Baker v Victorian WorkCover Authority
[2022] VCC 804
•9 June 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-21-00925
| FAIZAL ALLAN BAKER | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
---
JUDGE: | HIS HONOUR JUDGE LAURITSEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 October 2021 and 20 April 2022 | |
DATE OF JUDGMENT: | 9 June 2022 | |
CASE MAY BE CITED AS: | Baker v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 804 | |
REASONS FOR JUDGMENT
---
Subject:ACCIDENT COMPENSATION
Catchwords: Damages – serious injury – injury to the left elbow, lower back and cervical spine – permanent, severe and long-term psychiatric injury including major depressive disorder – pain and suffering – credit
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Peak Engineering Pty Ltd & Anor v McKenzie [2014] VSCA 67
Judgment: Leave granted to the plaintiff to commence a proceeding for the recovery of damages for pain and suffering.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C O’Sullivan | Slater & Gordon Lawyers |
| For the Defendant | Ms M Cameron | Lander & Rogers |
HIS HONOUR:
Introduction
1Faisal Baker seeks leave to start a proceeding to recover damages under the Accident Compensation Act 1985 (“the Act”). He relies on paragraph (a) of the definition of “serious injury” – “permanent serious impairment or loss of a body function”[1] – with the impaired body function being that associated with the left upper limb, particularly, the elbow. He is right arm dominant.
[1] Section 134AB(37)
2In relation to the serious impairment, Mr Baker relies on the consequences to him with respect to pain and suffering and not those relating to loss of earning capacity.[2]
[2] Section 134AB(38)(b)
3As to the injury suffered, Mr Baker relies on the diagnosis of the Medical Panel of dysfunction of the left elbow due to aggravation of pre-existing degenerative changes, common extensor tendinopathy and injury to left superficial radial nerve and left interosseous nerve.
4The defendant does not dispute Mr Baker suffered an injury to his left elbow at work in April 2014.[3]
[3]Transcript of 20 April 2022 (“Transcript”), p 8
The Issues
5The defendant raised these issues:
(a) the credit of Mr Baker;
(b) whether an injury to Mr Baker’s neck affects his left hand;
(c) whether there is a nerve injury; and,
(d) the overlap of the effects of consequences of the injuries to Mr Baker’s lower back, neck and ankle creating the need to desegregate those consequences;
6The significance of these matters will emerge in the course of this ruling.
Circumstances
7Mr Baker is now sixty-two. He is married with two adult children.
8He was born and raised in India. He is well educated, having obtained a science degree. After university, he worked for ten years in a sales role. He then moved to Dubai and worked as a merchandiser for a clothing manufacturer. In 2001, Mr Baker emigrated to Australia.
9Although the defendant is the Authority, Mr Baker’s employer was a business called Rexal Electrical Supplies Pty Ltd (“Rexal”). He started working for Rexal in August 2008 as an assistant manager. In about 2012, he was promoted to a branch manager. The business sells electrical equipment wholesale. He managed a small city branch. He was involved in many activities as a manager including putting stock on shelves. The heaviest of the stock was coils of cables, weighing about 15 kilograms.
10In his first affidavit, Mr Baker described the circumstances in which he injured his left elbow:[4]
“… I was opening a large and heavy roller door at the front of the store. I had to open that door each day and did so by pulling a heavy chain. The chain had a problem with the catching mechanism and was often difficult to pull … As I pulled on the chain, it came loose and slipped, striking me on my left elbow. I immediately felt quite a lot of pain in my left elbow.”
[4] Affidavit sworn on 7 October 2020 at paragraph [6]
11Mr Baker was incapacitated for work for about a month. When he returned to work, his duties were modified. This remained so until the end of 2014 when he resumed his normal duties.
12Mr Baker was good at selling. In early 2015, Mr Baker changed positions, becoming a business development manager. This involved selling his employer’s product to new and existing customers. About 80 per cent of his work involved driving to, and seeing customers, and travelling to branches. When the opportunity arose, he also helped in his old branch, which he had resurrected from the mess he found it in. Despite his elbow injury, he coped with the new job.
13Meanwhile, Mr Baker sought treatment from his general practitioner. He lodged a claim for compensation which was accepted. By July 2014, he saw an orthopaedic surgeon. He received a steroid injection. By October 2014, the elbow was operated on.
14Mr Baker worked both before and after the surgery. There were further injections in March and June 2015. During 2015, he was prescribed Endone and Mobic. Both medicines had side effects. The Endone caused ulcers, the Mobic, stomach upset.
15In February 2016, Mr Baker was involved in a three-vehicle accident. He suffered injury to his back and neck. Since he was driving to work at the time, his claim for compensation was accepted. These injuries saw him unable to work until mid-2016. The problem with his back has plagued him since.
