Ali v Superior Plating Pty Ltd
[2014] VCC 1932
•25 November 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-13-01571
| ISHAD ALI | Plaintiff |
| v | |
| SUPERIOR PLATING PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 and 25 September 2014 | |
DATE OF JUDGMENT: | 25 November 2014 | |
CASE MAY BE CITED AS: | ALI v SUPERIOR PLATING PTY LTD | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1932 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – slip and fall – injury to the left wrist – injury to the left knee – no aggregation of separate body functions – pain and suffering
Legislation Cited: Accident Compensation Act 1985, s134AB(37)
Cases Cited:TAC v Dennis [1998] 1 VR 702; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292; Kelso v Tatiara Meat Company Pty Ltd [2007] 17 VR 592; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Lu v Mediterranean Shoes Pty Ltd [2000] VSCA 65; Sabo v George Weston Foods [2009] VSCA 242; Haden Engineering v McKinnon (2010) 31 VR 1
Judgment:Leave granted to the plaintiff to bring proceedings for damages for pain and suffering in respect to injury to the left wrist suffered during the course of his employment with the defendant on 25 March 2009.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr N Griffin | Zaparas Lawyers |
| For the Defendant | Ms R Kaye | Hall & Wilcox Lawyers |
HER HONOUR:
1 This is an application brought by the plaintiff for leave pursuant to s134AB(16)(b) of the Accident Compensation Act (1985) (as amended) (“the Act”) for injury suffered by him on 25 March 2009 when he slipped and fell on steps in the course of his employment with the defendant.
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act.
4 There, “serious” is defined as meaning:
“(a) permanent serious impairment or loss of a body function.”
5 The body functions relied upon in this application are the left wrist and the left knee.
6 The plaintiff relied upon two affidavits, sworn 30 November 2012 and 17 September 2014. The plaintiff was cross-examined. I have not summarised the affidavits and evidence of the plaintiff. However, I will refer to the relevant evidence of the plaintiff in my reasoning. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
Relevant legal principles
7 The Court must not give leave unless it is satisfied, on the balance of probabilities, that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s134AB(37) of the Act.[1]
[1]Section 134AB(19)(a) of the Act
8 In order to succeed, the plaintiff must prove, on the balance of probabilities, that:
(a) “the injury” suffered by him arose out of, or in the course of, or due to the nature of, his employment with the defendant;[2]
[2]Section 134AB(1) of the Act and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at paragraph [11]
(b) “the injury”, with its resulting impairment, must be permanent, in the sense that it is likely to continue into the foreseeable future;[3]
[3]Barwon Spinners (supra) at paragraph [33]
(c) “the consequences” to the plaintiff of his impairment to the left wrist or left knee in relation to “pain and suffering” must be “serious” – that is, “when judged by comparison with other cases in the range of possible impairments … be fairly described as being more than significant or marked and as being at least very considerable”;[4]
(d) the injuries to two separate body functions cannot be aggregated.[5]
[4]Section 134AB(38)(b) and (c)
[5]Lu v Mediterranean Shoes Pty Ltd [2000] VSCA 65 at [23]
9 Consequently, the Court must consider the impairment of body function suffered by the particular plaintiff, but the test also requires an objective comparison between the impairment suffered by the plaintiff and the range of possible impairments.
10 As Ashley JA and Beach AJA said in Stijepic v One Force Group Aust Pty Ltd:[6]
“The emphasis in s 134AB(37)(c) and (d) is upon seeing where the facts of a particular case sit in the broad spectrum of cases, remembering that this includes cases which do not end up in litigation – because, it may be supposed, the consequences are glaringly apparent one way or the other. … .”[7]
[6][2009] VSCA 181
[7](supra) at paragraph [42]
11 In assessing the consequences:
“… the significance of what has been lost may be informed, to an extent, by what has been retained.”[8]
[8]Stijepic v One Force Group Aust Pty Ltd (supra) at paragraph [44]
12 The test for “serious”, as set out in paragraphs (b) and (c) of s134AB(38) of the Act, is sometimes referred to as the “narrative test”.
13 In determining the application, the Court:
(a) must not take into account psychological or psychiatric consequences for the purposes of paragraph (a) of the definition of “serious injury” – these can only be taken into account for the purposes of paragraph (c) of the definition of “serious injury”;[9]
[9]Section 134AB(38)(h)
(b) must make the assessment of “serious injury” at the time the application is heard;[10]
(c) notes that it has been observed that the question of whether any injury satisfies the narrative test is largely a question of impression and value judgment.[11]
[10]Section 134AB(38)(j) of the Act
[11] See Kelso v Tatiara Meat Company Pty Ltd [2007] 17 VR 592, at 628; Sabo v George Weston Foods [2009] VSCA 242 at paragraph [67]
The Issue
14 Counsel for the defendant informed the Court that this is a “range case”, namely that the consequences of the plaintiff’s injury do not meet the test of seriousness for pain and suffering, in that they could not be considered “as being more than significant or marked and as being at least very considerable” when compared to other cases in the range.
Investigations
15 On 11 May 2009 an MRI of the left wrist and left knee showed:
“Left Wrist
There is evidence of a transverse fracture of the distal radius. The distal fragment demonstrates slight volar displacement. The fracture appears impacted. There is an impression of some early callus, suggesting that union is progressing but is not yet complete. No earlier films were available for comparison.
