IN THE COUNTY COURT OF VICTORIA
AT MELBOURNE COMMON LAW DIVISION	Revised
Not Restricted Suitable for Publication	
SERIOUS INJURY LIST
Case No. CI-22-02936

ACHILLE CARDAMONE	Plaintiff	
v		
VICTORIAN WORKCOVER AUTHORITY	Defendant	

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JUDGE:	HIS HONOUR JUDGE CLARK	
WHERE HELD:	Melbourne	
DATE OF HEARING:	30 and 31 March 2023	
DATE OF JUDGMENT:	14 July 2023	
CASE MAY BE CITED AS:	Cardamone v Victorian WorkCover Authority	
MEDIUM NEUTRAL CITATION:	[2023] VCC 1191	

REASONS FOR JUDGMENT
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Subject:	ACCIDENT COMPENSATION
Catchwords:	Serious injury – bilateral arm injury – economic loss – pain and suffering
– credit
Legislation Cited:   Workplace Injury Rehabilitation and Compensation Act 2013, s335 Cases Cited:	Johns v Oaktech Pty Ltd [2020] VSCA 10; Peak Engineering Pty Ltd v
McKenzie [2014] VSCA 67; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1
Judgment:	Leave to the plaintiff to bring common law proceedings for pain and suffering damages in respect to a right-arm injury and a left-arm injury suffered in the course of his employment and in particular in June/July 2016.

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APPEARANCES:	Counsel	Solicitors	
For the Plaintiff	Mr J Brett KC with Mr S Jurica	Zaparas Lawyers Pty Ltd	
For the Defendant	Mr B McKenzie	Minter Ellison	

COUNTY COURT OF VICTORIA
250 William Street, Melbourne

HIS HONOUR:

Introduction
1	The plaintiff, Mr Achilles (“Dan”) Cardamone, is thirty-nine years of age. He is married to Joanne. She works as a governance coordinator. The couple have two boys aged seven years and five years of age.

2	After completing his Year 12, Mr Cardamone enrolled in a Diploma of Furniture Design at RMIT. He successfully completed this qualification. Mr Cardamone then undertook a cabinetmaking apprenticeship. Upon completion of his apprenticeship, he continued to work as a cabinetmaker.

3	Such is Mr Cardamone’s passion for working with wood, one of his hobbies outside of work is making and restoring furniture. He said he loved his work as a cabinetmaker.1

4	Mr Cardamone commenced work with Plan System Australia Pty Ltd (“PSA”) on 28 April 2008. He had been working with PSA’s predecessors since 2002.

5	In the course of this employment and, in particular, in June/July 2016, Mr Cardamone suffered an injury to his right arm/elbow and left arm/elbow. He said, at this time, he had been undertaking particularly heavy, awkward and repetitive work.2 At the time he was injured, Mr Cardamone was working as a leading hand cabinetmaker.3

6	Mr Cardamone, in the financial years prior to July 2016, had earnt, with PSA:

Financial Year ending	Gross earnings	
30 June 2016	$68,276	
30 June 2015	$67,775	
30 June 2014	$60,045	

1	Transcript (“T”) 80, Line (“L”) 27
2	Plaintiff’s Further Amended Court Book (“PACB”) 13, paragraphs [10]-[14]
3	T33, Lines 9-12

7	Mr Cardamone first sought medical treatment on 9 July 2016.4 A WorkCover claim form was completed 20 July 2016.5

8	Mr Cardamone had a short period off work in July 2016.6 He then returned to work, initially part time, in an office-based position.7 By 2017, Mr Cardamone was back working full time as a project leader with PSA.8 At times, he worked overtime. Sometimes up to nine to twelve hours.9

9	In September/October 2017, Mr Cardamone was diagnosed with multiple sclerosis (“MS”). As a result of this condition he stopped work at this time. Mr Cardamone underwent treatment for his MS. The condition stabilised.

10	Throughout the period after suffering injury in July 2016 through to August 2018, Mr Cardamone underwent various investigations and conservative treatment regimes for his injuries.

11	On 2 August 2018, Mr Cardamone underwent surgery on his right elbow.10 After that procedure, Mr Cardamone has continued to receive ongoing conservative treatment, which has included physiotherapy and platelet-rich plasma injections (“PRP injections”).

12	In November 2019, Mr Cardamone resumed work. He obtained a position with Luna Joinery (“Luna”). He was employed as an office manager. Mr Cardamone said he did a range of tasks, including preparing plans, ordering materials, liaising with builders and site measurements. In this job, he used a computer.11 Initially, he was paid $30 per hour. Subsequently, that increased to $40 per hour.

4	PACB 37, paragraph [15(a)]
5	PACB 127
6	T33, L14-16
7	T33, L17
8	T34, L7-28
9	T35, L1-20
10	PACB 14 and PACB 120
11	T38, L3-19

13	Mr Cardamone remained with Luna until he resigned in May 2021. Mr Cardamone said there was pressure for him to do more physical work on the floor. Mr Cardamone said he most probably would have continued in that job, had it not been for these demands. Mr Cardamone attributed the pressure to do more physical work to the impact of COVID-19.12

14	At the time Mr Cardamone resigned, he was working full time.13 For the financial year ended 30 June 2021, up to the time he ceased work, Mr Cardamone had earnt $71,516 with Luna.

