IN THE MAGISTRATES’ COURT OF VICTORIA 
AT MELBOURNE
WORKCOVER Division of court

Case No.L12251571   

Sunday NYAOCH	Plaintiff	
		
v   		
		
BERRY STREET VICTORIA INCORPORATED	Defendant	

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MAGISTRATE:	M A HOARE	
WHERE HELD:	Melbourne (via WebEx)	
DATE OF HEARING:	13, 16 – 17 August 2021	
DATE OF DECISION:	05 October 2021 	
CASE MAY BE CITED AS:	Nyaoch v Berry Street Victoria Incorporated	
MEDIUM NEUTRAL CITATION:	[2021] VMC 015	

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CATCHWORDS – Workers Compensation – Residential care worker assaulted by a client in the workplace - Left upper limb – Delay in treatment and in lodgement of claim - Rejected claim - Weekly payments of compensation and medical & like expenses  - Current work capacity – Capacity for pre-injury employment – Incapacity -  Apparent absence of a temporal nexus between injury and incapacity - Workplace Injury Rehabilitation and Compensation Act 2013 ss.3(1), 39(1), 40(3), 160.

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APPEARANCES:
	COUNSEL	SOLICITORS	
For the Plaintiff	Mr P Haddad	Arnold Thomas & Becker	
			
For the Defendant	Mr B Mackenzie	Minter Ellison	

HER HONOUR:

INTRODUCTION AND OVERVIEW

1	Mr Sunday Nyaoch, the plaintiff in this proceeding, was employed as a residential care worker in a residence for male youths (‘the residence’) operated by his employer, Berry Street Victoria Incorporated (‘Berry Street’). He claims weekly payments and medical and like expenses under the Workplace Injury Compensation and Rehabilitation Act 2013 (‘the Act’). 

2	On 9 May 2019, Mr Nyaoch, whilst working at the residence, was involved in a physical altercation with one of the resident youths (referred to throughout as  ‘clients’). In the course of altercation, Mr Nyaoch was assaulted (‘the May 2019 incident’). At hearing, it was accepted that the May 2019 incident had occurred, however Berry Street denied that Mr Nyaoch had sustained an injury as a consequence. The dispute turned on the details or mechanism of the incident and the nature and extent of any claimed injury. It was further denied, even if there had been an injury, that there was a consequential incapacity for his pre-injury duties nor any need for treatment. 

3	It was not until about twelve months after the May 2019 incident that Mr Nyaoch lodged a claim for compensation for injury to his left upper limb arising out that incident. His claim was rejected on several grounds including that he had not suffered an injury and that he had capacity for his pre-injury duties. 
4	Mr Nyaoch did not lose time from work after the May 2019 incident and continued his pre-injury employment for a several months. He has at all times continued to be employed within the care sector (by different employers) as a disability care worker. A key battle-ground between the parties was the nature and extent of Mr Nyaoch’s retained capacity for work and his ability to sell his labour as a care worker on the open market.
EVIDENCE OF THE PLAINTIFF
Background
5	In 2011, Mr Nyaoch, who is aged 35 years, emigrated to Australia from Ethiopia. He completed his schooling in Ethiopia to the equivalent of around year ten or eleven. In Australia, he initially did manual jobs such as labouring and cleaning. He then gained various qualifications including: Certificates II and III in security; Certificate IV in Health & Science Foundation; and a Diploma of Nursing. He also achieved various certificates including in: first aid, anaphylaxis, infection control, open disclosure in the workplace  and a Federal Police ‘working with children certificate’. 
6	In 2019, he  separated from his wife with whom he has six children. 
7	Mr Nyaoch is right-hand dominant. He had suffered no prior injuries to his left upper limb.
Role with Berry Street
8	In January 2019, Mr Nyaoch commenced casual employment with Berry Street as a Residential Care Worker / Therapeutic Residential Care Worker at the residence which was in Gippsland. Berry Street’s practice was to roster two residential care workers concurrently at the residence, one in the office doing administrative work and the other, interacting directly with the clients. 
9	He normally worked about 35 hours a week.
10	Mr Nyaoch agreed he was familiar with Berry Street’s ‘Position Description’ documents for the two roles which were largely the same. For the Therapeutic role, under ‘Key Accountabilities and Responsibilities’, there were some additional duties related to implementation of therapeutic plans for ‘Direct Service Delivery’.  Both position descriptions included an identical table entitled ‘Inherent Requirements of the Work Activities/ Environment’. 
11	The stated ‘Inherent Requirements of Work Activities/Environment’ were:  Work Environment; Manual Handling; People Contact; General Tasks; Administrative Tasks; and Vehicles and Other Equipment. Each inherent requirement listed key activities. The key activities for ‘Work Environment’ included to manage demanding and changing workloads and competing priorities (regularly) and to work long shifts (daily). 
12	For ‘Manual Handling’, the key activity was: ’Undertake manual handling (e.g.: lifting, pulling, pushing, moving, transferring, twisting, restraining, supporting) of equipment and clients which would be of varying heights and size’. This was required ‘occasionally’.  	Mr Nyaoch said the kinds of manual handling he did included: grocery shopping; loading and unloading groceries; carrying bags; assembling new furniture such as desks; and moving furniture around the residence. In cross-examination, he agreed that if there was a need to move furniture or equipment, that would be done with a co-worker. 
13	‘Administrative Tasks’ were daily and included computer work, filing and writing. In cross examination, Mr Nyaoch agreed he sometimes did administrative tasks and the other rostered co-worker would interact with the clients around the residence or on outings. 
14	The key activities of ‘General Tasks’ (also daily) were household duties such as sweeping, dusting, shopping and mopping. In cross-examination, Mr Nyaoch agreed these were standard tasks people did in their own homes. 
15	As for ‘People Contact,’ the key activities were: 
a.	Work with clients with an intellectual, physical, sensory disability. 
b.	Assist in personal and self-care activities such as toileting, meals, dressing, maintenance of personal hygiene.
c.	Interact with members of the public who may display the full range of emotional expressions, including parents, family members, advocates, doctors. 
d.	Support and participate with clients in recreational activities. 
e.	Interact with clients who could display verbal or physically challenging behaviours and/or the full range of emotional expressions.
f.	Support and participate with clients in recreational activities. 
g.	Use community resources with clients (e.g. shops, banks, medical centres, cinemas).  
