Barnes v Victorian WorkCover Authority
[2019] VCC 2002
•12 December 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-17-06100
| IVAN BARNES | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 and 28 March 2019 | |
DATE OF JUDGMENT: | 12 December 2019 | |
CASE MAY BE CITED AS: | Barnes v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 2002 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to the left-hand side – pain and suffering and loss of earning capacity damages
Legislation Cited: Accident Compensation Act 1985, s134AB
Judgment:Leave granted to the plaintiff to bring proceedings for loss of earnings and pain and suffering consequences.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C W R Harrison QC with Mr C S O’Sullivan | Maurice Blackburn |
| For the Defendant | Mr A J McG Moulds QC with Mr R Kumar | Hall & Wilcox |
HER HONOUR:
1 In September 2004, the plaintiff commenced work with Australian Tartaric Products as a process line operator. His duties were varied and associated with collecting acid from vineyard waste. One part of his job involved drying and bagging acid.
2 On 2 August 2013, the plaintiff was asked to clean the acid dryer. Whilst in the process of cleaning the dryer, he suffered an electric shock through his left hand. The plaintiff said that after the initial shock, he felt pain spreading throughout the left side of his body up to his head, he had a headache and needed to sit down and rest for some time. He was able to complete his shift but continued to experience pain and symptoms throughout the left side of his body.
3 On 5 August 2013, the plaintiff consulted his general practitioner, Dr Michael Monzon, who did not recommend any treatment. The plaintiff continued to work with symptoms. He found it hard to work due to the pain down the left side of his body from his head down to his foot. His symptoms did not ease but bothered him further.
4 On 26 June 2014, the plaintiff returned to consult Dr Monzon, complaining of numbness and tingling sensations in his left arm, chest and the left side of his face.
5 On 4 July 2014, the plaintiff was prescribed Lyrica, which caused him headaches, dizziness and made him sleepy.
6 The plaintiff lodged a WorkCover claim on 20 July 2014, which was accepted.
7 In August 2014, the plaintiff was referred for pain management.
8 In February 2015, the plaintiff consulted Dr Corry DeNeef, pain consultant, who prescribed Gabapentin, and advised the plaintiff to increase the dosage over time. In addition to this, the plaintiff was also taking Amitriptyline, Lyrica and Voltaren Rapid as a result of his injury.
9 In late 2015, the plaintiff received pain management treatment through Sunraysia Community Health Services.
10 In December 2015, he was referred by his general practitioner to a physiotherapist, Ms Amanda Ramsay.
11 The plaintiff consulted a podiatrist because he had pain in his left leg and foot, and received acupuncture in his left leg.
12 In March 2016, he received physiotherapy treatment through Lime therapy.
13 In mid-2016, his left leg gave way when ascending and descending stairs.
14 In June 2016, he was off work for approximately four weeks, sought treatment from a psychologist and returned to work, working sixteen hours per week.
15 In August 2016, he was referred to a pain specialist, Dr Akilan Velayudhan.
16 The plaintiff’s employment was terminated in October 2017.
The application
17 This a serious injury application brought by the plaintiff for injury suffered by him in the course of his employment with Australian Tartaric Products in August 2013. Leave is sought for damages in relation to pain and suffering and loss of earning capacity.
18 The plaintiff alleges that the injury is a “serious injury” within the meaning of paragraph (a) and (c) of the definition of “serious injury”.
19 In order for the plaintiff to be entitled to claim damages, his injury must satisfy the definition of “serious injury” contained in s134AB(37) of the Accident Compensation Act 1985 (“the Act”). There, “serious injury” is defined as meaning:
“(a) permanent serious impairment or loss of body function;
…
(c)permanent severe mental or permanent severe behavioural disturbance or disorder.”
20 Counsel for the plaintiff told the Court that in respect to the physical injury, the body function relied upon by the plaintiff is neuropathic pain to the left trunk of the plaintiff, essentially being the left upper limb down the left side of his body to the left lower limb.
21 The behavioural disturbance or disorder is an Adjustment Disorder and for Post-Traumatic Stress Disorder.
22 The plaintiff relied upon two affidavits affirmed by the plaintiff on 29 August 2017 and 19 February 2019. I have not summarised the plaintiff’s affidavits or his evidence; however, I will refer to their relevant evidence in my reasoning. In addition, both parties relied on medical reports and other material which was tendered. I have read all tendered material.
The issues
23 The circumstances of the plaintiff’s injury were not in dispute. It was accepted that the plaintiff was injured at work.