15	In May 2021, Mr Cardamone registered a business name, “Cube Concepts”.14 Mr Cardamone said that he had a computer at home. He said he prepared plans on this computer. Mr Cardamone obtained some limited work in this business. Mr Cardamone said that he had also undertaken some other work outside this business, such as helping his neighbour to design and install a kitchen.15

16	In December 2021, Mr Cardamone commenced working with Jeff Williams Building Services (“JWB”). He worked two days per week in this role.16 Mr Cardamone said his duties were initially 50 per cent on the computer and 50 per cent on the tools.17 As time progressed, Mr Cardamone said he was doing more work on the tools.18

17	In 2022, Mr Cardamone, in addition to working with JWB, also commenced undertaking work renovating his property at 9 Amery Street, Reservoir (“the renovation project”). Mr Cardamone said he stopped working with JWB in late 2022 to devote all of his time to the renovation project. Mr Cardamone said that once the house got to lock-up stage, he would then return to work with JWB.19

12	T39, L7
13	T39, L27-28
14	T51, L1-9
15	T52, L24 – T53, L15
16	T43, L4-5
17	T43, L1-13
18	T44, L7

18	Mr Cardamone said that he hoped, when he returned to JWB, he would be working more than two days per week.20

19	Mr Cardamone said that his arm injuries, in addition to impacting upon his work, also caused him ongoing pain and restricted him in many day-to-day activities.

20	Mr Cardamone says that both his right-arm injury and his left-arm injury are serious injuries for the purposes of both pain and suffering and economic loss.

21	The Victorian WorkCover Authority (“VWA”), who is the worker’s compensation insurer for PSA, said that Mr Cardamone has not suffered a serious injury for either pain or suffering or economic loss purposes. They said Mr Cardamone could do a range of full-time work and he has not lost 40 per cent “without injury” earnings.

The nature of this proceeding
22	This is a serious injury application brought pursuant to s335 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”). Mr Cardamone relies upon paragraph (a) of the definition of “serious injury” in s325(1) of the Act. That is, his right-arm injury and/or his left-arm injury are a “permanent serious impairment or loss of a body function”.

23	For Mr Cardamone to be successful, he must establish that the consequences from his right-arm and/or left-arm injury, when judged by comparison with other cases in the range of possible impairments or losses of a body function, are “more than significant or marked”, and “at least very considerable”, as per the narrative test set out in s325(2)(b) and s325(2)(c) of the Act.

24	For Mr Cardamone to satisfy the “very considerable” loss of earning capacity consequences, he must satisfy the statutory formula contained in s325(2)(e), (f) and (g) of the Act. Put simply:

(a)	he has a loss of earning capacity of 40 per cent gross earnings;

(b)	that loss will be permanent.

25	It is Mr Cardamone who has the onus of proof.

The issues
26	At the commencement of the application, the VWA said all issues were in dispute.

27	Thus, the matters for the Court to determine include:

(a)	as to Mr Cardamone’s credit and whether I can accept his evidence;

(b)	the impact of the video surveillance;

(c)	the impact and disentanglement of the MS;

(d)	which of the medical opinions should be accepted and the assistance they provide;

(e)	what, if any, inference should be drawn from the failure by Mr Cardamone to provide current evidence from his treating medical practitioners;

(f)	the nature, extent, and permanency of Mr Cardamone’s:

(i)	right-elbow injury,

(ii)	left-elbow injury.

(g)	does Mr Cardamone suffer a right-arm injury and/or a left-arm injury which are serious injuries for the purposes of pain and suffering?

(h)	what, if any, assistance is provided by the various vocational assessment reports;

(i)	does Mr Cardamone suffer a right-arm injury and/or a left-arm injury which are serious injuries for the purposes of economic loss?

Credit and video surveillance
28	As in a great   number of cases of this type, the credit and reliability   of Mr Cardamone is critically important.21

29	The VWA said Mr Cardamone’s credit and reliability was in issue.

30	Firstly, there was a series of video surveillance shown in the course of the application, and tendered. The video showed Mr Cardamone undertaking various activities, which included:

(a)	manoeuvring and opening gates;

(b)	handling a rubber mat;

(c)	carrying a plastic bag;

(d)	driving;

(e)	manhandling a scissor lift which was on the back of a trailer;

(f)	shaking rails.

31	It is necessary to put this video surveillance into context. It was taken in July 2022 and March 2023. At the time of the video surveillance, Mr Cardamone was:

(a)	working with either JWB or on the renovation project;

(b)	on his own admission, in each role, was undertaking some work on the tools.

32	Further, the VWA conceded that they had undertaken in excess of 100 hours of surveillance.

33	True, it is, that the video surveillance showed Mr Cardamone undertaking a range of activities, which I must consider in my assessment of serious injury and, in particular, his level of functioning and capacity. However, I do not accept that the

21	See, for example, the analysis of the Court of Appeal in Johns v Oaktech Pty Ltd [2020] VSCA 10, particularly at paragraph [76].

video surveillance showed Mr Cardamone undertaking anything more than activities which were consistent with the type of activities which he was undertaking at work and within his stated restrictions.

34	I do not accept that the video surveillance impacted upon his credit and reliability as a witness.

35	Moving, now, to Mr Cardamone’s evidence. I consider that Mr Cardamone presented in a straightforward and convincing manner. He was prepared to make concessions against interest. I accept Mr Brett’s submission that he was a witness of truth.

36	Further, it was my observation of Mr Cardamone, that he:

(a)	Is a highly motivated and hardworking man. He is stoic by nature;

(b)	Has consciously endeavoured to manage his injuries as best he can;

(c)	Has made the most of his residual capacities within the pain and restrictions which flow from the injuries he suffers;

(d)	Was correct in his self-description as being a perfectionist.22

37	It is through this lens that I assess this application.

The MS
38	The VWA said that Mr Cardamone’s case was complicated by his MS. They said the MS raised matters of disentanglement in respect to both pain and suffering consequences and work consequences.23

39	Ultimately, having considered all of the evidence, I do not consider the MS to be a significant issue in this application.

22	T42, L19
23	See the analysis of the Court of Appeal in Peak Engineering Pty Ltd v McKenzie [2014] VSCA 67.

40	Firstly, in respect to Mr Cardamone’s work capacity, the VWA ultimately conceded that the MS did not have any impact upon his current work capacity.24

41	Secondly, in respect to the pain and suffering consequences, I accept the VWA submission that there is overlap between the MS and Mr Cardamone’s arm injuries in respect to:

(a)	sleep;

(b)	use of CBD medication.25

42	Given the overlap, I have excluded these two consequences from my pain and suffering determination.

The medical evidence

The treating medical practitioners
43	I will firstly review and analyse the treating medical practitioners’ evidence before moving to the medico-legal evidence.

