Beggs v Victorian WorkCover Authority
[2017] VCC 1612
•13 November 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-15-03366
| MARK ANDREW BEGGS | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE LAURITSEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 August 2017 | |
DATE OF JUDGMENT: | 13 November 2017 | |
CASE MAY BE CITED AS: | Beggs v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1612 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – serious impairment or loss of function of the left arm, including the wrist and hand – whether the pain and suffering and loss of earnings consequences of the impairment or loss of function are “serious”
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Mutual Cleaning and Maintenance Pty Ltd v Stamboulakis [2007] VSCA 46
Judgment: Application in relation to pecuniary loss damages dismissed. The plaintiff is granted leave to bring common law proceedings for “pain and suffering damages” in respect of injury to his left arm suffered in the course of his employment.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms J M Forbes QC with Ms S A Lean | Maurice Blackburn Pty Ltd |
| For the Defendant | Mr J L Batten | IDP Lawyers Pty Ltd |
HIS HONOUR:
Introduction
1 Mark Beggs seeks leave or permission to start a proceeding for damages against his former employer, Origin Energy Limited (“Origin”). He does so under the Accident Compensation Act 1985. To obtain permission, he must prove he has a serious injury. He relies upon paragraph (a) of the definition of “serious injury” in s134AB(37).[1] He says he has a permanent, serious impairment or loss of function of his left arm, including the wrist and hand. He says the pain and suffering and loss of earnings consequences to him of the impairment or loss of function are “serious”.
[1]Mr Beggs did not pursue his claim under paragraph (c) of the definition of “serious injury”
Circumstances
2 Mr Beggs is young, aged thirty-three. He was schooled to Year 12. After school, he worked for the ANZ and Commonwealth Banks. His duties included data entry. He worked as a security guard for about two years at the head office of Shell issuing passes to employees and clients of Shell. He held then a security licence. For three months he worked as a plasterer. He stopped because of back pain. He worked for the Melton Shire Council for two years.[2]
[2]The Defendant’s Court Book at pages 5 to 7 contain a fuller description of Mr Beggs’ work history
2012
3 Mr Beggs started working for Origin as a cylinder delivery driver on 10 June 2011. As often happens in these cases, there is a particular event where he is injured. This is his description:[3]
“On 23 January 2012 I was asked to fill in for driver who was on holidays. The dock staff at Somerton loaded about 70 forklift and residential gas cylinders onto the tray truck. It was a smaller type of truck so the cylinders could not be interlocked, making the load somewhat unstable.
In order to unload the truck I had to unlatch the side gate by reaching above head height to open the two latches. I would then walk back and swing the gate down as I walked. I would lift each cylinder down, deliver it and swap it with the empty. Because the cylinders were not interlocked the load shifted during the day. It became progressively difficult to close the gate because it had to be forced against the cylinders which had moved to the edge of the truck. I had completed a drop-off and pick up in Sunshine when I was trying to close the gate so that I could latch it up. I had difficulty getting the gate closed. I pushed very hard and tried to slam it shut. I jarred my wrist and felt sharp pain and a ‘snap’ sensation on the top of my left wrist …”.
[3]Affidavit sworn on 26 February 2015 at paragraphs [5] and [6]
4 The next day Mr Beggs saw Joseph Slesenger, an occupational physician, whom he described as the “company doctor”.
5 On 3 February, his wrist was x-rayed, revealing nothing.
6 On 20 February, Mr Beggs saw David Thomas, a hand surgeon. Further x-rays were taken.
7 On 27 March, Mr Thomas conducted an arthroscopy. It revealed a complete diastasis of the scapholunate ligament and the triangular fibrocartilage complex tear (TFCC tear). He repaired the disruption of the scapholunate ligament, debrided the TFCC tear, installed two pins and performed a posterior interosseous neurectomy.
8 Mr Beggs underwent hand therapy with Jo Campbell-Smith, and on 18 April, returned to work for three hours on each of three days in the week.
9 On 15 June, Origin transferred Mr Beggs to the position of a fleet scheduler. This was full-time, clerical work. There were other schedulers and three within Victoria. Their tasks were greater than his. They ordered bulk gas deliveries and sufficient gas for his workplace. He organised drivers to collect and deliver gas cylinders in Melbourne and its suburbs. A second worked alongside him organising bulk deliveries. The third was based at Shepparton and responsible for rural areas.