16	All the key activities for ‘People Contact’ were regular other than self-care activities which were daily. In cross-examination, Mr Nyaoch disagreed that the Berry Street clients didn’t need help with such activities such as toileting and showering. Sometimes kids would refuse and you would need to force them to do it. 
17	According to Mr Nyaoch, the kids who lived in the house had generally been  removed from their parents by child protection authorities; or were involved in drugs and alcohol; or been in some other trouble. When asked about the challenges of working with the clients, he said that ‘the ladies’ (meaning female care workers) would cry every day. Kids would ‘push on doors, push you and attack you’. When asked what the physically challenging behaviours involved, he said: ‘almost every day with the kids, the kids could turn to you and attack you’. 
18	Mr Nyaoch had been assaulted by clients more than three times before the last time (meaning the May 2019 incident). The first time he was outside the office when a youth started pushing at him and pressed him against the wall. Mr Nyaoch did an incident report but the matter was not reported to the police. Another time he was watching television with a client when the youth held him in a headlock and pinned him down. Mr Nyaoch reported the incident to his employer but could not recall if he had reported it to police. The third incident he was in the kitchen with the kids when a wrestle broke out.
19	Later, Mr Ny said almost every day he could be pinched or nudged which was ‘at the low end of things’. At ‘the high end’, he could be  punched and kicked or a kid might get out a knife. When asked to clarify the number and type of incidents, he said it was difficult to do so as there were so many. 
Other Employment
20	At the time of the May 2019 incident, concurrent with his Berry Street employment, Mr Nyaoch had other regular casual employment working as a Disability Care Worker. He worked about ten hours a week with Care Choice. He had also regularly worked about ten hours week with Moe Life Skills (until around April 2019). He also worked about 30 hours a week for the Department of Health Human Services (‘DHHS’). 
21	Overall, at the time of the May 2019 incident, he estimated he was working around 70 to 80 hours a week (including his Berry Street hours) on average. In cross-examination, Mr Nyaoch was taken through pay-slips which confirmed total average weekly hours in that vicinity. The pay-slips were for:  Care Choice from 23 April 2018 to 16 June 2019; Moe Life Skills from 5 May 2018 to 19 April 2019; and DHHS from 11 April 2019 to 1 August 2019.
22	As for his duties as a Disability Care Worker for the other employers, he attended clients’ homes where he assisted with personal care and did household tasks such as sweeping and mopping. He took clients on supported outings to shops and so. He sometimes did manual handling of household equipment. 
23	In cross-examination, Mr Nyaoch agreed that the Disability Care Worker role involved assisting clients with self-care such as showering and dressing. However, he denied the work was physically challenging as the clients were merely accompanied to the shower or the toilet. Clients had their hands held rather than being physically transferred or lifted. When asked whether you had to be ready to catch clients if they fell, he said workers were instructed to let them fall. 
24	In his roles as a disability care worker, Mr Nyaoch never been attacked by clients nor exposed to the types of challenging behaviours he experienced with the clients of Berry Street.
May 2019 Incident 
25	The May 2019 incident occurred when a client jumped out of nowhere and started fighting Mr Nyaoch while he was chatting with another client. The client grabbed him and tried to pin him against a wall. Mr Nyaoch tried to move away from the wall and to block the youth’s kicks and punches. There was a wrestle and Mr Nyaoch said he sustained two punches to his upper left arm. In such situations, staff were not permitted to defend themselves by grabbing, pushing or striking.
26	There was an eye-witness to the incident. This was his co-worker, Ms Alecia Payne. She was in the residence office. When she saw what was happening, she had banged on the window. She shouted at the client to stop or she would call the manager and the police. The struggle was intense and lasted about three minutes. The area  manager, Mr Geoff Sharman, and the police attended the residence. 
27	After that, Mr Nyaoch sat in the office for about ten minutes. He felt pain everywhere or almost everywhere, as he had been kicked everywhere. He had bruising on his thigh, his hands and his legs. His clothing was all dirty from struggling on the wall.  His heart was racing. He had pain in his left arm but it was not very bad pain. He spoke with police and asked that charges be laid against the youth who had done this before.  
28	Mr Nyaoch completed an incident report with Ms Payne. It was she who had filled out the ‘Details’ section which stated: ‘Client came back to the unit and started throwing objects around the house. Sunday Nyaoch was trying to engage and distract client; Client tips toothpaste, shampoo and other liquids over Sunday. Alicia Payne called Geoff Sharman (night supervisor) for advice. Geoff told Alicia to call 000 if assault or property damage occurred. Client and Sunday were outside the office door and client was pushing and hitting Sunday so Alicia rang 000 and requested police assistance. While on the phone Alicia observed client hit Sunday and then start to kick him; ... Geoff arrived at the unit and Client stopped assaulting Sunday. Police arrived. …’
29	In cross-examination, Mr Nyaoch agreed that he told Mr Sharman he was ‘fine’ when he was asked whether he needed treatment or time off. He also agreed the reason he hadn’t needed medical treatment because it seemed he had not suffered much of an injury and seemed to be fine. 
Following the May 2019 Incident 
30	In the months following the incident, Mr Nyaoch sometimes had pain in his left shoulder and arm, then no pain for a while before the pain would return. The location of the pain was at the top of his arm. He gestured at his shoulder.
31	Mr Nyaoch did not complain to Berry Street about the pain. He conceded he had no real problems with his left shoulder until much later. Mr Nyaoch agreed that had the injury to the left shoulder seemed serious to him he would have taken time off. 
32	In the period after the May 2019 incident, he continued performing his normal duties for Berry Street. He didn’t miss a day of work. He worked on average 36 or so hours a week. He did the same manual tasks as before (such as carrying groceries and moving furniture). He never asked to have his duties modified. Instead, he altered the way he worked by relying on his right arm more for lifting and minimising use of force with his left hand. At times, if he did use his left arm to lift, the pain would be ‘pretty bad’. If a job had to be done, he would do it. He said, you couldn’t say no if something needed doing.  
33	As for his other employment, Mr Nyaoch continued working for Care Choice until June of 2019. When asked why he stopped that work, he said it became too much for him. He continued working for DHHS. 
34	In mid-July 2019, Mr Nyaoch travelled overseas to visit his parents in Kenya, staying about 14 weeks. In cross-examination, he said he handled his own luggage which was a single bag on wheels. He denied that he did any work whilst overseas nor did he seek medical treatment there. 