Dr Vincent Gallichio, general practitioner
44	Dr Gallichio has been Mr Cardamone’s long-time general practitioner. Dr Gallichio said he was first consulted by Mr Cardamone on 9 July 2016. While there was some confusion in Dr Gallichio’s evidence whether it was the left or right elbow which was the focus of the first consultation, what is clear is that, by 23 July 2016, Mr Cardamone was complaining of injury to both elbows.

45	Dr Gallichio said that the initial management of Mr Cardamone’s injuries included non-carpentry duties, rest, physiotherapy, splinting and PRP injections. Dr Gallichio also referred Mr Cardamone to Mr Matt Barnes, orthopaedic surgeon.

46	Dr Gallichio said that, by 4 July 2017, Mr Barnes had referred Mr Cardamone to an upper-limb surgeon, Dr Jennifer Flynn. Dr Gallichio said that:

24	T96, L2-7
25	T95, L32 – T96, L1

(a)	Mr Cardamone saw Dr Flynn on 11 July 2017;

(b)	Dr Flynn assessed Mr Cardamone as having right medial epicondylitis, confirmed on ultrasound;

(c)	Dr Flynn had suggested a common flexor origin repair and ulnar nerve release.

47	At this time, as Mr Cardamone had been diagnosed with MS, it was decided to postpone the proposed surgery to enable his medication for that condition to be reduced.

48	Subsequently, Dr Gallichio said, in respect to Mr Cardamone’s right elbow:

(a)	that surgery was undertaken on 2 August 2018;

(b)	post-operatively, he had a marked improvement in pain and motor function, but still had numbness in the ulnar nerve distribution, which settled with time.

49	In respect to Mr Cardamone’s left-elbow injury, Dr Gallichio said that:

(a)	Mr Cardamone saw Dr Flynn on 5 March 2019 for this condition;

(b)	an MRI scan demonstrated a partial tear of the left common extensor tendon, consistent with lateral epicondylitis.

50	Dr Gallichio said, in his most recent report of 1 October 2022, that it appeared Mr Cardamone was having ongoing problems with his left elbow/tennis elbow.

Dr Jennifer Flynn, consultant orthopaedic surgeon
51	From Dr Flynn I had:

(a)	a report dated 29 July 2017 to Mr Cardamone’s solicitors;

(b)	an operation report questionnaire, dated 21 December 2018;

(c)	a letter to Dr Jane Fitzpatrick, sports physician, dated 5 March 2019.

52	In her 29 July 2017 report,26 Dr Flynn confirmed:

(a)	An ultrasound of Mr Cardamone’s right elbow, dated 26 July 2016, revealed moderate flexor origin tendinosis with multifocal partial thickness, deep surface tears and neovascularity. There was mild tendinosis of the common extensor origin with a small partial-thickness deep-surface tear;

(b)	An MRI scan of Mr Cardamone’s right elbow undertaken 15 July 2017; revealed moderate chronic medical epicondylitis with a deep-surface partial- thickness tear measuring 5 x 4 millimetres, and further mild chronic lateral epicondylitis.

53	Dr Flynn said that, given Mr Cardamone had failed to respond to steroid injections, PRP injection therapy and physiotherapy, he required a right medial epicondylar surgical repair, as well as an ulnar nerve release.

54	In the Treating Surgeon Questionnaire, Dr Flynn said:

(a)	on 2 August 2018, she undertook the right common flexor repair;

(b)	that Mr Cardamone would be able to return to sedentary-type duties in early 2019;

(c)	any return to full duties would be determined by Mr Cardamone’s progress;

(d)	she was not able to comment on a recommendation for a graduated return to work until after her next review on 5 March 2019.

55	On 5 March 2019, Dr Flynn wrote to Dr Fitzpatrick. At that time, Dr Flynn:

(a)	referred Mr Cardamone to Dr Fitzpatrick for consideration of PRP therapy for his left lateral epicondylitis and partial tear;

26	PACB 34

(b)	said that Mr Cardamone had made an excellent recovery from the right common flexor repair surgery.

Dr Jane Fitzpatrick, sports physician
56	On 4 July 2019, Dr Fitzpatrick wrote to Dr Flynn. She said:

(a)	Mr Cardamone had undergone a PRP injection six weeks previously;

(b)	he was much improved;

(c)	she was concerned about biomechanics at Mr Cardamone’s work and she made various suggestions;

(d)	she was going to get Mr Cardamone to work with Mr Michael Rafla, physiotherapist.

Mr Michael Rafla, physiotherapist
57	I had an undated “To whom it  may concern” letter from Mr Michael Rafla, physiotherapist. It said:
“Improvements following the PRP by Jane Fitzpatrick have been very impressive.

Whilst not being able to lift ½ kg without pain [Mr Cardamone] is now lifting 4kg as part of his home exercise program. This improvement begun following the procedure and has continued to increase. Prior to the procedure [Mr Cardamone] wan not able to lift ½ kg for several months without pain.

As measured today the 1 August the grip strength on the Left is no up to 60% of the Right. Prior to the procedure it was below 25% of the Right side.

In addition, [Mr Cardamone] now notes that he can now sleep through the night provided he has not overdone it during the day, prior to the procedure the pain would have caused multiple wakings through the night.”27

(sic)

27	Defendant’s Further Amended Court Book (“DACB”) 306

Professor Richard Gerraty, neurologist
58	I had a letter from Professor Gerraty, neurologist, to Dr Gallichio, dated 30 May 2022. At that time, putting aside issues of the MS and anxiety, Dr Gallichio recorded that Mr Cardamone had told him:

(a)	his left forearm plays up if he does more than two days of cabinetmaking;

(b)	that he is currently supervising the renovations of his home.

Dr Yogananda Ballekere, consultant psychiatrist
59	Dr Ballekere is Mr Cardamone’s   treating   psychiatrist.     He first met with Mr Cardamone on 26 May 2022.