24 The issue for determination by the Court is whether the plaintiff has suffered a serious injury in respect of damages for loss of earning capacity and pain and suffering.
25 In respect of the physical injury, counsel for the defendant accepted that there has been some neuropathic damage but submitted that the consequences of that alone did not satisfy the test.
26 In relation to the psychiatric impairment, counsel for the defendant submitted that the plaintiff has not established that he suffers an injury which has at least severe consequences.
27 Further, in respect to economic loss, the plaintiff does not satisfy the test for the physical injury alone, and in respect of the psychiatric injury alone.
28 In addition, counsel for the defendant submitted that the plaintiff has a mixture of physical and psychological consequences which are not sufficiently disentangled.
Credit of the Plaintiff
29 The plaintiff was educated to Year 9. He said he did not complete Year 9. He did some painting work after finishing school and then began doing various labouring jobs on vineyards. The plaintiff presented as a hardworking man who had worked in physical manual labour for most of his working life.
30 The plaintiff’s credit was not in issue. He answered questions directly, without exaggeration and to the best of his ability. He made concessions. He was co-operative with the process. He volunteered information. At times, the plaintiff came across as physically uncomfortable. He stood and held onto his chest. At times, he struggled with his emotions. The plaintiff was offered breaks, which he declined, and said that he wanted to keep going.[1] I note this was consistent with what Dr Schutz noted in his report of 18 July 2018, where he said:[2]
“… He stood at various points in the interview due to reported discomfort.”
[1]Transcript (“T”) 42, L15-16
[2]Plaintiff’s Court Book (“PCB”) 31
31 Dr Schutz described the plaintiff as fully co-operative, generally warm, with an engaging manner. A number of the medical witnesses reported the plaintiff to be co-operative and communicative on examination.[3] This was how the plaintiff presented in court. Overall, I found the plaintiff to be an impressive witness who was candid, honest and forthright. He had a good work history and conveyed to the Court the satisfaction he derived from employment.
[3]Dr Prytula, Associate Professor Varma, Dr Ratnayake
The physical injury
32 I shall now consider whether the plaintiff has suffered a physical injury within the definition of “serious injury” under the Act. In determining the application, I must make the assessment of “serious injury” at the time the application is heard.
33 The loss of body function relied upon was to the left side of the body. It was not in dispute that the plaintiff suffered neuropathic pain down the left side of his body, namely his trunk, from the left upper limb, down the left side of his body to the left lower limb; however, I am not satisfied that the left side of the body, including the left upper limb and the left leg, constitutes a body part under the Act.
34 Dr Monzon, the plaintiff’s treating medical practitioner reported the plaintiff as having tingling, weakness and occasional numbness in the left upper limb.
35 Dr Blombery said that as a result of the work injury, the plaintiff is very limited in being able to use his left arm and can do light tasks with his dominant right arm only. He said the plaintiff has marked restrictions in being able to use his left arm.
36 Dr Sillcock noted that the plaintiff’s reflexes were weaker in the left arm than the right.
37 Associate Professor Andrew Lee noted the presence of a degree of motor dyspraxia of the left upper and lower limbs, as well as distal weakness in both the left upper and lower limb.
38 Professor Davis said that the plaintiff presumably suffered an electrical shock injury at the time of the incident where he had a sudden jolt up the left arm and through the body.
39 Accordingly, I propose to consider whether the plaintiff has suffered a serious injury in relation to the left upper limb alone.[4]
[4]The Court provided the parties an opportunity to address by way of written submissions that the affected body part to be considered is the left upper limb. Neither party made submissions on this.
40 It was accepted that the plaintiff was right-hand dominant; however, the plaintiff’s evidence was that he was right-hand dominant with an unusual degree of dexterity of the left hand. This was not challenged by the defendant.
The current medical evidence
41 The current medical evidence of the plaintiff’s physical condition to his left upper limb, including the left hand, was expressed by Dr Monzon, general practitioner; Ms Tiffany Brooks, psychologist;[5] Dr Corry DeNeef, pain specialist; Ms Katrine Green, psychologist; Dr Peter Blombery, consultant physician (vascular disease and pain medicine); pain medicine specialists, Dr Ahmad and Dr Muir, and neurologists, Associate Professor Lee and Dr Stephen Davis.