10 On 9 August, Vernon Marshall, surgeon, examined him. He found his wrist movements were about half of normal.[4] He felt Mr Beggs was suitable for the duties of scheduler but not his pre-injury duties. Professor Marshall saw a permanent partial impairment, an inability to return to “full” pre-injury duties, an ability to continue with his present job and a lifting restriction of 10 kilograms. He saw no psychosocial factors present.
[4]Report dated 9 August 2012: Defendant’s Court Book at pages 139-145
11 On 10 December, Mr Thomas saw him again and injected cortisone and anaesthetic into the pisotriquetral joint.
2013
12 On 30 January, another MRI scan was undertaken, showing evidence of ulnar carpal abutment, a TFCC tear and chondromalacia of the lunate.
13 On 5 February, Mr Thomas injected the TFCC region and prescribed the anti-inflammatory medicine, Mobic.
14 Starting on 25 March, Mr Beggs saw a psychologist, Julian McNally, after Mr Thomas referred him. Mr McNally saw Mr Beggs on ten occasions between 25 March and 6 November. Over those sessions his mood improved. But, by the last, he still had anger about the accident and anxiety over whether the function of his hand or level of pain would improve. Mr McNally diagnosed an Adjustment Disorder with Depressed Mood. Psychologically, Mr McNally thought he was more suited to manual labour (for example his pre-injury job) than the scheduling he was then doing.
15 On 16 April, Mr Thomas performed an arthroscopy of Mr Beggs’ left wrist. He again debrided the TFCC tear and shortened the ulnar by 3 millimetres. Mr Beggs stopped working shortly before this operation. Afterwards, he restarted hand therapy and wore a splint for about a month.
16 After catching his daughter as she fell off a chair, Mr Beggs went to a general practitioner, Sidney Wulfsohn, on 17 July. The next month, he started taking a stronger analgesic, Tramal SR.
17 On 30 July, Shashjit Varma, a psychiatrist, saw Mr Beggs, at the request of an authorised agent. He saw him again on 30 May 2014 and 8 January 2015. Dr Varma diagnosed an Adjustment Disorder as a consequence of the wrist injury. Psychologically, he could not return to his pre-injury duties and hours but could if they were modified. At the second consultation, Dr Varma thought Mr Beggs’ Adjustment Disorder was in remission despite the ongoing pain. Psychologically, he could return to his pre-injury duties on a modified basis or alternate duties but physically, Dr Varma did not know. At the third consultation, he maintained his diagnosis of an Adjustment Disorder but in remission. Psychologically, he could return to his pre-injury duties and any other employment.
18 On 10 October, Kevin Fraser, rheumatologist, examined Mr Beggs at the request of an authorised agent. He linked the rupture of the scapholunate ligament and the TFCC tear to the incidents in January 2012. He noted significant restrictions on wrist movements and lessened grip strength. Without improvement in pain, he saw the possibility of an arthrodesis.
19 Due to increasing pain, Dr Wulfsohn changed his analgesic to Targin and later increased the dose.
2014
20 Due to the psychological effects of Mr Beggs’ injury, Dr Wulfsohn prescribed the anti-depressant, Endep.
21 On 25 March, Mr Thomas removed the ulnar shortening osteotomy plate. Shortly afterwards, he was referred again for hand therapy.
22 On 24 April, Origin made Mr Beggs redundant. He did not return to work after the surgery in April 2013. His redundancy was one of many. A number of schedulers were made redundant. Scheduling became nationwide, not state based. Some experienced schedulers kept their jobs. Mr Beggs looked at the websites, SEEK and Indeed, for jobs. He did not apply for any. In fact, he has not applied for any since his redundancy and has no present intention of doing so when this litigation finishes.
23 On 2 May, Dr Fraser re-examined Mr Beggs. On this occasion, he found a good functional position of the wrist and hand, and good grip strength. No longer did he think an arthrodesis was likely. He disagreed with the prescription of Targin and recommended a less addictive analgesic. As before, he saw a current work capacity. Although unfit for his pre-injury duties, he could do lighter work of a sedentary nature and even perhaps light work as a courier driver. He saw his depression as the only impediment to rehabilitation.
24 On 3 July, Matthew Tagkalidis, psychiatrist, saw Mr Beggs at the request of an authorised agent. He diagnosed an Adjustment Disorder with Mixed Anxiety and Depressed Mood. It was unlikely to improve with treatment. The level of his depression fell short of a Major Depressive or Anxiety Disorder.