60	This is not a paragraph (c) case.

61	I acknowledge the need to disentangle between any psychiatric injury and Mr Cardamone’s physical injuries.

62	Dr Ballekere said, on 28 June 2022, 4 August 2022, 8 September 2022 and 12 October 2022, Mr Cardamone had complained about pain in his arms. Dr Ballekere reported that Mr Cardamone said that the pain and restriction in his arms caused him a lot of grief and significantly restricted him doing a lot of things. Dr Ballekere made a diagnosis of anxiety disorder, which he said was inextricably linked to his upper-limb injuries and consequent pain and functional limitations.

Observations
63	I pause, here, to note that there is limited up-to-date materials from those medical practitioners who have continued to treat Mr Cardamone’s bilateral arm injuries. Indeed, many of the materials I have been provided are not Order-33 reports requested by the parties to specifically address the issues in this application. Unfortunately, this is not unusual in many applications of this type which come before the Court.

64	The VWA said the lack of up-to-date treating practitioner medical evidence was an issue in the application. In particular, the VWA referenced the lack of any up-to- date evidence from Mr Rafla, who, Mr Cardamone said, continued to treat him.28

65	The VWA also said there was a lack of any record of any ongoing arm problems in Dr Gallichio’s recent clinical records.29 The VWA said the lack of support from the treating general practitioner was “very unusual”.30

66	I understand the VWA’s concerns.

Medico-legal evidence
67	Moving now to the medico-legal reports. I will deal with this evidence in chronological order.

Dr Peter Boys, consultant orthopaedic surgeon, report dated 22 March 2017
68	On 17 March 2017, Dr Boys assessed Mr Cardamone for Allianz Australia Workers Compensation (Victoria) Limited (“Allianz”), the authorised insurer for the VWA.

69	Dr Boys said, at that time:

(a)	He accepted Mr Cardamone suffered chronic enthesopathy of the right elbow. There was clinical evidence to suggest medial epicondylitis;31

(b)	Mr Cardamone was experiencing symptoms associated with inflammatory change around the medial epicondyle of the right elbow;

(c)	Mr Cardamone had an ongoing propensity to medial elbow strain in the course of heavy manual activities;

(d)	That surgical management would be “ill advised”.32

28	T98, L7-20
29	T98, L20 – T99, L19
30	T99, L17-21
31	DACB 191
32	DACB 194

(e)	That Mr Cardamone should discontinue treatment and self-manage the condition.

Dr Peter Boys, report dated 22 May 2017
70	Dr Boys re-examined Mr Cardamone for Allianz on 12 May 2017.

71	At this time, Dr Boys said:

(a)	Mr Cardamone continued to suffer chronic enthesopathy of the right elbow (medial epicondylitis);

(b)	Mr Cardamone had reached maximal medical improvement with no immediate prospect of resolution of the claimed disability;

(c)	Mr Cardamone was capable of returning to pre-injury hours and duties;

(d)	the ongoing advice from Mr Cardamone’s physiotherapist was unhelpful;

(e)	that, while it would be reasonable for Mr Cardamone to suffer a degree of discomfort in the course of sustained or heavy work, that should be no restriction; and

(f)	psychological and work-related relationship issues were the barriers to a return to full employment.

Dr Peter Boys, report dated 18 September 2017
72	Dr Boys reassessed Mr Cardamone for Allianz on 8 September 2017.

73	On this occasion, Dr Boys recorded complaints of sensory symptoms.	On examination, he found:

(a)	tenderness on full palpation;

(b)	complaint of local pain involving the proximal forearm musculature;

(c)	ulnar nerve tenderness.

74	At this time, Dr Boys said:

(a)	that Mr Cardamone was suffering chronic medial epicondylitis;

(b)	surgery could be reasonably directed to the ulnar compression and to the medial epicondylar attachments;

(c)	that the proposed surgery would now be considered appropriate;

(d)	that conservative treatment is unlikely to provide further benefit;

(e)	the proposed surgery has the prospect of improving Mr Cardamone’s capacity to grip, carry and undertake right-arm activities, and was likely to facilitate some improvement in work capacity; and

(f)	Mr Cardamone would need further assessment after the surgery was undertaken.

75	There was a distinct shift in Dr Boys’ evidence.

Dr David Ho, occupational health consultant, report dated 27 March 2019
76	Dr Ho assessed Mr Cardamone on behalf of Allianz on 26 March 2019.

77	Dr Ho obtained a history of:

(a)	The surgery which had by now been undertaken to Mr Cardamone’s right elbow. He noted there had been improvement after the surgery, but with ongoing weakness;

(b)	Pain in the left elbow with ongoing physiotherapy and PRP injections.

78	Dr Ho said Mr Cardamone:

(a)	had recovered from a successful right elbow surgery;

(b)	continued to suffer clinical lateral epicondylitis in the left elbow which was work-related;

(c)	was suitable for modified alternative duties with left-arm restrictions.

Dr David Ho, report dated 23 July 2019
79	Dr Ho provided a supplementary report following the provision of private investigation reports and video surveillance. Dr Ho said he did not believe, at the time of his 26 March 2019 examination, that Mr Cardamone was misrepresenting or exaggerating his functional capacity. Dr Ho said Mr Cardamone had capacity for pre-injury duties.

Dr Michael Baynes, occupational physician, report dated 12 December 2019
80	Dr Baynes assessed Mr Cardamone on behalf of Allianz on 12 December 2019.

