the anti-inflammatory - Feldene - a 120-milligram tablet twice a day

• the painkiller - Panadeine Forte - 500 milligrams tablets at night (to assist with pain during sleep)

• Gabapentin - a 100-milligram capsule in the morning and two at night

• he is also prescribed Dencorub pain-relieving heat patches as and when needed, and also has developed constipation from the pain medication, causing him to take Movicol sachets each day, and also takes Zoton Fas Tabs, because of reflux.

• Since his first affidavit, he has undergone an assessment with the Victorian Rehabilitation Centre to determine whether a pain management program was appropriate for him. He understands that the recommendation was that "[He] would not gain much from the program" because his English is so poor and he struggled to understand most of what was happening in the assessment.
• He continues to experience the symptoms and consequences as set out in his first affidavit. In particular, he continues to experience daily and significant pain in his right shoulder, which radiates to the right side of his neck and down the arm.
• In about March 2018, he travelled to Iran for three months to see his family and continued with the medication when overseas.
• He has not received any income from physical exertion and has been unable to work since ceasing with the defendant.
• He currently receives approximately $600 a fortnight by way of a Centrelink payment, and as a condition of having received Centrelink benefits he is required to apply for a number of jobs, but does not believe he has the capacity to undertake any job - notwithstanding he has applied for a number of jobs to continue to receive the benefit.
• He has lived his entire life in Afghanistan and Pakistan, and his English "is very poor" and he does not believe he would be able to do a job which requires English-language skills. He accepts he has very basic spoken English, but relies on interpreters for most medical appointments.
• He is unable to read and write in English, except for some very basic words, like his name.
• His entire working life has been involved in physical work and he does not have any administrative or clerical skills, including the use of a computer, and no experience in this type of work. Furthermore, he believes that using a computer would irritate his right-shoulder pain, in the same way that writing does.
• The daily pain is in itself distracting and makes it difficult to focus and, furthermore, makes him irritable and angry.
• Because of the daily pain that he experiences, he takes strong pain medication each day to manage the pain and such medication makes him "drowsy and dizzy", which in itself would make it difficult for him to return to work.
• In about mid-2018, he applied for a licence to drive a taxi because he was told by Centrelink that he had to do that to avoid his special benefit being cut off. He did obtain a licence to drive a taxi about three or four months ago, but has not engaged in any employment or taxi driving because he does not believe that he could drive for more than twenty to thirty minutes because of the pain, and tends to drive one-handed or relying on his left hand, which would not be safe.
• He believes that he would not be able to undertake any pre-injury duties or suitable employment because of his injuries. He also believes he would struggle to engage in any further retraining because of the medication that he takes and the daily pain that he experiences.

15 The plaintiff relies on medical reports from his current treating general practitioner, Dr Karantonis, situated at the Dandenong City Clinic. Dr Karantonis records that the plaintiff first attended that practice on 26 April 2014, requesting that the practice take over his care and treatment of the shoulder injury. At that time, the plaintiff advised that his local doctor had been a Dr Hill and that he had been referred to a surgeon, Mr Patrick Byrne, for assessment and advice.

16 I was informed by the parties that there had been attempts to subpoena the earlier records, but this had been unsuccessful. However, several documents were available, which were tendered. These included:

(a) A report from Marina Radiology, wherein it is recorded that Dr Duleep Mendis arranged for the plaintiff to undergo a right-shoulder ultrasound on 26 March 2013. In the report dated 27 March 2013,[18] the radiologist concludes:

"Mild right subacromial bursitis with impingement. Intact rotator cuff tendons."

(b) A report from Marina Radiology, wherein it is recorded that Dr Duleep Mendis arranged for the plaintiff to undergo an ultrasound-guided right subacromial bursal injection on 9 April 2013;[19]

(c) A report from Capital Radiology, wherein it is recorded that Dr Danushi Ganegoda arranged for the plaintiff to undergo an MRI scan of his right shoulder on 8 October 2013.[20] The radiographer reports his "impression" as:

"1. Intrasubstance partial thickness tear within the posterior aspect of the supraspinatus tendon. Further tendinosis noted in more anterior aspect of supraspinatus tendon. Subacromial bursitis. Spurring of outer margin of acromion and thickening of coraco acromio ligament. Mild degenerative lipping of margins of acromio clavicular joint.

2. Small superior labral tear conforming to a SLAP type II lesion."

(d) A report from Capital Radiology dated 17 December 2013, wherein it is recorded that the surgeon, Mr Byrne, arranged for the plaintiff to undergo an ultrasound of his right shoulder on 17 December 2013.[21] The radiologist concluded:

"No rotator cuff tendon tear is demonstrated. Supraspinatus tendinosis is demonstrated.

Subscapularis insertional enthesopathy is demonstrated.

The long head of biceps, infraspinatus and teres minor tendons are normal.

The glenohumeral and acromioclavicular joints are sonographically normal.

Significant subacromial bursitis is demonstrated, with bursal impingement upon the acromion on dynamic examination, associated with pain.

... ."

(e) A further report from Capital Radiology dated 10 January 2014,[22] recording that Mr Byrne performed a right-shoulder injection under ultrasound control;

(f) A report from Capital Radiology dated 28 February 2014,[23] recording that Dr Hill arranged for the plaintiff to undergo an MRI scan of the right shoulder. The radiologist reported, in part:

"There has been a slight improvement in the appearance of the shoulder compared to October 2013. Both the supraspinatus tendon and the SLAP tear have shown some signs of repair. No new pathology seen.

... ."

17 The plaintiff relies on the reports of his current treating doctor, Dr Karantonis, from the commencement of his treatment on 26 April 2014. Such reports are dated 30 November 2014, 16 February 2016, 21 April 2016, 14 November 2016 and 25 October 2018.[24] At the time of the initial examination on 26 April 2014, the plaintiff advised Dr Karantonis that since injuring his shoulder in 2013, he had had various modalities of treatment without any improvement. Dr Karantonis also had available the MRI investigation undertaken on 9 October 2013.

18 Over time, Dr Karantonis referred the plaintiff to the orthopaedic surgeon, Mr Pullen, who ultimately performed surgery on the right shoulder and later, in May 2015, underwent a shoulder hydrodilatation in respect of right-shoulder capsulitis (that is, frozen shoulder). Dr Karantonis also referred the plaintiff to the pain specialist, Dr Thomas, who saw the plaintiff on several occasions.

19 In his final report, dated 25 October 2018, Dr Karantonis was posed a variety of questions, some of which related to the right-shoulder condition of the plaintiff. I summarise his opinions as to the right-shoulder condition as follows:

• There is an organic basis for the right-shoulder symptoms based on the clinical presentation, ongoing findings associated with radiological tests confirming tendonitis and adhesive capsulitis.
• The right-shoulder injury is directly related to the employment of the plaintiff by the defendant and the nature of his work.
• As a result of his right-shoulder injury, there are significant and ongoing restrictions in his ability to perform activities that involve lifting, pushing, pulling or overheard work. Such injury also limits the plaintiff's ability to manage his day-to-day tasks and although the plaintiff is able to drive, it is the "understanding" of his treating doctor that due to pain this activity is limited.
• As a result of his right-shoulder injury the plaintiff cannot perform his pre-injury duties, and in the opinion of Dr Karantonis would be unlikely to be able to be realistically employed in other areas. In particular, in relation to the right shoulder, he believes that he would be unemployable on the open market.
• Dr Karantonis does not believe that "occupational rehabilitation services" would be useful and productive.
• The incapacity suffered by the plaintiff in relation to his right shoulder is unlikely to alter in the foreseeable future.
• His overall prognosis is poor, and that the injury and surgery to his right shoulder would likely place the plaintiff in a high-risk category for further shoulder degenerative changes.

20 The plaintiff relies on the following reports from his earlier treating orthopaedic surgeon, Mr Christopher Pullen:

21 Mr Pullen first examined the plaintiff on 6 June 2014, at which time he gave a history that he had right-shoulder pain both at night and when reaching, and recently had felt a cracking sensation in his right arm when lifting. The plaintiff also informed Mr Pullen that he had already received physiotherapy treatment, Cortisone, Panadol and anti-inflammatory medications, without benefit.

22 Examination at that time revealed that the right shoulder had a full range of passive motion, but experienced pain when actively lifting the arm above shoulder height. The plaintiff also had a positive right-shoulder impingement sign and a mildly positive Speed's test. Review of the plaintiff's right shoulder MRI scan suggested a type II SLAP lesion and a possible intrasubstance tear of the rotator cuff. Mr Pullen discussed various options with the plaintiff on that occasion.

23 When reviewed on 24 July 2014, the plaintiff indicated that he was keen to undergo surgery and, indeed, he underwent a right-shoulder arthroscopy, subacromial decompression and debridement on 25 September 2014. Mr Pullen reports that at operation, partial thickness tears of the supraspinatus and subscapularis tendons were seen and the biceps tendon showed evidence of mild tendinopathy and a Type I SLAP lesion in the subacromial space, and subacromial spur was resected.

24 At that time, Mr Pullen was of the view that the plaintiff would require four to six weeks off work and then would be fit for light duties and fit to return to pre-injury duties in sixteen to twenty-four weeks.

25 Mr Pullen reviewed the plaintiff on 9 October 2014 and considered, at that time, he was progressing well following the surgery and the plaintiff was encouraged to start mobilisation. Mr Pullen noted that the plaintiff, at this time, was very pain focused and he was encouraged to take adequate analgesia in order to be able to move the right shoulder and reduce the risk of adhesive capsulitis.

26 When again reviewed on 4 December 2014, Mr Pullen noted that the plaintiff was having persistent problems with his right shoulder pain and had a restriction in range of motion. Examination suggested that the plaintiff may have developed a post-surgical adhesive capsulitis and it was suggested that a further MRI scan be undertaken to exclude any other intraarticular pathology.

27 At the time of his review of the plaintiff on 4 December 2014, Mr Pullen considered that he was suffering from a right-shoulder post-operative adhesive capsulitis and that he may also have developed a "Chronic Pain Syndrome".

28 The plaintiff underwent a further MRI scan of his right shoulder on 15 April 2015.[26] Mr Pullen reports that the radiologist reported that the MRI scan showed "[l]ikely adhesive capsulitis" and there was "[s]upraspinatus tendinosis/tendinopathy without a full thickness tear".

29 Mr Pullen subsequently reviewed the plaintiff on 6 May 2015, on which date he gave the plaintiff a referral for a hydrodilatation, given the MRI finding of adhesive capsulitis. On that date, Mr Pullen considered the plaintiff was unfit for a return to his present employment at that time, but would be fit to perform light duties involving no lifting, no working above shoulder height and no repetitive work, and the need to commence on limited hours. There are references in various medical reports that the hydrodilatation was undertaken shortly after that consultation with Mr Pullen.

30 The plaintiff relies on the medical reports from the consultant in rehabilitation and pain medicine, Dr Clayton Thomas, dated 10 November 2015 and 8 February 2017.[27]

31 Dr Thomas consulted with the plaintiff, initially on 23 July 2015, when he complained of constant pain in the right-shoulder girdle, away from just the right shoulder itself, with the pain being anterior and posterior. It involved his chest wall in his right-shoulder-girdle region. Such pain stopped him sleeping on his normal right side.

32 Examination at that time found the plaintiff to be "quite deconditioned", having very poor musculature in his upper back on the whole, with both shoulders included. Dr Thomas found the plaintiff to be "diffusely tender" over the right-shoulder girdle over the clavicle and the posterior behind the shoulder, and there did seem to be some evidence of hyperalgesia, but no dynamic allodynia.

33 Shoulder movements were mildly limited passively, but actively were quite limited secondary to pain. The shoulder was diffusely weak non-specifically, and neurologically the upper limbs presented as being otherwise normal.

34 On the first consultation, Dr Thomas formed the "impression" that the plaintiff suffered a "chronic pain syndrome" involving the right-shoulder girdle, secondary to the original right-shoulder injury. Dr Thomas prescribed Pregabalin, 75 milligrams, increasing each fortnight, and that he be referred to the Victorian Rehabilitation Centre for consideration for a multidisciplinary pain-management program. Apparently the plaintiff accepted this recommendation.

35 Dr Thomas reviewed the plaintiff on 4 September 2015 and obtained a history, in part, that the plaintiff was now "homeless living in his car and had been so for the last week". The plaintiff gave a history that he was told to leave the house as he could not contribute to the running of the house because of his residual problems. Dr Thomas also noted at that time that the Lyrica that had been prescribed did not provide any benefit, and it was ceased. Furthermore, he noted that the plaintiff had obtained approval to commence a pain-management program at the Victorian Rehabilitation Centre.

36 After those two examinations, Dr Thomas opined that the plaintiff was partially incapacitated and noted that, nonetheless, the loss of the dominant right upper limb use does create "significant issues for him".

37 Dr Thomas next reviewed the plaintiff on 9 February 2016, at which time Dr Thomas had been advised that the rehabilitation team, although noting the plaintiff to be somewhat resistant, considered that he warranted a trial of rehabilitation.

38 Dr Thomas noted that on 9 February 2016 the plaintiff engaged more, and at that time was living in a share-house arrangement, which Dr Thomas thought would contribute to a better overall mental-health state.

39 At that time, Dr Thomas noted that the plaintiff had irritability in the right shoulder with a lot of tenderness and he considered, also, weakness stemming from the pain. Range of movement was well preserved in external rotation, limited in flexion and abduction, predominantly suggesting this was very much part of a pain syndrome. At that time, Dr Thomas considered the plaintiff should undergo formal rehabilitation and be reviewed after that.

40 When reviewed on 28 June 2016, Dr Thomas noted that the plaintiff's right shoulder remained "very irritable and stiff" and there were residual signs of capsulitis. Dr Thomas obtained a history that the plaintiff had attended the Victorian Rehabilitation Centre for an outpatient pain-management program, but he only attended on one occasion, became very distressed, irritable and angry and subsequently left.

41 The plaintiff also informed Dr Thomas that he was still in a state of homelessness as the share-house arrangement with some friends was only for a temporary period of time.

42 When again reviewed on 4 October 2016, Dr Thomas thought it appropriate for the plaintiff to undergo a further MRI scan of the right shoulder, which would give some indication as to whether there was a true capsulitis as opposed to a functional frozen shoulder. In this respect, he did note that a right-shoulder ultrasound had been requested and undertaken on 19 September 2016.[28] I refer to that ultrasound, wherein the radiologist, Dr Simon Morley found:

"A solitary moderate-sized chronic partial-thickness tear of the bursal surface and anterior supraspinatus tendon is demonstrated, measuring 13mm x 10mm axially.

All other rotator cuff tendons are normal.

The glenohumeral and acromioclavicular joints are sonographically normal.

Mild subacromial bursitis demonstrated. If there is continued clinical concern, this would be amenable to ultrasound-guided cortisone and Marcaine injection.

On dynamic examination, there is a significant globally restricted range of motion, without impingement, consistent with early/mild adhesive capsulitis/frozen shoulder.

... ."

43 The plaintiff was later reviewed on 29 November 2016 by Dr Thomas, with the plaintiff having undergone an MRI scan of his right shoulder on 5 October 2016.[29] I refer to such examination and note that the radiologist, Dr Timothy Hooper, states:

"No significant interval change relative to the prior MRI examination of 2014. In particular, no features of subacromial bursitis. Insertional subscapularis tendinopathy again noted. No features of glenohumeral instability. No labral tear or chondral abnormality."

(My emphasis).

44 Dr Thomas noted that the MRI scan made no reference to capsulitis. Ultimately, he stated:

"His shoulder I did not think did have a true capsulitis as external rotation with some encouragement was almost full.

