Bayrami (aka Bajramovski) v Schiavello Manufacturing of Australia Pty Ltd

[2018] VCC 1386

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No.  CI-17-04607

AFRIM BAYRAMI (aka BAJRAMOVSKI)	Plaintiff
v
SCHIAVELLO MANUFACTURING OF AUSTRALIA PTY LTD	Defendant

---

JUDGE:	HIS HONOUR JUDGE MISSO
WHERE HELD:	Melbourne
DATE OF HEARING:	13 August 2018
DATE OF JUDGMENT:	19 September 2018
CASE MAY BE CITED AS:	Bayrami (aka Bajramovski) v Schiavello Manufacturing of Australia Pty Ltd
MEDIUM NEUTRAL CITATION:	[2018] VCC 1386

REASONS FOR JUDGMENT
---

Subject:  ACCIDENT COMPENSATION

Catchwords:             Workplace injury – injury to left elbow – whether the plaintiff had undertaken any retraining or rehabilitation – whether the pain and suffering and loss of earning capacity consequences are “serious”

Legislation Cited:     Accident Compensation Act 1985
Cases Cited:            Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622
Judgment:                The plaintiff’s Originating Motion is dismissed.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr Morfuni QC with Mr R Stanley	Patrick Robinson & Co
For the Defendant	Mr D Churilov	Hall & Wilcox

HIS HONOUR:

Introduction

1       The plaintiff is a forty-two year old man who suffered an injury to his left elbow in the course of and within the scope of his employment with the defendant in 2009 and 2012.

2       The plaintiff submitted that he has suffered a serious permanent impairment of the function of his left upper limb, both in terms of pain and suffering and loss of earning capacity.

3       Mr Morfuni QC appeared with Mr R Stanley of counsel for the plaintiff.  Mr D Churilov of counsel appeared for the defendant.

The issues

4       The defendant conceded that the plaintiff suffered the injury to his left elbow in the course of and within the scope of his employment with the defendant, and that the injury is a compensable injury.

5       The dispute between the plaintiff and the defendant is whether the pain and suffering and loss of earning capacity consequences meet the statutory tests.

The Plaintiff’s injury

6       On 5 March 2009, the plaintiff was operating an impact gun which he used in the assembly of furniture.  It spun out of his left hand, causing a twisting of his left wrist and arm, resulting in pain in his left arm.  He was off work for about one week before returning to his normal duties.  He experienced some ongoing pain.[1]

[1]Plaintiff’s Court Book (“PCB”) 15

7       On 10 October 2012 the plaintiff was again operating an impact gun.  He suffered further injury to his left arm when it again spun out of his left hand, twisting his left wrist and arm.[2]

[2]PCB 16

The Plaintiff’s medical treatment

8       The plaintiff did not produce any medical evidence of the treatment he obtained after first injuring his left arm.  That was probably because it was not an injury of any particular significance, but it was the second injury which produced the pain and suffering and loss of earning capacity consequences which the plaintiff contends meet the statutory tests.

9       The plaintiff was referred to Dr Brophy, general practitioner, who he describes as the “work doctor”.[3]  Dr Brophy provided a handwritten medical report dated 19 March 2013.  At that time, the plaintiff was complaining of pain in his left arm from his shoulder, extending down to his wrist.  Dr Brophy diagnosed a significant tear in the left common extensor tendon at the left elbow.[4]

[3]PCB 16

[4]PCB 25

10      Dr Brophy referred the plaintiff to have a left elbow ultrasound which was performed on 24 October 2012.  The radiologist reported that the common extensor tendon at the lateral epicondyle was swollen and heterogeneous consistent with lateral epicondylitis.  That finding was associated with a small partial tendon tear.[5]

[5]PCB 46

11      Two further ultrasounds were performed on the plaintiff’s left elbow on 20 February 2013[6] and 18 January 2016.  The radiologists reported the same findings as were apparent after the first ultrasound was performed.  On 20 February 2013, the plaintiff also underwent an ultrasound-guided steroid injection, and a further injection on 24 July 2013.[7]

[6]PCB 47

[7]PCB 17

12      The plaintiff returned to work on light duties.  Dr Brophy was aware of that.  He described the work the plaintiff returned to as “light nature at reduced hours”.  He recommended that the plaintiff not return to his pre-injury duties.[8]