81	Dr Baynes said he considered Mr Cardamone:

“… has suffered medial epicondylitis in the right elbow ultimately undergoing surgery with some improvement. He continues to suffer mild symptoms which are progressively improving in the right elbow. He also has some minor pain over the lateral aspect of the right elbow with clinical examination suggesting mild lateral epicondylitis. He also suffers from left lateral epicondylitis, which has largely resolved.”33

82	Dr Baynes said that Mr Cardamone was fit for alternative or modified duties where there was no repetitive forceful gripping with either the right or left hand, and where there was limited exposure to vibration tools. He said Mr Cardamone’s work should be rotated and should not involve repetitive forceful gripping or pushing with the right or left hand, and he should use his wrists in a neutral position. Dr Baynes said Mr Cardamone could increase his hours with “work hardening”.34

Dr Graeme Doig, general orthopaedic and trauma surgeon, report dated 21 June 2022
83	On 6 June 2022, Dr Doig examined Mr Cardamone for the VWA solicitors.

84	On clinical examination, Dr Doig found:

“… There was a well-healed, longitudinal, medial scar at the right elbow consistent with his operative procedure. Both ulnar nerves were irritable in the cubital tunnels with a positive Tinel’s signs. There was 10 degrees

33	DACB 250
34	DACB 251

of fixed-flexion deformity bilaterally at the elbows with normal flexion. Pronation and supination were retained at the left elbow/forearm but there was only 60 degrees of supination on the right. Wrist movements were also restricted in flexion and extension. There were no limitations in finger or thumb movement. Provocation tests for carpal-tunnel syndrome were negative. He remained tender over both common-extensor origins, more so at the common-flexor origins at both the elbows greater on the left.”35

85	Dr Doig said the prognosis with respect to a complete resolution of the condition must be guarded. He said that Mr Cardamone’s condition “can remain recalcitrant to treatment”.36

86	Dr Doig said that Mr Cardamone was not fit for his pre-injury employment and will not be so in the future.37 Dr Doig went on to say that, ideally, Mr Cardamone:

(a)	will have less than a 10-kilogram lifting, pushing and pulling restriction;

(b)	should lift no more than 5 kilograms for each arm individually; and

(c)	repetitive manual work should be avoided.38

Dr Graeme Doig, report dated 3 February 2023
87	Dr Doig was asked to provide a supplementary report, having been provided with the CoWork Vocational Assessment and Labour Market Analysis Report, 6 July 2022 (the CoWork report”)

88	Dr Doig expressed concerns about various jobs which had been suggested and went on to say:
“As long as the previously listed restrictions are maintained, [Mr Cardamone]should be able to up-grade to normal hours. In view of his time out of the work-force and de-conditioning, restricted hours initially may be helpful. … .”39

89	Dr Doig maintained his opinion set out in paragraph 86.

35	DACB 272
36	DACB 273
37	DACB 274
38	DACB 274
39	DACB 278

Dr Dominic Yong, specialist	occupational	physician,	report dated 28 February 2023
90	Dr Yong assessed Mr Cardamone on behalf of the VWA solicitors.

91	Dr Yong considered Mr Cardamone was suffering from:

(a)	a right elbow soft-tissue injury, surgically treated with persisting dysfunction;

(b)	left elbow soft-tissue injury with persisting left-elbow dysfunction.40

92	Dr Yong said:

(a)	Mr Cardamone’s employment continued to be a contributing factor to the onset of his bilateral elbow condition;

(b)	Mr Cardamone was incapacitated for his pre-injury employment.

93	Dr Yong said that Mr Cardamone could ultimately get back to full-time work, undertaking modified duties.

94	Dr Yong reviewed a range of jobs which had been suggested in various vocational assessment reports, including the CoWork Report and the Axiom Occupational Therapy Vocational Assessment Report, dated 16 February 2023 (“the Axiom report”). Dr Yong said some of the suggested jobs would be appropriate and Mr Cardamone could immediately commence work in them. For example, as a facilities officer,41 an administration officer,42 and as an estimator.43 Dr Yong said there were other jobs which may require a graduated return-to-work program, together with an activity-based recovery program. For example, the joinery setter out role.44

Dr James Rowe, occupational physician, report dated 17 November 2022
95	On 17 November 2022, Dr Rowe assessed Mr Cardamone for his solicitors.

96	Dr Rowe made a diagnosis of bilateral medial epicondylitis, which he said was entirely consistent with Mr Cardamone’s work.45

97	Dr Rowe outlined a range of restrictions appropriate for Mr Cardamone and said he considered his function was considerably compromised. Dr Rowe considered that Mr Cardamone was unable to use either his right arm or his left arm in a repetitive, forceful or reliable manner. He considered this to be a permanent incapacity.

Dr Leon Turnbull, occupational and forensic psychiatrist, report dated 16 December 2022
98	Dr Turnbull assessed Mr Cardamone for his solicitors on 1 December 2022.

99	Dr Turnbull said that Mr Cardamone is “bouncing along the lower threshold of an Adjustment Disorder”.46 He said that Mr Cardamone was grumpy and irritable and there was a mild to modest incapacitating effect. Dr Turnbull said it was impossible and artificial for him to identify the restriction on Mr Cardamone’s work capacity based on his adjustment disorder, but thought twenty hours per week may be reasonable.

Mr Ash Moaveni, consultant orthopaedic surgeon, report undated
100	Mr Moaveni assessed Mr Cardamone on behalf of his solicitors on 2 December 2022.

101	Mr Moaveni made a diagnosis of bilateral soft-tissue injuries to the elbows, including common-extensor and common-flexor tendinopathy. Mr Moaveni said that Mr Cardamone continues to have symptoms in both his right arm and left arm, including pain. He said the pain was worse with repetitive use of the arms. Mr Moaveni considered the injuries to be consistent with Mr Cardamone’s work.

45	PACB 54
46	PACB 63

102	Mr Moaveni said that Mr Cardamone had ongoing injury-related functional limitations, including difficulties lifting, carrying, reaching, raising his arms and driving.