Left Knee
There is early degenerative change with osteophytes in the intercondylar region, but the joint space heights appear well maintained. There is borderline joint effusion. A small traction spur is seen in the quadriceps insertion into the patella. No fracture or loose body is identified.”
16 On 10 November 2009 an MRI of the left knee concluded:
“1. Menisci intact.
2. The ACL appears mildly scarred but grossly intact. Low grade chronic sprain of the proximal MCL.
3. Marked lateral patellar subluxation with fraying of the medial retinacular fibres. Focal deep chondral ulceration of the superolateral aspect of the trochlea.
4. Subchondral osteophyte formation of the posterior weight bearing portion of the lateral femoral condyle, with overlying full thickness chondral loss.
5. Minimal intact Baker’s cyst.”
17 On 8 November 2013 an MRI of the left knee concluded:
“No internal derangement is seen. Minor small Baker’s cyst. Venous insufficiency. Oedema Hoffa fat pad.”
18 On 7 November 2013 an x‑ray of the left wrist showed:
“There is mild sclerosis and cortical irregularity noted at the distal radius. It has a chronic appearance and may relate to an old radial injury in the past. No definite acute fracture lucency lines are demonstrated and the carpal bones in particular appear to be intact.
If the radiographic findings are discordant to the clinical scenario, bone scan correlation is suggested for more sensitive detection of occult fractures.”
The Plaintiff’s medical reports
Dr Hakan Baglar
19 Dr Baglar, general practitioner, confirmed that he had treated the plaintiff since 1995. On 30 March 2009, the plaintiff first presented for his work-related injury, being his fractured left forearm. In April 2009 the plaintiff reported hitting his left knee on a hard surface during the fall on 25 March 2009. He was experiencing discomfort in his left knee, and anti-inflammatory medication was prescribed for it.
20 In May 2009 x‑rays of the left wrist and left knee were arranged. The plaintiff was referred to Mr John Owen in respect to the knee and wrist. Mr Owen referred the plaintiff to Dr Lim for pain management. The plaintiff attended a pain-management program and was discharged, having achieved a reasonable but incomplete recovery. He returned to modified duties with his pre-injury employer, and later with a new employer for full, albeit less physical, duties. He was prescribed anti-inflammatory and analgesic medication and was attending for physiotherapy periodically.
21 Dr Baglar reported that the plaintiff complained of left knee pain from time to time, in an inconsistent manner. He said the plaintiff had very slight restriction in the range of movement of his left wrist.
22 In October 2013 Dr Baglar reported that the plaintiff’s wrist did not have any abnormality or deformity on inspection. He had tenderness on the dorsal surface of his left wrist. His dorsiflexion was limited. The left knee examination revealed some crepitation and tenderness medially. The range of knee movements was normal. The plaintiff was referred to Dr Justin Hunt, as he was complaining of ongoing pain in his left wrist and left knee, despite normal x‑rays of the wrist and a normal MRI of his knee.
23 In August 2014 Dr Baglar reported that the plaintiff complained of pain being aggravated during colder months of the year. He diagnosed chronic pain, associated with stiffness and weakness in the left wrist, as a result of the wrist fracture. He said the plaintiff developed degenerative changes in the left knee with patellofemoral chondromalacia and subluxation of his left patella, along with left femoral chondral pathology. His wrist and knee injury are consistent with the workplace injury. It was his view the plaintiff required no further treatment other than analgesics and NSAIDs.
24 Dr Baglar said the plaintiff is capable of employment but the tenderness on the dorsal surface of the left wrist, together with his substantially reduced grip and pinch grips and the state of his left knee, preclude unrestricted full physical employment and employment which requires standing for long periods. He is more suited to sedentary work. He said the plaintiff would be restricted in certain types of domestic and recreational activities. His wrist pain and reduced grip and pinch powers, along with the state of his left knee, will prevent him from heavy gardening duties, shopping for and carrying heavy items, lifting, pulling and pushing with force, and also from activities with stairs and on uneven surfaces. He is restricted as to running, jumping, kneeling and squatting. This means he has limitations in recreational activities which require unrestricted mobility, for example ball games, bicycling and running.
Mr John Owen
25 In May 2012 Mr Owen, orthopaedic surgeon, reported that he examined the plaintiff in May 2009 on referral from the plaintiff’s general practitioner. Mr Owen said the fracture of his left wrist was an extra-articular distal radius fracture treated conservatively. He described the fracture as relatively benign. He said it should not lead in itself to any significant loss of function or be associated with arthritis in the long term. He said the fracture was complicated by the development of a chronic regional pain syndrome, and the plaintiff was referred to pain specialist Dr Lim. Mr Owen noted Dr Lim’s findings that the plaintiff made a good recovery and had reasonable function in his hands.
26 In respect to the left knee he said the MRI confirmed an underlying patellofemoral pathology. He suspected the plaintiff aggravated the underlying degenerative condition. The fall at work would not cause the pathology but would have made the symptoms temporarily worse. In the long run he thought it unlikely that the fall made a major contribution to the knee pathology. He expected the plaintiff to have grumbling symptoms in the knee that would interfere with his ability to run up and down stairs, but he expected the plaintiff would work until normal retirement age. He said there was a very low probability of needing any intervention in the knee.