16Meanwhile, another surgeon, Professor Eugene Ek, operated on Mr Baker’s elbow on 5 September 2016. After some time off work, he returned to his normal duties by the end of 2016. Notwithstanding Professor Ek’s optimism then, Mr Baker felt the condition of his elbow was deteriorating.
17During May 2018, Mr Baker resigned his employment with Rexel due to the stress he was experiencing and the condition of his heart. He sought and obtained less demanding work with another electrical wholesaler, AWM, also as a business development manager.
18On 5 June 2018, Mr Baker was involved in another motor vehicle accident and injured his neck, lower back and chest. He received treatment for his lower back including an operation on 27 February 2019.
19Mr Baker stopped working with AWM in September 2018 because of the injuries to his neck and back. He did not return to work after his back surgery and, in May 2019, AWM made him redundant.
20In May 2019, he fell down stairs at home. The fall temporarily increased the pain in his neck and arms.
21During 2019, Mr Baker attended a hospital over his psychological issues.
22In mid-2020, he fell at home, injuring his right ankle. It was operated on in June 2020.
23On 10 March 2021, Mr Baker was operated on for diverticulitis, resulting in the removal of part of his bowel.
24In May 2021, there was further operation on his right ankle where part of it was fused. There was a further operation on the ankle and an arthroscopy is planned.
25In September 2021, Dr Frean, a practitioner at the clinic of his treating general practitioner, Dr Douyere, applied for medicinal cannabis for Mr Baker.
Present state
26Mr Baker suffers constant pain in his elbow. He suffers increased pain when he straightens his arm. His left arm and hand are very weak. He has little grip strength. He cannot use his hand to ascend or descend his stairs. He cannot use his elbow to lift anything heavy. He regularly wakes at night through elbow pain and what he describes as a “strange numb feeling in the fingers of [the] left hand”.
27During cross-examination:[5]
Q:“And the situation now is, as well, that the left elbow is a very minor problem compared to all your other health problems?---
A:I get up in the middle of the night with severe pain, literally down my whole arm, so it’s unable - I mean, it’s - it’s there.”
[5] Transcript at p 46
28He takes Mobic and Endep and wears Norspan patches. The Norspan patches replaced Endone, which he still takes sometimes. He uses cannabis oil. These medicines reduce the pain temporarily. He takes these medicines for his elbow as well as his other problems.
29He sees his general practitioner once or twice a month. He sees a psychiatrist regularly and takes medicines for his depression and mood.
30He wakes up regularly with elbow pain.
31His left hand is weak and unco-ordinated.
32He learnt to fly. It was a great desire of his. His elbow injury has this effect on flying:[6]
Q:“Yes?---
A:But in the future I’ll be able to drive, and - but I can never use this arm because the weight of the aircraft will be on the joystick or the yoke, because I use only one hand to pull up the plane or - or land it.
Q:Okay. So you---?---
A:The other hand is on the throttle.”
[6] Transcript at p 54
33In the last twelve to eighteen months, the level of pain in his neck and lower back has remained the same. However, the pain in his right ankle has increased.
Medical evidence
Dr Douyere
34Dr Jean Douyere is a general practitioner, who has treated Mr Baker since, at least, 2014.[7] In her last report (7 October 2021), Dr Douyere traces the treatment received by Mr Baker for his elbow. After referring to the operations of Mr Soo and Professor Ek and MRI scans, Dr Douyere states:
“Faizal stated that he has been suffering with chronic [l] elbow pain & stiiffness (sic) and has required on going analgesics including opio[i]ds to control his pain. He has had physiotherapy and continues with home based exercises to improve the stiffness. No followup has been arranged for his elbow injury as Faizal was not keen on any further surgery to his [l] elbow and preferred to continue conservative measures.”
[7] Reports dated 18 May 2016, 20 July 2017 and 7 October 2021
35Under the heading “Prognosis”, Dr Douyere said:
“Guarded -as Faiza[l] is still suffering with pain & stiffness in his [l] elbow. If his impairment worsens he may have to have further specialist review.”
Mr Soo
36Mr Brendan Soo is an orthopaedic surgeon. Dr Douyere referred Mr Baker to him, whom he first saw on 28 July 2014. On 11 August 2014, he injected the postero-lateral gutter with cortico-steroid.
37On 25 October 2014, through an arthroscopy, Mr Soo performed a posterior synovectomy, excised the thickened synovium in the posterior aspect of the radio-capitellar joint, performed a microfracture of the chondral defect and an osteotomy of the distal humerus.
Mr Stapleton
38Mr Murray Stapleton is a plastic and hand surgeon. On 22 September 2014, at the request of an authorised agent, he examined Mr Baker.[8]
[8] Report dated 22 September 2014
39On examination, Mr Stapleton found flexion from 10 to 100 degrees. Both pronation and supination were unimpaired. The probable diagnosis was aggravation of previously asymptomatic osteoarthritic process of the elbow joint. He agreed with the proposed surgery of Mr Soo as the only way to get rid of the painful click.