103	Mr Moaveni said he would recommend the following work restrictions, to each arm individually:

(a)	lifting less than 3 to 4 kilograms;

(b)	avoiding repetitive and manual work;

(c)	avoiding grasping and holding for more than fifteen to twenty minutes;

(d)	avoiding pushing, pulling and reaching.47

104	Mr Moaveni said that the work restrictions were permanent.

105	Mr Moaveni said Mr Cardamone was not able to return to work in his pre-injury employment as a cabinetmaker.

106	Mr Moaveni said that Mr Cardamone did have capacity to undertake suitable employment. Mr Moaveni noted that, when Mr Cardamone attempted to increase his work hours or work duties, he had significant flare-ups with his elbow symptoms. Mr Moaveni thought there was a permanent restriction of sixteen hours per week. Mr Moaveni considered the variability of Mr Cardamone’s symptoms, and his levels of pain and the unpredictable nature of his flare-ups would impact on his ability to attend work on a reliable and consistent basis.48

Conclusions in respect to medical opinions
107	I make some preliminary observations:

47	PACB 77
48	PACB 79

(a)	There was a level of variability in respect to the reported injuries in the years after Mr Cardamone was injured. On occasions, there was emphasis on the left elbow, and on other occasions, on the right;

(b)	There was a failure to provide current reports from treating practitioners which address the issues which arise in this application.

108	Having said this, and having considered all of the evidence, such variability in emphasis and lack of current treating-practitioner material, is not as problematic as it might otherwise have been in other circumstances.

109	I have been provided with numerous recent medico-legal assessments, which have been obtained by both the VWA’s solicitors and Mr Cardamone’s solicitors.

110	Each of Dr Doig, Dr Yong, Dr Rowe and Mr Moaveni, had been provided with a great deal of background material, which they analysed, as well as undertaking their examinations of Mr Cardamone. When it came to the question of injury, all came to very similar conclusions. While there is a divergence in respect to the vocational consequences to Mr Cardamone (which I will address later in this judgment), each accepted that Mr Cardamone has sustained, and continues to suffer from, a work-related injury to his right arm and left arm individually. That there is this uniformity in the recent medical evidence is important to my determination.

111	Of these recent medico-legal reports, I found the evidence of Dr Doig particularly helpful. Dr Doig, an experienced orthopaedic and trauma surgeon, undertook a careful analysis of the background material and set out, and explained, his examination findings. I note Dr Doig’s observation that Mr Cardamone’s condition is one which can remain “recalcitrant”. This accords with my analysis of the progression of Mr Cardamone’s injuries. Dr Doig was blunt in his assessment that

Mr Cardamone is not fit for his pre-injury employment and will not be so in the future.49

112	Having considered all of the evidence, I accept that Mr Cardamone has, by reason of his work with PSA, suffered:

(a)	right epicondylitis, together with ulnar nerve irritation, necessitating surgery;

(b)	left epicondylitis with ulnar nerve irritation.

113	I accept that these injuries, individually:

(a)	Are chronic in nature. It is now seven years since their onset;

(b)	Cause Mr Cardamone pain. While the pain and consequential symptoms fluctuate in intensity, they are ongoing. From time to time, Mr Cardamone suffers flare-ups which cause an escalation in the pain and limitation;

(c)	Are permanent.

Does Mr Cardamone suffer a serious injury for pain and suffering purposes?
114	I am conscious of the need to assess the right-arm injury and left-arm injury individually. Unless I state otherwise, the analysis and consequences to which I now refer to are equally attributable to each arm.

115	The VWA said that, neither Mr Cardamone’s right-arm injury or left-arm injury were for serious for pain and suffering purposes. In particular, they said Mr Cardamone had:

(a)	made an excellent recovery from the right-arm surgery;

(b)	in recent years, received only very limited medical treatment and had not complained to Dr Gallichio;

49	DACB 274

(c)	used only Panadol or Nurofen, and then only twice per week;

(d)	retained a great deal of functional capacity and had engaged in full-time work.

116	While Dr Flynn did express optimism after the right-elbow surgery back in 2019, I do not accept, with the effluxion of time, that optimism has been borne out. The overwhelming weight of recent medical evidence is consistent to the conclusion that Mr Cardamone continues to, and currently, suffers pain and restriction in his right arm.

117	In respect to ongoing treatment, I accept that Mr Cardamone is now only:

(a)	receiving physiotherapy treatment;50

(b)	taking Nurofen or Panadol.

118	However, I also accept that Mr Cardamone is vigilant in managing his injuries. He is conscious not to overdo his activity level. As he said, “everything in moderation”.51

119	I acknowledge that it is important for me to consider what Mr Cardamone does about his injuries, as opposed to what he says about them.52 In this context, I accept that, every day, Mr Cardamone is conscious of, and is managing, his injuries. That is, there is an ongoing regime of self-management.53

120	In the context of this application, I do not accept this aspect of the VWA’s criticism. I am fortified in this conclusion by the recent medical evidence, particularly Dr Doig, where there is no suggestion of any further or alternative treatment which should be undertaken.

50	T79, L25-27
51	T62, L6-7
52	See the analysis in Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592
53	In this respect, see the suggestion by Dr Boys back in 2017. See paragraph [68] of this judgment.

121	It is correct to say that Mr Cardamone has retained the capacity to undertake a range of activities. For example:

(a)	he has worked full time in suitable employment;

(b)	he has managed the progression of, and undertaken, physical work at the renovation project;

(c)	he continues to undertake some of his hobbies, such as working on his Torana, doing some furniture/woodwork, mowing lawns and riding his pushbike.

122	I must take this retained capacity into account.54

123	Having said that, I accept Mr Cardamone’s life has been impacted in many ways by reason of his arm injuries.

124	As I have already noted, he is constantly vigilant not to overstress his arms, and to avoid the consequential flare-ups and the increased pain and symptoms which invariably follows.

125	I accept if, and when, Mr Cardamone does overdo it, he does suffer increased pain and symptoms. I accept that he tries to be careful to manage his injuries, to try to avoid the cycle of increased pain, increased impairment and the need for increased levels of pain relief. It is an ongoing balancing act. This, in itself, is a consequence.