Dr Peter A Blombery
27 In June 2012 and October 2013 Dr Blombery, Physician, examined the plaintiff at the request of the plaintiff’s solicitors. The plaintiff reported intermittent ongoing pain in the left hand and wrist. The left hand swelled, particularly the index finger, and his sleep was disturbed. He reported some numbness in the left little finger, and the hand became hot.
28 The plaintiff reported ongoing discomfort in his left knee which felt unstable on occasions, particularly if he was walking on a wet surface. There was ongoing pain. He reported taking Panadeine Forte, one or two at night for sleep and drinking a lot of kava to help him sleep.
29 Dr Blombery said the Colles fracture had united. The plaintiff has ongoing discomfort. He has a non-specific pain syndrome affecting both the wrist and knee which is of a mild degree, but which limits him in his ability to do his full duties at work. He said the prognosis for recovery is extremely poor. There will be no significant change in the foreseeable future. The plaintiff is fit for light duties, not involving heavy use of the left arm or long period of weight bearing.
Mr Justin Hunt
30 Mr Hunt, orthopaedic and spinal surgeon, reported that he treated the plaintiff in October 2013 and re-examined the plaintiff in 2014. In respect to the left wrist and hand he diagnosed post-traumatic ongoing pain, stiffness and weakness in the left wrist and hand. He said there was evidence of a healed distal radial fracture. In respect to the left knee, Dr Hunt said the plaintiff’s diagnosis is that of degenerative changes with left knee patellofemoral chondromalacia, associated with lateral subluxation of the patella and associated lateral compartment chondral pathology as well as medial compartment chondral pathology. He said there appeared to be significant pathologies on each of the scans without major interval change on imaging.
31 Mr Hunt could not discern any appreciable progression of degenerative change in the left wrist on the latest x‑ray dated 7 November 2013.
32 Mr Hunt did not think the plaintiff required further investigation or treatment for his left wrist and left knee pain. He recommended ongoing conservative management with appropriate avoidance of activities which aggravate his symptoms. In respect to the left wrist he said the plaintiff should avoid excessive or repetitive uni-manual or bi-manual activities. In respect of the left knee he should avoid significant periods of standing, bending, lifting and twisting of his left knee.
33 As to the plaintiff’s current capacity for work, Mr Hunt was aware the plaintiff worked, performing lighter duties than his pre-injury duties. He said the plaintiff did not have capacity for unlimited physical work and he would be suited to sedentary work. He said light physical work which required uni‑manual or bi-manual upper arm limb movement would likely exacerbate the plaintiff’s wrist and hand symptoms.
34 In respect to domestic activities, Mr Hunt said the plaintiff continues to be restricted. Activities involving squatting, bending, kneeling and ascending or descending stairs will likely be difficult, given the ongoing left knee pain symptoms that he continues to experience. In addition, activities that require gripping with his left hand will tend to aggravate his symptoms of left wrist pain, creating difficulty in terms of cleaning and maintaining his home, shopping and meal preparation.
35 In respect to leisure activities, Mr Hunt said the plaintiff’s ability to partake in sporting activities will be somewhat guarded, as they tend to aggravate his left knee pain symptoms. He is less likely to enjoy social and recreational pursuits due to the distracting and ongoing nature of his left knee and left wrist/hand pain.
Dr Anthony Kam
36 In August 2014 Dr Kam, consultant radiologist, compared the MRI images of the left knee from 2009 and 2013. He said there was no significant progression demonstrated between the examinations. Both scans showed lateral patellar subluxation, patellofemoral joint and lateral tibiofemoral joint osteoarthritis.
Mr Charles Flanc
37 In July 2014 Mr Flanc, vascular and general surgeon, examined the plaintiff at the request of the plaintiff’s solicitors. In respect of the left wrist, Mr Flanc said the plaintiff complained of intermittent pain in the left wrist and difficulty with forceful movements, and has not been able to return to golf or woodwork. It was his opinion the plaintiff’s condition had stabilised, but that the wrist should be further investigated under an MRI scan to determine whether there was any secondary arthritis developing.
38 In respect to the left knee, the plaintiff reported pain and instability. In view of the plaintiff’s continuing symptoms, Mr Flanc said it was likely the second MRI scan had been under-reported, and suggested it be reviewed by a specialist radiologist. It was his opinion the plaintiff’s fall at work resulted in the significant aggravation of a pre-existing degenerative condition of the left knee which became symptomatic and remained symptomatic. He said the plaintiff’s symptoms are genuine, and constitute a significant disability. He was under the impression that Mr Hunt advised the plaintiff to undergo an arthroscopy. He said it was quite possible this would improve his symptoms, at least temporarily.
39 Mr Flanc was aware the plaintiff was currently employed performing lighter duties and is able to rest when the knee pain is severe. He said the plaintiff could not return to pre-injury employment because of his inability to lift heavy weights, walk long distances, climb or walk on uneven surfaces.
40 In September 2014 Mr Flanc was provided with Dr Kam’s report. He said he still considered the fall in March 2009 resulted in a significant aggravation of pre-existing degenerative conditions of the left knee which became symptomatic and remain symptomatic. He reported that the plaintiff’s handgrip had improved and it was almost normal. The plaintiff reported intermittent pain and difficulty with forceful movements in the left wrist, and had not been able to return to golf or woodwork. Mr Flanc said the continuing symptoms suggested the possibility of the development of osteoarthritis of the left wrist. Otherwise, he said the left wrist injury had stabilised. He reiterated his previous view on work capacity.