25 In July, Dr Wulfsohn changed his anti-depressant to Lexapro and referred him to a pain management clinic. Mr Beggs first saw a pain specialist, Andrew Muir, in September. Dr Muir prescribed Cymbalta. However, owing to its side effects, he returned to Lexapro. He was also treated by psychologists and occupational therapists.
26 On 5 August, Roy Karna, rheumatologist, examined Mr Beggs at the request of an authorised agent. He conducted an impairment assessment. As expected, his assessment of motion of the left wrist is precise. The losses are significant, especially flexion and ulnar deviation: flexion 15 degrees; extension 30 degrees; radial deviation 10 degrees; and ulnar deviation 10 degrees. Grip strength of the left was reduced without muscle wasting or autonomic or neurological dysfunction. The ultimate impairment assessment is now unimportant.
2015
27 In January, Mr Beggs started a pain management programme at Dorset Rehabilitation.
28 On 14 January, Tony Kostos, rheumatologist, examined Mr Beggs at the request of an authorised agent. His examination showed a stiff left wrist with marked restriction of flexion, deviation (radial and ulnar) and almost no extension. The grip strength of his left hand was much reduced compared to the right.
29 Unfortunately, Dr Kostos did not have reports from treating doctors or investigations. He correctly supposed a rupture of the scapholunate ligament and surgery for ulnar positive variance. He thought Mr Beggs should be weaned off his narcotic analgesic. He excluded much by way of occupation, limiting to sedentary activities involving the right hand only.
30 In a later report, Dr Kostos approved of certain sedentary jobs but thought his large intake of narcotic analgesic may prove a significant barrier to returning to work on a regular basis.
31 On 8 January, Shashjit Varma, psychiatrist, examined Mr Beggs at the request of an authorised agent. This was Dr Varma’s third examination, having done so in 2013 and 2014. He maintained his diagnosis from 2014 of an Adjustment Disorder but this condition was in remission.
32 On 21 October, a Medical Panel gave these answers to two questions posed by a Conciliation Officer:[5]
[5]Defendant’s Court Book at page 213
“Question 1: What is the nature of the worker’s medical condition (including any sequelae) relevant to the claimed left wrist and anxiety/depression injuries?
Answer: In the Panel’s opinion, the worker is suffering from persisting left wrist dysfunction, as a consequence of a soft tissue injury of the left wrist, treated surgically.
The Panel is of the opinion that the worker is suffering from an adjustment disorder with depressed mood, which arose as a consequence of the worker’s physical injury, and which is now controlled by anti-depressant medication.
Question 2: Does the worker have no current work capacity? If so, is this situation likely to continue indefinitely?
Answer: The Panel is of the opinion that the worker has a current work capacity.”
33 On 25 November, Damian Ireland, hand surgeon, examined Mr Beggs on behalf of the defendant. Mr Ireland was impressed with him. He did not find any non-physical component to his pain. His examination revealed nothing abnormal about both hands. There was restriction of movement at the left wrist and forearm. The latter described as mild. Judging from the measured range, the former was significant. There was a marked difference in the grip strength of the hands, with the right far stronger than the left. Mr Beggs said the weakness of the left was due to wrist pain.
34 To Mr Ireland, the scapholunate ligament injury was caused by Mr Beggs’ work but not the scapholunate abutment condition or the tear of the TFCC. They were developmental conditions. However, at the end of his report, Mr Ireland added:[6]
“… it is unlikely that the degenerative defect in the triangular fibrocartilage complex or the subsequent ulnar carpal abutment syndrome were related to the work injury, however the work injury and subsequent demise of the left wrist may have rendered this condition prematurely symptomatic.”
[6]Defendant’s Court Book at page 211
35 There was no immediate need for treatment but the outlook for further improvement was poor. He felt further treatment is likely to be necessary as the natural history of scapholunate dissociation is traumatic arthritis at the left wrist. It is probable that he will require surgical treatment in the form of wrist arthrodesis in the years to come.
36 Mr Ireland considered Mr Beggs unsuited to his pre-injury job because it involved lifting weights of more than 10 kilograms and excessive motion of the left wrist. He was fit for work that did not involve lifting more than 10 kilograms from or above waist height, sustained forced extension of the wrist or excessive repetitive movements of it. He was suited to the jobs of receiving and dispatch clerk and stock clerk provided he did not lift more than 2 kilograms. He was unsuited to the job of rental salesperson. Whether he was suited to the job of security officer depended on what was involved. He was unsuited if there was the chance of “physical confrontation”.