[5]Ms Brooks recorded that the plaintiff had reported pain in in the left upper limb and significant difficulties coping with pain and managing activities he had previously engaged with (PCB 24)
Dr Michael Monzon
42 Dr Monzon, the plaintiff’s treating general practitioner, provided two reports dated 10 September 2018 and 5 January 2019. Dr Monzon said the plaintiff reported tingling, weakness and occasional numbness from the left upper limb, and was referred to a neurologist for a second opinion. He diagnosed the plaintiff with post electrocution neuropathy. He accepted that the plaintiff was suffering neuropathic pain. He said there has been no improvement in the plaintiff’s condition and that he has continuously declined.
43 Dr Monzon said the plaintiff can no longer return to pre-injury duties and hours. He could return to work performing suitable duties which involve less physical exertion such as lifting and long distance walking, for fewer hours. He accepted the plaintiff’s condition was permanent.
Dr Peter Blombery
44 In August 2018, Dr Blombery reported that the plaintiff advised he had an electric shock and had pain in the left side of the face, the jaw and tongue, the left arm, the left side of the abdomen and in the left leg down to the foot.
45 Dr Blombery diagnosed the development of a Pain Syndrome with some features of Complex Regional Pain Syndrome, as well as having sensory disparate disturbance in the affected area. He said the plaintiff is very limited in being able to use his left arm and cannot do tasks which involve the use of both arms such as carrying significant weights or prolonged driving. He is able to do light tasks using his dominant right arm only.
46 In respect to the plaintiff’s capacity for work, Dr Blombery said, given the severity of the ongoing pain in his left arm, it was his opinion that the plaintiff would be very limited in the work that he could do. He said the plaintiff was taking potent medications which affect his cognitive function and concentration. It was his opinion the plaintiff may be able to work two to four hours per day doing light duties, but no more than that.
47 In January 2019, Dr Blombery re-examined the plaintiff and said the plaintiff had a Pain Syndrome affecting his left side as a complication of the electrocution injury. It was his view that there is an organic basis for the injury caused by the electric current which has disturbed the nerve functioning in both the peripheral and central nervous systems affecting the left side of the body. Dr Blombery said the plaintiff has marked restrictions in being able to use his left arm in any form of gainful employment or significant lifting. He would be able to do light tasks using his right arm only. He believed the plaintiff’s prognosis for recovery was poor.
48 Dr Blombery concluded that the plaintiff had an extremely restricted capacity for employment and would be only able to do very light tasks for a few hours a week using his dominant right arm only.
Dr Amanda Sillcock
49 In November 2018, Dr Amanda Sillcock, consultant occupational physician, examined the plaintiff at the request of the plaintiff’s solicitor. She diagnosed the plaintiff as suffering from the effects of electrocution, with probable neuropathic pain. She accepted that there was an organic basis for his symptoms. Dr Sillcock said, according to a 2017 article in the British Medical Journal, there is a lack of evidence regarding the management of patients after electrical accidents. She therefore disagreed with the opinions expressed in several of the medical reports that the plaintiff’s symptoms are psychosomatic rather than organic in origin. She said there was an organic basis for his symptoms. She accepted the plaintiff was disabled physically, and noted that the reflexes in the left upper limb are weaker than those in the right. She said the plaintiff had a patchy inconsistent sensory loss all down the left side of his body. Dr Sillcock had read the vocational assessment report of Ms Katrine Green dated 21 September 2018. It was Dr Sillcock’s opinion that the plaintiff is not currently fit to perform any of the occupations identified because of his current presentation.
Ms Katrine Green
50 Ms Katrine Green, psychologist, provided two vocational assessment reports dated 21 September 2018 and 15 February 2019. It was accepted that she was experienced in occupational assessments and is capable of giving an opinion about work that might be appropriate for the plaintiff; however, she is not able to say that the medical evidence indicates that the plaintiff is not capable of performing the work.
51 In considering suitable employment for the plaintiff, Ms Green said that considering the plaintiff’s physical electrocution injury and current physical capacity, he is unable to perform any suitable employment within the foreseeable future.
Associate Professor Andrew Lee
52 In August 2017, Associate Professor Lee, neurologist, examined the plaintiff at the request of his general practitioner. He said that most neurologists are not first in the management of neuropathic pain beyond Lyrica. He recommended the plaintiff be referred to a pain specialist. He noted distal weakness in the left upper and lower limbs.