35	In late November 2019, Mr Nyaoch returned to Australia. He resumed his employment with Berry Street as before. After coming back, he found the work difficult as his shoulder was playing up. He hadn’t really wanted to go back to work as he was scared. What he meant by that was he was injured; it was not the first time he had been assaulted and he didn’t think he could keep doing that anymore.  No one at Berry Street had an awareness of the problems with his left upper limb.
36	From around November or December of 2019, Mr Nyaoch had increasing pain in his left shoulder with the level of pain being at times up to 8 out of 10. He agreed he had a flare up of symptoms at this time. It was still the situation that the pain was constant one week and then the following week it would be better. In terms of treatment he took Panadol.
37	In cross-examination, he denied that before the flare up of pain in December 2019, he either had minimal pain or none at all. Mr Nyaoch  agreed that the pain had not been severe enough to report the problem or to seek medical treatment. He said he got by with Panadol and he was ‘too lazy’ to go to the doctor because he believed it would go away. 
38	In terms of the pay-slips that Mr Nyaoch was taken through in cross-examination, for the fortnight ending 15 December 2019, he worked 98 hours for Berry Street. Thereafter, the pay-slips show he worked markedly fewer hours for Berry Street.  Over the fortnightly periods from that commencing 16 December 2019 to 3 May 2020, the pay-slips showed he was working on average just 12 hours a week for Berry Street. 
39	After returning to Australia, Mr Nyaoch had also resumed his employment as a Disability Care Worker with DHHS. At some stage, his employment was transferred by DHHS to an entity called Melba Support Services (‘Melba’). The role with Melba was identical to that with DHHS.
40	In March 2020, Mr Nyaoch saw his GP, Dr Sonal Deshmukh, complaining of shoulder pain. He decided to see a doctor at that stage because of the high level of pain which was stopping him from doing things. Dr Deshmukh arranged an ultrasound and told him he couldn't work until he had the result back. The ultrasound of 17 March 2020 showed a partial thickness articular tear in the supraspinatus tendon. 
41	In around May or June, he saw a specialist, Mr Owen. He arranged had an injection which made his shoulder feel better for about  a week. He was later referred back to Mr Owen, but didn’t go back. His account was unpaid and he couldn’t afford to pay it. 
42	Dr Deshmukh also referred him  to an occupational therapist, Mr Ross Wanderer, whom he saw twice. His shoulder was massaged and a gel was recommended. 
43	In May 2020, Mr Nyaoch reported to Berry Street that he had shoulder pain from the May 2019 incident. He also completed a Worker’s Injury Claim form dated 13 May 2020 in relation to the May 2019 incident. He was given a form for his doctor to fill out to give clearance for normal duties. By letter dated 10 June 2020, Berry Street confirmed that he would not be offered shifts until he had medical clearance that he was fully fit to work.  
44	In June 2020, Mr Nyaoch saw Dr Deshmukh about the form. However, the GP told him he couldn't complete the form, only the occupational therapist could do it. It then took a very long time to get an appointment with the occupational therapist and Mr Nyaoch didn’t follow this up. He agreed that he told Dr Deshmukh on 26 June 2020 that he was ‘very scared of working at the place’ as ‘kids are violent and can cause him harm’. 
45	Mr  Nyaoch last worked for Berry Street in about May 2020. His employment was not terminated, but he was never offered further shifts because he hadn’t come back with the required medical clearance. He kept working for Melba as before.
46	On 22 October 2020, Mr Nyaoch again saw Dr Deshmukh about his left shoulder. A history was taken of him still working as a Disability Care Worker, that he was not pushing heavy items and that he has been very careful. He was taking Panadol which helped with the shoulder pain. Dr Deshmukh noted that he was not depressed and had no history of nightmares about the incident.
47	On 23 December 2020, Mr Nyaoch saw Dr Deshmukh to ask for a left shoulder MRI scan. He was told to go back to Mr Owen. He couldn’t say what Dr Deshmukh had been referring to when he recorded on this occasion that Mr Nyaoch was ‘quite happy with all the answers I wrote, told him I cannot lie on paper stating about his work, as he has been working since 2019 ”. 
48	Mr Nyaoch agreed he had never sought psychological treatment regarding the May 2019 incident. 
Current Employment and Circumstances
49	Mr Nyaoch presently remains employed by Melba as a Disability Care Worker performing on average about 30 hours a week. Mr Nyaoch did not inform DHHS or Melba about his left shoulder condition. That is because they would request a medical clearance like Berry Street did. If he lost work, he would not be able to support his children or his parents overseas.
50	His duties for Melba were as before with DHHS. He did household tasks and assisted with self-care activities such as showering patients and dressing them. If he did these activities without taking pain medication, he had pain most of the time. He guarded his left arm. If he reached his left arm upwards, say to access a cupboard, he felt pain. He modified the way he worked. For most tasks, he could use his right arm or, if a task was heavy, he could ask a co-worker for help. 
51	Mr Nyaoch last saw his GP about three months ago. He takes Panadol every two days. He is reluctant to take pain medication more often because it may cause him problems.  His pain level presently is about 8 out of 10, but was up and down. For example, if he was stressed a little bit, he might feel more pain. Things that would bring on the pain might be driving or reaching for the seat belt or carrying things.  In cross-examination, it was put to him that mileage claimed on his Melba pay-slips showed he was doing significant driving. He said most distances were short but if longer distances were required, he would travel  by train. 
52	In cross-examination, Mr Nyaoch denied he was presently performing the same work as he did before. He relied on his dominant arm most of the time and that some things had changed. He disagreed that there was little or no change between his hours prior to May 2019 and his hours afterwards.
53	When asked whether he would do more hours if he could, he said the hours were okay, but if he didn't have the pain in his left arm, he would be doing hours such as he used to do. He would still be working for Berry Street with disadvantaged youth. He has not worked again in a setting caring for disadvantaged youths such as for Berry Street.  
54	As for whether or not there were differences in the physical interactions between the Berry Street clients and his clients as a Disability Care Worker for DHHS/Melba, Mr Nyaoch said that with Berry Street, ‘the kids play a lot’. In re-examination, he explained that the kids would muck around and do things like jump on top of you while you were sitting on the couch. If you said you couldn’t play, they may assault you.
55	In cross examination, it was put to Mr Nyaoch that there was no reason why he could not work at Berry Street currently. Mr Nyaoch said there was a reason and that was the physical violence.  