Professor EK
40Professor Ek is an orthopaedic hand and upper limb surgeon.[9] On 5 September 2016, he operated and found a common extensor origin tendon tear and posterior interosseus nerve compression. He repaired the tendon, debrided the lateral epicondylitis and released the nerve.
[9] Reports dated 19 April 2016, 2 May 2016, 5 September 2016, 29 December 2016 and 11 July 2017
41On 11 July 2017, Professor Ek reviewed Mr Baker again. When he examined him in December 2016, Mr Baker had made an excellent recovery from the operation and was then pain free. However, by July 2017:[10]
“Faizal tells me now that over the last few months his pain has been progressively worsening. He cannot recall a specific event that has initiated his pain, but he feels that it is very similar to before and it is slowly worsening.
Clinically, he has tenderness over the lateral epicondyle and pain that radiates down his forearm. He has reduced range of motion, particularly in extension, to 20 degrees, and flexion to 140 degrees. Supination is mildly reduced also to 60 degrees with 80 degrees of pronation.”
[10] Report dated 11 July 2017
42MRI scans were organised by Professor Ek and performed on 28 July 2017 but there is no further report from him.
Ms Tang
43Ms Karyn Tang is a physiotherapist. At the request of Dr Douyere, she treated Mr Baker. From her report dated 30 March 2017, her treatment was apparently focussed on the right scapula and cervical spine. She does not mention the back or elbow.
Mr Vellore
44Mr Yagnesh Vellore is a neurosurgeon and spine surgeon.[11] He has treated Mr Baker since 15 November 2018 and concerning the motor vehicle accident occurring in June 2018. Although at pains to point out that he has never treated Mr Baker’s left elbow, he said:
“Thus, in summary on the balance of probabilities, from the history provided to me by Mr Baker and upon reviewing the notes regarding the previous elbow injury and treatment, it seems more likely that his hand symptoms and fingers symptoms could be related to the elbow pathology rather than the cervical spine. The issues with the cervical spine relating to the C4‑C5 where surgery was requested, [are] more likely to affect the shoulder and the upper arm area around the deltoid rather than the hand and the fingers which would be much less common … .”
[11] Report dated 6 December 2021
45For further clarification, he suggested nerve conduction studies and an EMG from a qualified neurologist, and suggested Dr Gorai.
Dr Muir
46Dr Andrew Muir is a consultant in pain management. Dr Douyere referred Mr Baker to him for treatment. Dr Muir first saw him in early January 2019. Between 25 January 2019 and 24 August 2021, Dr Muir reported to Dr Douyere.[12] In five of the six reports, he refers to parts of Mr Baker’s body. He never refers to the left elbow.
[12]Reports dated 25 January 2019, 11 February 2019, 27 May 2020, 26 October 2020, 23 March 2021 and 24 August 2021
Dr Gorai
47Dr Debo Gorai is a consultant neurologist. At the request of Mr Vellore, on about 14 February 2022, he examined Mr Baker and conducted a nerve conduction/EMG study.[13] On examination, it appears he found a residual weakness of posterior interosseous innervated muscles, which looked wasted “to some extent”, weaker power of grade 3-4/5 and a weak grip on the left compared with the right.
[13] Report dated 14 February 2022
48Dr Gorai’s report sets out his findings for nerve conduction studies and EMG findings. Despite being a very difficult study because of Mr Baker’s very low threshold of pain, he found:
(a) electrophysiological evidence of chronic active denervation changes in a C5‑6 myotomal distribution consistent with a predominantly bilateral C5 cervical radiculopathy;
(b) electromyographic changes of chronic denervation changes in the left posterior interosseous nerve innervated muscles consistent with a left posterior interosseous nerve dysfunction.
Medical Panel
49Mr Baker claimed impairment benefits concerning his left elbow. His claim was accepted, and he was referred to the Medical Panel for an assessment of his impairment. The Panel had two members – Dr Jack Owczarek, a specialist general practitioner, and Mr Stanley O’Loughlin, a specialist orthopaedic and general surgeon.
50The Panel examined Mr Baker on 17 May 2018 and found an 8 per cent whole person impairment of the left elbow, which was considered permanent. It provided reasons for its opinion.[14]
[14] Dated 6 June 2018
51On physical examination, the Panel found tenderness over the common extensor origin, marked reduction in active movements of the elbow, full range of movement of the wrist, with the lateral epicondylitis provocation test being positive.
52The Panel measured Mr Baker’s range of motion of his elbow. Its findings were: flexion 110 degrees, extension minus 10 degrees, pronation 60 degrees and supination 80 degrees.