2016
37 Nigel Strauss is a psychiatrist. He saw Mr Beggs at his solicitor’s request on 9 March. This was the second time, having seen him in June 2015. He diagnosed an Adjustment Disorder with Mixed Anxiety and Depressed Mood. He thought the complaints of pain were genuine and organically based. Psychiatrically, he could work full time without restrictions. His psychiatric prognosis depended on the physical.
38 On about 21 March, Associate Professor Felix Behan (Mr Behan) examined Mr Beggs at the request of his solicitors.[7] As is the case with Mr Behan, he attached to his report photographs or images demonstrating many of his findings.
[7]Report dated 21 March 2016 in Plaintiff’s Court Book at pages 80-113
39 Mr Behan found a total lack of dexterity with a restricted range of movement in his left wrist. The power rating of Mr Beggs’ left wrist was much less than his right wrist: 15 kilograms as against 30 kilograms. The scar over the site of the insertion of the K wires was hypersensitive. There was weakness in his left elbow and pain and stiffness in the PIP joint. He was developing arthritic changes which needs a wrist fusion with or without a bone graft. He noted medicines including OxyContin, Endone and Targin.
40 Images 3, 3A, 3B and 3C compared extension at the radiocarpal joint of the right and left hands. The uninjured former has unimpaired extension for Mr Beggs, almost 90 degrees: the injured latter at 15 degrees. The comparison is dramatic. Again, images 4, 4A and 4B show the lack of flexion by the same comparison (90 degrees and 10 degrees). In his commentary to image 4B, Mr Behan doubted a Medical Panel finding that extension and flexion were greater when Mr Beggs was distracted.
41 Owing to the site of maximum tenderness and the result of the x-ray in image 7, Mr Behan foresaw the possibility of bone grafting or fusion in the wrist. However, when Mr Thomas saw him last in September 2016, he did not see the need for more surgery.
42 Referring to the NES Vocational Assessment Report, Mr Behan commented:
“I can find no issue in the patient undertaking warehouse administration, inventory control, supervising or fleet operator. Return to work plans should be held in abeyance until his psychiatric state is stabilised with possible intervention.”
43 On 25 May, Robyn Horsley, an occupational physician, examined Mr Beggs at the request of his solicitors. Mainly, she examined his arms. There was no significant difference in the circumferences of the upper arm and forearm for each. There was a good range of movement for both shoulders. There was a full range of elbow movement and no evidence of lateral epicondylitis. With the left hand, there was a mild reduction in dorsiflexion in the last 10 to 15 degrees. Palmar flexion was limited at 20 degrees. Radial and ulnar deviation was half the normal range. She found no evidence of a Complex Regional Pain Syndrome or peripheral nerve dysfunction. His thumb could touch his fingers and his fingers could touch the palmar crease. Thumb movements were normal. The force of the left was markedly less than the right.
44 Given the longevity of his symptoms, Dr Horsley thought they would persist. She could not decide whether his recent increase in symptoms was due to the injury or to a Chronic Pain Syndrome. She suggested Mr Thomas should review.
45 Dr Horsley considered the Medical Panel’s suggestion of fleet scheduler/ allocator and control room operator as reasonable but an upgrading of his computer and Excel skills was required. He was permanently unfit for his pre-injury duties. However, his present level of pain and depression meant he had no current work capacity.
46 In early August 2017, Mr Beggs’ solicitors wrote to Dr Horsley and gave her a copy of the Certificate of Opinion and Reasons of the second Medical Panel (see below). She quoted from two passages of the latter and reiterated her 2016 views, which was the only time she had seen him.
47 In July, Mr Beggs was referred to a rheumatologist, Lie Lim, because the knuckles of his left hand were stiffening, inflamed and reddened.
48 At some time this year or previously, Mr Beggs was examined by an occupational therapist who reported him to VicRoads because he drove with one hand. VicRoads endorsed his driver licence to exclude driving for commercial purposes.
49 On 13 September, a differently constituted Medical Panel gave answers to eight questions posed by his Honour Judge Wischusen:[8]
[8]Defendant’s Court Book at pages 223-225
“Question 1: What is the nature of the medical condition of the Plaintiff’s:
(a) left wrist; and
(b) mind?
Answer: The Panel is of the opinion that the Plaintiff is suffering from:
(a) persisting dysfunction of the left wrist following a soft tissue injury, surgically treated;
(b) a mild Adjustment disorder with depressed mood.