Dr Mahmood Ahmad
53 In May 2016, the plaintiff was medically examined by Dr Mahmood Ahmad, pain specialist, at the request of the defendant’s insurer. The plaintiff reported an electric shock which went through his left hand in the middle, ring and little fingers, the medial aspect of his forearm, his upper arm, neck, jaw, left side of his face and left side of his chest. His left leg and foot were effected. The plaintiff reported constant pain with altered sensation in his left hand, left forearm and face. He stated he feels pins and needles and dullness and that his strength is reduced in his left hand and left arm.
54 Dr Ahmad said, on examination, there was alteration to touch and pinprick in the left C6, C7, and C8 nerve root distributions. Left motor strength with hand grip, arm flexion and extension were reduced to 4/5 compared to normal strength on the right side.
55 Dr Ahmad diagnosed neuropathic pain secondary to an electric shock injury. He said the plaintiff could not return to his pre-injury duties and hours. He noted the plaintiff was working 48 hours per week in 12-hour shifts with significant difficulty.
56 Dr Ahmad said the nerve damage was permanent. He said the plaintiff was motivated to work and could work modified pre-injury or alternate duties. He imposed restrictions of no heavy lifting, pushing or pulling. He said he could work 6 to 8 hours per day, but would require breaks of 15 minutes after an hour of work, as well as normal breaks as per his employment. He should be allowed to alternate between sitting and standing every 15 minutes. He should not be bending or lifting more than 3 kilograms. He said the plaintiff could not return to pre-injury duties and hours. He said the plaintiff’s condition was permanent.
Dr Majid Rahgozar
57 In December 2017, the plaintiff was medically examined by Dr Majid Rahgozar, occupational physician, at the request of the defendant’s insurer.
58 The plaintiff reported pain and headaches which continued and became more severe and resulted in pain from the head to the shoulder, the left upper limb, down the arm, left side of the chest, lower back and left lower limb. The plaintiff reported severe pain which he rated at 7 out of 10. He reported interruption in sleep and weakness in the left upper and lower limbs.
59 Dr Rahgozar said the plaintiff’s condition is likely to have been a simple electrocution with no significant musculoskeletal injury. He said the plaintiff has developed chronic pain. Although he could not rule out a degree of neuropathic pain, he said his overall presentation is more likely to be non-specific pain and a degree of somatisation in the context of his concurrent mental health condition, perception of the lack of care and support from the employer and a degree of illness behaviour.
60 Dr Rahgozar accepted the plaintiff’s condition was related to his work injury. In his opinion, and purely from his physical condition, the plaintiff had a capacity for his pre-injury duties or alternative duties, working normal hours. He accepted the plaintiff had a capacity for orchard management, weighbridge operator, occupational health and safety officer, quality assurance and the like.
Professor Stephen Davis
61 In February 2018, Professor Stephen Davis examined the plaintiff at the request of the defendant’s solicitor. The plaintiff reported ongoing left-sided pain problems with various jolts of pain and various types of pain including needling pain which moves through various parts of the left side of his body. The plaintiff reported left-sided weakness involving both arm and leg. The pain is significantly intensified in cold weather.
62 Upon examination, Professor Davis said there was a marked functional or non-anatomical picture with collapsing-type weakness of all muscle groups in the left arm and left leg, normal reflexes. There were no objective physical signs to suggest sympathetic overactivity.
63 It was Professor Davis’ opinion that the plaintiff suffered an electric shock injury where he had a sudden injury due to the sudden jolt up the left arm and through the body. He considered the plaintiff had evidence of a major functional overlay. He accepted that the plaintiff has been regarded as having a Complex Regional Pain Syndrome, some form of diffuse left-sided neuropathic pain as a result of this injury, but he could find no objective evidence of any peripheral or central nervous system injury; however, he did not completely discount the plaintiff’s physical symptoms. He thought that a pain specialist would regard this as a central nociceptive pain syndrome with central sensitisation but this is based on the physical symptoms rather than the objective findings. He said the plaintiff was capable of working in a light duty capacity as he did following the injury with his employer. He said the plaintiff could cope with the jobs indicated in the work assessment report.
Dr Andrew Muir
64 In May 2018, the plaintiff was medically examined by Dr Andrew Muir, consultant in pain management, at the request of the defendant’s insurer. The plaintiff reported pain down the left side of his body with the leg, face, hand and buttock being the worst affected areas. The pain is always present and varies between 7 to 10 out of 10. It is aggravated by attempting to walk more than 100 feet, sitting for more than 20 or 30 minutes or standing for more than 30 minutes. It is improved by gabapentin and a hot shower.