41 In July 2014, Mr Flanc commented upon Mr Dooley’s report of 9 July 2014. He agreed with Mr Dooley that if the fracture of the left wrist was extra‑articular (that is, not involving the articular surface) then the risks of osteoarthritis are very small. However, Mr Flanc said because the plaintiff reports pain over the ulnar side in the region of the head of the ulna, this raises the issue of a possible intra-articular injury, not necessarily a fracture, but possibly an injury to the triangular fibrocartilage which attaches to the ulna, which could be determined on MRI scan.
Mr Thomas Kossmann
42 Mr Kossmann, orthopaedic surgeon, examined the plaintiff at the request of the plaintiff’s solicitors. He diagnosed a healed distal radius fracture of the left wrist and pain and movement restriction of the left knee on the basis of degenerative changes and chondral loss on the lateral femoral condyle and trochlea.
43 It was Mr Kossmann’s opinion that the plaintiff had signs of osteoarthritis in his left wrist. He will require treatment in the form of pain medication, anti-inflammatory agents, physiotherapy, hydrotherapy and possibly acupuncture. He may develop an advanced osteoarthritis for which he may require further treatment. He may have to undergo surgery of a fusion of his wrist joint.
44 In relation to the left knee, Mr Kossmann said the plaintiff is suffering from chondral pathology in his knee joint, as well as a possible tear in his medial meniscus. He believed the plaintiff was a candidate for an arthroscopy of his left knee, and may develop osteoarthritic changes in his left knee which will require conservative treatment with pain medication, anti-inflammatories, physiotherapy and hydrotherapy. In the worst case scenario the plaintiff may have to undergo an arthroplasty of his left knee. Mr Kossmann could not give a time frame if and when this will happen.
The Defendant’s medical evidence
Dr Malcolm Brown
45 In March 2010, Dr Brown, occupational physician, examined the plaintiff at the request of the defendant’s insurer. Dr Brown concluded the plaintiff suffered a fractured left wrist which had been treated with a good result. The plaintiff continues to have minor symptoms, but not severe enough to require analgesic medication. There was some residual restriction in range of movement, but he anticipated that would improve. He said in respect to the left knee there was little to find radiologically or on physical examination. The knee condition would appear to have been an aggravation of some pre‑existing degenerative change, but the aggravation has now ceased.
Mr Owen W Deacon
46 In March 2012 Mr Deacon, orthopaedic surgeon, was requested to provide an impairment assessment. He was unable to give a combined whole person impairment.
47 Mr Deacon said in relation to the left knee, the plaintiff does have MRI evidence of an attenuated anterior cruciate ligament, and the small bump in the centre of the lateral femoral condyle of the left knee may be the degenerative changes associated with left knee instability. There has not been much progress of osteoarthritis in the left knee. It looks very little different from the right. Mr Deacon noted the plaintiff complained of pain in his left knee if he walks for long distances, problems with prolonged standing, clicking in the knee when squatting, and he has a feeling of insecurity in the knee. Mr Deacon recommended the plaintiff be referred to an orthopaedic surgeon.
Mr Michael Dooley
48 In April 2014 Mr Dooley, orthopaedic surgeon, medically examined the plaintiff at the request of the defendant’s solicitors. Mr Dooley said the plaintiff suffered a fracture of the distal radius which was extra-articular, and which could be called a Colles type fracture. He said the plaintiff experienced some intermittent aching in the wrist, which was to be expected. Overall he had a good range of motion. The lack of sensation at his fingertips most likely relates to injury to the median nerve at the time of the fracture from bleeding, swelling and the like. Motor function of the nerve is normal. The plaintiff will continue to note these post-traumatic symptoms, but Mr Dooley would not expect them to deteriorate over time. He did not believe the plaintiff’s fracture would be associated with the development of post-traumatic osteoarthritis because it has been extra-articular in nature, reduced into a very good position, and healed in this position.
49 In respect to the knee injury, Mr Dooley described it involving a sprain of the posterior cruciate ligament. This would explain the initial pain and swelling. In his view, the current clinical examination revealed mild laxity of the posterior cruciate when compared with the right side. The plaintiff has noted some pain at the front of the knee, and this is not uncommon following a sprain of the posterior cruciate ligament. He recommended treatment of low impact exercise and fitness programs. In the absence of definite meniscal tearing, arthroscopy would not be indicated. He said the symptoms of intermittent knee pain, difficulty with kneeling and squatting, are consistent with the plaintiff’s condition. He did not believe that the injury he sustained to the knee is associated with a risk of post-traumatic osteoarthritis of the knee joint in time. He said the plaintiff was fit to continue his current employment. He would have difficulty carrying out regular heavy physical work or work that involved a lot of lifting, kneeling and squatting.
50 In July 2014 Mr Dooley commented on the x‑ray of the left wrist in November 2013. He remained of the view there were no clinical signs of osteoarthritis. There is no indication to consider further treatment in relation to the plaintiff’s left wrist.
51 In respect to the left knee joint he remained of his previous view. He was asked to comment on Mr Owen’s opinion that the plaintiff in the long term may develop osteoarthritic changes in the left knee joint. He did not agree with Mr Owen’s comment, and likened it to a patient with a cold who may go on and develop pneumonia which could be advanced and require partial pneumonectomy.