He had global restriction of movements secondary to pain but I did not think this was due to underlying problem with the shoulder per se.

Given that he was unsuccessful in engaging in the rehabilitation process, given that he did not know his current medications and given all the psychosocial issues that he was dealing with, I was not certain that there was much more we could do to help him outside of general support.

...

1. a) ...
   1. b) Diagnostically, [the plaintiff] suffers from a chronic pain syndrome involving the right shoulder girdle secondary to the original right shoulder injury.

1. c) My understanding is that the injury occurred in the context of work.

Confirmation by those who saw him at and around the time of the onset of his condition would be appropriate here.

I accepted the history that I received from him.

1. d) The injury [the plaintiff] sustained was to his right shoulder.

However, I have not been privy to any of the investigations of his shoulder per se to get an understanding of the underlying nature of the pathology here.

His shoulder I did not think did was a true capsulitis as his external rotation with some encouragement was almost full.

1. e) He has global restriction of movements secondary to pain but I did not think this was due to an underlying problem with the shoulder per se."[30]

45 It is convenient to refer to the medico-legal material relied on by the parties. Those acting for the plaintiff rely on the following material:

(a) Reports from the pain specialist, Dr Peter Blombery, who seemingly examined the plaintiff on or about 20 September 2016 and again on 16 October 2018;[31]

(b) Report of the orthopaedic upper limb surgeon, Mr Ash Chehata, who examined the plaintiff on 2 October 2018;[32]

(c) The report of the pain physician and specialist anaesthetist, Dr Meena Mittal, who examined the plaintiff on 15 October 2018.[33]

46 It is to be noted, that each of these medico-legal specialists were also requested to examine and give opinions in relation to any cervical injury that the plaintiff may have suffered. As I have already recorded, the neck, although originally said to be a "serious injury", was not persisted with at the conclusion of the evidence.

47 Seemingly, when Dr Blombery initially examined the plaintiff in or about September 2016, he was supplied by those acting for the plaintiff most of the medical reports from treating doctors, the various radiological reports and, indeed, a number of other medico-legal reports.

48 Dr Blombery obtained a history of the occurrence of the right shoulder injury and the various treatments undertaken by the plaintiff over the years. At the time of examination, the plaintiff complained of "ongoing pain in the right shoulder, radiating down the right arm to the hand" which was present "all the time" and that he could only sleep for one or two hours because of the severity of the pain.

49 The plaintiff also rated the pain as "ten out of ten" and that it had become gradually worse over the passage of time. He had also noted paraesthesia in his right hand and occasionally some numbness in the right arm at night if he was lying on the arm.

50 The plaintiff also had symptoms in the right side of his body and also his right leg that had been present for some months, and also had developed abdominal discomfort, which was thought to be as a result of the use of anti-inflammatory medications. Furthermore, the plaintiff had been "quite depressed" and he occasionally had suicidal thoughts.

51 On examination, Dr Blombery noted the plaintiff tended to hold his right arm relatively immobile against his upper abdomen with his elbow fixed at 90 degrees. After removal from his jacket, the plaintiff was diffusely tender on pressure around the shoulder girdle and down the right arm, but that did not follow any particular structures, but generally, and also over the medial aspect of the scapula, he could abduct his right shoulder to 60 degrees, flex to 70 degrees and internal and external rotation was markedly reduced. Dr Blombery also noted a similar range of the right shoulder movement when he was undressing himself.

52 On that occasion, Dr Blombery opined that the plaintiff had suffered a tear of the supraspinatus tendon, as well as subacromial bursitis, causing him to undergo conservative treatment with a series of cortisone injections and physiotherapy, with little response. Later he was referred to an orthopaedic surgeon, undergoing surgery on 25 September 2014, again, with little response and ultimately referred to the pain management physician, Dr Thomas, who has given him some treatment, but was unable to do a pain management course.

"In regard to the ongoing pain that he complains of in his right shoulder, it is my opinion that Mr Tawakuli has features of a non-specific pain syndrome present in the affected area, where there is sensitisation of pain nerve pathways, both in the periphery as well as the brain and spinal cord, such that non-painful stimuli become interpreted by the cerebral cortex as being painful. This process is also termed central sensitisation.

Management of that should be multidisciplinary therapy including the use of analgesic, antidepressant, anti-neuropathic and other drugs. In addition management should include, physiotherapy, behavioural therapy, occupational therapy as well as other techniques such as TENS and acupuncture. These are often best provided in the setting of a pain management clinic ... .

Mr Tawakuli has also developed significant secondary depression and anxiety but it is outside my area of expertise to comment on that. However, this is compounding his experience of pain."[34]

(My emphasis).

54 Dr Blombery also comments that from a practical point of view the plaintiff had little use of his dominant right arm and would not be able to perform any manual tasks with his right arm to a significant degree.

55 Ultimately, his diagnosis was of a tear of the right rotator cuff, subacromial bursitis and a labral tear, complicated by a pain syndrome.

56 When again seen in 2018, Dr Blombery obtained a history that the plaintiff complained of ongoing pain in his right shoulder (and neck and arm), but it was less severe before he rated it 4-6/10. However, the pain could wake him from sleep and was associated with numbness.

57 Examination at that time revealed the plaintiff to have strapping over his right shoulder. There was no difference in temperature or colour between the two hands, but tenderness over the right shoulder and right trapezius relating to the neck and over the neck itself. The pain in the right arm extended to the mid upper arm but not distal to that. There was also tenderness over the right scapula.

58 Movement of the right shoulder was 70 degrees of abduction, 70 degrees of flexion and no internal rotation. External rotation was normal. Dr Blombery noted that when the plaintiff dressed and undressed, there was still no more than 70 degrees of abduction present.

59 Dr Blombery considered that there had been a slight improvement in his right arm pain over the two years since his last examination, but not to the point where he was able to use his arm in any gainful employment. He noted that the plaintiff is right-hand dominant and has very little, if any, education, and absent the right shoulder injury, would not be able to do any job apart from manual work.

60 Dr Blombery again confirmed his diagnosis in relation to the right shoulder and also noted that the development of a pain syndrome is an organic disorder of pain nerve pathways. He also noted that pathology of the shoulder no longer needs to be present in such a situation. He did stress that the symptoms in the right shoulder do originate from the pathology in the right shoulder. In particular, he stated:

"We must look at the injury to the right shoulder in terms of the patient experience of pain as contributed to by two separate components - the original injury to the right shoulder for which he had surgical treatment complicated by the development of a pain syndrome with pain pathway sensitisation, superimposed on that. Both of these factors need to be taken into account in terms of whether the injury has resolved - even if the structure of the right shoulder had been returned to a pristine condition, in the presence of pain pathway sensitisation and amplified pain pathways, the patient still experiences pain and this is on an organic basis ... ."[35]

(My emphasis).

61 Dr Blombery expressed the opinion that the plaintiff had significant functional limitations with a reduced range of movement of the right shoulder and difficulty in using his dominant right arm. It was his opinion that his pain, restriction, disability and incapacity are derived from the organic injury to the right shoulder. Furthermore, it was Dr Blombery's opinion that the plaintiff will continue to suffer the consequences and incapacities of the physical right shoulder injury into the foreseeable future.

62 When Mr Chehata examined the plaintiff on 2 October 2018, he also obtained a history of the circumstances giving rise to the right shoulder injury and the various treatments undertaken by the plaintiff. At the time of the examination, the plaintiff complained of ongoing and unremitting constant pain in the right shoulder with radiation up into the trapezial musculature and into the cervical spine. The plaintiff also described a "deterioration in his mental state".

63 On examination, Mr Chehata noted that the plaintiff had normal muscle bulk with no signs of wasting of the supraspinatus and infraspinatus. Furthermore, he had normal tone and reflexes, although he was unable to relax the right shoulder due to the ongoing pain.

64 After taking a history and making an examination, Mr Chehata expressed the opinion that the diagnosis is that of partial tearing of the supraspinatus, and subscapularis (as diagnosed on arthroscopy by Mr Pullen), coupled with subacromial bursitis and the development of adhesive capsulitis and a chronic pain syndrome.

65 When queried about taking the organic effects of the right-shoulder injury, whether the plaintiff had any capacity for employment, Mr Chehata expressed the opinion that the plaintiff would have little opportunity to gain employment in the open market.

66 When examined by Dr Meena Mittal on 15 October 2018, the plaintiff gave a history of his onset of right-shoulder injury and the treatment that he has undertaken to that date. At the time of the examination, he complained of right-shoulder pain to be constant and burning in nature and rated it 6/10 on most occasions. He was unable to lie on his right-hand side and the pain increased with increased activity and utilisation of the right shoulder. In particular, he reported the entire right upper limb would go numb at night, which would then wake him up. He did not report any weakness in the right hand, but he was unable to lift more than 2 kilograms due to right-shoulder pain. Dr Mittal detailed the various investigations undergone by the plaintiff and the various radiological studies.

67 On examination, Dr Mittal considered the affect of the plaintiff was flat, although she considered all questions were answered appropriately. Although there was no obvious muscle wasting in the upper limbs bilaterally, there was decreased utilisation in the right upper limb.

68 General examination revealed obvious muscle spasm of the right trapezius and the right shoulder was slightly elevated in comparison to the left. The right shoulder was taped and there was no obvious Complex Regional Pain Syndrome of the right shoulder on removal of the tape.

69 Range of motion was restricted to active abduction of 80 degrees and forward flexion of 80 degrees. Passive movements beyond this were difficult to perform due to severe pain. External rotation was painful and restricted, and there was diffuse tenderness in the entire region of the right shoulder, particularly on the anterior aspect.

70 Upper-limb neurological examination was normal.

71 After outlining the treatment that the plaintiff has undertaken, Dr Mittal notes that the plaintiff continues to struggle "with ongoing right shoulder chronic pain due to the development of a chronic pain syndrome". He notes that, as a result, the plaintiff has had significant decrease in function and is psychologically distressed.

72 Dr Mittal diagnosed the plaintiff to be suffering from an initial shoulder injury, and from post-surgery he has been suffering from a chronic pain syndrome, ongoing adhesive capsulitis and also supraspinatus tendinosis, confirmed on radiological examination, including MRI scans.

"I note the Medical Panel Opinion dated 6 December 2016 where they opine that 'the worker is suffering from a persistent right shoulder dysfunction following a soft tissue injury of the right shoulder, surgically treated and now substantially resolved, relevant to the accepted right shoulder injury'.

Firstly, Mr Tawakuli sustained a right shoulder injury for which he underwent surgical treatment. Unfortunately the surgical treatment was complicated by post operative adhesive capsulitis that resulted in a limited range of motion of the right shoulder. In addition, there is evidence of supraspinatus tendinopathy with incomplete supraspinatus tendon tear as indicated by follow up investigations. This would mean that the initial injury is not substantially resolved secondary to the surgery.

In addition, Mr Tawakuli has also developed a chronic pain syndrome, secondary to persistent post-surgical pain which is a process of sensitisation of the pain pathways. This is a neurological process which is organic in nature and is well identified post-surgery. Due to ongoing neuropathic pain post-surgery, I do not believe that Mr Tawakuli's right shoulder dysfunction and pain have substantially resolved. This is in addiction to no substantial resolution of his initial injury despite surgical treatment."[36]

(my emphasis).

74 When asked to comment on the consequences of physical limitations of his right shoulder injury, Dr Mittal states:

"Taking in to consideration Mr Tawakuli's right shoulder injury, he has significant functional limitations as indicated in the body of my report. Although Mr Tawakuli is able to engage in personal activities of daily living but this is slowed He (sic) struggles with domestic activities of daily living given the fact that he is right hand dominant particularly washing, doing the dishes, grocery shopping, lifting any items more than 5 kg using his right upper limb and gardening. He has difficulty with range of motion of his right shoulder which makes it difficult for him to utilise his arm for forward reaching and also lifting his right upper limb above shoulder height. This has significantly affected Mr Tawakuli's day to day activities and lifestyle with poor function and poor quality of life. Mr Tawakuli struggles to drive long distances since he is right hand dominant and utilises his left upper limb to drive. There is also the compounded effect of medications and side effects of sedation and drowsiness which makes it dangerous for him to engage in driving."[37]

75 Dr Mittal also expressed the opinion that the organic consequences suffered by the plaintiff in relation to his right shoulder will continue into the foreseeable future. Furthermore, he considered that such consequences of his right shoulder injury has rendered him having no work capacity, and that is likely to continue indefinitely into the foreseeable future.

76 Before referring to the medico-legal material relied on by the defendant, I do refer to two documents relied on by the defendant:

(a) Medical Panel Certificate and Reasons for Opinion dated 6 October 2016;[38] and

(b) The reports and correspondence from Ms Ellen Rugara from the Cardinia-Casey Community Health Service dated 7 November 2012 and 13 November 2012.[39]

77 Various questions were referred by a WorkCover agent to the Medical Panel on 2 November 2016 pursuant to the relevant legislation. The Panel was comprised of the following members:

78 In particular, one of the questions posed was as to what was the worker's degree of permanent whole person impairment resulting from the accepted injury/s as assessed in accordance with s91 and is the impairment permanent.

79 The answer to such question was that the plaintiff had a zero per cent whole person impairment resulting from the accepted right shoulder injury when assessed in accordance with s91 of the Act. The Panel also found that there is zero per cent psychiatric impairment resulting from the accepted psychiatric injury when assessed in accordance with s91 of the Act.

80 One of the documents ultimately sought to be tendered by those acting for the defendant was the "Reasons for Opinion" given by the Medical Panel. At the time of such tender I raised with the parties whether the "Reasons for Opinion" were admissible.[40] Reference was made by Senior Counsel for the defendant to the decision of Yirga-Denbu v Victorian WorkCover Authority[41] and in particular paragraphs [41]-[60]. It was submitted by Senior Counsel for the defendant that, as a matter of practice, reasons are now frequently admitted. When queried about the situation, Senior Counsel for the plaintiff said that in his experience sometimes the reasons were admitted with the huge "rider" that of course the members cannot be cross-examined, which affects the weight of the evidence, and, furthermore, many times such Certificate only relates to permanent impairment assessment. Senior Counsel for the plaintiff ultimately stated that he did not propose "agitating it further at this point but would address it later". No more submissions were made on that point.

81 The Panel took a history from the plaintiff and also made an examination of, in particular, his right shoulder. The Panel reported:

"The Panel noted that the worker had normal upper limb girdle contours with well developed shoulder musculature bilaterally and no evidence muscle spasm, atrophy or wasting. Examination of the right shoulder revealed well healed arthroscopy scars on the lateral and anterior aspects of the shoulder joint, each measuring 1 cm in length. The worker had widespread pain to palpation at randomly selected points in a non-anatomical distribution throughout the right upper extremity. Assessing the range of movement at the joints of the right upper limb was difficult due to significant variation in both active and passive assisted movements. The Panel elicited a full range of passive movement at the right wrist and elbow joints. The Panel noted that the worker demonstrated substantially greater ranges of motion of the right shoulder incidentally during his time spent with the Panel, compared to those specifically elicited during goniometric measurements. The Panel formally measured right shoulder movements of: flexion 90 degrees, extension 50 degrees, abduction 110 degrees, adduction 70 degrees, internal rotation 80 degrees and external rotation 70 degrees. The Panel considered the reduced range of flexion and abduction measured with the goniometer were not due to physiological factors as a full range of flexion and abduction at the right shoulder joint was witnessed at other points in the examination. There was sensory loss to light touch circumferentially throughout the right arm in a non-anatomical pattern. Power in the right upper limb, although difficult to assess due to variable collapsing weakness, appeared to be within normal limits. There was no wasting of the of forearm musculature on formal measurement. Grip strength testing was limited by collapsing weakness and therefore unreliable. At the conclusion of the examination, the worker was observed in a mirror to put his T-shirt back on using a full range of abduction and flexion at the right shoulder joint."[42]

(My emphasis).