126	The weight of the medical evidence is to the conclusion that Mr Cardamone is not able to work as a cabinetmaker on a full-time basis. I accept that working as a cabinetmaker was more than a job for him. It was a passion. It is clear this is a great loss to him. Indeed, the VWA acknowledged this as a pain and suffering

54	See the analysis in Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260.

consequence. However, the VWA said, in respect to the weight to be attributed to this consequence, that “it doesn’t carry it across the line”.55

127	While that may be the case, given Mr Cardamone’s stated love of cabinetmaking, I consider this consequence goes a very long way towards being a very considerable consequence in its own right.56

128	The pain and work consequences are, of course, not the only consequences upon which Mr Cardamone relies.

129	In his affidavit evidence, Mr Cardamone set out, in great detail, many activities of daily living which are impacted by his injuries. Many of these consequences were corroborated in the affidavit evidence of his wife, Joanne.

130	While the VWA relied upon the video surveillance evidence as a basis to suggest the consequences were not as significant as claimed, this must be balanced with the medical evidence which, I accept, supports and provides a basis for the ongoing pain and restrictions of which Mr Cardamone complains.

131	Some of the other consequences upon which Mr Cardamone relies include:

(a)	The impact on his relationship with his young children. He said there are many activities which are affected. I accept Mr Cardamone to be a committed family man. His inability to be the father he would like to be is a significant loss to him;

(b)	His inability to undertake the renovation project in an unrestricted manner. He is now reliant on tradesmen, family and friends to undertake tasks which he would have, but for his injury, undertaken. I accept Mr Cardamone to be a perfectionist. In addition to the associated increased cost, it was Mr Cardamone’s preference to do such work himself;

55	T106, L2
56	See the analysis in Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326

(c)	A limited capacity to undertake and enjoy his restoration and general work on cars, including his Torana. He said he was “quite limited”;57

(d)	His inability to go skiing, something which he previously did a lot, and something which he had looked forward to doing with his family. The loss of this sporting activity is, in itself, a significant loss;

(e)	A limited capacity to undertake his furniture-restoration hobby. Mr Cardamone said he is no longer able to do big pieces. He is restricted to small pieces and goes much more slowly.

(f)	His inability to go ten-pin bowling. This had been a “real family affair”.58 This is a consequence specific to his right arm. This is a significant impact for him;

(g)	His inability to go fishing as he had. This is primarily as a consequence of his right-arm injury;

(h)	The impact on his capacity to participate in, and enjoy, camping. Camping was an activity which, prior to his injury, was a favourite thing to do on free weekends.

132	I accept Mr Cardamone suffers these consequences.

133	I note that Mr Cardamone is right-hand dominant. This is relevant in respect to the assessment of his right-arm injury.

134	While I acknowledge that Mr Cardamone has retained a capacity for suitable work and continues to undertake a range of daily-living activities, there is not a day that will go by where his life is not impacted in some meaningful way. For a man who

57	See, for example, Mr Cardamone’s evidence under cross-examination at T76, L28-29 and T81, L20- 30.
58	The affidavit of Joanne Cardamone at PACB 29.

is thirty-nine years of age, with the rest of his life in front of him, I accept the consequences which Mr Cardamone suffers satisfy the “very considerable” test.59

135	Mr Cardamone will be granted leave to proceed with a damages claim for pain and serious suffering for:

(a)	his right-arm injury;

(b)	his left-arm injury.

The economic loss claim
136	Moving, now, to the second aspect of Mr Cardamone’s application, the economic loss claim.

The Vocational Assessment Reports
137	I had numerous reports which, while given various titles, I will simply refer to as “vocational assessment reports”. They include:

(a)	six IPAR reports;

(b)	the Axiom Report;

(c)	the CoWork Report.

138	The IPAR reports go back to 2019. Given how dated they are, they are of limited relevance and assistance to me.

139	The CoWork and Axiom Reports were lengthy assessments which went into a great deal of detail, identifying and analysing Mr Cardamone’s current work circumstances and various job options which may constitute suitable employment.

140	Put simply:

59	See, in particular, the analysis in Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1

(a)	Mr Dwyer, in the Axiom Report, concluded that Mr Cardamone was limited to sixteen hours per week;60

(b)	Ms Barbuto, in the CoWork Report, considered Mr Cardamone was capable of undertaking full-time work in a range of suitable employment options. For example, as an estimator.61

141	As is often the case in applications such as this, the help provided by the Vocational Assessment Reports is very much dependent upon what conclusion the Court makes in respect to a worker’s residual capacities and the hours which they can work. That is so in this application.

Is Mr Cardamone’s right-arm injury and/or left-arm injury a serious injury for the purposes of economic loss?

Can Mr Cardamone work full time?
142	Turning, firstly, to Mr Cardamone’s evidence.

143	Mr Cardamone agreed that he has, after suffering his injury:

(a)	worked full-time hours undertaking suitable duties with JSA;

(b)	worked full-time hours undertaking suitable duties with Luna;

(c)	with both these employers, in addition to working a normal full-time week, from time to time, worked overtime.

144	At the time the application was before the Court, Mr Cardamone was not undertaking paid work. He was devoting his energies to the renovation project. Mr Cardamone did, however, say he considered himself to be still in an employment/subcontracting relationship with JWB.62

145	The work Mr Cardamone is undertaking on the renovation project includes:

60	PACB 101, paragraph [6.2]
61	DACB 155 and 156
62	T48, L7-9

(a)	Organising the various tradesmen who are working at the site;

(b)	Organising and procuring materials and machinery. For example, the scissor lift shown in the video surveillance;

(c)	Preparing the plans;

(d)	Undertaking the general management of the project;

(e)	Physical work within his capabilities.

146	It was put to Mr Cardamone by the VWA that he was putting in “full days” at the renovation project. He agreed. He said:
Q:	“And when you - in recent times when you’ve been going to the Amery Street property, have you been putting in a full day?---

A:	I tend to. It’s not all physical work; I have been working on my own kitchen drawings so I can submit. So it’s not purely just that.”63

147	Mr Cardamone said:

(a)	that he was going to install the kitchen, albeit with help from family;64

(b)	he was going to continue working on the renovation project until it reached lock-up stage;

(c)	after the renovation project reached lock-up stage, he would then return to work with JWB.