53On neurological examination, the Panel found sensory alteration, without dysaesthesia, affecting the dorsal aspect of the hand including the index and middle finger, consistent with the distribution of the superficial radial nerve. It also found a reduction in muscle power on wrist extension consistent with an injury to the interosseous nerve.
54Overall, the Panel said:
“… that the worker is suffering from persisting dysfunction of the left elbow following an aggravation of pre-existing, asymptomatic degenerative changes and development of common extensor tendinopathy, surgically treated, complicated by injuries to the left superficial radial nerve and left interosseous nerve, relevant to the accepted left elbow injury.”
55The “pre-existing degenerative changes” are presumably those revealed in the reports of MRI and CT scans and other investigations conducted between May 2014 and July 2017. For instance the MRI scans of 28 May 2014 revealed degenerative changes in the lateral compartment of the elbow joint and osteochondral defect at the lateral epicondyle.
56The Panel assessed the whole person impairment in three areas: the abnormal motion of the elbow; sensory deficit in the distribution of the superficial radial nerve, and motor deficit in the distribution of the left interosseous nerve, which is a motor branch of the left radial nerve. It assigned upper extremity impairments to each area.
57As to permanency, the Panel considered his current physical condition had substantially stabilised and was unlikely to remit with or without medical and/or surgical treatment.
Associate Professor Love
58Associate Professor Bruce Love is an orthopaedic surgeon. On 10 November 2020, he examined Mr Baker at the request of his solicitors.[15] He was asked to examine Mr Baker’s left elbow, neck and back.
[15]Report dated 10 November 2020
59On examination, with the left elbow, he found diminished sensation in the ulnar two fingers of the left hand. Due to the pain, Mr Baker resisted flexion beyond 30 degrees and there was 10 degrees of fixed flexion. Pronation and supination were severely restricted.
60With the cervical and lumbar spines, Mr Baker resisted any movement of flexion, extension or rotation.
61Associate Professor Love diagnosed severe dysfunction of the left elbow, probably associated with articular cartilage degenerative change. His examination showed severe restriction of motion and ongoing pain. He noted treatment with, principally, Panadol, Mobic and Endone. He considered it was unlikely there would be any improvement in the foreseeable future. Nevertheless, he suggested Mr Baker return to his former surgeon for further assessment of his elbow.
62As to Mr Baker’s lumbar and cervical spines, Associate Professor Love found Mr Baker resisted any movement of flexion, extension or rotation. He considered the incidents of 4 February 2016 and 5 June 2018 aggravated his cervical and lumbar degenerative disease. Both conditions were stable, and each prevented him from performing his pre-injury duties or any suitable employment.
63He noted Mr Baker’s treatment is through analgesics and anti-inflammatory medicines, principally Panadol, Mobic and Endone.
64In answer to a question about restrictions due to the back and neck from the first transport accident, Associate Professor Love considered a range of activities permanently restricted. Those activities included bending, lifting, pushing, pulling, overhead activities, kneeling, squatting, crouching, prolonged sitting, walking, standing, climbing or descending inclines and using steps or ladders.
65As to the second transport accident, he made similar observations as to those he made about the first transport accident.
Dr Granot
66Dr Ron Granot is a neurologist. At the request of the defendant’s solicitor, he reviewed a large number of documents including the test results obtained by Dr Gorai.[16] He did not examine Mr Baker or say that it was necessary to do so in order to form an opinion.
[16] Report dated 6 April 2022
67Dr Granot sought to explain the variety of orthopaedic diagnoses of the injury by noting a straining injury or direct blow is compatible with them.
68Since there was no evidence in the earlier documents, he doubts the validity of Dr Gorai’s finding of weakness in 2022. He also doubts Dr Gorai’s finding of grip weakness. As I understand him, he says weakness of grip stems from the C7-8 disc and the median and ulnar related nerves. He says there is no evidence of injury to these nerves based on the MRI scans and the neurophysiology. He suggests at least part of the weakness is due to a lack of effort, potentially limited by pain, rather than neurologically caused.
69Assuming the finding of weakness is uncertain, as a neurologist, Dr Granot looked at the reliability of the diagnosis of a posterior interosseous palsy. First, the symmetrical findings of fibrillations appear inconsistent with the MRI scans of 4 February 2016.
70Second, the EMG findings were used to diagnose the palsy, but it shows each muscle sampled on both sides as symmetrical. Since this is not the clinical finding, it suggests the findings are normal and the clinical abnormalities are otherwise explicable.
71Third, Dr Granot wonders whether the palsy is a new injury rather than one caused by the workplace incident because of the almost entire resolution in 2016 following surgery and the re-occurrence of particular symptoms in July 2017.
72Dr Granot summarised his views about the left elbow:[17]
“Therefore, in terms of the posterior interosseous nerve injury, the supporting evidence is unclear, given the delay in terms of relevant clinical symptoms to July 2017 and the uncertainty around the patient’s clinical weakness and of the EMG support (being symmetrical and potentially subjective). No mention of the nerve or of any denervation change is apparent on the MRI [of the] left elbow of July 2017 either. A re-review of this may be helpful, to be certain.”