Question 2: Is the medical condition of the Plaintiff’s:
(a) left wrist; or
(b) mind –
identified by the Medical Panel in answer to question 1 ‘permanent’, meaning ‘likely to last for, during or through the foreseeable future’?
Answer: In the Panel’s opinion:
(a) Yes;
(b)Yes.
Question 3: Does the Plaintiff’s left wrist condition (excluding the psychological or psychiatric consequences of that condition) result in him having:
(a) ‘current work capacity’ within the meaning of the Accident Compensation Act 1985 (‘the Act’); or
(b) ‘no current work capacity’ within the meaning of the Act.
Answer: In the Panel’s opinion:
(a)Yes.
(b)No.
Question 4: If ‘yes’ to Question 3(a) hereof, what employment would or would not constitute suitable employment within the meaning of the Act?
Answer: In the Panel’s opinion the job option of Fleet Scheduler/Allocator would constitute suitable employment within the meaning of the Act.
Question 5: If any capacity is identified in response to question 3, is such incapacity likely to be ‘permanent’ meaning ‘likely to last for, during or through the foreseeable future’?
Answer: In the Panel’s opinion the Plaintiff’s incapacity for his pre-injury duties as a Truck Driver is likely to be permanent meaning likely to last for, during or through the foreseeable future.
Question 6: Does the Plaintiff’s medical condition of the mind (excluding the physical consequences of that condition) result in him having:
(a)‘current work capacity’ within the meaning of the Act; or
(b)‘no current work capacity’ within the meaning of the Act?
Answer: In the Panel’s opinion:
(a)Yes.
(b)No.
Question 7:If ‘yes’ to Question 6(a) hereof, what employment would or would not constitute suitable employment within the meaning of the Act?
Answer: In the Panel’s opinion job options of Forklift Operator, Fleet Scheduler/Allocator, Warehouse Administrator, Warehouse Supervisor, Rental Services Officer, Installations Coordinator, Ordering/Enquiry Assistant, Truck Dispatcher, Receiving and Dispatch Clerk, Stock Clerk, and Rental Salesperson would constitute suitable employment within the meaning of the Act.
Question 8: If any incapacity is identified in response to question 6, is such incapacity likely to be ‘permanent’ meaning ‘likely to last for, during or through the foreseeable future’?
Answer: Not applicable.”
50 The Medical Panel gave extensive reasons for its opinions. It had taken a complete history, conducted physical and psychological examinations, viewed x-rays and reports of other such investigations, and read reports of those who treated him. Mr Beggs told the Panel of constant discomfort on the ulnar side of his left wrist, reaching 10 out of 10 in intensity with pain increasing with activity and cold weather. There was pain on the radial side of this wrist, tingling and numbness in his left thumb and aching in the middle of his left forearm. It noted Mr Beggs took two 200-milligram tablets of Palexia in the morning and two 150-milligram tablets at night, as well as one 20-milligram Lexapro tablet in the morning. It described the nature of each of the four operations, adopting a broad diagnosis of “dysfunction of the left wrist” and concluded this condition would last for the foreseeable future.
51 It said he could not return to his pre-injury employment of truck driver and that was permanent. From the physical perspective, he could work as fleet scheduler/allocator. This job would not exacerbate or aggravate the condition of his wrist. He could do the job reliably and consistently. The Panel relied on his having performed scheduling work during 2012 and 2013, showing the existence of adequate skills including basic Word and Excel. It rejected his complaints of cognitive impairment (sedation, tiredness and drowsiness) because it found no evidence of it during its examination. Implicitly, the Panel considered he could do this job on a full-time basis.
52 Four days after the Panel gave its reasons, Mr Thomas wrote to Mr Beggs’ solicitors. He last saw Mr Beggs a year earlier. As to capacity for work, Mr Thomas said:[9]
“At the time of last review, I do not believe Mark had any work capacity given the ongoing levels of pain in his left wrist. Given that these significant pain levels have now persisted for more than four years I do not believe he will regain any work capacity in the future …”.
[9]Report dated 17 September 2016 at Plaintiff’s Court Book at page 71
2017
53 On 21 August, Dr Muir wrote to Mr Beggs’ solicitors. Having first seen Mr Beggs in September 2014, he reviewed him on several occasions until November 2015. Mr Beggs returned in January 2017 and was most recently seen in July. Then, he had pain in his left wrist and arm due to the original injury and subsequent surgery. Through a pain management programme and medicines, he had significant improvement in his levels of pain but this had slipped recently and Dr Muir recommended a ketamine infusion. If performed and failed, he recommended a more intense psychologically-based management programme.
