Benson v Victorian WorkCover Authority
[2024] VCC 321
•9 April 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-23-02223
| TYRONE BENSON | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE MAGEE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 and 6 December 2023 | |
DATE OF JUDGMENT: | 9 April 2024 | |
CASE MAY BE CITED AS: | Benson v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 321 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to left hand – pain and suffering
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s335
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Connelly v Transport Accident Commission [2024] VSCA 20; Popal v Transport Accident Commission [2023] VSCA 222; Johns v Oaktech Pty Ltd [2020] VSCA 10; Dordev v Cowan & Ors [2006] VSCA 254; Petrovic v Victorian WorkCover Authority [2018] VSCA 243; TTB SMS Pty Ltd v Reading [2020] VSCA 203; Hunter v Transport Accident Commission & Avalanche [2005] VSCA 1; Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P Czarnota with Ms N Hanna | Maurice Blackburn |
| For the Defendant | Mr T Storey | Lander & Rogers |
HER HONOUR:
Introduction
1On 16 July 2019, the plaintiff, Mr Benson, was injured when he was employed as a steel fixer for Astern Group Pty Ltd, the employer. Mr Benson was working on the Westgate Tunnel project assisting with a concrete pour at the Williamstown Road exit. He suffered a deep laceration to his non-dominant left hand when a battery power drill with a hole saw attachment that he was using, slipped (“the incident”).
2The defendant is the Victorian Workcover Authority (“VWA”).
3This is a “serious injury” application, in which Mr Benson seeks leave pursuant to s335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) to bring common law proceedings for pain and suffering damages.
4Mr Benson brings his application under paragraph (a) of the definition of “serious injury” in s325(1) of the Act, being “permanent serious impairment or loss of a body function”. The relevant body function was described as his left hand/left thumb, with a subsequent organic chronic pain condition.[1]
[1] Plaintiff’s Outline of Submissions dated 5 September 2023
5The legal principles are well known and not in dispute in this case.
6In order to succeed, Mr Benson must prove, on the balance of probabilities, that:
· The injuries arose out of, or in the course of, his employment or were due to the nature of his employment with the employer.
· The injuries and the resulting impairment must be “permanent”; that is, in the sense that they are “likely to last for foreseeable future”.[2]
· The impairment consequences of the injuries in relation to pain and suffering must be “serious”; that is, when judged by comparison with other cases, in the range of possible impairments, they can be fairly described as being “more than significant or marked”, and as being “at least very considerable”,[3] (often referred to as “range” in a shorthand manner).
[2] Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at paragraph [33]
[3]Section 325(2)(b) and s325(2)(c) of the Act (recently described as the “very considerable test” in Connelly v Transport Accident Commission [2024] VSCA 20).
What is in dispute?
7The VWA did not dispute that Mr Benson had sustained injury to his left hand on 16 July 2019 in the course of his employment.
8The VWA identified two areas of dispute:
· whether Mr Benson was a credible/reliable witness.
· range.
9For the reasons that follow, I have determined that Mr Benson has not satisfied his onus of establishing that the permanent impairment consequences of his left hand injury can be fairly described as more than “significant” or “marked” and “at least very considerable” when compared to the range of possible impairments.
Background
10Mr Benson is currently forty-six years old. He has a wife and two young children aged approximately one and four years old. They live on a 197 acre property in the Otway Ranges. He is right handed.
11At an unspecified time Mr Benson completed a Bachelor of Arts and Diploma of Education. He worked for approximately eight years as a secondary school teacher.
12In 2009, Mr Benson decided to change career and started working as a post tensioner. He then worked as a dogman and then as a steel fixer.
13After the incident Mr Benson was off work for four weeks. He returned to work as a steel fixer with the employer on 19 August 2019. He was made redundant in March 2020.
14He then worked as a steel fixer on a casual basis for another company, QA Steel Fixing, for a number of months prior to the COVID-19 pandemic. He then worked for six months in 2020/2021 as a health and safety advisor with the Macedon Ranges Shire Council.
15After moving to the Otway Ranges, he worked as a casual relief teacher from May 2022. It is not clear when he ceased that employment.
16Mr Benson is currently a full-time parent caring for his two young children while his wife works full time.
The hearing
17At the hearing of the application, Mr Paul Czarnota of Counsel appeared with Ms Nardine Hanna of Counsel for Mr Benson. Mr Tom Storey of Counsel appeared for the VWA.
18Mr Benson gave oral evidence and was cross-examined. He was the only witness called.
19Mr Benson also tendered Affidavits sworn by him on 2 December 2022 and 16 November 2023.
20Mr Benson tendered medical records, medico-legal reports, an Impairment Benefits Claim Form and a Notice of Entitlement.
21The VWA tendered a Certificate of Capacity, video surveillance of Mr Benson, and social media and internet materials.
22I have considered all the tendered evidence, Mr Benson’s oral evidence and the submissions of Counsel, but I shall only refer to the materials to the extent necessary in these reasons.
Post-injury surgery and treatment
23On the day of the incident, Mr Benson was driven to the Footscray Hospital Emergency Department where his wound was dressed, and he was discharged.
24He had left hand surgery at the Sunshine Hospital the next day. The operation was a left palm laceration washout and debridement with “UDN”. The operation note recorded a laceration to the ulnar digital nerve and “UDA/RDA + RDN intact”.[4] Mr Benson was discharged the same day.