[8]PCB 25

13      The plaintiff’s initial attempt at a return to work failed.  He made a further attempt at a return to work which involved some bilateral manual operations which he described as not being “a real job”.  He performed that work for a couple of months before needing more time off work because of an increase in pain in his left elbow.  He was retrenched on 16 August 2013 and has not returned to any work since.[9]

[9]PCB 22

14      There is then a significant hiatus in the plaintiff’s medical treatment.  He does not appear to have been treated by any medical practitioner from early 2014 until he saw Dr Sleaby, general practitioner, on 11 January 2016.[10]

[10]PCB 17 and 27

15      The plaintiff left Australia in early 2014.  He returned to Australia in about November 2015.  While overseas, he lived in his father’s house in Macedonia, and also at the house of his wife’s parents in Albania.[11]  He did not refer to having any particular problems with his left elbow while he was overseas.  He did not refer to having consulted any medical practitioners while he was overseas or using any medication of any kind.

[11]Transcript 9

16      The plaintiff was cross-examined on the contents of his passport which revealed that he travelled into Macedonia, Albania and Greece, and sometimes to all three countries in one day.  It was suggested to him that the journeys traced through his passport would have seen him travelling for some hours.  My impression of the plaintiff’s answers was that he did not disagree that he undertook those sorts of journeys, but he could not remember them specifically.  He said that he has family in all three countries which I took to mean that he had a reason to make those journeys if they were for the purpose of seeing family.[12] 

[12]Transcript 9-13

17      The plaintiff returned to Australia in about November 2015.  The first occasion that he sought any medical treatment was from Dr Sleaby on 11 January 2016.  He referred the plaintiff to have the ultrasound which was performed on 18 January 2016.  Dr Sleaby referred to the plaintiff’s treatment as being conservative, and including physiotherapy and the use of an elbow brace.[13] However, the plaintiff said that he could not recall whether he was referred to have physiotherapy, and indeed, my impression of his evidence was that he has not had any physiotherapy.[14]  Furthermore, the plaintiff said that he could not remember being advised to use an elbow brace, and in fact has probably not used one.[15]

[13]PCB 17 and 27

[14]Transcript 14

[15]Transcript 14

18      The plaintiff was informed that the defendant had a copy of Dr Sleaby’s progress notes.[16]  He did not contest that in 2017, he saw a medical practitioner on five occasions for his left elbow.  He said that he obtained a certificate every three months, which I assume was his explanation for attending on only those occasions.[17]  He did not explain what the certificates were for.  He did not contest that in 2018, and up to 17 July 2018, that he saw a medical practitioner on two occasions for his left elbow.[18]

[16]Exhibit 2.  The progress notes were described as Dr Sleaby's.  The entries demonstrate that the plaintiff saw different medical practitioners at that same clinic.

[17]Transcript 15

[18]Transcript 16

19      The plaintiff was cross-examined on his use of medication.  In his affidavit he said that he currently takes Panadol about three or four times every fortnight when he wakes at night experiencing pins and needles in his left arm.  He uses Panadol Forte once a month.  I assume he meant Panadeine Forte.  He also uses two tablets of aspirin about once a week.[19]

[19]PCB 18

20      Part of the cross-examination was directed to the fact that Dr Sleaby’s progress notes refer to only one occasion when the plaintiff was prescribed Panadeine Forte, and that was on 31 January 2018.  The plaintiff agreed, however, he said that he found some Panadeine Forte prescribed for his mother and father in a drawer, presumably at their home.  He used their Panadeine Forte probably a few times a fortnight, but he did not say when he found the Panadeine Forte in the drawer and for how long he used what he found.[20]  None of this was referred to in his affidavits. 

[20]Transcript 15-16

21      Dr Sleaby retired.  Dr Bhalerao, general practitioner, took over the plaintiff’s treatment.  He first saw the plaintiff on 19 July 2017.  He next saw him on 3 November 2017, when he organised for a mental health care plan for the plaintiff, and referred him to a psychologist.  He did not attend the psychologist.  The plaintiff told Dr Bhalerao that he was using painkillers and an elbow brace.[21]

[21]PCB 30-32

22      On 31 January 2018, Dr Bhalerao provided the plaintiff with a backdated certificate.[22]  The plaintiff obtained the certificate because he was experiencing pain.  I assume the content of the certificate was relevant to his capacity for work.[23] The certificate was not produced.  The content of it is probably consistent with Dr Bhalerao’s opinion that the plaintiff is unable to reach above shoulder height or lift, pull, push and carry having items using both shoulders.  Interestingly, he refers to “shoulders” rather than the plaintiff’s left elbow or left upper limb.  The clinical notes do not cast any light on why he referred to the plaintiff’s shoulders.