52 In September 2014 Mr Dooley read the report of Dr Kam and viewed the radiological investigations, including plain x‑rays and MRI scans. He did not alter his view. He said the issue was the definition of osteoarthritis. In relation to the left knee, he accepted if one is defining osteoarthritis as a thinning of the articular cartilage based on MRI scanning investigations, then osteoarthritis is present on the MRI scan. Further, the MRI scan showed age-related degenerative change that is either not progressive or, at most, very slowly progressing, over a five-year period. He thought it reasonable to state that the underlying mild naturally-occurring age-related degeneration is unlikely to progress at any significant rate over time.
Video surveillance
53 The defendant included video surveillance of the plaintiff in the index to its court book. No surveillance was shown. I infer that the surveillance did not assist the defendant.
Credit of the plaintiff
54 The plaintiff’s credit was not in issue. The plaintiff answered all questions directly. He gave his evidence without embellishment and appeared straightforward. Mr Flanc said he formed the opinion that the plaintiff’s symptoms were genuine and there was no suggestion of embellishment. Upon the basis of his presentation in court, I formed the view that the plaintiff was a truthful witness.
Analysis of the evidence
55 It was accepted by all medical witnesses that the plaintiff suffered a fracture of the distal left radius and a soft tissue injury to his left knee when he fell in the course of his work in March 2009.
56 It was accepted that the consequences of the injury to the left wrist and the consequences of the left knee could not be aggregated to determine whether there was a serious injury.[12] Accordingly, it is necessary for me to consider whether the left wrist injury qualifies as a serious injury under the statute. If not, it will be necessary for me to consider whether the left knee injury qualifies as a serious injury.
[12] Lu v Mediterranean Shoes Pty Ltd (2000) 1 VR 511 at [5], [27]-[29]
The left wrist
57 I must make the assessment at the time of hearing the application. Accordingly, I place greater weight on the most up-to-date medical evidence of Dr Baglar, Mr Hunt, Mr Blombery, Dr Kam, Mr Kossmann, Mr Flanc and Mr Dooley.
58 It was accepted by all medical witnesses that the plaintiff suffered an injury to his left wrist which has variously been described as:
· Chronic pain, associated with stiffness and weakness in the left wrist consequent to fracture of his left distal radius.[13]
[13]Dr Baglar
· Post-traumatic ongoing pain, stiffness and weakness symptoms in the left wrist and hand following fracture of the left distal radius.
· A non-specific pain syndrome affecting the wrist which is of a mild degree.
· The fracture has united and he suffers ongoing discomfort in the area.[14]
[14]Mr Blombery
· A sustained fracture of the lower end of the radius with pain on excessive movement with a moderate disability.[15]
[15]Mr Flanc
· Healed distal radius fracture.[16]
· Fracture of the distal radius, called a Colles type fracture, with intermittent aching of the wrist.
[16]Mr Kossmann
59 All medical witnesses noted that the plaintiff reported ongoing pain of the wrist. The plaintiff reported to Mr Hunt pain on the dorsal aspect, particularly on wrist extension. Mr Hunt said the plaintiff had significant weakness of the left wrist and hand. The plaintiff reported difficulty performing his normal daily and domestic activities. Gripping with his left hand resulted in wrist pain. Mr Hunt said power and pinch grip were both substantially reduced.
60 Mr Flanc recorded that the plaintiff reported intermittent pain in the left wrist and difficulty with any forceful movements. Mr Flanc said the continuing symptoms suggested the possibility of the development of osteoarthritis of the left wrist.
61 Mr Kossmann said the plaintiff had signs of osteoarthritis in his left wrist. Mr Kossmann thought the plaintiff needed further treatment in the form of pain medication, anti-inflammatory agents, physiotherapy, hydrotherapy and possibly acupuncture. He said if the plaintiff suffered advanced osteoarthritis, it could be managed conservatively. In the worst case scenario the plaintiff would need a fusion of his wrist joint.
62 Mr Dooley said the plaintiff had a good reduction of the fracture which went on to heal in a good position. The plaintiff reported intermittent aching of the wrist but, overall, he regained a good range of motion. Mr Dooley thought the plaintiff would continue to note post-traumatic symptoms, but he expected them to deteriorate in time. He did not believe the plaintiff’s fracture would be associated with the development of post-traumatic osteoarthritis because it was extra-articular in nature, reduced into a good position and healed in this position. Mr Dooley accepted the plaintiff would have difficulty in carrying out regular heavy physical work, or work that involved a lot of lifting. He thought there was no indication for further treatment in relation to the plaintiff’s left wrist. He considered the reports of Dr Kam and Mr Kossmann. He remained of the view that the fracture was extra-articular and had been reduced into a very good position. Therefore, such an injury is not associated with the development of post-traumatic osteoarthritis of the wrist joint.
63 I note Mr Kossmann was the only doctor to consider the plaintiff likely to undergo further surgery on the left wrist. He was on his own in respect to this opinion.