82 The Panel had available various radiological material and ultimately concluded that the plaintiff was suffering from "persistent right shoulder dysfunction following a soft tissue injury of the right shoulder, surgically treated and now substantially resolved relevant to the accepted right shoulder injury".

83 The Panel also concluded that the plaintiff was suffering from an Adjustment Disorder with Depressed Mood and a Chronic Pain Disorder associated with psychological factors and a general medical condition, partly arising from his workplace injury. The Panel did consider that there was evidence of a pre-existing Adjustment Disorder and a pre-existing Pain Disorder in relation to the circumstances of the plaintiff's arrival in Australia in 2012.

84 I should add that the medico-legal specialists retained by the plaintiff - that is, Dr Peter Blombery, Mr Ash Chehata and Dr Meena Mittal - expressed disagreement with the opinion of the Medical Panel in relation to his present medical status.

85 In a letter dated 7 November 2012, Ms Ellen Rugara, a refugee health nurse at the Asylum Seeker and Refugee Clinic, Cardinia Casey Community Health, sought to refer the plaintiff for counselling at Foundation House, noting that:

• He was a thirty-five year old from Afghanistan

• He had been released into the community on 14 October 2012 on a bridging visa

• He was a survivor of a boat crash that resulted in one hundred and thirty lives being lost, which included three of his friends

• During his appointment with her, the plaintiff presented as agitated and angry at times and had multiple complaints of non-specific pain, including leg pain, finger pain and kidney pain. Such pain had been investigated in detention, with nil medical cause noted

• The plaintiff spent fifteen hours in the water post the boat crash and he alleges his pain is related to this event

• Ms Rugara noted that the pain "disappears" when he is distracted, such as when shopping

• Ms Rugara noted that the plaintiff was seen daily by counsellors in detention, which he found helpful, and agreed for a referral; however, the plaintiff became agitated when it was suggested that his physical pain may be related to the trauma he has experienced and apparently felt that he was not being taken seriously.

86 In a later letter by Ms Rugara to the Australian Red Cross, she noted that during an interview with the plaintiff on 1 November 2012, there was a lengthy discussion about his mental health. She expresses the opinion that the plaintiff is suffering from Depression and Post-Traumatic Stress Disorder which gave rise to her referral to Foundation House for counselling.

87 The defendant relies on the following medico-legal material:

(a) reports of the orthopaedic surgeon, Mr Peter Boys, who examined the plaintiff on 24 February 2015[43] and on 30 October 2015;[44]

(b) the report of the rheumatologist, Mr Roy K Karna, who examined the plaintiff on 11 October 2016.[45] Such report was obtained for the purposes of an AMA Impairment Assessment in relation to "an accepted right shoulder injury with a designated date of injury of 6 September 2013";

(c) the reports of the orthopaedic surgeon, Mr Michael Dooley, who examined the plaintiff on 25 October 2017[46] and on 14 November 2018.[47] Mr Dooley also supplied some supplementary reports dated 15 January 2018 and 20 November 2018;[48]

(d) the reports of the consultant occupational physician, Dr David Barton, who examined the plaintiff on 17 November 2017.[49] Furthermore, Dr Barton also forwarded a letter dated 16 January 2018 to those acting for the defendant;[50]

(e) the report of the consultant psychiatrist, Dr Timothy Entwisle, who assessed the plaintiff on 28 November 2017.[51]

88 When the orthopaedic surgeon, Dr Peter Boys, initially examined the plaintiff on 24 February 2015, the plaintiff described suffering constant pain around the right anterior shoulder, upper arm, trapezius, scapula and base of the neck. The plaintiff stated that such pain limits overhead use of the right arm. Apparently he related occasional crepitation in the shoulder but would not appear to be describing significant mechanical instability symptoms. At that time, he was living with friends in a home unit and primarily did his own housework working at bench level, hanging washing on a low line but was not involved in garden duty.

89 Dr Boys opined that the plaintiff described diffuse non-specific right pectoral girdle pain and exhibited evidence of abnormal pain behaviour at the time of examination. He was also of the opinion that the plaintiff's history would suggest symptomatic tendinosis of the right shoulder and subsequent arthroscopic surgery for impingement on 25 September 2014.

90 Dr Boys considered that the pain behaviours exhibited by the plaintiff made assessment difficult and the true nature of his functional capacities were unknown at that time. He suggested independent observation of day-to-day activities, but went on to state that on the basis of physical examination on that day, he believed the plaintiff was capable of resumption of employment - initially on a modified program of duties to resume normal duties after a period of approximately four weeks of work, hardening in a factory involving lifting or carrying activities of the right hand.

91 At that time, Dr Boys also noted that the extent to which psychosocial factors were impacting upon the plaintiff's presentation are unknown, notwithstanding the plaintiff manifesting a conscious or unconscious desire to project disability.

92 Dr Boys further consulted with the plaintiff on 30 October 2015, at which time the plaintiff complained of diffuse pain involving the right neck, right forequarter, right anterior chest and right upper arm, and also complained that such pain was "worse after the operation". In particular, the plaintiff asserted that his level of pain had deteriorated, that he experiences more pain at night and that his right shoulder movements are "worse". In particular, he stated: "I have severe pain. I can't use my hand to do anything." At that stage, the plaintiff was living alone in a single room, is independent with self-care activities, although he rarely cooks and gets foods from outside.

93 Ultimately, Dr Boys was of the opinion that the plaintiff would appear to suffer from an Adjustment Disorder with Depression in the context of complaints of chronic non-specific right forequarter pain following the subacromial decompression performed on 25 September 2014.

94 Although, Dr Boys accepted that the plaintiff's history would suggest symptomatic tendonitis of the right shoulder and subsequent arthroscopic surgery for impingement on 29 September 2014, and in this context the employment of the plaintiff would be considered to be causative of his current presentation, he goes on to say that his presentation would appear to have been a secondary psychological condition related to his physical complaints. In particular, Dr Boys did note that the effects of depression are ongoing at this time and it is impossible on clinical examination to evaluate specific ongoing right shoulder dysfunction because of inappropriate pain behaviours. At that time, the plaintiff was using Panadeine Forte and anti-depressant medication supplied by his general practitioner which was considered to be appropriate by Dr Boys. At the time of that examination, Dr Boys was of the opinion that the plaintiff was totally incapacitated for pre-injury hours and duties of employment because of entrenched perceptions of disability which would preclude any attempt at meaningful rehabilitation in the workforce. In this respect, Dr Boys also noted that the chances of successful rehabilitation to the workforce would have no prospect of success in the context of the plaintiff's established perceptions of disability.

95 The rheumatologist, Dr Roy Karna, examined the plaintiff on 11 October 2016 and at that time, the plaintiff was complaining of continuing pain, such that he was unable sleep on the right side, and also limited movement of his right upper limb. In particular, he asserted that he does not use his right arm, even to attend to aspects of personal hygiene, and instead uses his left arm.

96 Examination at that time revealed a full range of neck movements, preserved muscle bulk around the shoulder girdles, upper arms and good muscle definition. Furthermore, the state of his hands clearly indicated ongoing use of his hands and use of the right upper limb.

97 Although alleging he had no movement in any plane at the right shoulder, that passively (using his left arm to lift his right arm), he was able to achieve 60 per cent of abduction (enough to reveal that there had been some shaving in his right axilla), the lightest of touch was one thing that produced a pain response over the anterior, posterior and lateral aspects of the right shoulder. Left shoulder examination was normal and his right upper arm and right forearm were of equal dimensions to that on the left and there was no features of autonomic dysfunction. Sensory examination was normal.

98 Dr Karna noted that the history involves the plaintiff describing a gradual onset injury with initial MRI scans suggesting some element of rotator cuff tendinosis, subacromial bursitis and possibly a SLAP lesion which were initially treated conservatively and then surgically. Furthermore, post-operatively, he had continuing pain and had a hydrodilatation which was of no benefit.

"For diagnosis purposes I would suggest that he presents with symptoms but no objective physical findings of a soft tissue injury, treated surgical[ly] that has now substantially resolved.

...

... There were significant features of abnormal illness behaviour and as such I am unable to identify any reproducible, objective, verifiable signs of ongoing structural physical injury. (There were no features of disuse, signs of ongoing use and a discrepancy between spontaneously observed and actively allowed movements).

On that basis wherein he has symptoms but no signs he effectively presents with features of a chronic pain syndrome."[52]

100 The orthopaedic surgeon, Mr Michael Dooley, initially examined the plaintiff on 25 October 2017. He obtained a history of the treatment undertaken by the plaintiff and also noted that at the time of the initial consultation, the plaintiff was complaining of constant ongoing right shoulder girdle pain for which he was taking Panadol, Panadeine Forte and Tramadol - which made him feel unwell and dizzy. At the time of that first consultation, he had moved out of a share house and was living out of his own car. In particular, the plaintiff informed Mr Dooley that he had been reviewed by his treating orthopaedic surgeon but said that no other treatment was suggested. He underwent physiotherapy in July 2017 but this did not help him, as did not one injection undertaken post operatively. He also complained that in the middle of the night he could wake and would note numbness of the whole right side of his body.

101 Apparently towards the completion of the history presentation, the plaintiff became somewhat agitated and when it was explained to him that the doctor would need to examine the shoulder, he would not accept this, complaining of attending medical appointments where people assess him and no advice is given regarding treatment options. It was agreed that Mr Dooley could look at the shoulder but could not physically examine it.

102 Mr Dooley also obtained the history of the traumatic circumstances of the plaintiff arriving from Pakistan by boat in 2012 and in particular, whereas two-hundred-and-twenty of those died in transit, with the plaintiff ultimately being detained, initially at Christmas Island. He was then placed on a three-year protection visa.

"Mr Tawakuli reports the gradual onset of right shoulder girdle pain during the course of his employment carrying out fencing type work. He said that he carried out this type of work for around ten months. Mr Tawakuli described ongoing pain that did not respond to injections and physiotherapy. It is stated that on clinical examination of the right shoulder in June of 2014 Mr Tawakuli noted pain with active abduction. There was a positive impingement test. Options of treatment were discussed. It is said that Mr Tawakuli was advised that the chances of surgical success were fifty to seventy percent. He was advised that there was a chance that surgery could worsen his symptoms. Mr Tawakuli chose to proceed with surgery. It was felt that he would need around six weeks off work before returning to light duties and that ultimately he would be fit to return to preinjury duties in sixteen to twenty-four weeks. Mr Tawakuli described that his surgery did not alter his symptoms.

Based on Mr Tawakuli's description of his work and onset of pain, I believe that during the course of his work he sustained a soft tissue injury to his right shoulder that involved some aggravation of underlying degenerative rotator cuff disease. Ultrasound assessment reported no obvious rotator cuff tears but evidence of degeneration of the supraspinatus tendon. MRI scanning noted probable partial thickness tearing of the supraspinatus and subscapularis tendon. In my view, this partial thickness tearing is part of the natural evolution of degenerative rotator cuff disease. Mr Tawakuli underwent clinically successful surgery. He reports no improvement in his pain and function and in fact worsening pain and function in time. Following this sort of surgery, postoperative adhesions can occur. Occasionally patients can require hydrodilatation treatment, manipulation under anaesthetic etc. In my view the constancy and intensity of Mr Tawakuli's ongoing pain and his described disability are greater than one would expect to see for his organic condition. I believe that his psychological condition does influence his ongoing symptoms.

...

Clearly, Mr Tawakuli's current personal circumstances are not ideal. At present essentially he is homeless. His wife and children are in Pakistan with no prospect of coming to Australia. Mr Tawakuli is in the latter phases of a three year protection visa and his future in this regard is uncertain. It would be an understatement to say that any of us in this situation would be significantly stressed.

Taking all of the information into account, it is my overall view that Mr Tawakuli has naturally occurring degenerative rotator cuff disease of his right shoulder. This is in part age related and probably also in part related to his smoking. He has previously worked as a panel beater. As outlined above, I accept that the type of work he did when employed in a fencing company could have aggravated underlying degenerative rotator cuff disease. We have however a situation where, with the passage of time, his symptoms did not improve. We have a situation where what would be considered to be standard conservative treatment, e.g. physiotherapy, cortisone injections etc did not help him. We have a situation where a standard surgical procedure has not helped him. A postoperative injection has not helped him. Postoperative physiotherapy has not helped him. He describes worsening pain and function in time. There might be those who would say that Mr Tawakuli has just been unlucky and that all of the treatments and the passage of time have not helped him. I accept that this is a possibility. In reality, this sort of scenario only unfolds when symptoms, injuries etc are alleged to have developed in a compensable environment. There will be a range of views as to why this is the case. I understand why Mr Tawakuli became upset today. He wants his problem and pain 'fixed'. When practitioners have tried to discuss with him that pain can be influenced by factors other than the physical, understandably he has not been responsive to these suggestions. ... In my view, Mr Tawakuli's overall presentation at present is dominated by his psychological condition. I accept that there will be factions who state that such a suggestion is not valid. I will be told that Mr Tawakuli's ongoing pain relates to central sensitisation, neuroplasticity etc. It will be suggested that Mr Tawakuli has increasing doses of analgesics and antineuropathic pain medication. He will be advised to have various injections including ketamine infusions etc. Ultimately there will be talk of spinal cord stimulators etc. My view is that continuing to treat Mr Tawakuli's ongoing pain as though it is organically based only will lead to ongoing disappointment as it misses the crux of his presentation and pain."[53]

104 Mr Dooley also opined that from an orthopaedic viewpoint only, he would have expected the plaintiff to have a physical capacity to carry out at least light physical work and clerical duties. Return to this sort of work would need to be on a graduated basis but ultimately, the plaintiff would have a physical capacity to work full time. He also noted that the prognosis of the plaintiff essentially depends on that of his psychological condition.

105 In a subsequent letter dated 15 January 2018 to the solicitors for the defendant, Mr Dooley advised that he had read an attached vocational assessment report from Recovre dated 19 December 2017. In particular, Mr Dooley noted that the employment placement consultant and an occupational therapist considered that the plaintiff had the potential to work as a packer, courier, meter reader and or forklift driver.

106 Mr Dooley went on to say that based on the description of the duties involved in these various employment options, the plaintiff did have a capacity to perform such work from an orthopaedic point of view - although any return to suitable employment would need to be on a graduated basis over which the hours would be increased to full time.

107 Mr Dooley again consulted with the plaintiff on 14 November 2018. At that consultation, the plaintiff reported that his symptoms had remained the same since the last review. He informed Mr Dooley that he had travelled to Pakistan and Iran earlier that year (2018) and in February 2018, he had undergone further MRI scanning of his right shoulder in Iran. He also stated that there were discussions about having a further operation, that currently he is not having any active treatment. He also advised Mr Dooley that his general practitioner advised him to consider an injection to the shoulder and to undergo a pain management program.

108 He confirmed that his wife and two children, aged twelve and ten, remained living in Pakistan and that he lives with friends and does not have to carry out any particularly heavy household chores. Examination at that time revealed him to be well muscled, with no wasting of the shoulder girdle or musculature, although there was tenderness generally in that area. At that time, the plaintiff was wearing a tape/strapping over the region of his right shoulder.

109 Active abduction of forward flexion are to 80 degrees, with external rotation to 40 degrees and internal rotation zero degrees. Adduction and extension are to 10 degrees. Attempts to move the shoulder passively beyond the active range of motion was met by complaints of pain and withdrawal.