[22]Exhibit 2

[23]Transcript 15

The medico-legal opinions

23      Mr O’Brien, orthopaedic surgeon, examined the plaintiff on 26 February 2018.  Mr O’Brien obtained a history from the plaintiff of constant throbbing pain which has interfered with most of his day-to-day activities.  Part of that history is the use by the plaintiff of Panadeine Forte which the plaintiff said he “uses several times a week”.  On examination, Mr O’Brien considered that there were specific signs of marked left lateral epicondylitis.

24      Mr O’Brien considered that the plaintiff had a significant disability associated with the function of his left upper limb.  He considered that he would not be able to return to his pre-injury work, or any form of manual work, and that he was totally incapacitated.[24]

[24]PCB 40-44

25      Dr Yong, specialist occupational physician, and Mr Simm, orthopaedic surgeon, were of a very different view of the nature the injury to the plaintiff’s left elbow and the extent to which it interferes with his capacity for work and other activities.

26      Dr Yong examined the plaintiff on 28 August 2017.  On examination, he did not elicit the same degree of significant pain and restriction of movement as did Mr O’Brien.  The plaintiff told him that his only treatment was Panadol or Panadeine, taking up to three tablets per week, and massage provided by his wife.  He considered that the plaintiff’s progress was inconsistent with the expected clinical course given the mechanism of the injury and the fact that he has not been exposed to manual handling or repeated gripping with his left hand since he ceased work.  He expected that the injury to the left elbow would have resolved.

27      Dr Yong was provided with a report of Recovre dated 28 July 2017.[25]  The author of the report identified a number of employment options which the defendant submitted constitute suitable employment.  Of those, Dr Yong considered that the plaintiff could undertake the tasks required of a stock clerk,[26] despatch clerk,[27] cashier[28] and security officer/building concierge[29] (“the Recovre jobs”). 

[25]Defendant’s Court Book (“DCB”) 31-69

[26]Recovre at DCB 42-47 and Dr Yong at DCB 79

[27]Recovre at DCB 48-52 and Dr Yong at DCB 79-80

[28]Recovre at DCB 53-57 and Dr Yong at DCB 80

[29]Recovre at DCB 58-62 and Dr Yong at DCB 80

28      Mr Simm examined the plaintiff on 26 June 2018.  On examination, he found that the plaintiff’s left forearm circumference was .5 centimetres more than the right side.  Otherwise, he elicited generalised and localised tenderness over the lateral side of left elbow.  He concluded that the tenderness he elicited was more in the proximal extensor muscles rather than over the common extensor tendon.  The latter is the structure reported to be abnormal on the ultrasounds.

29      Mr Simm also administered a provocation test which was positive for mild right-sided lateral epicondylitis, whereas it was equivocal on the left side.  He considered that the presence of symptoms on the right side suggested that there was a constitutional predisposition to the onset of epicondylitis.  The basis for that was that the plaintiff had developed that condition undertaking the normal activities of daily living absent excessive loading at the right elbow.

30      Mr Simm considered that the natural history of epicondylitis is that over time it usually runs a self-limiting course, although he conceded that there are patients who may suffer chronic long-term symptoms.  He did not consider that the left lateral epicondylitis would completely resolve.  He considered that the plaintiff did not have the physical capacity to perform his pre-injury duties, but he expected that he had a realistic capacity for alternative employment.[30]

[30]PCB 90-95

31      Mr Simm was likewise asked consider whether the plaintiff was fit for work in any of the Recovre jobs.  He considered that the plaintiff could undertake the tasks required in each of those types of employment.[31]

[31]DCB 96-98

32      Dr Yong also examined the plaintiff’s right elbow.  On examination, he considered that there was diffuse tenderness around the right elbow which was not specific to either epicondyle.  He noted that the condition of the plaintiff’s right elbow commenced about a year prior to him examining the plaintiff, and that the plaintiff had not obtained any treatment for that condition.[32]

[32]DCB 70-81, and in particular, at 75 and 77

Pain and suffering

33      The plaintiff’s evidence, both in his affidavits[33] and given orally, paint a picture that the injury to his left elbow has very dramatically impaired the function of his left upper limb to the extent that he is reduced to being able to undertake only modest daily activities.