148	While Mr Cardamone said he would initially return to JWB working two days per week, he said that he was hoping to work more than two days a week with them.65 This, while still continuing with the renovation project.

149	I now move to my review of the medical opinions in respect to Mr Cardamone’s current work capacity.

63	T71, L19-23
64	See Mr Cardamone’s evidence at T57, L5 – T58, L16.
65	T73, L27-29

150	While the recent medico-legal opinions were in agreement that Mr Cardamone had suffered, and continues to suffer, injury to his right arm and left arm, there was disagreement in respect to the “with injury” work capacity:

(a)	Dr Rowe said that Mr Cardamone had no capacity;

(b)	Dr Doig and Dr Yong said that Mr Cardamone could work full time in suitable employment;

(c)	Mr Moaveni said that Mr Cardamone was limited to sixteen hours per week.

151	Mr Brett said that Mr Cardamone was not relying on Dr Rowe’s opinion that he had no work capacity.66 That was an appropriate concession.

152	Having considered the medical evidence, it is the opinions of Dr Doig and Dr Yong which I prefer. Their assessment of Mr Cardamone’s “with injury” capacity accords with my observation of Mr Cardamone’s functional capacity and the reality of the work he has undertaken post-injury. I accept that Mr Cardamone has, in the past and continues to, have the capacity to engage in work for greater than sixteen hours per week.

153	I accept:

(a)	Mr Cardamone has shown a capacity for full-time work with both JSA and Luna;

(b)	Mr Cardamone has shown a capacity to work two days per week at JWB and continue to work at the renovation project;

(c)	at the time of the hearing of the application, was working on the renovation project, doing full days;

66	T111, L9-10

(d)	that Mr Cardamone would like to work more than two days per week once he resumes back at JWB and continue with the renovation project.

154	I accept that the work which Mr Cardamone:

(a)	is currently undertaking at the renovation project;

(b)	and was, back in 2022, undertaking with JWB, in conjunction with activities at the renovation project;

are, in themselves, in excess of what Mr Moaveni said he was capable.

155	Further, I do not accept Mr Cardamone’s stated wish to increase his days at JWB is simply an aspirational goal. Mr Cardamone has, for very lengthy periods of time in the past, worked full-time hours. Indeed, there were periods when he worked quite significant overtime as well.

156	I do not accept that Mr Cardamone is limited to working sixteen hours per week in suitable employment. That is not established on the totality of the evidence. I accept the evidence of Dr Doig and Dr Yong that Mr Cardamone can work full-time hours. For completeness, I do not accept the opinion expressed by Dr Turnbull that Mr Cardamone has a limitation of twenty hours per week by reason of any psychological injury.

What is the 60 per cent threshold?
157	It is common ground that the 60 per cent threshold figure is $788.67

Can Mr Cardamone earn more than the 60 per cent threshold?
158	The VWA said Mr Cardamone had shown that he does have capacity to earn well in excess of $788. They emphasised that, at Luna, he had earnt $71,516 gross in the 30 June 2021 financial year. The VWA said that currently:

67	T109, L19-22 and Defendant’s written submissions

(a)	should Mr Cardamone work three days per week at JWB, he would exceed the threshold;

(b)	that should Mr Cardamone choose to obtain suitable full-time employment, such as an estimator, he would earn in excess of $788.

159	Mr Brett said that sixteen hours per week at JWB, or in other suitable employment, was the limit of Mr Cardamone’s capacity and that his earnings at Luna and JSA post-injury should be disregarded.

160	Mr Brett said that Mr Cardamone’s earnings at Luna and JSA were reliant upon his use of the AutoCAD computing system, which is now obsolete.68 Mr Brett said that Mr Cardamone is not skilled in the current technology, such as Microvellum, which was a prerequisite for him to obtain such work. Mr Brett said that Mr Cardamone had little to sell in the employment market.

161	I do not accept these submissions made by Mr Brett.

162	Mr Cardamone is not an unintelligent man. He:

(a)	Completed Year 12;

(b)	Completed a tertiary qualification at RMIT;

(c)	Has computer skills. Indeed, he has his own business in which he utilises a computer;

(d)	Is personable and articulate;

(e)	Is capable of managing the renovation project with all of the demands which go with that;

(f)	Has a range of skills and work experience.

68	T115, L31 – T116, L9

163	As I have set out earlier in this judgment, I do not accept Mr Moaveni’s evidence that Mr Cardamone is limited to working sixteen hours per week. The assertion that Mr Cardamone has such a limitation is simply not borne out on a careful analysis of all the evidence.

164	I accept that Mr Cardamone’s “with injury” earning capacity exceeds the 60 per cent threshold. Without repeating all of my analysis and conclusions, I summarise my findings in this regard:

(a)	I accept Mr Cardamone is a stoic, hardworking and motivated man;

(b)	That Mr Cardamone, while he does have vocational limitations by reason of his right-arm injury and left-arm injury individually, still has a wide range of skills which he can utilise and sell in the employment market;

(c)	That Mr Cardamone is an intelligent and capable person. He has completed tertiary qualifications. He is computer literate;

(d)	Mr Cardamone has a proven record of post-injury work in excess of sixteen hours. Indeed, he has worked for long periods on a full-time basis, at times working overtime;

(e)	I accept the opinions of Dr Doig and Dr Yong;

(f)	There are a range of employment options in which Mr Cardamone is capable of earning in excess of the 60 per cent threshold. These include, but are not limited, to:

(i)	three days per week at JWB;

(ii)	two days per week at JWB and continued work managing and undertaking hands-on work at the renovation project;

(iii)	the suitable work identified in the CoWork Report ꟷ for example, working as an estimator where the weekly earnings are $1,579.69

165	Mr Cardamone’s application for leave to pursue economic-loss damages fails.

Conclusion
166	I will hear the parties in respect to the consequential orders to be made.

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69	DACB 161