110 There was a normal range of motion of the left shoulder. There is a generalised reduction in power in the right upper limb with sensation intact.

111 Mr Dooley opined that he remained of the same view that the plaintiff suffered a soft tissue injury to his right shoulder that involved some aggravation of underlying degenerative rotator cuff disease. Furthermore, he remains of the view that the radiological findings in his case represent naturally occurring degenerative rotator cuff disease. He notes that the plaintiff underwent subacromial decompression surgery and that such surgery did not help him and in fact for a time he noted worsening of his pain and worsening of his function. He also noted that the plaintiff was diagnosed with post-operative adhesions for which he received hydrodilatation treatment and that it is now over four years since that surgery. Mr Dooley opines that he remains of the view that the constancy and intensity of the plaintiff's ongoing pain and his described disability are greater than one would expect to see for his organic condition. He believes that the plaintiff has had a psychological reaction to his situation and that this reaction significantly influenced his ongoing symptoms. He also refers to the reports of Ms Rugara and that her assessment of the whole situation was "astute and correct".

112 Mr Dooley sets out what he considers to be the normal course for such shoulder conditions and ultimately opines that he does not believe that the plaintiff's ongoing symptoms can be explained on the basis of organic pathology only.

113 In particular, he believes there are inconsistent signs on examination of the shoulder and that he does not believe that the plaintiff's restriction of range of motion of the shoulder relates to adhesive capsulitis and that the plaintiff's reluctance to allow attempts at passive range of motion of the shoulder reflect his psychological condition and not organic pathology. In his view, continuing to treat his ongoing pain as though is organically based only is pointless.

114 In particular, Mr Dooley noted that in some of the documentation forwarded to him, there is commentary in relation to the terms, pain syndrome, neuropathic pain, central sensitisation and chronic pain. He states:

"These terms can mean different things to different people. I accept the theory of sensitisation of neural pathways in terms of situations where non painful stimuli can become interpreted as being painful etc. My view is that this theoretical concept rarely is involved as a mechanism of ongoing pain when patients sustain soft tissue musculoskeletal injuries in a compensable setting and have ongoing pain that is clearly disproportionate to the organic situation. For many years I have used the term 'chronic pain syndrome'. In my view this is a condition where there is a complex psychological and physical interaction in response to injury and/or pain. All physical injuries are accompanied by a psychological reaction. It varies in its degree. The physical and the psychological become intertwined. In the compensable injury situation, fairly quickly the psychological dominates. Pain becomes disproportionate. Depression, often dependency of prescribed and other drugs and relationship disharmony become major issues. Fairly quickly the patient's behaviour becomes entrenched. It is a difficult scenario to treat. What is almost pathognom[on]ic of the situation is that the patient fails to respond to a wide range of standard conservative measures and then operative measures. Their pain continues. They describe that it becomes worse. They describe that their function becomes worse. Because it is a difficult condition to treat, we allow it to continue. ... ."[54]

115 Mr Dooley also confirmed in his final opinion that the development of a Chronic Pain Syndrome dominated his clinical presentation.

116 In a subsequent report dated 20 November 2018, Mr Dooley notes that he has been provided surveillance DVDs undertaken in August 2018 and October 2018. I will return to his comments about such film when discussed later in this Judgment.

117 When Dr Barton, an occupational physician, examined the plaintiff on 17 November 2017, he obtained a history that the problems that plaintiff had got steadily worse over the last few years, with him describing pain throughout the entire right limb, extending down to the right side of the neck, through the shoulder, around the shoulder blade down to the tips of the fingers. Occasionally the pain affects the entire right half of his body. In particular, he complained that his right shoulder movements are limited and any particular use or movement or activity involving the right arm increases his symptoms. He also complained that he has global numbness throughout the right arm.

118 Examination revealed that he was right handed and that he looked generally fit and well.

119 Dr Barton considered that the plaintiff exhibited a degree of illness behaviour and the plaintiff tended to rest his right arm across his lap, although demonstrated some limited movements as he removed and replaced his T-shirt.

120 Measurement of arm circumference showed the right and dominant arm to be of slightly greater muscle bulk than the left when measured above and below the elbows. There was a normal muscular contour over both shoulders and normal keratinization pattern in both hands. There was no wasting in the small muscles in either hand.

121 Specific examination of the right shoulder showed widespread and diffuse tenderness that was quite marked, together with several well healed arthroscopic portals. There was a "profound" limitation of shoulder movements, with abduction and flexion both limited to less than 30 degrees. The plaintiff was very hesitant to move his arm away from his trunk.

122 Reflexes were normal in the upper limbs, muscle power was grossly reduced on testing all groups throughout the right arm with sensation to light touch being reduced at the right arm and the shoulder girdle area.

123 Ultimately, Dr Barton described it as "very noteworthy" that the right and dominant arm is of a greater muscle bulk than the left, although the plaintiff claims to do nothing with that arm.

124 Ultimately, Dr Barton was of the opinion that any worsening of the plaintiff's condition is not "physically based" and that apart from the arthroscopic portals, there was no objective evidence of any particular physical finding. In particular, he could find no objective evidence of any ongoing shoulder impairment or dysfunction, and saw no physical reason why he could not do normal hours and normal duties. He believes that his prognosis was excellent; however, his attitude to the problem and his strong adoption of the disabled role and symptoms focus suggests that he is not going to recover for some time yet.

125 In a later letter dated 16 January 2018 to the solicitors for the defendant, Dr Barton expressed the opinion that the plaintiff had the capacity to perform on a full-time basis, the duties of the employment roles identified as suitable employment in the vocational assessment report dated 19 December 2017.

126 The plaintiff was examined by the consultant psychiatrist, Dr Timothy Entwisle, on 28 November 2017. After obtaining a personal history and history of the injury, together with making a mental state examination, Dr Entwisle diagnosed the plaintiff as having a "Chronic Pain Syndrome of predetermined origin". In particular, Dr Entwisle stated:

"1. Mr Tawakuli's background, highly relevant to his current presentation.

1. 2. The various reports note Mr Tawakuli's pre-existing chronic pain presentation on arrival in Australia. Michael Dooley, in his assessment, noted that the predominance of Mr Tawakuli's psychological condition and Dr Barton outlined a number of features which point to the non-physical base for Mr Tawakuli's complaints. I agree that the psychiatric non-physical factors strongly perpetuate Mr Tawakuli's experience of pain which, as noted, pre-existed the claim history. His agitated mental state was also noted on arrival and continues to be part of his presentation currently.
2. What best explains Mr Tawakuli's presentation is his psychosocial situation being his indeterminate refugee status, separation from his family in Pakistan and his likely pre-existing history of trauma and life in Pakistan, which he fled in 2012.
3. From a purely psychological perspective, Mr Tawakuli does have the capacity for full-time hours of suitable employment. He is not undergoing psychiatric or psychological treatment currently. His affect and mood were noted to vary across the interview at times but at the end he became more amenable and smiling.
4. Mr Tawakuli's prognosis in Australia largely depends on the positive resolution of his citizenship status."[55]

127 Initially, the plaintiff was cross-examined about some parts of his affidavits. In particular, the plaintiff confirmed:

• that he has a burning-like pain in his right shoulder all the time, especially in the place where the surgery was undertaken.[56]

• that he struggles to lift anything more than approximately 2 kilograms, and that when he writes with his right hand it causes pain in his shoulder - even writing a couple of sentences.[57]

• that he has a "very poor, very limited" understanding of English, has no ability to read English, and is incapable of reading in his own language. In particular, he never went to school.

• that he tries to drive using only his left hand, as using his right arm and shoulder can cause right shoulder pain.

• when queried, he confirmed that he still has a driving licence and still drives a motor vehicle owned by him.

• that he was effectively forced by Centrelink to apply for a taxi licence, which he did with the assistance of a friend. In order to satisfy Centrelink he was forced to say on the application that he was fit to drive a cab.

• that he did attempt to return to work with the defendant on two occasions but ceased work on 19 June 2014 and has not worked since.

128 In particular, the following evidence was given:

Q: "So that is about four and a half years you haven't worked, something like that?---

A: Yes

Q: And apart from getting the taxi licence, have you applied for any jobs?---

A: No.

Q: How old are you now?---

A: 41 years.

Q: 41 years of age. And after this case is over, do you have plans to go and look for a job?---

A: No.

Q: Not at all?---

A: No.

Q: So you don't think you're ever going to work again, do you?---

A: No, because of my bad shoulder. If I didn't have this problem, I would have, but not."[58]

129 The plaintiff described how both WorkCover (which ceased on 26 March 2016) and Centrelink "pushed him" to look for a job. In particular, the following evidence was given:

Q: "So were these light-duty jobs you were applying for?---

A: They would push me to go for a job. I wanted to sit back and take my medication and look after myself.

Q: You just wanted to sit back, take your medication and look after yourself, that's the situation, isn't it?---

A: Yes.

Q: Is that what you've been doing?---

A: Yes."[59]

130 He confirmed that he presently receives $600 per fortnight from Centrelink, on which he runs a car, smokes about 8-10 cigarettes a day, operates a mobile phone, and sends some money back to his family in Pakistan. He confirmed that he travelled to Iran in about March 2018 for a period of three months to see his wife and his two children, a daughter aged 10 years and a son aged 12 years. His family travelled from Pakistan to Iran to meet him.

131 He confirmed that he is on a temporary protection visa, and that once he obtains a permanent residency he will "definitely" attempt to bring his family to Australia.

132 In particular, the plaintiff was cross-examined about the use of his right hand and arm. I refer to the following evidence:

MR ELLIOTT:

Q: "Is your right arm, you have got it there, is it immobile most of the time, can't be moved?---

A: I do move my hand and this part is already to function but the pain is the upper part.

Q: You move your hand. I am asking you about using your arm. Can you use your right arm or is it - there's little use of your arm when you are performing domestic activities?---

A: No, I don't do any domestic work and I don't use it.

Q: You don't use it at all. As you have said earlier - - -."

HIS HONOUR:

Q: "I just want to clarify that. Are you saying generally you don't do any domestic work or are you saying, 'I don't do domestic work because my right arm is painful?'---

A: I can't do any work for anybody else at the house but if there's something needed for myself I try to manage and do it for myself but not for anybody else, I cannot do any.

Q: How do you cope with that, when you do it for yourself?---

A: And I use my left hand for that.

Thank you."

MR ELLIOTT:

Q: "As you said, you have constant burning pain in your right arm, is that the situation, constant burning pain?---

A: Yes, on my shoulder (indistinct)."

HIS HONOUR:

Q: "Just tell me, if you would, I think you just pointed to the top of your right shoulder or top, or just behind, that's where the constant burning pain is it, is it?---

A: Yes, here, the place where it has been operated upon.

Q: The place where it has been operated on. Do you have other pain in your right arm?---

A: From this pain I get pain in my neck.

Q: Do you have any pain in your right arm itself, below the shoulder?---

A: It goes down and then comes up.

Q: Goes down to where?---

A: Up to my arm.

Q: He seems to be pointing to his elbow there. Do we see that, gentlemen, I thought it was his elbow. (To witness): So no pain past the elbow?---

A: I have the pain always here but this part at night-time, it goes numb."[60]

133 The plaintiff confirmed that he can raise his right arm to just below shoulder height, but he tries to avoid raising it any higher than this as it aggravates his pain.[61]

134 The plaintiff confirmed that that is the ongoing situation. He was asked by Senior Counsel for the defendant to demonstrate how far the arm could be raised towards his shoulder, to which there was a demonstration, and the plaintiff said:

"Yeah, up to here, and after that there would be pain, a lot of pain."[62]

135 The parties agreed that the demonstration was raising his arm to about 45 degrees to the vertical, after which he said he would get increased pain. The plaintiff also confirmed that, consistent with his affidavit, he relies on his left hand to wash his hair and himself in the shower, and finds taking off his jumper can sometimes cause pain if he accidentally moves his right shoulder quickly.

136 The plaintiff also confirmed that when he initially arrived in Australia he was initially contacted by ASRC, which taught him a few elementary things about the English language, and recently he did about four months of quite concentrated English lessons. The plaintiff confirmed that he undertook such course full-time for five days a week over a period of four months at the Dandenong TAFE. The plaintiff considers such English lessons "good", but such course was not extended by WorkCover. The plaintiff also confirmed that he had contact with WorkCover about further classes, but they were "unable to pay for it". At the time of the hearing, the plaintiff was living with others in a shared house, all of whom spoke his language, and sometimes he takes some of his friends along with him to a doctor who can assist him with his English.

137 Ultimately, when queried as to whether he spoke enough English to make himself understood, the following evidence was given:

MR ELLIOTT:

Q: "In any case, are you able to speak enough English to make yourself understood in simple terms?---

A: Limited. Not much.

Q: Well, when you say 'limited', what sort of things can you talk to people about in English?---

A: Like, for example, I cannot understand you when you talk, but when there are small sentences or words, I can communicate.

Q: If I say to you, 'Do you understand me?', can you understand what I'm saying?---

A: I have to try to listen carefully. Maybe. Not sure."[63]

138 Later in his evidence, when queried about where he placed his right arm when driving, the plaintiff stated that he rested his right arm on the door panel, and in particular also said sometimes his right hand was used to operate the indicator switch.

139 The plaintiff was shown a number of DVD films which consisted of:

(a) Filming on 14 October 2018 which commenced showing the plaintiff coming out of his premises situated at 28 Ora Street, Hampton Park, and talking to some men. In particular:

• it was put to the plaintiff that the film showed him "gesticulating with [his] right hand and raising [his] right arm to shoulder height on several occasions" and pointing with his right arm, to which he agreed.[64]

• it was put to him that he was then talking to a group of men outside the premises, smoking his cigarette with his right arm, to which he agreed.

• the film then depicted him entering a vehicle and being driven to the Chadstone Shopping Centre, where he walked from the car park to the complex, and it was put to him that he used his right arm and hand smoking his cigarette, to which he agreed.[65]

• after entering and leaving one of the shops, it was put to him that he was seen leaning on a railing with both arms, and then using his phone with both hands, to which he agreed.[66] The plaintiff added that he was watching Facebook at that time.

• it was put to the plaintiff that he did quite a lot of walking through Chadstone, entering some shops, and in particular it was put to him that his right hand was rubbing his eyes, to which he agreed.[67]

• it was put to him that he was holding his phone to his ear with his right arm and talking on the phone, to which the plaintiff agreed, and added that he was talking to his family.[68]

It was put to him by Senior Counsel for the defendant that he did not show any sign of restrictions in the activities that he was doing on the video, and he answered "Right."[69]

(b) The plaintiff was then shown video of activity on 17 October, 18 October and 30 October 2018:

• it was put to him that video on 17 October 2018 showed him unlocking and opening the driver's door of van with his right hand and arm, to which the plaintiff agreed, after which he looked inside and closed the door with his right hand, to which he also agreed[70]

• the plaintiff also agreed that the next part of the film showed him taking a photograph of a car battery so he could obtain a similar one from a wrecker, after which he drove the van to a wrecker's yard. Although the film would suggest that the plaintiff was carrying a battery with his right hand, Senior Counsel for the defendant clarified this perception by asserting that the battery indeed was carried in his left hand and only appeared to be carried in his right because the video was taken through a mirror.

• after the battery being placed in the boot, the plaintiff was seen to drive the vehicle, and indeed this evidence was given:

Q: "We saw you after you had put the battery in the boot of your car, close the boot, board the vehicle and I put to you we saw you using both hands to the steering wheel to drive your car away?---

A: I wasn't using both hands to turn the vehicle to twist, it was just holding there but I was using my left hand."