[33]PCB 10-24

34      In summary, it was the plaintiff’s evidence that his pain and suffering consequences are:

·        Constant pain over the outside of his left elbow.

·        Knocking the left elbow causes pain, a burning sensation and pins and needles in the elbow.

·        Occasionally he experiences paraesthesia and numbness in his left forearm and hand.

·        Sometimes he is woken at night by pins and needles in his left arm which can encompass the whole of his left arm.

35      In summary, it was the plaintiff’s evidence that his loss of enjoyment of life consequences are:

·        He is unable to play with his children.

·        He is unable to hold a pen in his left hand for more than 20 minutes.

·        He has difficulty holding his infant daughter.

·        He is no longer able to ride a motorbike, which he did twice a month.

·        He is unable to keep the garden and yard at his home neat and tidy, nor is he able to plant, dig or do landscaping in his garden. 

·        He is unable to engage in tasks such as fencing and doing home repairs.

·        He is able to mow the lawns, but has difficulty holding and operating a Whipper Snipper.  His wife has to empty the grass catcher for him.

·        He uses his right arm when he washes his car.

·        He is limited to driving short distances.

·        He avoids domestic tasks such as vacuuming and mopping and like tasks because of the pain that will result from doing them.

·        He is restricted in doing the shopping and is limited to carrying light items.

·        He is limited in his general use of his left arm.

·        His right arm is now painful due to overuse because he cannot use his left arm.

36      It is very clear that what the plaintiff says about the pain he experiences is that it is very significant, and so much so that it is constant and even interferes with his capacity to undertake relatively modest domestic tasks which he does at his own pace, such as vacuuming, mopping, shopping, gardening and playing with his children and caring for them.

37      Dr van Ammers, psychiatrist, examined the plaintiff on 14 December 2017.  The plaintiff agreed with the history recorded by Dr van Ammers of aspects of his capacity to undertake daily activities – he takes his daughters to school; he then spends the day with his younger children and his wife; he does a bit of gardening; he has a lot of fun with his children, going for walks in the park, playing in the garden, playing board games and watching television programs together; he is active in reading to them; he helps his wife with the cooking; they socialise with members of their Albanian community and go to festivals; they go out for meals, and he has a good relationship with his wife.[34]  What he recounted to Dr van Ammers is not as gloomy a picture of disablement as he painted in his affidavits. 

[34]DCB 83-84 and Transcript 17-18

38      In making a pain assessment, regard should be had to what the plaintiff does about the pain.  The evidence of the plaintiff and his treating medical practitioners demonstrates that he has had occasional medical treatment with occasional resort to medication.

39      The plaintiff referred to physiotherapy and using a brace on his elbow in his first affidavit.  Before he was cross-examined I was under the impression that his brief reference to physiotherapy and a brace was consistent with him having had physiotherapy and having used to brace; however, what transpired during the cross-examination is that he has never had physiotherapy and has never used a brace. 

40      Of significance is the fact that while the plaintiff was overseas between 2014 and 2015, he had no medical treatment of any kind.  In 2017 and 2018, he occasionally saw a medical practitioner for treatment for his left elbow.

41      Dr Sleaby certainly considered that the plaintiff had no current capacity for work, which is consistent with him being of the opinion that the plaintiff was suffering significant pain and was significantly disabled; however, that is not the opinion of Dr Bhalerao, who obtained the same history from the plaintiff, but considered that the pain and the incapacity for work was caused by the plaintiff’s shoulders and not by his left elbow.

42      Reference is made in the plaintiff’s medical evidence to the need for a specialist opinion and other treatment, but it is apparent that he has not pursued any of that. 

43      Mr O’Brien has expressed the strongest opinion in favour of the plaintiff.  Dr Yong and Mr Simm, whilst accepting that the plaintiff has left lateral epicondylitis, have real doubts about the extent to which it impairs the function of his left upper limb.  Plainly, they consider that the plaintiff is fit for a number of types of suitable employment.  Their opinions in that regard must carry with them the conclusion that the impairment of the function of the plaintiff’s left upper limb is not so significant as to prevent him from undertaking what manual functions are required in the Recovre jobs.