65 As a result of examining the plaintiff, Dr Muir said the plaintiff experienced dysaesthesia affecting the entire left-hand side of his body. There was marked muscular hypertonus distributed over the entire left side of his body which was associated with hyperalgesia on application of mechanical force at low level. Brush allodynia was present over the entire left side of the body
66 Dr Muir said the plaintiff was suffering from hemi-body pain affecting the left side as a consequence of the electrocution. He has widespread muscular hypertonus and hyperalgesia. He presents with a Chronic Pain Syndrome and secondary myofascial characteristics, and a neuropathic condition that is not atypical of severe electrocution injuries.
67 Dr Muir said the plaintiff’s symptoms have been severe, progressive and contiguous since the time of the electrocution. The plaintiff does not have a capacity for pre-injury duties and hours. Dr Muir thought he could return to 16 hours a week on light duties of the type he was performing prior to his termination. He considered the vocational assessment report identifying employment options which he said are potentially suitable for the plaintiff. However, Dr Muir said it is likely he would have a significant, but uncertain quantum of restriction in performing any of these activities. He said the plaintiff could commence light duties at limited hourly amounts with gradual increases.
Dr Corry DeNeef
68 The plaintiff was referred to Dr Corry DeNeef, pain specialist. In a letter dated 13 February 2015 to Dr Monzon, he diagnosed the plaintiff with post-electrocution neuropathic pain, which is likely to be a permanent condition, although should not be progressive. He noted that pregabalin was effective in treating the plaintiff’s pain; however, the plaintiff was intolerant of the side effects. He recommended medications for the management of the plaintiff’s pain and also suggested stellate ganglion blocks for facial and arm pain.
Analysis
69 On the basis of the medical evidence, all medical witnesses accepted that the plaintiff was injured at work as a result of the electrocution incident. The majority of the medical witnesses[6] accepted that there is a physical injury to the left upper limb.
[6]Dr Monzon, Dr Blombery, Associate Professor Lee, Dr Ahmad, Dr Muir, Dr DeNeef and Dr Sillcock
70 Professor Davis said he could find no objective evidence of any peripheral or central nervous system injury. He did not discount the plaintiff’s physical symptoms. He accepted that the pain specialists would regard the plaintiff’s condition as a central sensitisation based on the physical symptoms. This is consistent with the view expressed by the treating neurologist.
71 Associate Professor Lee, treating neurologist, reported to the general practitioner that most neurologists were not experienced in the management of neuropathic pain and that a pain specialist was more appropriate. I note that the pain specialists, Dr DeNeef, Dr Ahmad and Dr Muir, accepted that the plaintiff suffered a physical condition.
72 Dr Rahgozar, occupational physician, accepted that there was neuropathic pain, but said the plaintiff’s presentation was consistent with chronic non-specific pain without any pathology which is likely to be more in the context of his concurrent mental health condition. I accept that Dr Rahgozar is an occupational physician and is expressing an opinion outside his area of expertise.
73 Overall, I accept, based on the majority of the medical evidence, that there is a physical injury to the left upper limb, being nerve damage affecting the left upper limb and left side of the body.
Loss of earnings
74 I shall now consider whether the plaintiff meets the test of loss of earnings.
75 The plaintiff makes a claim for loss of earning capacity.
76 The plaintiff has a specific burden to establish:
(a) that at the date of hearing, he had a loss of earning capacity of 40 per cent or more, measured (subject to certain irrelevant exceptions) as set out in paragraph (f) of s134AB(38) of the Act;
(b) that after the date of hearing, he will continue permanently to have a loss of earning capacity which will be productive of a financial loss of 40 per cent or more; and
(c) this requires a comparison of what the plaintiff is capable of earning with the injury (the “with injury” earnings), and what he was capable of earning had the injury not occurred (the “without injury” earnings);
(d) that even with rehabilitation and retraining, he will still sustain a loss of 40 per cent or more;
(e) if the plaintiff satisfies the test laid down by the Act in relation to loss of earning capacity, then he is at large to make a claim for damages; that is, both pain and suffering and loss of earning capacity;
(f) 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;
77 The evidence is that the plaintiff’s employment has been physical manual work requiring the use of both upper limbs.
78 The defendant relied upon an IPAR vocational assessment report dated 8 August 2017. The vocational report concluded that the following roles were suitable employment:
· Orchard manager
· Sales assistant: agriculture or earthmoving machinery
· Weighbridge operator
· Occupational health and safety officer.