LAY EVIDENCE
56	Statements of two Berry Street employees were tendered into evidence. These were obtained as part of the WorkCover Agent’s circumstance investigation of the claim. 
57	Ms Alecia Payne made a statement dated 10 June 2020. She continued to work for Berry Street as a residential youth worker. Ms Payne, who had witnessed the May 2019 incident, described the client as being ‘a very large boy’ and ‘effectively the size of a grown man’.  He had started to punch Sunday on his upper body and head. Sunday was trying to use his therapeutic crisis intervention training in an attempt to redirect, deescalate and retreat. However, this was ‘not effective’. The  client was ‘very violent and aggressive’ and started to kick Sunday as well. The incident was ‘one of the most violent, horrific incidents she had ever seen’. 
58	Mr Geoff Sharman made a statement dated 11 June 2020, at which time he was still employed by Berry Street as the Gippsland Region Night Supervisor. When he attended the scene, Mr Nyaoch had told hm the client had grabbed him, punched and kicked him. He had asked Mr Nyaoch if he required medical assistance or to take time off, but he had said he was fine. 
MEDICAL EVIDENCE
59	Dr Sonal Deshmukh, treating GP, completed a medical practitioner questionnaire on 23 June 2020 and report of 10 August 2020. He was first consulted about left shoulder pain on 17 March 2020. He had referred Mr Nyaoch to a specialist for further management. As for the mechanism of injury, the history was of being allegedly assaulted at work in May 2019 with pain having progressively got worse. The diagnosis was of a partial thickness articular surface tear in the supraspinatus tendon of the left shoulder. He was unaware of any prior history of left shoulder issues. Given the considerable time between the event and seeking medical intervention he could not be certain, but with no history of shoulder injury/pain, the incapacity by the injury cannot be discounted. He opined there was no capacity for pre-injury employment duties. In terms of treatment, he needed physical therapy and would benefit from a subacromial steroid injection and assessment by Mr Owen.
60	Mr George Owen in a letter to Dr Deshmukh of 13 July 2020 had not gone into the exact mechanism of the injury with Mr Nyaoch who didn’t made a great deal of it. His understanding was that he was assaulted in the course of his work. He reported ongoing pain and restriction. Mr Owen had not been able to access the imaging at the time of assessment. On examination, there was little to find with no obvious muscle wasting, but limited abduction and pain on resisted contraction of the supraspinatus. Physical therapy was required as well as a subacromial steroid injection. Mr Nyaoch would do well with a conservative approach and would not require surgery. 
61	Dr David Vivian, musculo-skeletal physician,  provided a medico-legal report of 2 June 2020 for the defendant. As for the May 2019 incident, the history was of being assaulted, of being kicked and punched as Mr Nyaoch was walking backwards to move out of the way and was then punched twice on the left shoulder.  The left shoulder was sore afterwards, but not too bad and it was minimally uncomfortable over the next six months. For no apparent reason, the left shoulder became considerably sorer in December 2019 and has remained sore ever since. He eventually saw his GP. The ultrasound showed a partial thickness tear of supraspinatus. He had been referred to Mr Owen, but not yet seen him. There was no abnormal illness behaviour and through all the resisted movements he was fully cooperative.  His pain description and his physical examination was consistent with supraspinatus tendinopathy and a tear with impingement. He opined it was not possible to determine whether or not the work incident had anything to do with the onset of left shoulder tip pain. Being punched on the shoulder was unlikely to cause a supraspinatus tear. Wrestling might, but he did not do a lot of wrestling. In addition, the pain was only minimal for months. He opined that it was more likely he developed a supraspinatus tear for constitutional reasons rather than at work. The condition did not affect his ability to work.  
62	Mr Ash Chehata, orthopaedic surgeon, provided a medico-legal report for the plaintiff dated 1 June 2021 and supplementary reports (x2) dated 13 August 2021. The history of the May 2019 incident was of being pushed, pulled and then punched, as well as being wrestled to the ground. Since then he had developed left shoulder pain and ever since had had ongoing problems. He did not immediately seek medical assistance, as he assumed the shoulder would settle. After the trip to Kenya, he did not return to his old employer. He had continued to work as a disability support worker and takes Panadol every second day. On examination, there was no wasting or deformity and an element of pain avoidance behaviour. An MRI of 19 April 2021 confirmed a very small partial thickness tear, or hyperintense signal change in the supraspinatus, likely to represent a very small bursal-sided tear. The diagnosis was of a small rotator cuff tear that has remained symptomatic and has ongoing impingement. On the history of no prior left shoulder symptoms, it was opined that employment and the fight clearly contributed to pain. This would solidify that the assault was the sole cause of the left shoulder cuff tear. As for capacity, there was no doubt he was modifying his duties and hours and the inability to use the arm. Mr Chehata further opined (in one of the supplementary reports in response to specific questions) that Mr Nyaoch was at increased risk due to the nature of his role with Berry Street given the physical interaction and unpredictability of clients’ behaviour. This would certify him unfit to undertake the inherent requirements of the position including manual handling and/or patient contact. Theoretically, this could increase the size of the rotator cuff tear and, until this was addressed, he was unlikely to return back to his position. 
63	Dr Peter Wilde, orthopaedic surgeon provided a medico-legal report of 30 March 2021 for the defendant. The history of the May 2019 incident was of a troublesome youth waiting to ambush Mr Nyaoch, of attacking him, of pinning him to a wall, punching him in the chest face and left arm. They had wrestled and Mr Nyaoch’s arm was wrenched outwards. After the trip to Kenya, he had not returned to his old employer. There was fear of sustaining further injury. Instead, he worked with disabled but independent residents. This work was ‘much safer’. He helped residents dress and shower, but did this using his right arm and sparing the left shoulder. Ever since the trauma, he had experienced relapses of left shoulder pain and, with time, the symptoms are deteriorating. Dr Wilde reported that physical examination revealed a tall thin man and a genuine witness to the clinical signs. The diagnosis was of a partial tear of the left rotator cuff tendon. The prognosis was guarded with a likelihood of persistent left shoulder symptoms with pain and restricted movement. Employment was a significant contributing factor to the onset of his condition as he did not have symptoms prior to the assault and he reported fluctuating persistent symptoms in the left shoulder ever since. In cross-examination, when asked about how physical the interactions with the clients could be, he said the kids ‘played a lot’. In re-examination, he explained that the kids could be very physical and muck around a lot including jumping on you. The assault at work continues to be a material contributing factor to his incapacity. The deteriorating symptoms suggested the rotator cuff tear is extending. There was a capacity for pre-injury work with restrictions applied regarding reaching into cupboards lifting above his head.