44      Otherwise, I have some real doubts about the objective evidence relevant to what the plaintiff says is the disabling effect of the pain he experiences.  I will deal with that more when I turn to the plaintiff’s loss of earning capacity consequences. 

Loss of earning capacity

45      What is clear from the plaintiff’s evidence is that he has made no effort of any kind to undertake any rehabilitation or retraining to determine whether he has a residual capacity which he can exercise in alternative or suitable employment.  His case is based predominantly on his subjective evidence that he is in effect totally incapacitated for any work.

46      The plaintiff was asked whether he could undertake work as a despatch clerk if it did not involve heavy lifting.  He said that he would love to give it a go, but would likely be prevented from doing that work because of the onset of pain.  When he was asked that if the tasks were computer-based, sedentary in nature, answering telephones, checking paperwork and like activities whether that would aggravate his pain, his answer was that he was not sure.[35]  That answer was consistent with the answers he gave when he was cross-examined about his capacity to undertake any of the other Recovre jobs.[36]

[35]Transcript 21-22

[36]Transcript 23-25

47      One of the impediments which the plaintiff said would prevent him from undertaking any of those jobs was his poor knowledge of computers.  He has some understanding of the operation of an iPad and the rudimentary use of some computer programs.[37] My impression is that the use of computers in the Recovre jobs is not particularly sophisticated and is not something that I consider would be beyond the plaintiff.

[37]Transcript 19-20

48      I have read the detailed descriptions of the Recovre jobs commented on by Dr Yong and Mr Simm.  None of them seem to include tasks which would place the plaintiff’s left upper limb under any particular degree of stress or strain.  They appear to be the types of employment for which the plaintiff is suited given his education and his employment history.

49      When Mr O’Brien considered the plaintiff’s capacity for work, he seemed to have anchored it to whether the plaintiff was fit for “manual” work, and maybe that was because he understood the plaintiff to have been a manual worker undertaking tasks which were potentially physically arduous.  Mr O’Brien was not asked to consider the report of Recovre or the opinions of Dr Yong and Mr Simm.

Conclusions

50      I accept the plaintiff’s evidence that he suffered an injury to his left elbow, diagnosed as left lateral epicondylitis.  I accept that it impairs the function of his left upper limb.  I also accept that it is probable that it interferes with his use of his left upper limb in performing his pre-injury work.

51      However, I do not accept that the plaintiff’s pain and suffering and loss of enjoyment of life consequences are as significant as he makes them out to be.  There are a number of reasons why I have come to that conclusion.

52      Firstly, the plaintiff has had very little medical treatment.  It is improbable that someone who is so significantly disabled by pain would not have sought and obtained appropriate medical treatment.  Whilst he has had a number of ultrasounds performed and has had two injections into his left elbow, otherwise the subsequent treatment he obtained is modest.

53      Secondly, I accept the opinions of Dr Yong and Mr Simm that the plaintiff is capable of undertaking the tasks required in the Recovre jobs.  That of itself suggests that the nature and extent of the impairment of the function of his left upper limb is relatively modest. 

54      Thirdly, the plaintiff has done nothing to rehabilitate himself except for having relatively modest medical treatment early on.  He has undertaken no retraining of any kind for the purpose of determining what residual capacity he has to undertake the tasks involved in the jobs which Dr Yong and Mr Simm considered to be suitable employment.  His answers under cross-examination on this subject were unimpressive.  He simply occupied the position that he was unsure whether he could undertake any of the tasks involved in those jobs.

55      Section 134AB(38)(g) of the Act imposes a burden on the plaintiff which he has not discharged.  It is for him to establish that he has made a reasonable effort to undergo rehabilitation and retraining for the purpose of determining whether he has a residual capacity which he can exercise in suitable employment.  There is no evidence adduced by the plaintiff to suggest that he cannot undergo rehabilitation and retraining.[38]

[38]Barwon Spinners Pty Ltd and Ors v Podolak (2005) 14 VR 622 at paragraphs [29]-[31]

Orders

56      On the basis of the foregoing analysis of the evidence, I am not satisfied that the impairment of the function of the plaintiff’s left upper limb meets the statutory tests when judged by comparison with other cases in the range of possible impairments or losses of a body function and cannot be described as being “more than significant or marked” and as being “at least very considerable”.

57      Therefore, I order that the plaintiff’s Originating Motion be dismissed.

- - -