79 I shall now consider each of the jobs outlined in the IPAR vocational assessment report.
Orchard manager
80 The duties of this role involve:
· Supervision of staff in planting, using hand tools and farm machinery.
· Building trellises for climbing plants and vines; operating machines to cultivate, fertilise, spray and harvest fruit and nuts, or overseeing staff completion of these tasks.
· Spraying trees, vines and other plants to control weed growth, insects, fungus and diseases, or overseeing staff completion of these tasks.
· Thinning of weeds and hoeing of row crops, pruning trees and vines, or overseeing staff completion of these tasks.
· Irrigating land for crop growth. Selecting and picking fruit, or overseeing staff completion of these tasks.
· Grading, sorting and packing produce into containers; and/or overseeing staff performance in all of these tasks.
81 The physical demands of the job are light to medium depending upon the proportion of supervisory to “hands on” requirement of the specific position. Heavy lifting and carrying of bags of fertiliser, seeds and harvested crops is likely to be intermittent but may occur for prolonged periods at times such as harvesting. Repetitive movements are likely to be frequent when pruning and picking. Use of hand tools is likely to be constant.
82 The plaintiff’s evidence was that he could no longer perform such tasks on his own property and was required to engage outside assistance. I accept this role is not suitable employment for this plaintiff as he would be required to use his upper left limb. There are no part-time or casual jobs available. I do not consider orchard manager to be suitable employment for the plaintiff.
Sales assistant (agricultural or earthmoving machinery
83 The role involves typically light to medium work demand levels including assisting customers to locate merchandise, shelving product or setting up shop displays, and lifting and passing items purchased across the scanner. Stretching and/or twisting movements are likely to be required when reaching up or down to shelves for merchandise. Lifting, pulling or carrying requirements will be occasional, and generally of a light to medium demand level for most sales. Repetitive hand movements are necessary.
84 The physical demands of the role are not suitable for this plaintiff. The plaintiff’s evidence was that he had approached Bunnings for employment; however, he was told that because he had lifting restrictions, the company would not employ him. I accept that the role of sales assistant is not suitable employment.
Weighbridge operator
85 The role of weighbridge operator involves light to sedentary physical demands. The role requires working constantly with controls which may be computerised. Lifting and carrying is not a significant requirement of the job; however, repetitive hand and arm movements are required for the operation of plant controls. The physical demands of this role are typically light which involves exerting up to 9 kilograms of force occasionally and up to 4.5 kilograms of force frequently.
86 I accept that this role is beyond the physical capacity of the plaintiff. I note that there are no such jobs available.
Quality assurance officer
87 This job was not pursued by the defendant.
Occupational health and safety officer
88 The physical demands of the role require sitting at an office, use of a computer for record-keeping, writing of reports and reviewing policy which involves legislation and research data. I accept that this role would beyond the plaintiff’s educational level. The plaintiff’s own evidence was that certain areas of the job were beyond him.
89 The current medical evidence in relation to work was expressed by Dr Monzon, Dr Blombery, Dr Sillcock and Dr Muir.
90 All accepted the plaintiff had no capacity for pre-injury employment. Dr Blombery and Dr Monzon were not provided with the IPAR vocational assessment report dated 2017.
91 Dr Muir said that the plaintiff was previously working 16 hours a week on light duties until he was terminated by his employer. He said that the resumption of his previous duties is likely possible after a re-introduction period.
92 Given that the plaintiff was terminated because the employer was no longer able to provide light duties, I accept it would not be possible for the plaintiff to return to this employment.
93 Dr Muir was asked to comment on the suitability of the jobs identified in the vocational assessment report. Dr Muir said that they are potentially suitable for the plaintiff. He said it is likely the plaintiff would have a significant but uncertain quantum of restriction in performance of any of these activities. He said the plaintiff should commence on light duties, and limited hours, with gradual increases which would be the preferred mode of the plaintiff to attempting to return to work.
94 Dr Muir did not outline what restrictions should be imposed on the plaintiff in performing these jobs despite the fact that he stated that the plaintiff has a significant number of restrictions in performing any of these activities. Nor did he indicate the length of time the plaintiff would require light duties. I accept that it is unrealistic to accept that the plaintiff could return on this basis to full-time hours for the jobs identified in the vocational assessment report.
95 Dr Blomberg said the plaintiff had an extremely restricted capacity for employment and would be only able to do very light tasks for a few hours a week using his dominant right arm only. On that basis, I accept that the plaintiff has no capacity for work.