ANALYSIS AND FINDINGS
64	The burden of proof rested upon Mr Nyaoch to satisfy the Court, on the balance of probabilities, of an entitlement to compensation. He needed to establish that he had suffered injury arising out or in the course of his employment on 9 May 2019 pursuant to s39(1) of the Act. 
65	Central to determination of the case was the role, if any, of the May 2019 incident. The defendant admitted that the incident occurred, but contended that it was minor and unconnected to any subsequent left shoulder condition. As I noted at the outset, the other main dispute related to whether or not there was an incapacity for pre-injury employment given the evidence of Mr Nyaoch’s retained capacity for work and the nature of the work he continued to perform.
66	The burden of proof rested with Mr Nyaoch to establish that he had an incapacity for pre-injury employment. He also had to show that any incapacity for employment resulted from or was materially contributed to by the injury in accordance with s.160 of the Act.
Credit of the Plaintiff
67	The Court of Appeal has confirmed the critical importance of the plaintiff’s credit in cases of this kind in a long line of authorities, most recently in Johns v Oaktech Pty Ltd.  The credit of Mr Nyaoch was, of course, particularly important. That was  because of the absence of complaint to his employer for about twelve months; his continuing performance of his duties for several months and the lack of any treatment before March 2020. Mr Nyaoch needed to persuade me that his evidence was credible and reliable. He also needed to establish the reliability of the histories given to the medical witnesses, whose opinions, as I have said, were premised on the accuracy of his accounts to them. 
68	I consider Mr Nyaoch to be a witness of truth whose evidence was delivered in a manner that was laconic, direct and unembellished. An example was when being pressed about the difference between his Berry Street employment and that as a Disability Care worker, he described the Berry Street clients as ‘playful’. It was apparent from re-examination that he was referring to the sort of physical horse-play of active teenage boys who might jump on you whilst you were sitting on the couch. He was matter of fact in stating that almost every day ‘the kids could turn to you and attack you’. He made appropriate concessions against interest, such as agreeing that he had no real problems with his left shoulder until much later and that, had the left shoulder problem seemed serious to him, he would have taken time off.
69	A major ground of attack on his credit, unsurprisingly, related to the delay in any complaint or in seeking treatment. Mr Nyaoch’s own, rather self-deprecating explanation was that he had been ‘lazy’ about getting himself to a doctor. 
70	I find that the delay in seeking treatment was, at least in part, explained by Mr Nyaoch being a stoic individual. Certainly, Mr Nyaoch impressed me as being a person who was slow to complain or to make a fuss. Immediately after the May 2019 incident, having been punched and kicked repeatedly according to Ms Payne’s eye-witness account, Mr Nyaoch told Mr Sharman he was ‘fine’. (I will return to Ms Payne’s evidence later in these reasons.) Another example of Mr Nyaoch’s stoicism was demonstrated by his attitude towards work. He was cross-examined rigorously about the continued performance of his pre-injury duties with Berry Street up until his trip to Kenya and thereafter. His response was that, if a job had to be done then he would do it and that you couldn’t say no if something needed doing. 
71	I also find that financial imperative played a part in Mr Nyaoch’s decision to continue working. I accept his evidence that he needed to keep working to support his six children and his family overseas. 
72	I will return to the question of capacity later in these reasons. 
73	Additionally, on the matter of credit, I have taken into account the impressions of the medico-legal examiners. The treating specialist, Mr Owen, reported that Mr Nyaoch hadn’t ‘made a great deal’ of the assault. Dr Wilde, a medico-legal examiner for the defendant, formed a favourable impression of Mr Nyaoch noting that, clinically, he was ‘a genuine witness’ to the physical signs. Even Dr Vivian who, whilst not accepting there was a causal relationship between the May 2019 incident, noted there was no abnormal illness behaviour.  
74	In submissions on credit, Counsel for Berry Street referred to the variations in Mr Nyaoch’s accounts of the May 2019 incident. In examination in chief, his account emphasised being pinned to the wall and being punched in the upper arm. On the other hand, Dr Wilde appears to have relied heavily on the left arm being subjected ‘wrenching,’ an expression that appeared in no other account. Mr Chehata’s history was of Mr Nyaoch having been ‘wrestled to the ground’ whereas Dr Vivian recorded that he ‘did not do a lot of wrestling.’ There was also no consistent mention of him coming into contact with the ground in the course of the struggle. 
75	Whilst I accept there were varying accounts of the precise mechanism of the incident, in assessing the medical evidence, I am guided by the well-known principles set out by his Honour Justice Bell in Pulling v Yarra Ranges Shire Council. In particular, I note the obligation to examine the whole of the medical evidence even where it may have been undermined by other evidence, including evidence that the worker may not have been fully frank with a doctor.
76	In this case, as I have observed, I have found that Mr Nyaoch was a truthful witness. It is inevitable with the lapse of time that recollection of precise details inevitably fades. Consistent across the accounts of the May 2019 incident was the fact of it being a physical struggle of some intensity lasting for a few minutes with a sizeable youth. That was evident from Ms Payne’s contemporaneous incident report.  Whilst Ms Payne’s evidence was not tested in cross-examination, I attribute considerable weight to her evidence.  Firstly, her eye-witness account was contemporaneously recorded in the incident report. Secondly, when making the statement, she was still an employee of Berry Street. Her evidence was that the client, who was the size of a grown man, punched Mr Nyaoch on his upper body and head then kicked him. She described the client as  ‘very violent and aggressive’ and the incident as  ‘one of the most violent, horrific incidents she had ever seen’. She also corroborated Mr Nyaoch’s account that his response (in accordance his employer’s instructions) to avoid retaliating whilst defending himself. Instead he needed to ‘attempt to redirect, de-escalate and retreat’ which was ‘not effective’.
77	Accordingly, I am satisfied, on the balance of probabilities, that the May 2019 incident was not minor and involved considerable aggression and intensity with multiple blows to the upper body. It involved an element of struggle and resistance on Mr Nyaoch’s part as he endeavoured to de-escalate and retreat from the attack by a person as large or larger than him. 