HIS HONOUR:

Q: "Sorry, I don't quite understand that. I think it was put to you that you were using both hands when you were turning the vehicle, can I ask, were both hands on the steering wheel when you were turning the vehicle?---

A: Yes, I put my both hands.

Q: Please just explain what you are trying to describe what you were doing at that time, you said the left hand was moving but the right stayed - I am not quite sure what you mean?---

A: Yeah, because I was turning, this was holding but I was moving my left hand and using my left hand for twisting the car.

Q: Do you say your right hand was just resting on the steering wheel?---

A: Yeah, my right hand was on the steering but I was using the left one.

Q: So your right hand - I just want to be clear about this. Your right hand is on the steering wheel but you say the left hand was the one doing all the turning of the wheel?---

A: Yes.

Q: Yes."

MR ELLIOTT:

Q: "So you have told us that you rest your right hand on the - I think it was the door, when you are using your left hand; remember telling us that earlier?---

A: Yes.

Q: You weren't doing that in that video, were you?---

A: Yeah, it was (indistinct) but I don't use 24 hours there my hand, it was just because I was turning the vehicle and that's why I put it up.

Q: So when you turn a vehicle, you can use your right hand to a certain extent?---

A: I just use it to the angle, to the degree that it reaches there, I didn't put it up too much.

Q: You can do that regularly, can't you?---

A: No.

Q: No?---

A: No.

Q: They just happened to be in that video that you had your right hand to the wheel, is that what you are telling us?---

A: Yeah on that particular moment it was there.

Q: Just on that particular moment, but that's not a regular event."

HIS HONOUR:

Q: "I think in fairness, I just want to clarify this, are you saying that it was just the moment the film caught you, the right hand was on the wheel, but that doesn't happen, or are you saying the right hand is sometimes on the wheel when I turn but I don't use it that much because I am not turning all the time, is that the sort of thing you are saying, which one?---

A: I do use sometime my right hand but not all the time.

Q: When you use your right hand, does that help on the steering wheel or do you just rest your hand there, as you have told me a few minutes ago?---

A: Yeah, I just place my hand but I don't use it, but mainly use my left hand to twist it."[71]

• on 18 October 2018 it was put to the plaintiff that part of the film again showed him boarding his vehicle using his right hand to open and close the door, to which he agreed, and again he agreed that the film did not seem to depict any restrictions on his movements he was undertaking, to which he also agreed[72]

• it was also put to him that on 30 October 2018 he drove to the Dandenong Plaza Shopping Centre with others, to which he agreed, and in particular it was put to him that whilst in the car park he was conversing on his phone, which he held in his right hand, and carrying paperwork in his left hand, to which he agreed. It was put to him that he walked some distance holding his phone to his ear by way of his right arm and hand, which he accepted.[73]

(c) The plaintiff was shown video material taken on 17 and 28 November 2017, 20 and 22 December 2017, and 4 and 5 January 2018. He was questioned about various parts of such video material:

• it was put him that the video taken on 17 November 2017 showed him attending a medical appointment in Surrey Hills, which the plaintiff accepted, and furthermore it was put to him that he was using his mobile phone in his right hand and later smoking a cigarette with his right hand when he was walking outside the vehicle, all of which he accepted[74]

• it was put to him that the video on 28 November 2017 revealed him walking along a street (Highett Street) towards a medical building, leaning against a tree and holding his mobile phone again with his right hand before entering the medical building, to which he agreed

• the plaintiff accepted that the film also showed him leaving the medical building, and he accepted that he was talking or with another male who he identified as the interpreter, and he was gesturing in conversation. He also accepted that he walked along Bridge Road to Richmond railway station and then boarded a train to Dandenong station, where he left the train to walk down to an area where his car was situated.

• it was put to him that on 4 January 2018 part of the video film showed him driving into a multi-level car park at the Dandenong Plaza and later leaving the plaza by getting into the vehicle and reversing the vehicle and departing the area. It was put to him that he was using his right hand in the driving, and the following evidence was given:

Q: "In that video of you reversing your vehicle, I put it to you you were using your right hand in the driving?---

A: I don't remember. I don't know.

Q: You don't remember seeing that on the video?---

A: Maybe I used it maybe for that.

Q: Maybe you did use it. So you could have used it?---

A: Yes."[75]

(d) The plaintiff was then shown video taken on 6 February 2018 which the plaintiff accepted revealed him driving a car to the Cranbourne Park Shopping Centre. He was also shown a video dated 15 February 2018 which again showed him driving to a premises in his car. The plaintiff was then shown a video dated 31 August 2018, and the following matters were put to the plaintiff:

• The plaintiff accepted that the video revealed him driving to the Dandenong Plaza Shopping Centre, and on arrival walking across the car park down a flight of stairs, during which time he had his right hand in his jacket pocket.

• Furthermore, he accepted that he entered a Dimmeys department store and at one stage was sighted walking across the complex using his phone in his right hand. Furthermore, he purchased a can of drink and was using his right hand for drinking from the can, after which he departed in his car.[76]

(e) The plaintiff was then shown a video dated 7 September 2018 which revealed him waiting for a cab and him talking to a taxi driver and another male at his home premises.

140 The plaintiff was also shown a series of photographs taken apparently from entries on his Facebook that included. That included:

• a photograph taken in December 2014 showing him having a meal with his friends.

• a photograph dated 11 October 2014 showing him somewhere along the Great Ocean Road where he had travelled for a day trip with his friends.

• a photograph taken 15 November 2014 which was taken in Brisbane when he attended there on a holiday, and later a photo taken in January 2015 which was on the same trip.

• a photograph dated 14 December 2015 where he had been attending the Frankston Beach with some of his friends.

• a photograph dated 24 January 2016 where he attended Corporal Creek, which is towards Berwick, with friends.

• a photograph dated 3 May 2017 when he attended Canberra, and Parliament House is shown in the background. The plaintiff described this as a time when he was going with friends up to Sydney and they stopped on the way in Canberra.

• he was shown a photograph dated 1 October 2016 which he identified as the Three Sisters in the Blue Mountains.

141 A series of photographs were ultimately tendered: see exhibit "C".

142 The plaintiff was then cross-examined in relation to a vocational assessment report from Recovre.[77] When queried about whether he remembered seeing the vocational assessors on 12 December 2017, the plaintiff replied he could not remember, and in particular he could not remember them discussing with him the possibility of being a packer, a courier, a meter reader or a forklift driver.

143 In general, the plaintiff responded, when some of these jobs were explained, that he does not know what would be involved, and that his English was very poor.

144 In particular, this passage of evidence was recorded:

HIS HONOUR:

Q: "Yes. I appreciate, Mr Elliott, you're trying to break it down as quickly as you can, but I suppose he is entitled to know what the job is precisely, isn't he? (To witness): Can I ask you as far as you're concerned, do you think you're capable of any work now?---

A: If I was able to, I would have definitely performed something the last five years, but because of the pain and because of my trouble, I'm unable to.

Q: Your pain and - what did you say? - 'trouble'?---"

INTERPRETER:

A: "The pain and the issue with my arms."

HIS HONOUR:

Q: "Yes. Just so I understand, you say that the pain in your right arm and your troubles with your right arm, that's the reason you haven't been able to work for the last five years?---

A: That's right."[78]

145 Also, I refer to this passage of evidence, wherein the plaintiff responded to various questions posed by the Court:

Q: "The other thing I was wanting to ask you is you've described the pain that you say is there all the time, this burning pain around your shoulder, which sometimes gets worse if you use your right arm, have I got that right?---

A: Yes, that's more or less.

Q: You've identified yourself in the various videos which have been shown. Was that the case - do you say that was the case, when you were shown in those videos, that you had burning pain in your right shoulder all the time and if you moved your arm, it made it worse?---

A: Every day when I get back home, I have more of medicine than my food because of pain; I have to take a lot of medication.

Q: Well, that may be. I was just wondering when you were walking around - I think it was Chadstone, was it? - you were going to different shops, were you suffering this burning pain in your right shoulder at that time and at any time you used your right arm, like with a phone or anything like that? Did that make it worse?---

A: My pain is always on and off, it's not that constantly 24/7 I've got pain, but it comes and goes as well.

Q: Is that the burning pain also or you're talking about pain generally?---

A: Yeah, that's on my shoulder all the time.

Q: It's in your shoulder all the time, the burning pain."

INTERPRETER:

A: "Yeah, the burning."[79]

146 The plaintiff was reexamined about some parts of the video. In particular, I refer to the following:

• The plaintiff was referred to the video which was taken on 31 August 2018, thought to be at the Dandenong Plaza, and it was suggested to the plaintiff that he had his right hand in his pocket the whole time, meaning the whole time that he was walking through the shopping centre, to which the plaintiff replied "Yes." Furthermore, reference was made to video taken on 15 February 2018 which showed the plaintiff walking and swinging his left arm normally, but his arm was not moving, after which the following evidence was given:

Q: "Why is that?---

A: Because my hand pains, if I move it will pain more.

Q: On 28 November 2017 there's video surveillance of you in Richmond and I think in the area near the Richmond station, you were walking with your left hand being used quite vigorously and your right hand with your thumb in the pocket of your tracksuit pants like that, completely immobile. Why was that?---

A: I don't want to move my right hand, that's right why I keep it there, tight, that I should not move it because it aggravates the pain.

Q: Are you right hand dominant or left hand dominant?---

A: It is more now on the left-hand that I am operating on, working on the left hand more."

HIS HONOUR:

Q: "Before of injury?---"

MR MIGHELL:

Q: "Before the injury?---

A: On the right hand yes, dominated.

Q: So on the 17 November 2017 video, you use the left hand for the phone, you smoke with your left hand and you drink, you have got a container of drink in your left hand; why do you use your left hand on that day if you are right hand dominant?---

A: Because if I use this one, this is where it would take me - the pain would aggravate."[80]

• The plaintiff confirmed under reexamination that his native language is Dari and that he is unable to read or write in that language. The plaintiff also confirmed in reexamination that he had been sleeping in his car for a period of time - at least in 2015, and that his emotional state at that time was "very low and bad".[81] Prior to that he had been living in a house with friends, but he had to leave the house because he was not contributing any work in the house, and that was why he was sent from the house.

147 The defendant relies on the vocational assessment report from Recovre dated 19 December 2017.[82]

148 At that time, the plaintiff was interviewed by a Ms Robyn Willett on 12 December 2017 with the assistance of a Dari interpreter for the entirety of the interview, but it was noted he did respond in English on a couple of occasions.

149 Recovre had available the plaintiff's affidavit sworn on 8 September 2017 and medical reports from Mr Michael Dooley dated 31 October 2017 and from Dr Barton dated 21 November 2017.

150 It was noted that whilst working and living in Australia the plaintiff had gained his car driving licence, and a forklift licence.

151 Ultimately, Recovre came to the view that the following work options had been identified as "suitable" for the plaintiff to consider:

(a) packer, earning an average weekly wage of $900 gross

(b) courier, earning an average weekly wage of $1,000 gross

(c) meter reader, earning an average weekly wage of $925 gross

(d) forklift driver, earning an average weekly wage of $1,000 gross.

152 The report records that four actual job roles were identified, and the details of this are set out in the report.

153 The defendant also relied on a consultation record of Dr Clayton Thomas setting out various dates.[83]

154 I should add that the plaintiff also relies on a report from the Dandenong Hospital Emergency Department discharge summary.[84] That report details the plaintiff attending the emergency department at the Dandenong Hospital on 20 November 2014 complaining of right shoulder pain following unknown surgery two months ago. It was noted by the emergency department that the plaintiff had been prescribed painkillers by his general practitioner, and, ultimately, after a long discussion with the plaintiff, he was advised to return to his general practitioner who has all his notes and get a referral back to a specialist if there is ongoing pain. At that time he was also given a pack of Endone.

155 The plaintiff also relies on a pain management unit multi-disciplinary assessment report.[85] That document details an assessment by the Victorian Rehabilitation Centre on 17 and 26 July 2017. In the report, it was noted that the plaintiff had been assessed by the Victorian Rehabilitation Centre in 2016 but this program was discontinued at that time due to difficulty in the plaintiff engaging in an active self-management and education program.

156 On assessment in July 2017 (17 and 26 July 2017) the plaintiff presented with constant pain over the right shoulder and stiffness of his neck. At that time he reported intermittent arm pain and pain in the whole right shoulder quadrant. On observation, the plaintiff had moderate restriction in his cervical spine, active range of movement. The plaintiff had marked reduction in active range of movement and strength of the right shoulder. There was also reduced grip strength of the right upper limb. The reporting officer noted that the plaintiff appeared focused on medical intervention and passive therapies to reduce or remove his pain, although he does not complete any exercise program and has ceased doing an active walking program.

"Mr Tawakuli describes depressive and stress symptoms and some difficulties with sleep. He appears distressed by his pain and presented with irritability and agitation during the interview. Mr Tawakuli does not currently appear capable of engaging in an education-based pain management program due to psychological distress, e.g. agitation and frustration, as well as his focus on cure rather than management of his pain and a poor understanding of the purpose of such a program. Therefore, a physical program, rather than a comprehensive education-based pain management program, is recommended at this time."[86]

158 At the completion of the evidence, and before addresses, Senior Counsel for the plaintiff sought an admission that there is surveillance video obtained by the defendant that has not been shown to the court. Furthermore, Senior Counsel for the plaintiff also noted that a report had been prepared by him, setting out a schedule of the hours of surveillance and the days.

159 Ultimately, the plaintiff tendered a summary of the video material which was admitted.[87]

160 Further, in relation to the first admission sought by Senior Counsel for the plaintiff, I note the following:

MR ELLIOTT:

"... Your Honour, as to my friend's admission about any other videos, we are quite willing to provide him with the reports of what that is and the videos themselves."

HIS HONOUR:

"Right."

MR ELLIOTT:

"So he can decide whether they are relevant or not relevant or whether there is something there in them that's being held back."

MR MIGHELL:

"We are just calling for admission, it is either an admission that is made or it is not."

MR ELLIOTT:

"I will make the admission, Your Honour."

HIS HONOUR:

"Yes, very well."[88]

161 I should also add that during his address, Mr Elliott submitted that 60 per cent of an appropriate "without injury" earnings would be $19,426.[89] In his address, Mr Mighell did not quibble with such figure, noting that his primary submission was that the plaintiff had no capacity for his pre-injury duties or indeed any suitable employment.

162 At the outset, I make the observation that the evidence relied on by the parties in this proceeding highlights the difficulties confronted by a trial judge in a serious injury application when the only witness to be cross-examined is the plaintiff. Those acting for the plaintiff tendered and relied on reports from:

• the treating general practitioner, Dr Anthony Karantonis

• the treating orthopaedic surgeon, Mr Christopher Pullen; and

• the treating rehabilitation and pain specialist, Dr Clayton Thomas

• the consultant physician and pain specialist, Dr Peter Blombery

163 Whereas those acting for the defendant relied on medico-legal material from:

• the occupational physician, Dr David Barton; and

164 Some of the opinions expressed in these reports are diametrically opposed, which in turn impacts very much on the success or otherwise of such an application.

165 Furthermore, for reasons which I will expand on further, later in this judgment, the plaintiff's background and arrival in Australia are of some relevance.

166 Consistent with the unchallenged evidence, the plaintiff is now forty-two years of age, having been born in January 1977 in Afghanistan. He did not complete any formal primary or secondary school education in his country of birth, and for about twenty-seven years he worked as a panel-beater in Pakistan although he had no formal training in such work and was self-taught.