54 In answer to the solicitor’s question, Dr Muir said Mr Beggs suffered from somatic and somatic-referred pain with “likely central sensitisation” and secondary psychological features of a Chronic Pain Syndrome. Mr Beggs was restricted from, but not entirely precluded from, work. The pain will continue indefinitely, treated by analgesics and “possibly other procedures”.
55 On 24 August, an organisation called Recovre gave the defendant’s solicitors a further report about a fleet manager or transport services manager. It had reported twice before. The author looked at two websites: JobSearch; and Job Markets Australia. Both roles are sedentary and have Certificate 3 or 4 as the “desired educational standard”. The gross weekly salary is about $1,677 for a fleet manager and $1,483 for a transport services manager under which fleet manager appears as a subset.
56 Origin provided PAYG payment summaries for some fleet schedulers in its employ. The salaries before deducting income tax are:
(a)2012-2013: $67,900, $63,786 and $66,714;
(b)2013-2014: $72,323, $67,559 and $70,089;
(c)2014-2015: $82,139, $82,139 and $76,102;
(d)2015-2016: $81,334, $86,468 and $74,374;
(e)2016-2017: $90,802, $88,141 and $78,430.
Current position
57 After years of treatment, Mr Beggs still has a painful left wrist. The pain can be severe, can last all day and, at times, is unbearable. Although the major area of pain is the ulnar side of the wrist, he experiences pain in the front of the wrist and forearm. He told the second Medical Panel of tingling and numbness in his left thumb. He now describes this as a “tingling sensation”. He still takes Palexia and Lexapro. The former reduces his pain but has lost some of its effectiveness. He saw Dr Muir again recently, who suggested a ketamine infusion.
58 Dr Wulfsohn still treats Mr Beggs. He last saw him in early August. He complained of severe pain in the wrist. Dr Muir was expected to give him a ketamine infusion and Mr Beggs had been referred to the Barbara Walker Centre for Pain Management.
59 Dr Muir started his treatment of Mr Beggs in 2013. He found the medicines prescribed by Dr Muir helped his pain. He still has pain in his right elbow and shoulder. These pains arose during his treatment at the pain management clinic. They now occur when he overuses his right hand to protect his left. He does not work in the garden of his home. He has never been to a psychiatrist and saw Mr McNally five or six times in 2013 and not since.
60 Mr Beggs is not working. He has not sought retraining in the last two years. No one, including the defendant, has not offered any help to return him to employment. The defendant pays for Jim’s Mowing Service to mow the lawns of his home. He looks at job advertisements:[10]
[10]Transcript at pages 12-13
Q: “Well, again, I ask you: what is it, what one thing have you done, Mr Beggs, to get back into the workplace?---
A:I’ve been searching for job positions, but because of my conditions that I’m going through with the pain and fatigue I really find that hard to find something suitable.
Q: If one of the jobs that you searched for became a reality and employment was offered, would you take it?---
A:I would, but I couldn’t guarantee I could stay there.”
61 There have been advertisements for fleet allocators on SEEK and Indeed. A lot need more experience than he has or a higher level of computer skills or even a truck licence. He cares for his daughter when she is not at school. His wife works full time as a speech therapist. For years, his relationship with his wife has been unsettled. Once they discussed separation. Now, he says:[11]
“My relationship with my partner is affected. She gets frustrated by having to do more of the house work or looking after our daughter and when I don’t do things or go out with her.
My sex life is also affected.”