78	Having made those findings, I turn next to injury and thereafter to consider whether or not Mr Nyaoch’s injury arose out of or in the course of the May 2019 incident. 
Nature and Diagnosis of Injury 
79	There was no real dispute about diagnosis of injury given the consensus of the medical opinions. My finding regarding injury is based on the ultrasounds and also the MRI report of 19 April 2021. Dr Deshmukh, the treating GP, makes that diagnosis and it and was confirmed by clinical findings of Dr Vivian, Dr Wilde and Mr Chehata. I note that Mr Owen did not have access to the films at the time of assessment and did not provide a formal diagnosis in his letter of 13 July 2020.
80	I find that the diagnosis of the left shoulder condition was of a partial thickness tear of the left rotator cuff involving impingement.
Causation
81	In my view the evidence was compelling that Mr Nyaoch’s condition was a new injury and did not involve ‘a recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease’: s.3  The contrary view was not really argued by either Counsel. Mr Nyaoch’s evidence of having no history of prior symptoms nor past episodes of left shoulder prior to May 2019 was unchallenged. 
82	On that basis, the plaintiff needed to satisfy an entitlement to compensation under s.39(1). 
83	In closing submissions, Counsel for Mr Nyaoch did refer to the ‘significant contributing factor’ test set out in s.40(3) of the Act and the factors set out in Clause 25 of Schedule 1. For the sake of completeness, I note Mr Nyaoch’s evidence was of a ‘flare up’ or worsening of symptoms in around December of 2019, without an apparent trigger or event. I will return to this evidence later in these reasons with respect to the question of incapacity.  
84	In my view, for the reasons indicated, the applicable test for the plaintiff was, as I have said, that in s39(1). Of course, as has been observed previously, there is ‘a very substantial overlap between the two tests and, in many cases, there is no discernible difference between them’. 
85	On causation, Counsel for Berry Street submitted that the plaintiff had failed to discharge the burden of proof on causation. It was entirely improbable, as a matter of evidence, that there was a causal connection between the May 2019 incident and the diagnosed condition. On the evidence, the plaintiff’s case failed on ‘the immediate yardstick of injury’. Mr Nyaoch had not needed even basic first aid, had not attended a GP afterwards and took no time off work. Mr Nyaoch had told Mr Sharman he was ‘fine’. Thereafter, he  made no complaint any stage to Berry Street of any symptoms over the next ten months. Moreover, he worked ‘prodigious hours’ of employment up until the trip to Kenya and also after that.
86	Dr Vivian’s opinion that the supraspinatus tear had developed for constitutional reasons should be preferred as it accorded with the overall weight of the evidence. Dr Vivian had concluded that ‘being punched’ was not likely to cause a supraspinatus tear. He opined that it was ‘not possible to determine’ whether the incident as described to him had anything to do with the onset of left shoulder tip pain. Dr Wilde’s and Mr Chehata’s opinions were problematic as they relied on accounts of the May 2019 incident as involving wrestling and a ‘wrenching’ of the left arm. These accounts were inaccurate and inconsistent with Mr Nyaoch’s evidence and Ms Payne’s account.
87	On the other hand, Counsel for Mr Nyaoch submitted that Dr Vivian’s opinion was problematic. This was because he appeared to accept the incident involved wrestling, in observing that there was ‘not a lot’ of wrestling. Yet, in his analysis, there is undue emphasis on the punches alone as not likely to be causative of the pathology. The opinions of Dr Wilde and Mr Chehata should be preferred because, on any view, the incident was a violent, physical altercation and the variations in accounts were not of insignificance. What was notable was that both Dr Wilde and Mr Chehata relied on the history of no prior symptoms in forming the view there was a causal connection between the May 2019 incident and the diagnosed injury. Mr Chehata said the absence of prior symptomology would ‘solidify’ that the assault was ‘the sole cause’ of the left shoulder tear whereas Dr Wilde had opined employment was a ‘significant contributing factor’ to the onset of his condition. 
88	I agree with Mr Nyaoch’s Counsel that Dr Vivian does appear to have been influenced by his impression that the predominant mechanism of the incident involved punches to the upper arm yet at the same time acknowledged there had been wrestling. The incident involved more than punching according to Mr Nyaoch’s evidence and the contemporaneous eye-witness account of Ms Payne. 
89	Accordingly, I prefer the opinions of Dr Wilde and Mr Chehata on causation in part because their histories accord with the whole of the evidence on the nature of the incident based on my findings. I also attribute greater weight to their opinions given their expertise as orthopaedic surgeons whereas Dr Vivian is a musculoskeletal physician.  
90	It is true that Dr Deshmukh, the treating GP, provides only fairly limited support. In noting the lapse of time between incident and treatment, he opines that he ‘cannot be certain’ however given the lack of prior history, ‘the incapacity by injury cannot be discounted’. In my view, it is reasonable to attribute Dr Deshmukh’s cautiousness in this regard, at least in part, to him not having a prior clinical relationship with Mr Nyaoch before he presented as a new patient on 17 March 2020. 
91	On the delay in reporting any injury or seeking treatment following the May 2019 incident, I refer to my previous findings in relation to Mr Nyaoch’s truthfulness as a witness and his stoicism. I am further persuaded by Dr Wilde’s conclusion that, based on Mr Nyaoch’s account of the incident and his own clinical assessment, over time, there had been relapses of left shoulder pain and symptoms that had been deteriorating over time. 
92	Weighing the whole of the evidence, in particular Mr Nyaoch’s evidence, I find that Mr Nyaoch’s left shoulder condition of  partial thickness tear of the left rotator cuff involving impingement arose out of or the course of his employment on 9 May 2019. 
93	I turn now to the question of whether or not Mr Nyaoch had a capacity to return to his pre-injury employment. 
Capacity for Pre-Injury Employment
94	In submissions, both Counsel referred to the leading authority of Arnott’s Snack Products Pty Ltd v Yacob as well as to Judge Bowman’s analysis of Yacob in his decision of Kerridge v Monsfelt. It is therefore useful to set out Judge Bowman’s observations on the facts of Yacob as follows: 
‘It is to be remembered that Yacob, a clerk, suffered a physical injury which rendered him unable to undertake the activities of lifting, climbing and bending which had been associated with his pre-injury clerical duties, but could otherwise perform clerical duties. He became, to employ the language of the judgment, “a non-climbing clerk”’. 