167 He came to Australia in or about mid-2012 by way of boat that capsized in mid-2012, which caused the deaths of 130 people, including three of his friends. Again, according to the evidence of Ms Ellen Rugara, a refugee health nurse at the Asylum Seeker Resource Centre, the plaintiff was in the water for about 15 hours.

168 The plaintiff was ultimately released into the community on 14 October 2012 on a bridging visa. In a letter by Ms Rugara to the Australian Red Cross she notes that during a lengthy interview with the plaintiff on 1 November 2012 she formed the opinion that he was suffering from depression and post-traumatic stress disorder, which gave rise to her referral to Foundation House for counselling.

169 The plaintiff is a married man with two children, a daughter aged 10 and a son aged twelve. His wife and two children continue to live in Pakistan. The plaintiff gave evidence that in March 2018 he travelled to Iran for a period of three months to see his wife and children (on his evidence it was impossible for him to return to Pakistan).

170 The psychiatrist Dr Tim Entwisle examined the plaintiff on 28 November 2017 and ultimately diagnosed the plaintiff as having a "chronic pain syndrome of predetermined origin", and, according to Dr Entwisle:

"What best explains Mr Tawakuli's presentation is his psychosocial situation being his indeterminate refugee status, separation from his family in Pakistan and his likely pre-existing history of trauma and life in Pakistan, which he fled in 2012.

171 In particular, Dr Entwisle proffered the opinion that the plaintiff's background was highly relevant to his current presentation.

172 There is no issue that the plaintiff commenced employment with the defendant on or around 28 February 2013 as a fencing/factory hand, and that such work was his first job in Australia. Much of the work involved handling and manoeuvring large pieces of wood, which would involve him using both hands. He is right handed.

173 Furthermore, there is no issue that the plaintiff suffered an "injury" to his right shoulder arising out of or during the course of his employment with the defendant. Again I accept that the plaintiff recalls feeling pain in his right shoulder, which became progressively worse, and on or about 6 September 2013, when he was using a nail gun to make lattices, the pain became "unbearable".

174 The plaintiff ceased work on 6 September 2013 and attempted a return to work on the following occasions:

(a) From 4 March 2014 for four hours a day, three days per week, which ceased on 14 March 2014 because the plaintiff was unable to complete a full four hours of work on 12 and 14 March due to feeling dizzy and sleepy because of the painkillers and also because of pain in his right shoulder. At that time his duties were cleaning duties, which would involve sweeping the scrap wood from the floor with a broom, and such motion of sweeping required him to use some shoulder force and "unavoidably my right shoulder".

(b) On 10 June 2014 for two hours per day, two days per week, ceasing on 19 June 2014 as he felt significant soreness in his right shoulder because of the sweeping duties.

175 He has not worked since about 19 June 2014.

The nature of the Plaintiff's right shoulder injury

176 The plaintiff was initially treated by a general practitioner, Dr Hill, who referred him to a surgeon, Mr Patrick Byrne, for assessment and advice. The plaintiff underwent a right-shoulder ultrasound on 26 March 2013 and later underwent various ultrasounds and MRI scans. He was also treated with subacromial injections on 9 April 2013 and 10 January 2014.

177 Seemingly the first MRI scan of his right shoulder was undertaken on 8 October 2013, which the radiologist reports as revealing:

"1. Intrasubstance partial thickness tear within the posterior aspect of the supraspinatus tendon. Further tendinosis noted in the more anterior aspect of the supraspinatus tendon. Subacromial bursitis. Spurring of the outer margin of acromion and thickening of the coracoacromial ligament. Mild degenerative lipping of margins of the acromioclavicular joint.

1. 2. Small superior labral tear conforming to SLAP type 2 lesion."

178 In the next MRI scan undertaken on 28 February 2014, the radiologist reported:

"There has been a slight improvement in the appearance in the shoulder compared to October 2013. Both the supraspinatus tendon and the SLAP tear have shown some signs of repair. No new pathology seen."

179 The plaintiff changed his treating general practitioner to Dr Karantonis, who commenced his treatment on 26 April 2014, and referred the plaintiff to the treating orthopaedic surgeon Mr Pullen, who first examined the plaintiff on 6 June 2014.

180 Ultimately, the plaintiff underwent a right shoulder arthroscopy, subacromial decompression and debridement, on 25 September 2014. Mr Pullen reports that at operation there was sighted partial thickness tears of the supraspinatus and subscapularis tendons, and the biceps tendons showed evidence of mild tendinopathy and a Type 1 SLAP lesion in the subacromial space, and the subacromial spur was resected.

181 There is no issue that is the findings of Mr Pullen, and indeed there can be no issue that the compensable right shoulder injury suffered by the plaintiff was an "organic" injury, as demonstrated not only by the MRI scans but also the operative findings of Mr Pullen on 25 September 2014.

182 I also consider it important to note what occurred by way of his treatment after the arthroscopy in 2014.

183 At the time of the surgery, Mr Pullen was of the view that the plaintiff would require four to six weeks off work, and then would be fit for light duties, and fit to return to pre-injury duties in sixteen to twenty-four weeks.

184 When reviewed on 9 October 2014, Mr Pullen was of the view that the plaintiff was progressing well following his surgery, and he was encouraged to start mobilisation. Mr Pullen noted that at this time the plaintiff was very pain-focused. He was encouraged to take adequate analgesia in order to be able to move the right shoulder and reduce the risk of adhesive capsulitis.

185 When again reviewed on 4 December 2014, Mr Pullen noted that the plaintiff was having persistent problems with his right shoulder pain, and had a restriction in range of motion. Examination at that time revealed that the plaintiff may have developed a post-surgical adhesive capsulitis, and it was suggested that a further MRI scan be undertaken to exclude any other intra-articular pathology. At the time of the review of the plaintiff on 4 December 2014, Mr Pullen considered that the plaintiff was suffering from a right shoulder post-operative adhesive capsulitis and that he may have also developed a "chronic pain syndrome".

186 Such MRI of the right shoulder was undertaken on 15 April 2015, and Mr Pullen noted that the radiologist reported that the MRI scan showed "likely adhesive capsulitis", and there was "supraspinatus tendinosis/tendinopathy without full thickness tear".

187 When reviewed on 6 May 2015, the plaintiff was given a referral for hydrodilatation, based on the MRI scan, which seemingly occurred some time in May 2015.

188 It is also important to note the evidence of the consultant in rehabilitation and pain medicine Dr Clayton Thomas, to whom the plaintiff was referred by his treating general practitioner. Dr Thomas initially consulted with the plaintiff on 23 July 2015, but also examined him on 4 September 2015, 9 February 2016, 28 June 2016, 4 October 2016 and 29 November 2016.

189 At the first consultation, Dr Thomas found the plaintiff to be "diffusely tender" over various parts of the shoulder area, with shoulder movements only mildly limited passively, but actively quite limited secondary to pain. Although the shoulder was diffusely weak non-specifically, neurologically the upper limbs presented as being otherwise normal.

190 On the first consultation, Dr Thomas formed the impression that the plaintiff suffered a "chronic pain syndrome" involving the right shoulder girdle secondary to the original right shoulder injury, and accordingly prescribed various medication and referred him to the Victorian Rehabilitation Centre.

191 When examined on 9 February 2016, Dr Thomas noted that the plaintiff had "irritability to the right shoulder with a lot of tenderness", and he considered also "weakness stemming from the pain". At that time, "range of movement was well preserved in external rotation, limited in flexion and abduction predominantly suggesting this was very much part of a pain syndrome".

192 Again, Dr Thomas considered the plaintiff should undergo formal rehabilitation.

193 Again on examination on 28 June 2016, Dr Thomas found the plaintiff's right shoulder remained "very irritable and stiff", and there were, according to him, residual signs of capsulitis.

194 When again reviewed on 4 October 2016, Dr Thomas thought it would be appropriate for the plaintiff to undergo an MRI scan of the right shoulder which would give some indication as to whether there was a true capsulitis as opposed to a functional frozen shoulder. Such MRI scan of the right shoulder was undertaken on 5 October 2016, and the radiologist noted:

"No significant interval change relative to the prior MRI examination of 2014. In particular, no features of subacromial bursitis. Insertional subscapularis tendinopathy again noted. No features of glenohumeral instability. No labral tear or chondral abnormality."

(My emphasis).

195 Dr Thomas noted in particular that the MRI scan made no reference to capsulitis.

196 On the basis of his last examination and the MRI undertaken on 5 October 2016, Dr Thomas opined that diagnostically, the plaintiff suffered from a chronic pain syndrome involving the right shoulder girdle secondary to the original right shoulder injury. Furthermore, he stated that he did not think that the plaintiff was suffering from a true capsulitis, as he found external rotation with some encouragement was almost full. In particular, Dr Thomas completed his report with this opinion:

"He has global restriction of movements secondary to pain but I did not think this was due to underlying problem with the shoulder per se."

(My emphasis).

197 The opinion of Dr Thomas would suggest that the global restriction of movements secondary to pain was a result of his chronic pain syndrome rather than any organic injury to the right shoulder. However, it is not clear, when Dr Thomas refers to "chronic pain syndrome", whether he considers that to be a psychologically-mediated or an organically-mediated condition - although there is no suggestion by Dr Thomas that the plaintiff had suffered central sensitisation as opined by Dr Blombery and Dr Mittal.

Has the Plaintiff suffered a permanent serious impairment or loss of body function within the meaning of paragraph (a) of Section 134AB(37) of the Act?

198 As I have already recorded, there is no issue that the plaintiff suffered a compensable organic injury to his right shoulder. The issue becomes whether or not the plaintiff has discharged his onus to establish, on the balance of probabilities, that such compensable injury has been a cause of permanent serious impairment or loss of a body function within the meaning of paragraph (a) of s134AB(37) of the Act. In particular, two matters must be borne in mind when determining this matter:

(a) The plaintiff has relied solely on the definition of "serious injury" within the meaning of paragraph (a) and does not rely on the definition of "serious injury" contained in paragraph (c) of s134AB(37) of the Act. In essence, the plaintiff must then establish that he has an organic permanent impairment of his right shoulder and that any consequences of that impairment, whether they be "pain and suffering consequences" and/or "pecuniary loss consequences", must be of an organic nature;

(b) Furthermore, as I have already recorded, s134AB(38)(i) of the Act requires that the assessment of the "serious injury" be at the time the application is heard.

199 Before outlining the various submissions made by the parties, it is perhaps apposite to comment on the credibility and reliability of the plaintiff.

200 Senior Counsel for the plaintiff submitted that the plaintiff should be accepted as a "credible witness" and that he gave his evidence "in a frank and unequivocal manner" before the Court.[90]

201 Senior Counsel for the plaintiff also submitted that the plaintiff did not present in the witness box as "unduly pain focused or at pains to advocate his own case" to the Court.[91] Senior Counsel also submitted that his client was not at "pains to point out just how bad the condition is" and that his presentation was not one that is "open to criticism".

202 Senior counsel for the defendant submitted that the plaintiff was an "unreliable witness and that he has exaggerated".[92] Senior Counsel for the defendant also submitted that the plaintiff should not be accepted as having the pain which he alleges and that he has had a motive for such a presentation and "behaviour" which is "secondary gain" - that is to say, the recovery of compensation.[93]

203 Having the advantage of observing the plaintiff give his evidence over a period of time, I have formed the view that the plaintiff was "injury" and "pain" focused. Although his presentation in court suggested inconsistency with examinations by some of the doctors - for example, the plaintiff, when requested by Senior Counsel for the defendant, raised his right arm to approximately 45 degrees to the vertical, after which he said he would have a lot of increased pain - I doubt that the plaintiff, in any meaningful way, set out to consciously mislead the court but, rather, most of his responses were borne from what I consider to be ultimately a significant pain syndrome.

204 The plaintiff was straightforward in asserting that as far as he was concerned, the pain and restrictions in his shoulder prevented him from doing any type of work and that he should not be made to look for work until such time that his injury had "recovered". This was made plain by the material in his affidavit and his viva voce evidence that he "went along" with the requirements of both the WorkCover Authority and Centrelink that he apply for jobs (which he considered he could not perform) in order to keep his ongoing benefits. In particular, this was made clear by his application for a taxi licence.

205 I also accept that the plaintiff did not assert that his right arm was "totally useless" and he accepted that he could bring his arm up to about shoulder level, but this caused significant increased pain and difficulty, as did regular use of the right arm.

206 However, I formed the view that the overwhelming presentation of the plaintiff was his claim that he had significant pain at or around the site of the surgery on his shoulder, which extended towards his neck and down his right arm, and was made worse by activity with his right arm. Furthermore, his presentation also involved that such pain caused significant restrictions on his right arm and shoulder movement.

207 Senior Counsel for the defendant ultimately submitted that on the basis of all the evidence, the Court should not be so satisfied that there is any ongoing organic basis for the claims of pain and restriction of movement of the shoulder.

208 It was further submitted that if the Court was so satisfied that there was the experience of pain which had caused alleged restrictions, any such pain has been psychologically mediated rather than organically mediated, and thus would not fall within paragraph (a) of the definition of "serious injury".

209 In essence, Senior Counsel for the defendant submitted that the evidence of the doctors who have examined the plaintiff on behalf of the defendant are at one in that they can find no objective basis for any organic condition, and that the overwhelming presentation is that of some type of pain syndrome mediated by psychological means. Furthermore, it was submitted that the evidence of the general practitioner, Dr Karantonis, Drs Blombery and Mittal, and the orthopaedic surgeon, Mr Chehata, should not be accepted.

210 Senior Counsel for the plaintiff made various submissions, including the following:

(a) In response to any suggestion that the plaintiff was "functional" or "feigned" his presentation, counsel submitted:

"... It is funny we haven't done that in relation to the neck,[94] because nearly every doctor that's examined the neck has found a full, free range of movement, probably consistent with the video. So it's a very sophisticated 41-year-old Afghani refugee who decides he's going to have a restricted range of movement of his shoulder, yet present to doctors with a full range of his neck. It is inconsistent."[95]

Mr Mighell expanded on the submission by saying that you would "go out for it rather than selectively identifying parts of your body that you are going to exaggerate your presentation to doctors for";[96]

(b) Exhibit 6, which is a summary of the surveillance, was then referred to, and it was accepted that in parts of the video the plaintiff was shown using right hand for phone calls, cigarette smoking and opening the doors of his car, but at other times in his left hand and, indeed, the carrying of the battery was lifted with his left hand. Furthermore, Mr Mighell highlighted that some of the videos showed the right arm stationary or immobile and at one stage with the right hand in his pocket;

(c) It was further submitted that the opinion of the orthopaedic surgeon, Mr Dooley, in relation to work capacity from an orthopaedic point of view was important. Counsel stated that Mr Dooley asserted that the plaintiff is "restricted to light duties, that is his last and his only comment on work capacity, and he doesn't recant it".[97]

It is perhaps pertinent to refer to the opinion of Mr Dooley, set out in his report dated 31 October 2017 - that being the initial consultation with the plaintiff when he was prevented from physically examining the shoulder, Mr Dooley did state:

"From an orthopaedic viewpoint only, I would expect Mr Tawakuli to have a physical capacity to carry out at least light physical work and clerical duties. Return to this sort of work would need to be on a graduated basis but ultimately Mr Tawakuli would have a physical capacity to perform full time."[98]

Of course, Mr Dooley later re-examined the plaintiff on 14 November 2018, at which time he did perform a physical examination of the right shoulder;

(d) Senior Counsel then submitted that the plaintiff did not present as an "invalid" or "totally functional", nor did he say that he does not use the right arm at all. Indeed, I have made earlier comments about that and I accept that submission in general terms;

(e) Senior Counsel for the plaintiff also submitted that the plaintiff did show some degree of motivation to return to work since suffering his injury, as evidenced by his two attempts to return to work, and also to participate in an English course in 2015. I accept such submission, although as I have already noted, the evidence before this Court from the plaintiff was that he could not perform any work and he should be allowed time for his injury to recover before contemplation be given to him returning to work;

(f) Senior Counsel for the plaintiff also submitted that part of the case against the plaintiff by the defendant was that he failed to complete the pain-management course or courses. I need not say anything further about that submission, as I would not be prepared to find that the plaintiff refused to undergo rehabilitation - I tend to the view that those failed attempts at rehabilitation more reflected his psychological state and what he believed about his injury, rather than a conscious desire to refuse treatment that would improve his condition.