96 In January 2019, Dr Monzon, the plaintiff’s general practitioner, said the plaintiff cannot return to pre-injury duties. Once the plaintiff’s pain is under control, he can return to suitable duties or obtain a job that requires fewer hours or less physical exertion; that is, no lifting and no long-distance walking. I consider that it would be difficult for the plaintiff to obtain employment which has no lifting when regard is had to his education, training and employment history.
97 In June 2016, Dr Mahmood Amhad, pain management specialist, said the plaintiff could not work in his pre-injury duties and hours. He obtained a history of the plaintiff working 12-hour shifts four days per week being 48 hours per week. Dr Amhad said the plaintiff had a capacity for work in relation to his physical injuries of 6 to 8 hours per day with a break of 15 minutes after each hour. Further, he imposed restrictions of no heavy lifting, pushing or pulling. The restrictions would be permanent. I accept that in the real world, employment on this basis is unrealistic. Further, this view was expressed in 2016 and is not current. In addition, I take into account the plaintiff returned to work, with his employer, working 16 hours per week, with assistance, until his employer could no longer provide light duty employment for the plaintiff.
98 In December 2017, Dr Rahgozar said, based on the physical injury, the plaintiff could return to work, performing pre-injury duties or alternative duties working normal hours. He was the only medical witness to express this view. Further, the view is not current. Accordingly, I give it little weight.
99 Given the medical evidence of Dr Blomberg, Dr Sillcock, Dr Muir and Dr Monzon as to employment, I do not consider any of the jobs identified in the vocational assessment report as suitable employment, either because the plaintiff could not withstand the rigors of such work on a regular and reliable basis or he is not suited to such work by reason of his education skills and experience.
100 In considering the positions, I also take into account the plaintiff’s lack of transferable skills by reason of his limited education and experience. In making this finding, I have not taken into account any psychiatric condition. In fact the mental component is required to be excluded by s134AB(36)(h) of the Act.
101 Given the plaintiff’s injury has persisted since 2013 and the medical evidence, I am satisfied the plaintiff’s impairment is permanent and he is effectively out of the workforce for any suitable employment as a result of the impairment to the left upper limb and the consequences flowing from that. I am satisfied that it is fair to describe the consequences of the plaintiff’s loss of earning capacity as being “more than significant or marked” and properly described as "very considerable” when judged by comparison with other cases in the range.
102 I accept the inability to work in pre-injury employment or manual employment is a consequence at the high end of the scale. I also take into account that the only work the plaintiff has performed has been manual work which is now no longer available to him because of his left upper limb injury. Whilst I note that the plaintiff if right hand dominant the unchallenged evidence is that he has an unusual degree of ambidextrousness. Further the majority of the medical evidence is that he can no longer lift using his left upper limb and he has weakness in the left side of his body.
103 I accept that the plaintiff’s inability to return to work represents a significant loss to this plaintiff, both with respect to his enjoyment of life and his self-esteem. I take into account that this plaintiff has been employed in employment since age fourteen.
Pain and suffering
104 Having found that the plaintiff has satisfied the test for loss of earning capacity, it is not strictly necessary for me to consider the pain and suffering consequences; however, out of an abundance of caution, I am satisfied that the plaintiff has satisfied the pain and suffering consequences.
105 I take into account the level of pain the plaintiff suffers. The plaintiff’s evidence was that he suffers daily pain which is constant down the left side of his body, particularly in his face, head and groin. When the plaintiff was working, he was using pain management medication to get through a shift. The plaintiff has attempted to use a number of pain management medications including Endep and Duloxetine. He had to cease the use of Endep as it made him sleepy, and he could not tolerate the side effects of Duloxetine. The plaintiff said he takes nine tablets of Neurontin per day and Panadeine Extra and/or Panadol for additional pain relief. The plaintiff also takes Quinton to assist with cramps. The level of medication the plaintiff takes suggests that the pain he suffers is at the high range. I accept that the level of pain the plaintiff suffers is a consequence I can take into account, which I assess at the high end of the range.
106 The plaintiff’s evidence is that his sleep is affected and he often wakes during the night due to pain. He is always tired and fatigued and has developed a pattern of sleeping in the afternoon as he is too tired. I take the view that disrupted sleep is a consequence I can take into account, which I assess at the middle end of the range.
107 The plaintiff’s evidence is that he is no longer comfortable socialising as his pain makes him irritable and he does not want to be around people. I accept this is a consequence I can take into account which I assess at the middle of the range.