95	As Judge Bowman also observed in Kerridge, the theme to which the High Court returned was that of the injured worker’s ability to sell his labour on the open market. The High Court held that Mr Yacob’s capacity for work, due to injury, was clearly relevant to his pre-injury employment and to his ability to sell his labour on the open market. Potential employers … who have jobs for clerks who are required to climb, lift and bend, would not employ him. 
96	In this case, similarly, the question of capacity turned on whether or not Mr Nyaoch, on the facts of this case, was the equivalent of ‘a non-climbing clerk’.  He had a retained capacity to perform aspects of his pre-injury employment as a residential care worker, but was that capacity restricted and was his ability to sell his labour as a care worker restricted or not? 
97	The defendant’s case was that Mr Nyaoch had continued to sell his labour (and to work) as a care worker performing the duties of caring for clients in residential settings. On the other hand, the plaintiff’s case was that Mr Nyaoch was a care worker with a restricted ability to perform inherent requirements of his pre-injury employment including working with active and disadvantaged youths.
98	The submissions of Counsel for Berry Street were as follows: 
a.	Mr Nyaoch had at all times continued to be employed as a care worker in broadly the same sector. Both roles involve caring for clients in a domestic setting. 
b.	On Mr Nyaoch’s own evidence, the type and nature of duties performed as a Residential Care Worker with Berry Street entirely overlapped with those performed as a Disability Care Worker with DHHS/Melba and Care Choice. As for the stated ‘Inherent Requirements’ of the pre-injury employment, Mr Nyaoch’s evidence was that  he still performed: work in a similar work environment being a residential setting; general household tasks; and manual handling around the residence. Also, there was an administrative component to his pre-injury employment with one person rostered to be in the office of the residence. 
c.	As for the ‘People Contact’ element, in his employment as Disability Care Worker, he was interacting with sometimes challenging clients, assisting with self-care and was equally at risk in working with clients with disabilities. On one view, these clients with disabilities had arguably greater physical needs than the troubled youths who did not require help with their personal care. An example of the risky nature of the work as a Disability Care Worker was that Mr Nyaoch had said the disabled residents could fall over and workers were instructed to let them fall. 
d.	The plaintiff, in seeking to isolate one aspect of the work which precluded Mr Nyaoch from performing his pre-injury duties, was engaged in an exercise of ‘splitting hairs’. The present case was unlike Yacob as Mr Nyaoch had continued to sell his labour (and to do so successfully) in the open labour market.
99	On other hand, Counsel for Mr Nyaoch submitted: 
a.	It was conceded the requirements between his current employment as a disability care worker and his pre-injury employment were over-lapping. However, it followed from Yacob and Judge Bowman’s analysis in Kerridge,  that Mr Nyaoch was indeed restricted from performing his pre-injury employment as a residential care worker working with disadvantaged youths (such as at Berry Street). 
b.	There was a crucial difference which emerged from both Mr Nyaoch’s own evidence and Berry Street’s own ‘Inherent Requirements’ document relating to the ‘People Contact’ element. That was the requirement to ‘Interact with clients who could display verbal or physically challenging behaviours and/or the full range of emotional expressions’. 
c.	Mr Nyaoch’s unchallenged evidence was that the clients were active male teenagers boys who demonstrated consistently a range of highly physical behaviours from playful and boisterous to aggressive and violent. Also, he had been assaulted previously (also unchallenged evidence). On any view, Mr Nyaoch had an inability arising from his left shoulder condition to return to his pre-injury employment. This was supported by Dr Deshmukh, Dr Wilde and Mr Chehata.
100	I now turn to my findings. In my view, for practical purposes, there are two closely connected aspects to the question of capacity for pre-injury employment. The first is whether there was, on the facts of the case, a difference in the inherent requirements between Mr Nyaoch’s pre-injury employment and his employment as a Disability Care Worker. The second is whether Mr Nyaoch did have, on the evidence, an inability or a restricted ability to perform his pre-injury employment. 
101	After careful consideration, I find that there was a critical difference between his pre-injury employment and his employment as a disability care worker. I accept Mr Nyaoch’s evidence that in working with able-bodied, highly active, disadvantaged youths, there was daily exposure to a range of highly physical interactions from the youths being ‘playful’ to more aggressive encounters. I accept his evidence as a truthful account that ‘almost every day he could be pinched or nudged which was at “the low end of things” and at “the high end” he could be  punched and kicked …’ He conceded that there many similar requirements. The difference was ‘the physical violence’. His evidence about caring for clients as a Disability Care Worker was that they were independent and did not require much more than hand-holding in terms of personal care needs. For these reasons, I must reject the submission of Counsel for Berry Street that the difference between the roles was  merely ‘splitting hairs’. 
102	I now turn to the medical evidence and further submissions on the question of capacity. 
103	Counsel for Berry Street submitted that, on capacity, Dr Vivian’s opinion should be preferred. Dr Vivian had concluded that the left shoulder condition did not affect Mr Nyaoch’s ability to perform his pre-injury employment. Dr Vivian’s opinion, it was submitted,  accorded with the weight of the evidence as follows: the lack of treatment; the lack of certification of restricted capacity; the continued performance of pre-injury employment with Berry Street beyond the May 2019 incident; ongoing employment with DHHS/Melba; his prodigious hours of employment between the May 2019 incident and going overseas. Also, Mr Nyaoch had not given a satisfactory account for having stopped work for Care Choice in June 2019. After returning from Kenya, he had resumed prodigious hours of employment across both Berry Street and DHHS/Melba. In the fortnight ending 15 December 2019, Mr Nyaoch worked 98 hours for Berry Street. 
104	In terms of capacity, the highest that Mr Nyaoch could put it was to say that at stages he had modified his duties although he had conceded that he still moved equipment. Otherwise, the plaintiff points only to an apprehension of injury in seeking to overcome the reality that he has demonstrated, ongoing capacity for the same work in the same sector.
105	Further, Counsel for Berry Street submitted that the opinions of Dr Wilde and Mr Chehata ought to be heavily discounted on the question of capacity. Both had obtained an inaccurate history of  Mr Nyaoch not resuming his pre-injury employment with Berry Street after coming back from Kenya. 