211 Senior Counsel also submitted that the Court should find that the plaintiff has suffered a partial thickness tear and a Type 1 SLAP lesion and, indeed, as I have already recorded in this judgment, I accept that the compensable injury is that which was described by the MRI scans and, indeed, the findings of the orthopaedic surgeon, Mr Pullen, at surgery.

212 Significantly, in highlighting the difference between the parties, Senior Counsel for the plaintiff then submitted that the plaintiff continues to suffer from the effects of the organic traumatic injury to the right shoulder and subsequent surgery. In support of this overarching submission, reference was made to:

(a) The evidence of the treating orthopaedic surgeon, Mr Pullen, and, indeed, I have already referred to his opinion, when he last saw the plaintiff on 6 May 2015;

(b) The plaintiff attended the Dandenong Hospital on 20 November 2014 for chronic shoulder pain following the right shoulder surgery some two months earlier. At that time, he was treated with pain medication. He has been prescribed strong pain relief, including Feldene, Panadeine Forte and Gabapentin;

(c) That the general practitioner, Dr Karantonis, who commenced the treatment of the plaintiff in 2014 and, in particular, reference was made to his report dated 25 October 2018, wherein he says, among other things, that there is an ongoing organic basis for the right shoulder symptoms suffered by his patient based on clinical presentation, ongoing findings associated with radiological tests, confirming tendinitis and adhesive capsulitis;

(d) Reference was also made to the reports of Mr Chehata, Dr Blombery and Dr Mittal. Furthermore, it was submitted that the final opinion of Dr Thomas that the plaintiff is suffering a chronic pain condition fits with the diagnoses of Dr Mittal and Dr Blombery, although it was accepted that Dr Thomas, as I have already noted, does not articulate that it is general sensitisation (as do Dr Mittal and Dr Blombery);

(e) Mr Mighell also stressed that Mr Dooley acknowledges the concept of neuropathic pain and central sensitisation and that the evidence of Dr Mittal and Dr Blombery are to be preferred over that of Mr Dooley, as the former two are experts in the area, whereas Mr Dooley is an orthopaedic surgeon;

(f) Senior Counsel for the plaintiff submitted that the evidence of Dr Barton, the occupational physician who examined the plaintiff on 17 November 2017 should, "simply put ... to one side".[99] In support of such submission, Senior Counsel for the plaintiff made the following points:

(i) Dr Barton does not proffer a diagnosis other than the plaintiff developed "not-specific right shoulder symptoms";

(ii) He does not comment upon the radiology (either pre- or post-surgery);

(iii) Dr Barton notes that the plaintiff's condition has worsened, but that is "not physically based". He forms the opinion that the plaintiff's reduced right-arm weakness was "clearly feigned". He was said to be the only medical practitioner to make such an observation, and it is against the weight of the medical evidence;

(iv) Dr Barton does not comment about the concept of chronic pain or central sensitisation. He finds no evidence of ongoing shoulder impairment or dysfunction and was of the opinion that the plaintiff could return to normal hours and normal duties. It was submitted that this opinion is against the weight of the medical evidence and should not be accepted.

213 Ultimately, Senior Counsel for the plaintiff submitted that given the restricted movement in his right arm and shoulder, together with the associated pain, all brought about by an organic impairment of the right shoulder following the work injury, the plaintiff is incapable of returning to his old work or, indeed, any suitable employment. He submitted that it is also relevant that the plaintiff can neither read nor write in his native language, Dari, or English, and his only employment in Australia was for a period of seven months with the defendant, prior to which he had only ever worked as a panel beater in Pakistan, with no formal training. There is significant medical support that he is incapable of any work and could not be realistically employed in other areas. Reference was made to the treating general practitioner, Dr Karantonis, the medico-legal specialists, Dr Blombery and Dr Mittal, and Mr Chehata, in support of such submission.

214 After a consideration of all the evidence, I am not satisfied that the plaintiff has established, as a matter of probability, that the compensable right shoulder injury suffered by him has produced, in consequence, an organic impairment of the right shoulder with organic consequences.

215 Indeed, on the evidence before me, I consider the plaintiff has developed a significant chronic pain syndrome mitigated by psychological mechanisms contributed to by his tumultuous experiences in coming to Australia, his ongoing concerns as to his status in this country, and the undoubted concerns he would have about his family back in Pakistan. All these matters were referred to in the unchallenged evidence of Dr Entwisle.

216 If I be wrong, and there is some organic impairment in the right shoulder, I consider, consistent with the evidence of Mr Dooley, the development of a chronic pain syndrome (a psychological condition) dominates his clinical presentation (see generally Meadows v Lichmore Pty Ltd[100]).

217 It must be understood that the occurrence of an organic injury does not necessarily result in an organic impairment. I refer to the Court of Appeal decision of Georgopoulos v Silaforts Painting Pty Ltd & Ors,[101] wherein the Court of Appeal (consisting of Osborne JA and J Forrest and Beach AJJA) stated at paragraph [49]ff:

"49. The potential breadth of the notion of 'an injury' under s 82 is controlled by the causal connection stipulated. It is relevantly any physical or mental injury caused to a worker arising out of or in the course of any employment."

1. 50. In Barwon Spinners Pty Ltd v Podolak,[citation omitted] the Court of Appeal stated of s 134AB(1):

'[10] In short, in subs (1) we see no reason at all to conclude that 'injury' is used in any sense other than that which is common or ordinary throughout the Act: it does not refer to the impairment of a body function which (at least in cases like the present) may be the basis for concluding that the injury is serious injury. Subsection (1) speaks first and foremost of the plaintiff's having (in substance) a compensable injury, a concept which surely derives from the preceding provisions of the Act.'

1. 51. As such, 'an injury' is a compendious term. Thus, if a worker has both his hands crushed at work he suffers 'an injury' within the meaning of the Act, albeit that it may also be possible to describe specific components of injury or 'injuries' to particular bones, joints, tendons, nerves, vascular components, skin and nails of each hand.
2. 52. ...
3. 53. ...
4. 54. ...
5. 55. ...
6. 56. ...
7. 57. Section 134AB(37) provides:

serious injury means -

(a) permanent serious impairment or loss of a body function; or

(b) permanent serious disfigurement; or

(c) permanent severe mental or permanent severe behavioural disturbance or disorder; or

(d) loss of a foetus.

1. It can be seen that, in the first instance, serious injury is constituted by permanent serious impairment or loss of a body function. Such impairment or loss of a body function is not the same thing as impairment of a person as a whole. As the Full Court held in Humphries v Poljak in respect of the parallel provision in the Transport Accident Act 1986, the definition requires the identification of a body function and the assessment of the extent to which the body function has been affected ... .
2. It follows that it is not the character of the injury itself which determines whether it is a serious injury but its consequences.[102] Section 134AB(38) then goes on to make 'elaborate provision'[103] for the assessment of those consequences."

218 Obviously, although a compensable injury is a necessary component to establish a "serious injury", it does not follow that a compensable injury has the consequence of an organic impairment - although in some cases, say for example, an amputated leg - one could anticipate that the compensable injury (the loss of the leg) immediately gives rise to impairment.

219 I set out the following reasons for reaching the decision that I have in relation to any impairment that the plaintiff presently suffers:

(a) I again refer to the evidence of Dr Thomas, the consultant in rehabilitation and pain medicine, who consulted with the plaintiff on six occasions, commencing on 23 July 2015 and, lastly, on 29 November 2016. At his last consultation, Dr Thomas had what would seemingly be the last MRI scan of the right shoulder of the plaintiff, undertaken on 5 October 2016. That MRI scan records that there are no features of subacromial bursitis, no features of glenohumeral instability and no labral tear or chondral abnormality. It does record insertional subscapularis tendinopathy. Furthermore, Dr Thomas also noted that the MRI scan made no reference to capsulitis and, indeed, it was his opinion that he did not consider that the plaintiff had a true capsulitis, as external rotation, with some encouragement, was almost full. Furthermore, and in particular, Dr Thomas notes that the plaintiff had global restriction of movements in his shoulder secondary to pain, but he did not think this was due to any underlying problem with the shoulder per se - but, rather, was as a result of a chronic pain syndrome;

(b) The plaintiff underwent examination by the following doctors:

(i) The orthopaedic surgeon, Dr Boys, on 24 February 2015 and 30 October 2015. On both occasions, the plaintiff complained of diffuse chronic pain around the right anterior shoulder, upper arm, trapezius, scapula and base of the neck. Ultimately, Dr Boys was of the view that it was impossible, on clinical examination, to evaluate whether there was any specific ongoing right shoulder dysfunction because of inappropriate pain behaviours demonstrated by the plaintiff;

(ii) The rheumatologist, Dr Karna, examined the plaintiff on 11 October 2016. At that time, Dr Karna noted that the plaintiff had preserved muscle bulk around the shoulder girdles, upper limbs and had good muscle definition, stating his hands indicated ongoing use and use of the right upper limb. Although the plaintiff alleged no movement in any plane at the right shoulder, but passively (using his left arm to lift his right arm), he was able to achieve 60 degrees of abduction. Furthermore, the lightest of touch with one finger produced a pain response at the anterior, posterior and lateral aspects of the right shoulder and there was gross collapsing weakness in the entire right upper limb when compared to the left and sensory under examination was normal. Dr Karna was of the view that although he presents with symptoms, there were no objective physical findings of a soft tissue injury treated surgically that has now substantially resolved;

(iii) The occupational physician, Dr David Barton, who examined the plaintiff on 17 November 2017. At that time, the plaintiff complained of pain throughout the entire right upper limb and extending from the right side of the neck, through the shoulder, around the shoulder blade, down to the tips of the fingers. Furthermore, the pain allegedly affected the entire right half of his body occasionally, Furthermore, he complained that his shoulder movements were limited and any particular movement or activity involving the right arm increased his symptoms.

Examination revealed there was normal muscular contour over both shoulders with a normal keratinisation pattern of both hands and indeed, the circumference of the right and dominant arm had slightly greater muscle bulk than the left when measured above and below the elbows.

Specific examination of the right shoulder revealed widespread and diffuse tenderness that was quite marked, and there was a profound limitation of shoulder movements with abduction and flexion both limited to less than 30 degrees. At the examination, the plaintiff was very hesitant to move his arm away from his trunk.

Ultimately, Dr Barton could find no objective evidence of any ongoing shoulder impairment or dysfunction;

(iv) The orthopaedic surgeon, Mr Dooley, who examined the plaintiff on 25 October 2017, and on 14 November 2018. On the first occasion, the plaintiff would not permit Mr Dooley to examine the right shoulder, although it was noted that there was no obvious wasting at that time. The plaintiff complained of ongoing right shoulder girdle pain. When seen on the second occasion, Mr Dooley found the plaintiff well-muscled, with no wasting over the shoulder girdle musculature, and there was tenderness, generally, in this area. Active abduction and forward flexion were to 80 degrees, external rotation was to 40 degrees, internal rotation to 0 degrees, abduction and extension was to 10 degrees. There was a generalised reduction in power of the right upper limb, although sensation was intact.

As I have already recorded, Mr Dooley formed the opinion that the plaintiff had developed a chronic pain syndrome through psychological mechanisms which dominated his clinical presentation. Although he had significant restriction of active range of movement of the right shoulder, Mr Dooley noted this is a subjective and not an objective finding. Furthermore, Mr Dooley was of the opinion that there were inconsistent signs in relation to passive range of motion of the right shoulder.

Mr Dooley sets out in some detail the conclusions that he has reached and why he has reached them.

(v) I also refer to the Medical Panel examination which was undertaken on or about 6 October 2016. In part, the Medical Panel consisted of an orthopaedic surgeon and a general practitioner.

It is of significance, in my view, that the Panel, at that time, found the plaintiff had normal upper limb girdle contours and well-developed shoulder musculature bilaterally, with no evidence of muscle spasm, atrophy or wasting. At that time, the plaintiff had widespread pain to palpation at randomly selected points in a non-anatomical distribution throughout the right upper extremity. Assessing the range of movement at the joints of the right upper limb was difficult due to significant variation in both active and passive assisted movements.

The Panel noted that the plaintiff demonstrated substantially greater ranges of motion of the right shoulder, incidentally during the time spent with the Panel, compared to those where measurements were undertaken. The Panel considered that the measured ranges of flexion and abduction were not due to physiological factors, as a full range of flexion and abduction of the right shoulder joint caused weakness at other points in the examination. There was sensory loss to light touch circumferentially throughout the right arm in a non-anatomical pattern, and power in the right limb, although difficult to assess due to variable collapsible weakness, appeared to be within normal limits. Grip-strength testing was limited by collapsing weakness, and therefore unreliable.

At the conclusion of the examination, the Panel observed the plaintiff putting on his t-shirt, using a full range of abduction and flexion at the right shoulder joint.

The Panel ultimately recorded that the plaintiff had:

"... persistent right shoulder dysfunction following a soft tissue injury of the right shoulder, surgically treated and now substantially resolved, relevant to the accepted right shoulder injury".[104]

Furthermore, the Panel concluded that the plaintiff was suffering from an adjustment disorder with depressed mood and a chronic pain disorder associated with psychological factors, and a general medical condition, partly arising from his workplace injury.

220 Generally, I consider that the various opinions expressed by Mr Dooley most closely accord with the evidence in this proceeding, and to that end, I largely adopt the medical opinions that he has proffered.

221 Partly on that basis and, indeed, the various other examinations to which I have referred, I reject the opinions given by Dr Blombery, Dr Mittal, Mr Chehata and the treating general practitioner, in relation to whether there is an organic basis to explain the variable restriction of movement in the right shoulder and the constant pain, which becomes very bad with use of the right arm or, indeed, movement of the right arm towards shoulder level. However, I also note the following in relation to each of those doctors:

(a) Dr Blombery examined the plaintiff on 20 September 2016, and again on 16 October 2018. At the time of the first examination, the plaintiff was complaining of "ongoing pain to the right shoulder radiating down the right arm to the hand" which was present "all the time". The plaintiff rated such pain as "10/10" and that it had become gradually worse over the process of time. At that time, the plaintiff also had symptoms to the right side of his body, and also his right leg, which had been present for some months. At that time, Dr Blombery noted the plaintiff tended to hold his right arm relatively immobile against his upper abdomen, with the elbow fixed at 90 degrees, and was diffusely tender on pressure from the shoulder girdle and down the right arm, but did not follow any particular structures.

Mr Blombery concluded, at that time, that the ongoing complaint of pain the plaintiff complained of in his right shoulder had features of a non-specific pain syndrome, where there has been sensitisation of pain nerve pathways, both in the periphery as well as the brain and spinal cord, such that non-painful stimuli became interpreted by the cerebral cortex as being painful. He referred to this process as "central sensitisation".

It should be also noted that Dr Blombery considered the plaintiff had developed significant secondary depression and anxiety, which was also compounding his experience of pain.