[17] At p 9
73In response to questions, Dr Granot found no evidence in the radiological imaging of posterior interosseous palsy. Overall, from a neurological perspective, he did not find conclusive evidence of posterior interosseous nerve injury and recommended a new study by a neurologist and, possibly, as part of an independent medical examination.
Associate Professor Damodaran
74Associate Professor Saji Damodaran is a consultant psychiatrist. On 28 August 2018, he interviewed Mr Baker at the request of an authorised agent.[18] He told Mr Baker he would report to the authorised agent “as part of the decision-making process of his WorkSafe claim”. The history obtained by Associate Professor Damodaran concerned the injury received in the motor vehicle accident on 4 February 2016.
[18] Reports dated 31 August 2018 and 19 October 2018
75Under the heading “Other Relevant Medical and Occupational History”, Associate Professor Damodaran records only Mr Baker’s previous employment. There is no mention of other medical issues.
76To Associate Professor Damodaran, Mr Baker looked tired, and his psychomotor activity was mildly reduced. His affect was of depression with decreased range of reactivity, and the mood was of depression and anxiety. The content of his thought was dominated by ongoing rumination, preoccupation, sense of helplessness, fleeting sense of worthlessness, anhedonia, anergia, lack of enthusiasm, sense of grief, some guilt and occasional flashbacks and nightmares.
77He diagnosed Major Depressive Disorder of moderate severity, Anxiety Disorder not otherwise specified and Chronic Pain Disorder associated with a general medical condition. He did not say what role the pain disorder played in Mr Baker’s experience of pain.
78He recommended continued and regular treatment by a psychiatrist and psychologist for up to nine to twelve months, when Mr Baker’s condition could be reviewed.
79As to his capacity for work, from a psychological perspective, Associate Professor Damodaran considered Mr Baker had the capacity to perform his pre-injury duties and hours at a different workplace or with a different employer.
Dr Ryan
80Dr Simone Ryan is a consultant occupational physician. On 26 November 2020, she examined Mr Baker at the request of his solicitors.[19] She took a history of two transport accidents: 4 February 2016 and 5 June 2018. She noted three left elbow surgeries due to chronic lateral epicondylitis. His presentation was complicated by recent falls, one of which fractured his ankle and led to a fusion.
[19] Report dated 11 January 2021
81Dr Ryan observed Mr Baker in the waiting room and in her rooms. His behaviour was consistent for both:[20]
“… where he presents as having a preferred position of no range of motion of the cervical spine. He utilises his eyes in a very habitual manner to look around the room and maintain eye contact … .”
[20] At p 7
82For the first transport accident, Dr Ryan diagnosed musculoligamentous strain of the cervical and lumbosacral spine and the sequelae of those conditions triggering an Endone tolerance and addiction. By the time of the second transport accident, his condition was improving. That accident caused aggravation of the existing musculoligamentous strains of his lower back and cervical spine. With his lower back, it caused discogenic low-back pain which required surgery. With the cervical spine, the aggravation of the strain caused aggravation of the pre-existing degenerative disease, which also required surgery. It was the second accident which saw Mr Baker severely restricted in his activities and precludes him from working. The prognosis was poor.
Legal considerations
Pain and suffering
83For the purposes of this application, “serious injury” means “permanent serious impairment or loss of a body function”.[21] The word “serious” is explained in two paragraphs of s134AB(38). First, relevantly, it is satisfied by reference to the consequences to Mr Baker of any impairment or loss of a body function with respect to pain and suffering or loss of earning capacity when judged by comparison with other cases in the range of possible impairment or loss of body function. Second, an impairment or loss of a body function is not serious unless the pain and suffering consequence or the loss of earning capacity consequence is, when judged by comparison with other cases, in the range of possible impairments or losses of a body function, fairly described as being more than significant or marked, and as being at least very considerable.
[21] Section 134AB(37)
84This application is complicated in the same way the application was in Peak Engineering Pty Ltd & Anor v McKenzie[22] where Maxwell P said:[23]
“It is difficult enough for a judge to decide whether the ‘pain and suffering consequences’ of a workplace injury satisfy the statutory definition of ‘serious injury’. But the task becomes a good deal more difficult when, by the time of the trial, a separate injury is also producing pain and suffering consequences for the claimant. This difficulty arises, for example, where between the time of the relevant injury and the Court’s assessment of its consequences, the claimant sustains a different injury which itself has relevant, and continuing, pain and suffering consequences. The present is just such a case.
The Court must decide whether the consequences of the original injury are ‘more than significant or marked, and ... at least very considerable’. For that purpose, it is necessary — so far as the evidence permits — to identify the consequences properly referable to the original injury, and to exclude the consequences referable to the subsequent injury.