106	On capacity, as I noted previously in these reasons, Dr Deshmukh’s opinions appeared to be based on utmost caution. This was particularly so on the question of certification in which Dr Deshmukh took a ‘hands off’ approach, initially saying Mr Nyaoch could not work until the specialist gave ‘expert input’ (as he said in his report of 10 August 2020). He then hand-balled the task of certification to an occupational therapist.  Nevertheless, he has opined Mr Nyaoch was unfit for pre-injury employment. 
107	Mr Chehata was of the opinion that Mr Nyaoch was at increased risk due to the nature of his role with Berry Street given the physical interaction and unpredictability of clients’ behaviour. On that basis, he would be unfit to undertake the inherent requirements of the position including manual handling and/or patient contact. Mr Chehata thought this could increase the size of the rotator cuff tear and, until this was addressed, he was unlikely to return back to his position.
108	Dr Wilde considered Mr Nyaoch did  have capacity for pre-injury employment, however restrictions applied regarding overhead reaching or lifting. Whilst it is true Dr Wilde made not comment on the ‘People Contact’  requirement of the pre-injury employment, Dr Wilde had not been provided the position description documents. Nevertheless, the conclusion of Dr Wilde was that Mr Nyaoch did have an inability to perform unrestricted pre-injury employment.
109	It is true that Mr Nyaoch continued to work in his pre-injury employment with Berry Street until his departure for Kenya and afterwards. Indeed, I accept the assessment of Counsel for Berry Street that, on any view, Mr Nyaoch demonstrated a ‘prodigious’ capacity for employment in the period from after the May 2019 incident until his departure overseas and for a time afterwards. The evidence was that his overall weekly hours of employment were up to 49 hours per week on average. 
110	Weighing the whole of the evidence, particularly Mr Nyaoch’s evidence, the opinions of Dr Deshmukh, Dr Wilde and Mr Chehata, I am satisfied that, on the balance of probabilities, that he did have an inability to perform the inherent requirements of his pre-injury employment as a residential care worker with and that such work could, as Mr Chehata opined, could increase the size of the rotator cuff tear. He has been able to remain employed as a care worker albeit in circumstances where he has not been required to provide medical clearance of his fitness. I accept Mr Nyaoch’s evidence in this regard that he would be required to provide such a clearance were his current employer made aware of his left shoulder condition and his employment may well be at risk. To adopt the language of Yacob, the totality of the evidence supports a finding that potential employers in the residential care sector … who have jobs for care workers who are required to interact with physically active, unpredictable and potentially aggressive clients, would not employ Mr Nyaoch.
111	I turn to consider when that incapacity for pre-injury employment commenced. 
112	It is well-established in the case law that injury is not the same as incapacity although, of course there must be a nexus between them. It is also not necessary for the injury and incapacity to occur at the same time for there to be an entitlement to compensation. As stated by AsJ Daly in O’Brien Glass Industries Ltd v Pisani: 
‘It is apparent from the authorities, most recently the decision of the Court of Appeal in Richter v Driscoll, that while there must be a causal nexus between an injury and incapacity for work, there need not necessarily be a temporal nexus between that injury and the resulting incapacity. One might expect there usually would be, but no requirement of such a temporal nexus is discernible from the authorities’. 
113	The evidence of Mr Nyaoch was that from around December 2019, there was a flare up of symptoms although the level of pain still fluctuated. Dr Vivian (the first medico-legal examiner to see Mr Nyaoch) obtained a history that, for no apparent reason, the left shoulder had become considerably sorer in December 2019 and had remained sore ever since. Mr Nyaoch conceded, in cross-examination, that after the May 2019 incident he had ‘no real problems with his left shoulder until much later’. He also agreed that with the proposition that had the injury to the left shoulder seemed serious to him he would have taken time off.
114	It is true that, under pressure of cross-examination, Mr Nyaoch denied that, before December 2019, he had only minimal pain or none at all. He also gave evidence of having modified how he did his tasks although it is not entirely clear on his evidence when or at what stages he was doing that. 
115	From around December 2019, the time of the worsening symptoms according to his evidence, the pay-slips showed that Mr Nyaoch’s hours of work for Berry Street dropped off markedly. From working 98 hours across the fortnight ending 15 December 2019, he thereafter in the fortnightly periods commencing from 16 December 2019 through to 3 May 2020, he worked on average around 12 hours a week for Berry Street. 
116	Counsel for Berry Street submitted that, if there was a finding of incapacity, then it did not commence before 4 May 2020 on the basis Mr Nyaoch’s last shift with Berry Street was on 3 May 2020. Counsel for Mr Nyaoch submitted on the other hand that the evidence supported a finding that Mr Nyaoch was, albeit with fluctuation symptoms, essentially modifying his duties from the time of the May 2019.
117	Having considered carefully the whole of the evidence, I am of the view that the weight of evidence, including Mr Nyaoch’s evidence that he had fluctuating symptoms but no real problems until much later and the flare-up in December, supports a finding that Mr Nyaoch’s inability to perform his pre-injury employment commenced in or around mid-December 2019 at the time of the flare up. In my view, that time most sensibly reflects the intersection of increased symptoms and a reduction in hours performing the pre-injury duties. In my opinion that date is 16 December 2021 (the date of the first fortnight of the reduced hours as referred to previously in these reasons). 
118	Finally, I further find, essentially for the reasons stated previously, on the balance of probabilities, that Mr Nyaoch’s incapacity for pre-injury employment resulted from or is or was materially contributed to by the injury. In this regard, I am again persuaded by Dr Wilde’s opinion that the assault at work continues to be a material contributing factor to his incapacity.
Need for, and Appropriateness of, Medical and like treatment
118	Finally, for the same reasons, I find that Mr Nyaoch has established an entitlement to compensation for appropriate medical and like treatment from 16 December 2020. Dr Deshmukh opined that, in terms of treatment, he needed physical therapy and would benefit from a subacromial steroid injection and assessment by Mr Owen. In this regard, I also note Dr Wilde’s opinion that the deteriorating symptoms suggested the rotator cuff tear is extending. 
CONCLUSION
119	For these reasons, I find as follows: 
a.	Mr Nyaoch suffered an injury in the nature of a left shoulder condition of partial thickness tear of the rotator cuff involving impingement which arose out of or the course of his employment with Berry Street on 9 May 2019.
b.	Mr Nyaoch has an inability to perform his pre-injury employment which commenced on 16 December 2019 and that incapacity resulted from or is or was materially contributed to by the injury.
c.	Mr Nyaoch has an entitlement to compensation for appropriate medical and like treatment from 16 December 2019.