64 The issue is whether the consequences satisfy the statutory test.
Consequences
Pain and treatment
65 In considering the pain and suffering consequences, Maxwell P said[17] the court must have regard to the plaintiff’s experience of pain as such, and the disabling effect of the pain on the plaintiff’s physical capabilities (including capacity for work) and enjoyment of life. In considering the experience of pain, he said regard must be had to the pain intensity and, unless the plain is constant, regard must be had to the frequency and duration of the pain episodes. In particular:
[17] Haden Engineering v McKinnon (2010) 31 VR 1 at [10]-[11]
(a) what the plaintiff says about the pain (both in court and to doctors);
(b) what the plaintiff does about the pain (for example, medication, rest, seeking medical treatment);
(c) what the doctors say about the extent and intensity of the plaintiff’s pain;
(d) what the objective evidence shows about the disabling effect of the pain.[18]
[18] Supra
66 The plaintiff’s evidence as to pain in the left wrist was consistent with the activities he undertakes. He mostly suffers pain at the end of the day, and by the time he gets home the wrist throbs constantly. He said there were no days when he does not experience pain in his left wrist. He can lift weights of about 15 kilograms, but cannot walk with the weight as this requires additional strength and control of his hand which he does not have. Lifting such items causes him severe pain. He chooses to endure the pain in order that he can perform his job. Further, his left hand swells from to time when he carries something heavy, or at the end of his working day. He said he experienced less pain at the weekend when he is watching television and relaxing.[19]
[19]T71
67 The plaintiff reported to all medical witnesses that he experiences ongoing pain in the wrist. In October 2013, Mr Blombery reported that the plaintiff had ongoing, intermittent pain in the hand and wrist (worse when he lifted an object or held something heavy), swelling of the left hand, and numbness of the little finger. In 2013, Dr Baglar said the plaintiff complained of ongoing pain in his left wrist, and he was referred to another orthopaedic surgeon. In 2014, Dr Baglar diagnosed chronic pain associated with stiffness and weakness in the left wrist. Dr Baglar referred to the fact that the plaintiff has substantially reduced grip and pinch grip as a result of the left wrist injury. The plaintiff reported pain to Mr Hunt, on the dorsal aspect, particularly on wrist extension. Mr Hunt said the plaintiff had post-traumatic ongoing pain, stiffness and weakness of the left wrist and hand. The plaintiff’s power and pinch grip were both substantially reduced in the left wrist.
68 In July 2014, Mr Flanc recorded that the plaintiff reported intermittent pain in the left wrist and difficulty with any forceful movements. The plaintiff reported to Mr Flanc that he suffered pain in the left wrist on excessive movement, situated mainly on the ulnar side of the wrist. Mr Flanc said the plaintiff had a moderate disability which impacts his activities.
69 Mr Kossmann reported that the plaintiff complained of intermittent left wrist pain that is aggravated by carrying heavy loads and with certain movements.
70 The plaintiff reported to Mr Dooley intermittent aching of the wrist, which Mr Dooley considered was expected. Mr Dooley said the pain would continue but he did not expect it to deteriorate.
71 All medical witnesses accepted the plaintiff’s complaints of pain. There was no suggestion that the pain was not genuine. In fact, Mr Dooley thought the pain would continue.
72 The plaintiff reported to a number of witnesses that he took Panadeine Forte daily for pain.[20] The plaintiff’s evidence is that he attends his general practitioner, Dr Baglar, for prescriptions of Panadeine Forte. He currently takes one or two Panadeine Forte tablets each day. He mainly takes them at night because he finds that the medication makes him drowsy. Sometimes, he takes the medication during the day when he feels he must in order to manage the pain. He said the medication dulls the pain but usually only for a brief period. Dr Baglar reported that the Panadeine Forte the plaintiff takes at night is for his painful left wrist. I accept the level of medication the plaintiff takes is a consequence I can take into account.
[20]Mr Dooley, Mr Flanc, Mr Blombery and Mr Kossmann
73 Dr Baglar did not think there was any form of intervention that could reverse the plaintiff’s current state. Dr Baglar said there would be no need for further treatment, except analgesics from time-to-time, particularly when the pain is aggravated and also during colder months of the year. Dr Baglar reported that the plaintiff continues to see him once every two to three months.
74 Mr Hunt said he did not think further investigation or treatment would assist the plaintiff. Conservative management was appropriate and the plaintiff should avoid activities which aggravate his symptoms.[21]
[21]PCB 56C
75 Mr Dooley said there was no specific orthopaedic treatment required.
76 Mr Kossmann thought the plaintiff will require further treatment in the form of pain medication, anti-inflammatory agents, physiotherapy, hydrotherapy and possible acupuncture. He thought there may be a need for surgical fusion of his wrist joint. However, Mr Kossmann was the only medical witness to consider surgery. Accordingly, I accept the evidence of the other medical witnesses, which was that the treatment he was receiving currently was appropriate. A number of medical witnesses suggested that an MRI of the left wrist should be undertaken. I accept the level of treatment was at the lower end of the scale. Yet the ongoing need for medical appointments and analgesics, as well as recommendations for a further MRI scan, are not insignificant matters. Accordingly, I place moderate weight on the plaintiff’s medical treatment as a consequence.
77 Counsel for the defendant submitted there was a lack of medical treatment in this case, particularly in the context of the comments by Maxwell P[22] as to pain. Counsel for the defendant drew attention to the plaintiff’s attendance on Dr Terence Lim, Pain Medicine and Rehabilitation Specialist. In 2009 the plaintiff undertook a pain management program with Dr Lim and was then discharged. It was put to the plaintiff that he did not return to see Dr Lim for ongoing treatment. Further, he did not revert to the insurer seeking approval for any treatment. Counsel for the defendant relied on the fact that Dr Lim was not called to provide a report in evidence in the proceeding. It was submitted that an inference could be drawn, to the effect that anything Dr Lim would have to say would not assist the plaintiff’s case.