In my respectful opinion, these grounds must be upheld. In a case of this kind, where two different injuries are concurrently producing pain and suffering consequences for the applicant, it will ordinarily be necessary to make findings about all of the pain and suffering consequences which are operative at the date of the trial. This would seem to be an essential pre-condition to the task of deciding which of the pain and suffering consequences are attributable to which injury. The matters identified in the previous paragraph were all directly relevant to the enquiry in the present case and needed to be addressed squarely.
It is possible to imagine a case where the consequences of the original injury are so clearly separate and distinct from the consequences of the subsequent injury that no ‘disentangling’ is necessary. But this was not such a case. As the appellants pointed out, there was evidence indicating that certain of the pain and suffering consequences which his Honour regarded as relevant were attributable to the knee injury as well as to the hand injury.”
[22] [2014] VSCA 57. See paragraphs [1], [2], [24] and [25]
[23] At paragraphs [1]-[2]
Discussion
Credit
85The Authority challenges Mr Baker’s credit, both as to his reliability and truthfulness. Its challenge is to his evidence of the consequences to him of the elbow injury. The failure of practitioners to refer to the elbow, except occasionally in passing, the defendant submits it shows the elbow was a minor or very minor problem for Mr Baker.
86Relying on his general practitioner’s clinical notes, it points to the absence of any mention of his left elbow between 27 September 2017 and 12 May 2021. Between those dates, Mr Baker visited his general practitioner’s clinic on 132 occasions: a large number of occasions over a four-year period. The practitioner’s notes are reasonably detailed. The first mention after 12 May 2021 is on 17 August 2021, where it noted:
“[P]ain in left elbow, right ankle, left neck and low back pain. Cannot manage without boot with paraesthesia/dysthesia right foot, chronic neck pain and spasms restrict him considerably, not sleeping well.
[P]ain issues discussed. Requests trial of medicinal cannabis.”
87On 25 September 2017, Dr Douyere completed a questionnaire, apparently addressed to an authorised agent. It dealt with the elbow injury alone. In the previous twelve months, she noted treatment by Ms Tang, physiotherapist, and Professor Ek. The former treated Mr Baker weekly until late August 2017. The latter saw him for a post-operative review including MRI scans. She advised she was currently prescribing Mobic, 15 milligrams, “to assist with pain and stiffness” of the elbow. She advised she planned to continue prescribing analgesics and encouraging Mr Baker to undertake strengthening exercises. As to the medicine, she said:
“Mobic (anti-inflammatory/analgesic) is essential to provide pain relief and improve function of his (L) elbow.”
88By then, Mr Baker had undergone extensive treatment for his elbow. He had received three injections on 11 August 2014, 27 March 2017 and 11 June 2017. There was the surgery by Mr Soo in 2015 and Professor Ek in 2016. After Professor Ek’s surgery, he developed hand symptoms.
89It is interesting to note Dr Douyere does not record in her notes Mr Baker complaining about his elbow over the course of twenty-two attendances between January 2015 and 21 December 2015. Mr Baker is adamant he did. When told the first recorded complaint about his left elbow was on 21 December 2015, Mr Baker replied:[24]
“Um, that’s not possible because, I mean, she’s - again, she is the one who has sent me to Brendan Soo, and - she is my GP. She’s been my GP ever since I was living here.”
[24] Transcript at p 14
90In May 2018, the Medical Panel assessed the degree of impairment of his left elbow. This was a response to his claim for impairment benefits. It was asked to do so by an authorised agent on 4 April 2018. Apart from identifying an impairment, the Medical Panel considered his condition had stabilised and would not improve through treatment.
91Between, at least, 25 January 2019 and 24 August 2021, Dr Muir, a pain specialist, saw Mr Baker six times for treatment. There is no mention in his reports of the elbow. Although treating the injuries to the cervical and lumbar spines arising out of the transport accidents, he does not confine his references to those injuries. He twice mentions an injury to the ankle.
92Mr Baker sought the release of monies from his superannuation fund to install a chairlift in his home. His application was supported by a report from Dr Douyere. Even though his neck, back and ankle are mentioned, especially, the ankle, there is no mention of his left elbow. Despite this lack of mention, Mr Baker saw his elbow injury as important in this context:[25]
Q:“Yes. But the chairlift is needed because of your neck and low back and right ankle problems, isn’t it?---
A:Yeah, because I can’t use my elbow to pull myself up either. Because you need to have a railing, to pull hold of the railing to pull myself up.”
[25] Transcript at p 49
93On 26 July 2021, Dr Douyere wrote to Dr Courtney, a pain management practitioner, seeking pain management for Mr Baker. Although referring to surgery on the elbow as part of Mr Baker’s past history, Dr Douyere does not mention it as a source of his ongoing pain.