When seen again in 2018, Dr Blombery again obtained a history from the plaintiff of ongoing pain in the right shoulder, but less severe than when first examined. There was tenderness over the right shoulder and right trapezius relating to the neck and over the neck itself, together with pain in the right arm, extending to the mid upper arm, but not distal to that. There was also tenderness over the right scapula and limitation of movement of the right shoulder. At that time, Dr Blombery again confirmed his diagnosis in relation to the right shoulder and also noted that such process, which he termed central sensitisation, was an organic disorder of pain nerve pathways. He also noted that the symptoms in the right shoulder do originate from the pathology in the right shoulder, although noting that such pathology of the shoulder no longer needs to be present in such a situation;

(b) Dr Mittal examined the plaintiff on 15 October 2018, and at the time of that examination, complained of right shoulder pain to be constant and burning in nature, and rated it 6/10 on most occasions. In particular, he reported the entire right upper limb would go numb at night and would wake him up. He did not report any weakness in the right hand, but was unable to lift more than 2 kilograms due to the right shoulder pain.

Range of motion was restricted to active abduction of 80 degrees and forward flexion to 80 degrees, and passive movements beyond this were difficult to perform due to severe pain. External rotation was painful and restricted, and there was diffuse tenderness in the entire region of the right shoulder, particularly on the anterior aspect, although upper limb neurological examination was normal.

Dr Mittal noted that the plaintiff continues to struggle "with ongoing right shoulder chronic pain due to the development of a chronic pain syndrome" and as a result has suffered significant decrease in function and is psychologically distressed. Dr Mittal was of the ultimate opinion that the initial injury had not substantially resolved and that he had also developed a chronic pain syndrome secondary to persistent post-surgical pain, which is a process of sensitisation of the pain pathways.

222 In relation to the opinions proffered by Dr Blombery after his last examination on 16 October 2018, and the opinion proffered by Dr Mittal, who examined the plaintiff on 15 October 2018, I refer to the DVD film which was taken on various occasions, but in particular on 14 October 2018 (one day prior to the examination by Dr Mittal and two days prior to the second examination by Dr Blombery), and also on 17 October 2018 (two days after the examination by Dr Mittal and one day after the examination by Dr Blombery).

223 The film on 14 October 2018 revealed the plaintiff:

"... gesticulating which his right hand and raising his right arm to shoulder height on several occasions using his right arm to smoke a cigarette and holding his mobile phone to his ear with his right hand and talking into the phone from some period of time".[105]

224 Furthermore, the film on 17 October 2018 showed the plaintiff unlocking and opening the driver's door of a van with his right hand and arm, and later closing such van door with his right hand and opening and closing his vehicle with his right hand, the plaintiff agreed that he performed such activity without any apparent restriction.[106]

225 Also, Mr Dooley was forwarded various DVD material, including filming in August 2018 and October 2018. I refer to his letter dated 20 November 2018,[107] wherein he states:

"The DVD of August 2018 shows Mr Tawakuli walking comfortably with a normal arm swing. Early on in the DVD while talking to friends outside his home, he swings his right arm easily and without any obvious pain. He swings his right arm through a range of forward flexion and abduction greater than observed on formal clinical examination. He does not experience pain. Further on in the DVD, Mr Tawakuli walks through shopping centres etc. For a period of time, he engages in conversation on a mobile phone using his right hand to hold the phone near his ear. There is no sign of him having discomfort. To do this, one needs to hold the shoulder in a flexed position of ninety degrees or more. Throughout the DVDs he is animated and engaging with his friends. There is no evidence of him being down or having any difficulty in terms of using his right shoulder condition."

226 Bearing in mind such presentation so close to the clinical examinations by Dr Blombery and Dr Mittal, it does raise whether those doctors got an appropriate presentation as to the extent of pain suffered by the plaintiff and his restriction of movement of the right arm. It must be stressed that it is not only the actual actions depicted on the DVD footage, but seemingly, also, the ease with which the plaintiff performs such activities without any suggestion of pain or ill ease.

227 I should also add it is not clear how Dr Mittal or Dr Blombery reached the diagnoses they do - seemingly on the basis of the plaintiff's complaints of pain and restriction of movement. That is not to say, of course, that such condition does not exist, as clearly, Mr Dooley, in his material, accepted that the condition is a recognised organic condition.

228 Although Dr Blombery considers that it is not necessary for the original pathology in the shoulder to be ongoing for the central sensitisation to be present, Dr Mittal, in part, proffers an opinion and refers to the original diagnosis made at and around the time of the initial surgery to effectively claim that there is an ongoing basis for his right shoulder symptoms.

229 If such opinion relates to the occurrence of the original shoulder injury giving rise to the injury as described by Mr Pullen, so be it. However, there would appear to be little evidence, if any, to support that he has got ongoing adhesive capsulitis, a labral SLAP lesion nor, indeed, any organically-caused restriction of movement in the shoulder.

230 I also point out that both doctors consider not only is the plaintiff totally incapacitated, taking his right shoulder condition alone, but also is incapable of working because of a cervical spine "injury". It is not totally clear whether such opinion is based on some organic injury or because of what those doctors consider to be pain sensitisation in or around the neck. I might add, both the film and the discussion with Senior Counsel for the plaintiff did not suggest there was much ongoing problem with the neck.

231 Mr Chehata examined the plaintiff on 2 October 2018, and at that time the plaintiff complained of "ongoing and unremitting constant pain in the right shoulder, with radiation up into the trapezial musculature, and into the cervical spine".[108] He described minimal pain on rotation of the cervical spine, but described anterior and anterolateral restriction in range of movement and ongoing shoulder pain. Again, this presentation must be compared to the video material, particularly on 14 October and 17 October 2018.

232 Mr Chehata also found normal muscle bulk, with no signs of wasting of the supra and infraspinatus tendons. There were no obvious signs of sensation loss or change in colour, and there was no intrinsic muscle wasting of the hands.

233 The plaintiff had normal tone and reflexes, although throughout any motion of the right shoulder he forces against, he is unable to relax, which is explained, through the interpreter, due to the severity of the pain. Mr Chehata noted that the plaintiff had diffuse pain coming from the shoulder and when taking off his clothes, when he barely used his right arm.

234 Again, Mr Chehata repeats the diagnosis of partial tearing of the supraspinatus and subscapularis, as diagnosed on arthroscopy by the treating surgeon, Mr Pullen, coupled with subacromial bursitis and the development of adhesive capsulitis. Of course, there would appear to have been no evidence of ongoing adhesive capsulitis from about 2016 or, for that matter, bursitis. Furthermore, Mr Chehata considers the plaintiff is suffering a "chronic pain syndrome".

235 When queried as to whether there was an organic basis for the plaintiff's right arm or shoulder symptoms, again, the plaintiff relied on findings on arthroscopy to support such a view which, as he then reports, has subsequently developed a chronic pain syndrome. It is not clear whether Mr Chehata, when he refers to a "chronic pain syndrome", is referring to a pain syndrome, as described by Drs Blombery and Mittal, or some sort of psychological reaction to pain. If the latter, again, it is not clear as to where a chronic pain syndrome starts and stops in relation to his presentation.

236 Mr Chehata is also of the view that the plaintiff's employment with the defendant led to an aggravation of multilevel cervical spondylosis that has contributed to the pain and incapacity, with the subsequent development of a pain syndrome. Mr Chehata considers that the plaintiff could not realistically be employed in the open marketplace as a result of his cervical spine injury alone, on the basis there has been "significant aggravation of degenerative cervical spondylosis and subsequent development of a chronic pain syndrome". Again, this is in the face of seemingly free neck movement shown during the video, and the discussion of Senior Counsel for the plaintiff accepts that there was good movement of the neck.

237 In relation to the general practitioner, Senior Counsel for the plaintiff submitted that the opinion of Dr Karantonis, as expressed in his report dated 25 October 2018, says, among other things, that there is an ongoing basis for the right shoulder symptoms suffered by the plaintiff, based on clinical presentation and ongoing findings associated with radiological tests, confirming tendonitis and adhesive capsulitis. It is unclear what Dr Karantonis means about based on "clinical presentation" or "findings associated with radiological tests". Indeed, as I have stated several times, there would appear to have been no evidence of capsulitis, either clinically or by the MRI scan undertaken on 5 October 2016. Furthermore, such MRI scan would suggest there were no features of subacromial bursitis and no labral tear or chondral abnormality. The MRI scan did note the insertion of subscapularis tendinopathy, again, noting there would appear to be no reliable or objective signs of such condition over various examinations undertaken by a host of doctors. Furthermore, for the reasons which I have already set forth, there is, in my view, some danger in accepting, at face value, the symptoms and restrictions relied on by the plaintiff.

238 Although accepting that this matter has not been free of difficulty (and as I have said earlier, not assisted by various doctors not being cross-examined), I consider that the application must be dismissed.

239 I will hear the parties on the question of costs.

1 The plaintiff tendered the following documents:

• Affidavits of the plaintiff sworn on 8 September 2013 and 13 November 2018.

(Such documents found at pages 1-6 and 23-27 of the Plaintiff's Court Book ("PCB")).

• The medical reports and/or letters from the treating general practitioner, Dr Anthony Karantonis, dated 30 November 2014, 16 February 2016, 21 April 2016, 14 November 2016 and 25 October 2018.

• Medical reports and letters from the treating orthopaedic surgeon, Mr Christopher Pullen, dated 6 June 2014, 24 July 2014, 24 September 2014 (two reports), 2 May 2015 and 6 May 2015.

• Medical reports and letters from the treating rehabilitation and pain specialist, Dr Clayton Thomas, dated 10 November 2015 and 8 February 2017.

• Dandenong Hospital Emergency Department discharge summary dated 20 November 2014.

• Pain Management Unit - multi-disciplinary assessment report.

• Ultrasound of the right shoulder undertaken on 27 March 2013

• Ultrasound-guided right subacromial bursal injection undertaken on 9 April 2013

• MRI scan of the right shoulder undertaken on 9 October 2013

• Ultrasound of the right shoulder undertaken on 17 December 2013

• Right-shoulder injection undertaken on 10 January 2014

• MRI scan of the right shoulder and cervical spine undertaken on 28 February 2014

• X-ray of the right shoulder dated 10 October 2014

• MRI scan of the right shoulder dated 15 April 2015

• Right shoulder hydrodilatation undertaken on 8 May 2015

• Ultrasound of the right shoulder undertaken on 19 September 2016

• MRI scan of the right shoulder undertaken on 5 October 2016

• MRI scan of the cervical spine undertaken on 5 May 2017

• Medico-legal reports from the consultant physician and pain specialist, Dr Peter Blombery, dated 20 September 2016 and 22 October 2018

• Medico-legal report of the orthopaedic surgeon, Mr Ash Chehata, dated 9 October 2018

• Medico-legal report of the pain specialist, Dr Meena Mittal, dated 15 October 2018.

• Summary of Tax Returns of the plaintiff for the financial years ending 30 June 2013 through to 30 June 2018 inclusive.

• Summary of the video material - handed up in Court in table format.

• DVD (not tendered on 27 November 2018 due to an oversight).

2 The defendant tendered the following documents:

• Medico-legal reports of the orthopaedic surgeon, Mr Peter Boys, dated 24 February 2015 and 30 October 2015

• Medico-legal report of the rheumatologist, Dr Roy Karna, dated 11 October 2016

• Medical Panel Certificate and Reasons for Opinion, dated 6 October 2016

• Medico-legal reports of the orthopaedic surgeon, Mr Michael Dooley, dated 31 October 2017, 15 January 2018, 19 November 2018 and 20 November 2018

• Medico-legal reports of the occupational physician, Dr David Barton, dated 21 November 2017 and 16 January 2018.

• Medico-legal report of the psychiatrist, Dr Timothy Entwisle, dated 11 December 2017.

(Such reports found at pages 3-11 and 22-78 of the Defendant's Court Book ("DCB")).

• Vocational Assessment Report dated 19 September 2017.

• Consultation record of Dr Clayton Thomas, including various dates.

• Facebook material handed up in Court in chronological order.

• Reports and correspondence from Ms Ellen Rugara - refugee health nurse (Cardinia) - dated 7 November and 13 November 2012.

[1] In this matter, those acting for the plaintiff have named the defendant as "Victorian WorkCover Authority" although the affidavit material names the defendant to be "Raminti Services Pty Ltd". I will refer to Raminti Services Pty Ltd as being the defendant

[3] See s134AB(19)(a) of the Act

[4] Transcript ("T") 82, Line ("L") 21-29

[5] See s134AB(i) of the Act and Barwon Spinners Pty Ltd & Ors v Podolak [2005] VSCA 33; (2005) 14 VR 622 at paragraph [11]

[6] See Barwon Spinners Pty Ltd & Ors v Podolak (op cit) at paragraph [33]

[7] See s134AB(38)(b) and (c) of the Act

[8] See Advanced Wire & Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170 at paragraphs [60]-[64]; Acir v Frosster Pty Ltd [2009] VSC 454

[9] See s134AB(19)(b) and s134AB(38)(e) of the Act

[10] See s134AB(38)(e)(i) of the Act

[11] See s134AB(38)(e)(ii) of the Act

[12] See s134AB(38)(h) of the Act

[13] See s134AB(38)(i) of the Act

[14] See Hunter v Transport Accident Commission [2005] VSCA 1 at paragraphs [23]-[36]

[17] See her reports and correspondence - exhibit "E" at pages 113-114 DCB

[19] See report of same date, exhibit 3 at page 96 PCB

[20] See MRI report of same date, exhibit 3 at page 97 PCB

[21] See report of same date, exhibit 3 at page 98 PCB

[22] See report of same date, exhibit 3 at page 99 PCB

[23] See report of same date, exhibit 3 at page 100 PCB

[31] See exhibit 4 - report from Dr Blombery dated 20 September 2016 at pages 116-122 PCB and report dated 22 October 2018 at pages 124-131 PCB

[32] See exhibit 4 - report dated 9 October 2018 at pages 132-146 PCB

[33] See exhibit 4 - report of same date at pages 147-157 PCB

[39] See exhibit "E" at pages 113-114 DCB

[41] [2018] VSCA 35

[43] See exhibit "A", report of same date, at pages 3-11 DCB

[44] See exhibit "A", report of same date, at pages 22-31 DCB

[45] See exhibit "A", report of same date, at pages 32-42 DCB

[46] See exhibit "A", report dated 31 October 2017, at pages 56-60 DCB

[47] See exhibit "A", report dated 19 November 2018, at pages 74-78 DCB

[48] See exhibit "A" at pages 72 and 78A-78B

[49] See exhibit "A", report dated 21 November 2017, at pages 61-65 DCB

[51] See exhibit "A", report dated 11 December 2017, at pages 66-71 DCB

[52] See exhibit "A", report dated 11 October 2016 at page 34 PCB

[53] See exhibit "A" at pages 58 and 59 PCB

[77] See exhibit "B" at pages 79-102 DCB

[82] See Exhibit "B" at pages 79-102 DCB

[94] Which was also said to be a serious injury at the commencement of the proceeding

[100] [2013] VSCA 201

[101] [2012] VSCA 179

[102] Reference was made to Doolan v Rayners Sawmills Pty Ltd & Anor [2008] VSCA 219 at paragraph [71]

[103] Reference was made to Barwon Spinners Pty Ltd & Ors v Podolak (op cit) at paragraph [20]

[104] Medical Panel Certificate of Opinion dated 6 December 2016at page 47 DCB

[105] See, generally, paragraph [139] of this Judgment

[106] See, generally, paragraph [13] of this Judgment

[107] See exhibit "A" at pages 78A DCB

[108] Report of Mr Ash Chehata, dated 9 October 2018 at page 136 PCB