[22]Haden Engineering v McKinnon (2010) 31 VR 1 at [10]-[11]
78 In relation to the plaintiff’s discharge from Dr Lim’s care, Dr Baglar reported that the plaintiff attended the program and was discharged, that he attained a reasonable but incomplete recovery, and that he returned to full-time employment, but with a different employer. In addition, Dr Owen reported that he received communications from Dr Lim. The plaintiff recovered virtually all his wrist movements, but still had residual swelling in the fingers and hands. The plaintiff returned to full duties and was making judgments about what he could and could not do at that time. Dr Owen said the plaintiff still had ongoing issues with swelling and loss of movement of his fingers. I note the clinical records of Dr Lim were subpoenaed, but not tendered in the proceeding. In view of this, and the evidence of the treating orthopaedic surgeon and the general practitioner, I am not prepared to draw an adverse inference as to the failure of the plaintiff to produce a report by Dr Lim.
79 As to seeking out further treatment, the evidence is that the plaintiff receives ongoing conservative treatment from his general practitioner whom he continues to see at intervals. This is consistent with other medical witnesses who recommended conservative treatment.[23] I accept the level of treatment is appropriate, for reasons I have already outlined above.
[23]Mr Kossman, Mr Hunt
80 Overall I accept the level of pain suffered by the plaintiff is consistent with the reports of pain made to all medical witnesses and the plaintiff’s evidence in court. I accept the level of pain is adequately reflected in the evidence as to the treatment he receives and the medication he takes (Panadeine Forte). I accept that pain is a serious consequence to this plaintiff.
Sleep
81 The plaintiff’s evidence to the court was that his sleep has been affected by his injury. He said he often woke two or three times a night, depending on the position of his wrist. He reported to Mr Flanc that he takes Panadeine Forte on most nights because he tends to wake at night with a painful left wrist.[24] As a result, he has started drinking more, in particular, Kava, as it relaxes him and helps him go to sleep. The plaintiff reported this to Dr Blombery.[25] I note the plaintiff did not report this consequence to other doctors whom he saw. This may be because the medical witnesses did not ask the question. However, I accept this is a consequence that I can take into account.
[24]PCB 68
[25]PCB 84
Sporting Activities
82 The plaintiff’s evidence to the court was that he was a keen golfer, having played golf competitively before coming to Australia. Since being in Australia, he played golf with friends on average once per week. However, he has been unable to play golf since the accident because of the pain in his left wrist. The plaintiff reported to a number of medical witnesses that he was unable to play golf.[26] Mr Flanc reported this as a consequence of the left wrist. Accordingly, I accept this is a significant consequence which I can take into account.
[26]Dr Blombery PCB 64 and 67, Mr Flanc PCB 74 and 84
Woodwork
83 The plaintiff’s evidence was that before the accident he enjoyed woodwork as a hobby. He made small pieces of furniture for his home and to give to friends. He would only use handheld tools. As a result of the injury to his left wrist, he has stopped using these tools because he finds it difficult to grip the wood in order to work on it. As a consequence, he no longer performs woodwork activities. He agreed that he was able to do some minor work such as sanding, but said that was very light work. He reported this consequence to some of the doctors whom he saw. I accept this is a consequence which I can take into account.
Domestic duties
84 Dr Baglar and Mr Hunt commented on the stiffness, and reduced grip and pinch powers in the left hand. Dr Baglar and Mr Hunt said this will affect his domestic and recreational activities. Dr Baglar said he will be limited in recreational activities which require unrestricted mobility. Mr Hunt said gripping with his left hand tends to aggravate his left wrist pain symptoms, and these restrictions will limit his daily activities, for example, grocery shopping, household cleaning and maintenance activities, as well as meal preparation. I accept that stiffness and reduced grip and pinch powers in the left hand are a consequence I can take into account.
85 The plaintiff’s evidence was that his wife was also injured at work and, as a result, he is required to do much of the housework. He regularly helps his wife with the weekly shopping. He makes sure that he carries light bags in his left hand and heavier bags in his right hand. The plaintiff’s evidence was that he assists in cleaning activities. He sweeps, vacuums and mops. He does not clean the bathrooms; his daughter does that. He copes with the pain by having rest breaks and using his right hand. When he vacuums he uses his left hand to guide the vacuum cleaner. He often notices that his wrist swells, so he only carries out cleaning activities for approximately 15 minutes, then has a break.
86 The plaintiff said the pain he experiences whilst cleaning is on his wrist and is a sharp pain. He is unable to make the bed because he cannot tuck the sheets under the mattress with both hands. He said that his daughter and her husband have returned to live in the house with them, in order to assist him and his wife. The plaintiff told the court that he liked to cook, but meal preparation is difficult as he cannot grip vegetables for chopping. He reported mowing the lawn, but requiring rest breaks. Several medical witnesses[27] accepted that activities which required gripping and forceful movements with his left hand will tend to aggravate his symptoms. Mr Hunt said such activities will create difficulties in terms of cleaning, maintaining his home, shopping and meal preparation. I accept that these are consequences which I can take into account.