94Dr Michael Lucas is an occupational physician. He examined Mr Baker at the request of an authorised agent on 23 February 2016. He examined him in relation to the injuries in a motor vehicle accident. Dr Lucas notes:[26]
“He reports experiencing left elbow symptoms over the last two years associated with a work incident event for which he has ongoing reviews.”
[26] Report dated 23 February 2016 at p 2
95On the other hand, on 23 August 2018, Associate Professor Damodaran was not told of any injury to the left elbow. Admittedly, he was focussed on the 4 February 2016 motor vehicle accident. But, as is the habit of psychiatrists in this context, he appears to have taken a full history from Mr Baker.
96In October 2019, Mr Speck took a detailed history of Mr Baker’s injuries and illnesses other than his neck and back. There is no mention of his left elbow, even though he records a duodenal ulcer when younger, hypertension and a right rotator cuff repair about twenty years earlier.
97In November 2020, Dr Ryan noted the earlier operations on the left elbow. Apart from that, the left elbow is not mentioned again. Again, the focus of her examination was on the injuries caused by the two transport accidents. But, as an occupational physician, one might suppose she would be interested in other injuries affecting Mr Baker’s functioning. However, the complexity of the legislative requirements of these applications could explain why other impairments were overlooked.
98In September 2021, Dr Fearn applied for medicinal cannabis for Mr Baker. In the application, he does not mention the left elbow.
99On 7 October 2021, Dr Douyere noted Mr Baker continued with home-based exercises to improve the stiffness of his elbow. No further treatment was contemplated as he was not keen on any further surgery and preferred to continue conservative treatment. Earlier I quoted a passage from her report where she expressed a guarded prognosis.
100At first sight, the apparent failure to mention his left elbow to practitioners over several years points to the minor nature of the consequences of the injury. However, the nature of the notetaking by Dr Douyere in particular appears idiosyncratic. In 2015, there were no mentions despite a referral to Mr Soo and an operation. The period between 2017 and 2021 followed two operations and three injections. There was nothing more the general practitioners could do but prescribe medicines and monitor his condition for deterioration in the context of the two transport accidents, injury to an ankle and deteriorating mental state.
101The failure of other practitioners to note the elbow injury is less explicable. Along with the omissions in the general practitioners’ notes, it stands in contrast with the disabled limb described by the Medical Panel and Associate Professor Love.
102Mr Baker did concede issues during cross-examination. The examples which stand out are advising he stopped flying training because he could not afford it and he conceded his resignation from Rexel was unrelated to the state of his elbow: it was because his mind was “out of whack” as he put it.
103There was nothing in the way Mr Baker gave his evidence that caused me to doubt his truthfulness or reliability. Overall, I consider him to be truthful and reliable.
Injury
104It is an interesting aspect of this case that eight years after he suffered an injury to his elbow, the precise nature of the injury is still in dispute.
105The Medical Panel opinion is broader than that of Associate Professor Love. It includes the neurological aspect – aggravation of pre-existing, asymptomatic degenerative changes, development of common extensor tendinopathy, surgically treated, injuries to the left superficial radial nerve and left interosseous nerve.
106On the basis of recent nerve conduction studies and EMG investigation, Dr Gorai supports the finding of damage to the interosseous nerve. His finding of bilateral C5 radiculopathy apparently supports Mr Vellore’s view that the C5 distribution attributable to the C4-5 disc affects the neck and shoulder area in the deltoid area.
107Dr Granot doubted Dr Gorai’s examination finding of weakness in the arm and hand. It is difficult to reject that finding when a practitioner says it was present. However, assuming its presence, Dr Granot ascribes it to non-neurological factors. One factor, lack of effort of Mr Baker, was not put to him in cross-examination. The other factor, the origin of the symptoms, I cannot evaluate.
108Ultimately, Dr Granot lacks conviction as to the existence of an injury to the posterior interosseous nerve. The delay in the emergence of symptoms presupposes the existence of the injury and is relevant to causation. I feel compelled to accept the existence of weakness. I cannot evaluate his criticism of the nature of the EMG findings.
109As with many scientists, Dr Granot seeks conviction about the existence of a fact. Fortunately, I need find a fact on the balance of probabilities. On the available material, I would find Mr Baker has incurred an injury to his left posterior interosseous nerve, which is causally related to the 2014 incident. This injury causes weakness in his arm and hand.
110I accept the Medical Panel’s description of the injury to Mr Baker’s left upper limb.
Consequences
Pain
111The most significant consequence for Mr Baker is the pain he suffers. It is now constant. He has suffered pain since the accident, some eight years ago. After an extensive cross-examination of the failure of various practitioners, including his general practitioners, to mention the pain in his elbow and suggested it was a minor problem, Mr Baker said:[27]
“It was an added problem. It was not minor. It was an added problem from the other things. The elbow problem started in the beginning and it just went on, so – and all these other issues added to my elbow issue.”