[11]Affidavit sworn 26 July 2017 at paragraphs [41] and [42]
Legal considerations
62 Mr Beggs must prove:
(a)an injury arising out of or in the course of his employment with Origin. I accept Mr Thomas’ view about the precise nature of the injury to the left wrist and its origin, which establish both:[12]
[12]Report dated 17 September 2016 at Plaintiff’s Court Book at page 71
“… Mark’s diagnosis is of rupture of the scapholunate ligament, with T[riangular] F[ibrocartilage] C[omplex] T[ear] and associated ulnar carpal impaction. … I believe his scapholunate ligament rupture occurred at the time of his original workplace injury. His TFCC tear and ulnar carpal impaction may have been pre-existing, but were clearly exacerbated by the injury he sustained at work;”
(b)the injury must be a “serious injury”, as defined in s134AB(37). In this case, within that definition, it is a “permanent serious impairment or loss of a body function”;
(c)the impairment or loss due to the injury must be permanent, which means likely to last for the foreseeable future;[13]
(d)“serious” is satisfied by reference to the consequences of his impairment or loss of body function with respect to pain and suffering when judged by comparison with other cases in the range of possible impairments or losses of a body function;[14]
(e)the pain and suffering consequence of an injury encompasses both the experience of pain and suffering and the disabling effect of pain on physical capabilities (including capacity for work) and enjoyment of life;[15]
(f)where there is reliance on paragraph (a) of the definition of “serious injury” and not paragraph (c), then s134AB(38)(h) requires me to ignore the psychological or psychiatric consequences of the physical injury and s134AB(38)(i), the physical consequences of a mental or behavioural disturbance or disorder. In Mutual Cleaning and Maintenance Pty Ltd v Stamboulakis,[16] Maxwell P described the extent of the operation of paragraph (h);
(g)an impairment or loss of 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.[17]
[13]Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at paragraph [33]
[14]Section 134AB(38)(b)
[15]Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1 at paragraphs [9] to [17]
[16](2007) 15 VR 649 at paragraph [9]
[17]Section 134AB(38)(c)
63 To gain leave for loss of earning capacity consequence, Mr Beggs must prove:
(a)a loss of earning capacity of 40 per cent or more, both at the date of hearing and permanently. That is, a loss of earning capacity productive of financial loss of 40 per cent or more;[18]
(b)the loss of earning capacity is measured by comparing his gross income from personal exertion which he is earning whether in suitable employment or not or capable of earning in suitable employment as at the date of the hearing, whichever is the greater, with his gross income he was earning or would have earned for that part of the three years before and three years after the injury as most fairly reflects his earning capacity had the injury not occurred.[19]
[18]Section 134AB(38)(e)(i) and (ii)
[19]Section 134AB(38)(f)
64 In this case, there are opinions of Medical Panels bearing on the loss of earning capacity consequence. The effect of an opinion of a Medical Panel is governed by s68 of the Act where ss(4) provides:
“For the purposes of determining any question or matter, the opinion of a Medical Panel on a medical question referred to the Medical Panel is to be adopted and applied by any court, body or person and must be accepted as final and conclusive by any court, body or person irrespective of who referred the medical question to the Medical Panel or when the medical question was referred.”
Discussion
65 On 13 September 2016, a Medical Panel said Mr Beggs had a current work capacity after excluding the psychological or psychiatric consequences of his left wrist condition. The Medical Panel permanently excluded truck driving as a job Mr Beggs could do. However, it said he could do the job of a fleet scheduler/allocator. Psychologically, the Medical Panel identified twelve jobs he could do after excluding the physical effects of his left wrist condition. The Medical Panel made it plain it disagreed with the assessments of Doctors Wulfsohn and Horsley, and Ms Green.[20] Even if the Medical Panel had not been so specific, I must ignore their assessments.
[20]Defendant’s Court Book at page 236
66 There is no ground to say circumstances have changed since the Medical Panel’s opinion such that it can be disregarded. Implicitly, the Panel saw this as full-time work.
67 I disagree with the defendant’s submission Mr Beggs is a “house husband” and is uninterested in obtaining employment. He has significant domestic restrictions. For example he does not mow his lawns. There has been much effort trying to find him employment.
Loss of earning capacity
68 Mr Beggs worked as a fleet scheduler for eighteen months before retrenchment. Only a few of Origin’s schedulers survived redundancy. The role no longer exists in Melbourne; its tasks are done elsewhere. Origin’s figures for the position are for those survivors, Mr Beggs not being one of them. Mr Beggs submits he would start at an “entry” level, not the managerial fleet roles. He disagrees with Origin’s figures of $86,000 and prefers the Hays’ advertisement, earning between $50,000 and $55,000 annually.
69 Mr Beggs submitted it is inappropriate to accept Origin’s figures for the fleet schedulers who were not retrenched but appropriate to use the range of $50,000 to $55,000.
70 For the years ending 30 June 2013, 2014 and 2015, a bulk delivery driver earned $86,000, $84,000 and $89,000.
71 The second Medical Panel discussed with Mr Beggs two vocational assessments and the Recovre report dated 19 February 2016. It asked him about fifteen different jobs. He rejected each with reasons. Ultimately, the Panel concluded he could work as a fleet scheduler/allocator. The Medical Panel was not asked and did not say Mr Beggs could work full time. It is implicit when reading their reasons that he could in its opinion.