[27]Mr Hunt and Mr Flanc
Driving manual car
87 The plaintiff’s evidence is that he drove a manual car. As a result of the wrist injury, he was unable to change gears, which became an issue to him. He sold his car and now drives an automatic car. He does not get the same pleasure from driving an automatic car that he did from driving a manual car. I accept that this is a consequence that I can take into account.
Mood
88 The plaintiff said that his mood has been affected by his injury. He is frustrated about his condition, and is more irritable than he used to be, which affects his relationship with his wife. I accept this is a consequence which I can take into account.
Work
89 The plaintiff’s evidence was that after the injury he was unable to return to his full duties with the defendant. However, he agreed that he could have continued working if the factory had not closed. He subsequently obtained employment with another electroplating company. He was employed on a full‑time basis working light duties, including chemical analysis and testing chemicals in the zinc plating process. He was able to drive forklifts at the factory. He was still experiencing pain in his left wrist when he commenced work. Lifting heavy items caused him pain in his left hand. Even lifting in lighter jobs could cause pain, depending on the angle that he held his hand. He continued working 38 hours a week performing light duties. He finished the job in late 2012 and said that on occasions he took a day off when his wrist was too bad. He was not required to obtain a medical certificate as his boss was good.
90 He obtained his current job with Kewder, which was lighter and easier work, and the pace is slower. The work is better paid than his previous job. The hoist he works on is fully automatic and he manages the work reasonably well. He has performed on average 4 to 6 hours of overtime per week whilst working for Kewder, until three months ago.
91 The plaintiff’s evidence was that the jobs he performs are mainly right handed jobs, but they do involve his left hand at times. On occasions, he has taken a day off work, but otherwise has worked consistently.
92 The plaintiff’s evidence to the court is that he can no longer engage in consistently heavy manual work and is anxious about the future of his employment. If he loses his current job, he has concerns about his future employment prospects.
93 All medical witnesses said the plaintiff has a capacity for work, but is not fit for unlimited physical work.
94 Dr Baglar said the plaintiff is capable of being employed. However, the tenderness on the dorsal surface of his left wrist, together with his substantially reduced grip and pinch grip, means that he is not fit for unlimited physical work.
95 Mr Hunt has said the plaintiff does not have a capacity for unlimited physical work. He said the plaintiff should avoid excessive or repetitive uni-manual or bi-manual activities involving his left wrist.
96 Mr Flanc said the plaintiff’s current employment duties are light. He thought the plaintiff could continue with his current employment over the next few years. Mr Flanc said he could not perform his pre-injury employment because it involved heavier lifting and walking. I accept that walking is a restriction placed upon the plaintiff because of his knee injury, which I cannot take into account when assessing the consequences of his left wrist injury.
97 Mr Kossmann said the plaintiff has a work capacity, but is unable to return to pre-injury duties.
98 Mr Dooley said the plaintiff was fit to continue in his current employment, although he would have difficulty carrying out regular heavy physical work or work that involved a lot of lifting.
99 I accept the evidence is that the plaintiff cannot return to pre-injury employment. The plaintiff has been in steady employment since the injury, performing lighter duties. In fact, his evidence was that when his pre-injury employer’s business closed, he obtained lighter work relatively quickly within a couple of months. While undertaking that work, he was offered his present job which allows him to work at his own pace. His present job is better paid than the previous job (but still less pay than the work he was performing at the time of the injury), and provides overtime. However, the plaintiff has lost the capacity to perform unlimited physical work, and in particular unlimited bi-manual duties. The plaintiff’s employment history has been physical work. This is a significant consequence that I can take into account.
100 Counsel for the plaintiff referred me to Stijepic v One Force Group Aust Pty Ltd & VWA[28] where the court commented on what Chernov JA said in Sumbul v Melbourne All Toya Wreckers Pty Ltd[29]:
[28][2009] VSCA 181 at [47]
[29][2006] VSCA 292 at [24]
101 “The most that can be said, and all we take Chernov JA to have been saying, is that if a worker successfully returns to alternative duties it will tend, in the absence of other relevant evidence, against a conclusion that the pain and suffering consequences of the compensable injury are serious. But, as always, the evidence as a whole must be considered.” Counsel for the defendant referred me to Sabo v George Weston Foods[30] where the Court of Appeal said that in considering whether a plaintiff’s impairment is “at least very considerable” weight must be given to the adverb “very”. As Callaway JA said in TAC v Dennis[31]:
“Many [impairments] are considerable, in the sense that they are important or substantial, without being very considerable.”
[30][2009] VSCA 242 at [73]
[31][1998] 1 VR 702
102 I am persuaded, on the balance of probabilities and in the light of the evidence as a whole, that the consequences the plaintiff suffers of the left wrist injury satisfy the test. I accept the pain and suffering consequences to this particular plaintiff are “serious”. I accept that, when judged by a comparison with other cases in the range of possible impairments, the consequences of the impairment can be fairly described as being at least “very considerable” and certainly more than “significant or marked”.
103 As the plaintiff’s consequences have persisted for almost five years and no medical witness has suggested that his left wrist will improve, I accept that his impairment is permanent.
104 Taking all the evidence into account, I am satisfied that the plaintiff has a permanent serious impairment to his left wrist.
105 Accordingly, I grant leave to the plaintiff to bring proceedings for damages for pain and suffering in respect to his work injury.
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