108 The plaintiff has been unable to return to work since late 2017. The plaintiff says he does not like not working and earning an income. The plaintiff was working 16 hours per week on light duties until he was terminated. He said he would like to work if he was capable of it. The plaintiff’s skills limit him to working in a physical job which would require the use of both his arms. I accept that the inability to work in pre-injury employment and increased hours is a consequence at the high end of the scale. I also take into account the plaintiff’s work history and the fact that the injury has persisted for six years. I accept the consequences are permanent, which is in accordance with the medical evidence.
109 The plaintiff has a vineyard, and his evidence was that prior to the injury, he used to do the majority of the work around the vineyard himself. He said he now does some work around the vineyard when he feels up to it. In cross-examination, he said that getting in and out of a tractor or using any machinery is difficult and he now engages contractors for all of the heavy work including spraying, pruning, harvesting and trellising. The plaintiff agreed that regardless of his physical condition, he always had harvesters. The plaintiff said that his inability to work on the vineyard is upsetting. I accept that the plaintiff’s inability to work on and maintain his farm is a consequence I can take into account, which I assess in the middle of the range.
110 The plaintiff’s evidence is that prior to his work injury, he used to cut his own firewood using a chainsaw. He said that a chainsaw now causes him pain so he either buys firewood or his son gets it for him. The plaintiff said that his home is wood heated. The plaintiff said that in the last three years, he has not gone to collect firewood, but if he and his wife go for a drive and he sees some wood, his wife will collect it. I accept this is a consequence I can take into account which I assess at the low to middle end of the range.
111 The plaintiff’s evidence was that he used to enjoy river swimming; however, this now causes too much pain in his left arm. The plaintiff said that he has now stopped swimming in the river. He would like to swim and play normally with his granddaughter and finds this upsetting. In cross-examination, the plaintiff said that he would go swimming in summer when his granddaughter was with them. He said that his granddaughter stays with them every fortnight at the vineyard. I accept this is a consequence I can take into account which I assess at the low to middle end of the range.
112 The plaintiff’s evidence is that due to his injury, it is painful for him to play golf or cricket. The plaintiff was not cross-examined on this. I accept this is a consequence I can take into account which I assess at the low to middle end of the range.
113 The plaintiff’s evidence is that prior to his injury, he used to do a lot of motorbike riding, especially on trails. He is still able to ride a motorbike, however, for only short periods because it exacerbates his pain in the left arm and he feels unsteady. In cross-examination, the plaintiff said that since his injury, he has bought four wheeler motorbikes which he uses to get around the farm. I accept this is a consequence I can take into account which I assess at the low to middle end of the range.
114 The plaintiff said that he used to enjoy working on cars at home and at one point had three cars he worked on in his spare time. He is now unable to work on cars as getting underneath the car is too painful. The plaintiff said that he has lost an interest in working on the cars. In cross examination, the plaintiff said that he cannot recall exactly when the cars were purchased but it was probably after his injury. He said that two of the cars were for parts and he and his son were working on the third car. He said that when he and his son would start working on the car, after half-an-hour it would become too much for him. The plaintiff said that he has not worked on the car for very long and has not done much with it. I accept this is a consequence I can take into account which I assess at the low to middle end of the range.
Conclusion
115 I am satisfied that the plaintiff was involved in a work accident which, to this plaintiff, resulted in him experiencing symptoms of a physical nature. He has suffered for six years and the medical evidence is that the injury is permanent. The evidence is that he can no longer engage in pre-injury employment work or hours.
116 For the foregoing reasons, I am satisfied that the plaintiff has established that the consequences to him of his impairment can reasonably be described as being “serious”. In my experience, the consequences to the plaintiff measure up well against other serious injury applications where plaintiffs have been successful. In considering the consequences, I have not treated each equally but rather attributed weight to each consequence in light of the evidence.
117 I accept that the left upper limb injury has consequences to the plaintiff that, when judged by comparison with other cases in the range of possible impairments may be fairly described, at the date of hearing, as being “at least very considerable” and certainly “more than significant or marked”. In making this assessment, I have looked at the consequences of the left upper limb injury alone.
118 Taking into account the above consequences, I consider the plaintiff satisfies the test for pain and suffering consequences.
119 Accordingly, I grant the plaintiff leave to bring proceedings for loss of earnings and pain and suffering consequences.
120 As I have found for the plaintiff with respect to the physical injury, I am not required to consider the plaintiff’s application in relation to psychiatric impairment,
121 I will hear the parties on costs.
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