72 There is no basis upon which I could reject the opinion of the Medical Panel that the job of fleet scheduler/allocator was suitable employment for Mr Beggs. Having a Certificate 3 or 4 as the “desired educational standard” does not mean its absence disqualifies. “Desired” is different from “must”. Adopting that opinion, Mr Beggs cannot gain leave in respect of loss of earning consequence. He would not be limited to the annual range of $50,000 to $55,000. He would not be limited to 15 to 20 hours weekly or earning $25,000 to $27,500 annually based on Dr Horsley’s view of his capacity. I disagree Mr Beggs has proven a loss of earning capacity of 40 per cent or more whether employed as a fleet scheduler on a full-time or part-time basis.
Significant non-organic component
73 The defendant submitted there is a significant non-organic component to Mr Beggs’ presentation to practitioners. It relied on the opinions of Mr Ireland and Dr Fraser. The defendant’s counsel referred me to passages from the judgment of Maxwell P in Mutual Cleaning and Maintenance Pty Ltd v Stamboulakis.[21]
[21](Supra) at paragraphs [7] to [9]
74 Mr Ireland gives no support to the submission. In November 2015, he saw no evidence of any significant non-physical component of Mr Beggs’ current symptom complex.[22] In his second report, Dr Fraser lends some support to the submission. He thought psycho-social factors appeared to be the only impediment to his rehabilitation, noting depression may be relevant. However, this view appears isolated.
[22]Defendant’s Court Book at page 211
75 None of the psychiatrists who examined Mr Beggs support the submission. Dr Varma saw him three times. By 2015, he felt the Adjustment Disorder was in remission. It was symptomless. The first Medical Panel diagnosed a mild Adjustment Disorder with Depressed Mood but in remission. The second Medical Panel diagnosed the same condition and same level of severity. Implicitly, it was not in remission. It was then present and likely to be permanent. Neither Medical Panel said this recognised psychological disorder caused a non-organic component to the pain felt by Mr Beggs. Neither Medical Panel said the disorder affected the level of pain or movements of the wrist or even on his rehabilitation. Dr Muir considered the pain organic, with secondary features of a Chronic Pain Syndrome. His use of the word “features” suggests symptoms falling short of a diagnosis of the syndrome.
Pain and suffering
76 Mr Beggs underwent four operations on his left wrist. The first was an arthroscopy in March 2012 with repair of the scapholunate ligament and debridement of the TFCC tear. The second in May 2012 with the removal of the scapho-capitate and scapholunate wires. The third in April 2013 was another arthroscopy with 3 millimetres of ulnar shortening osteotomy. The last in March 2014 saw the removal of the metal from the ulnar osteotomy.
77 Despite these efforts, Mr Beggs has a significant loss of motion in his left wrist. This has been a consistent picture for years. Some of Mr Behan’s images show the loss for flexion and extension. He did not record deviation. Others did, and the loss there was also significant. Interestingly, both Medical Panels found less restriction, ranging from mild to moderate. Overall, and in the words of one doctor, Mr Beggs has a stiff wrist due to pain. It is not his dominant hand.
78 From the beginning, Mr Beggs experienced significant pain in his left wrist. It is still so, and can be very painful. This is so despite the operations. The usefulness of the medicine, Palexia, is waning. The pain is very largely organically based, although there are features of a Chronic Pain Syndrome. The prognosis for improvement is poor. The condition will deteriorate and may require further surgery. He faces a future of a painful wrist with little prospect of improvement. At his age, this is a dispiriting.
79 Although I have rejected his claim based on loss of earning capacity, Mr Beggs has lost his pre-injury employment and any form of manual labour. He is restricted to sedentary duties which are less to his liking.
80 Mr Beggs is married. His wife is a speech therapist. She works with autistic persons. One can imagine the difficulties of her job. They have a young daughter. He has not played with her in the way he would if uninjured. This has upset him and continues to do so. Since his injury they rarely go out socially. They are a young couple. This has placed pressure on their relationship and they have discussed separation. At present, there are strains but separation is not discussed.
81 Mr Beggs once played football and basketball, but no longer. Other activities, camping, fishing and bike riding, have stopped.
82 All of these restrictions are due to his wrist injury.
83 His left hand and forearm are heavily tattooed. Mr Beggs did this to disguise the surgical scars. He is ashamed of them and has disfigured himself to hide them.
84 These consequences are “serious”. I will grant leave under the pain and suffering head.
Conclusion
85 I will grant leave to commence a proceeding seeking damages for pain and suffering but not for loss of earning capacity.
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