[27] Transcript at p 46
112The elbow has been the subject of two operations and three sets of injections. Although he now takes various medicines to relieve the pain in his neck, lower back and ankle, they serve to relieve pain in his elbow, at least temporarily. Originally, he took Panadeine Forte. He was then prescribed Mobic and Endone. His taking of Mobic precedes the first transport accident. It has been a constant to the present. He takes it even though it has side effects, which sees him stop from time to time.
113The state of his elbow has not changed in the last twelve to eighteen months.
Loss of motion
114The other aspect of his experience of pain is the loss of motion in the elbow. In May 2018, the Medical Panel found: flexion, 110 degrees; extension, minus 10 degrees; pronation, 60 degrees, and supination, 80 degrees. In 2020, Associate Professor Love found Mr Baker resisted flexion beyond 30 degrees due to pain, with only 10 degrees of fixed flexion. Pronation and supination were severely restricted. Although the loss appears greater in 2020 than it was in 2018, I am unprepared to find there has been a deterioration in the state of his elbow. However, what those measurements reveal is a very significant loss in his ability to move his elbow. This is so after years of treatment, taking medicines and performing home-based exercises aimed at increasing the level of his mobility.
115Apart from the loss of motion, Mr Baker experiences weakness in his left arm and the grip of his hand. He gave examples of what the weakness meant domestically. If he wakes at night due to elbow pain, he experiences a “strange numb feeling” in the fingers of the hand.
116Even though Mr Baker is right hand dominant, the loss of function in the elbow, arm and hand is important. There are so many activities one performs using both arms.
Treatment
117Apart from home exercises and medicines, Mr Baker has had no treatment for his elbow in recent years. He last saw Professor Ek on 17 July 2017. He last attended his physiotherapist on the next day, 18 July 2017. That is understandable, for the condition of his elbow has stabilised.
Sleep
118As I noted earlier, his elbow pain causes him to wake at night. He describes it as severe and affects his whole arm. It happens almost every night. However, the neck and back pain also interferes with his sleep.
Household activities
119The elbow injury does prevent or restrict household activities including carpentry, gardening and cleaning. His ability to lift with his left arm is restricted. For example he cannot lift a bundle of wet clothes from the washing machine or a pressure cooker. Absent his elbow injury, he believes he could lift those items in the presence of his neck and back pain. Given the state of his back and neck, that is an optimistic assessment.
Driving
120Mr Baker has recently resumed driving his motor vehicle. The injury to his elbow prevents him driving a manual vehicle. However, he does not own a manual vehicle, having sold his last one in 2013.
Climbing and descending stairs
121If the decision to install a chair lift in his home was due to his left elbow, it played a small part in the decision. His major problems were with his neck, lower back and ankle. Indicative of its relative unimportance is that the elbow is not mentioned in the doctor’s report supporting his access to superannuation. He was able to climb and descend those stairs before the transport accidents.
Flying
122Mr Baker wanted to learn to fly a plane. There was a family history of flying. He did start taking lessons but stopped in 2013 because of the expense. Even if he could afford the cost of training, his overall physical condition would prevent his resumption of training. Flying requires the use of both hands and arms. The injury to his elbow would prevent his use of the joystick, with the other hand occupied by the throttle. The elbow injury is one of several factors preventing his resumption of training and ultimately flying on his own. Even if he could afford the cost and had no other injuries, he would still be precluded from flying due to his elbow.
Employment
123The injury to his left elbow did not prevent Mr Baker from working. Because the lifting of electrical products increased his pain, his employer modified his duties to avoid heavy lifting and straining. After he left Rexel, he obtained a somewhat similar position with AWM. Both positions involved a great deal of driving. The condition of his elbow did not prevent him driving to see customers.
124Mr Baker does not submit this injury narrowed the scope of employments available. Despite his concession, the injury has narrowed his employment opportunities in a broad sense to a limited degree. It did not see him cease that job, but it did see its duties modified. This is a permanent state of affairs. However, his capacity for work has ceased due to the combined effects of his transport accidents.
125The task of segregating the consequences flowing from the injury to the left upper arm are relatively straightforward. In terms of physical activities, this is seen by my analysis of the various areas identified by him. If anything, Mr Baker understates his situation. The state of his left upper limb is such one would expect him to identify more areas of restriction. Nevertheless, the combination of the factors of pain, loss of movement in the elbow, weakness in the arm and hand and the other impediments lead me to conclude, after applying the test, he has suffered pain and suffering consequences which are at least very considerable. He has suffered a permanent impairment to the body function associated with his left upper limb which amounts to a “serious injury”.
Conclusion
126I will grant Mr Baker leave to start a proceeding for the recovery of damages for pain and suffering and hear the parties on the form of my orders and the question of costs.
- - -
0
2
0