[4] Plaintiff Exhibit P2: operation report, dated 17 July 2019 at Plaintiff’s Court Book (“PCB”) 51
25Although not directly in evidence, it is understood that the acronyms in the operation note mean UDN: ulnar digital nerve, UDA: ulnar digital artery, RDA: radial digital artery and RDN: radial digital nerve.
26Mr Benson had some hand therapy sessions after surgery, which he said did not resolve his injury, pain or symptoms.
27No reports or records were tendered from any treating hand therapist.
28At the time of his first Affidavit,[5] (December 2022), Mr Benson said he took Panadol and Nurofen for pain every couple of days but said they “just take the edge off if I’m lucky”.[6] He also said he limited his use of painkillers due to concerns about blood pressure and long-term use.
[5] Plaintiff Exhibit P1, plaintiff’s Affidavit, sworn 2 December 2022 at PCB 10
[6](Ibid) paragraph [32] at PCB 13
29In his second Affidavit,[7] Mr Benson said he had taken Panadol and Nurofen in the past for the pain in his left hand, but they were not helpful. Mr Benson said he would occasionally use marijuana or alcohol to dull his pain and would occasionally take an Endone tablet prescribed to his wife when the pain was very bad.
[7] Plaintiff Exhibit P1: plaintiff’s Affidavit, sworn 16 November 2023 at PCB 15
30Mr Benson has not had any hands-on treatment for his injuries since 2019. He said he now uses cannabis oil. It appears that it is being applied topically.[8] (The evidence is that he has received prescriptions of cannabis oil from Alternaleaf).
Was Mr Benson a credible/reliable witness?
[8](Ibid) paragraph [5] at PCB 16
31I must consider the whole of the evidence, but as has been said many times in serious injury applications, the credit of a plaintiff will often be critical to the resolution of the application.[9]
[9]See for example Popal v Transport Accident Commission [2023] VSCA 222 (“Popal”); Johns v Oaktech Pty Ltd [2020] VSCA 10
32This case is no exception. Mr Benson’s credit and reliability are central to the determination of the application.
33There was a sustained attack on Mr Benson’s credit.
34I am mindful of what the Court of Appeal has said in relation to a plaintiff’s credit in serious injury applications.[10] A plaintiff’s credibility is relevant to the question of whether his evidence should be accepted. It is also relevant to the reliability of the medical evidence presented, because the opinions of doctors are essentially dependent on the credibility and reliability of the history given to them by a plaintiff.
[10]Dordev v Cowan & Ors [2006] VSCA 254; Petrovic v Victorian Workcover Authority [2018] VSCA 243; Popal (supra)
35Consequently, I will deal with this aspect of the application first.
Mr Benson’s Affidavit evidence on pain and suffering consequences
Pain
36In his first Affidavit, Mr Benson described:
“[22]… constant left hand and thumb pain, tingling, cramping, and loss of sensation, with significantly reduced grip strength. The inside of my thumb and the webbing is hypersensitive to touch.
[23] I have good days and bad days, but generally my pain, tingling, loss of sensation and hypersensitivity is always there. On my worst days, I have a very deep aching pain which runs from my hand and thumb up my arm.”[11]
[11]Plaintiff Exhibit P1: plaintiff’s Affidavit, sworn 2 December 2022, paragraphs [22]-[23] at PCB 12
37In his second Affidavit he stated:
“[7]... The baseline of my left hand pain can be described as a burning, tingling sensation on the forefinger side of my left thumb. That burning, tingling sensation is always present.
[8] At its worst, the pain feels like a bad cramp from the top of my left thumb to the base of my left thumb. Sometimes, the pain extends to my left forearm and towards my elbow too.”[12]
[12]Plaintiff Exhibit P1: plaintiff’s Affidavit, sworn 16 November 2023, paragraphs [57]-[58] at PCB 16
Dexterity
38Mr Benson described having difficulties holding onto things because of weakened strength in his left hand.
39He stated in his first Affidavit:
“[24] Anything that requires me to hold or grip with my left hand, such as a rake, a broom, a racket, or even using a spoon to stir a pot of Bolognese sauce or opening a jar, tends to aggravate my left hand and thumb pain.”[13]
[13]Plaintiff Exhibit P1: plaintiff’s Affidavit, sworn 2 December 2022, paragraph [24] at PCB 12
40In his second Affidavit he stated:
“[11]… I generally struggle to hold onto things because of the weakened strength in my left hand – from holding jars to using power tools such as drills or a grinder. I generally have to modify how I hold or do things because of my left hand injury. This is the same for how I grip things such as cutting hard vegetables or holding a rake.
[12] I drop things more frequently since sustaining my left hand injury. For example, like dropping crockery when I am washing the dishes. I believe it’s because of the loss of sensation and weakened grip strength in my left hand.”[14]
[14]Plaintiff Exhibit P1: plaintiff’s Affidavit, sworn 16 November 2023 paragraphs [11]-[12] at PCB 17
41He said that his scar, which runs from his thumb to his wrist, was very sensitive to touch and hindered his ability to grip things.
Post-injury work
42In his first Affidavit, Mr Benson stated:
“[17] I resumed work for the Employer on about 19 August 2019. I went back to pre-injury duties but was cautious about pushing myself too hard, and there were certain things I physically could not do with my hand. I stopped work in about March 2020 when I was made redundant.
[18] After a couple of weeks, I got some work as a steel fixer with QA Steel Fixing. I worked there for a couple of months on a casual basis before I stopped work due to the COVID-19 pandemic and lockdowns.
[19] In about late 2020, I obtained alternative employment with Macedon Ranges Shire Council as a health and safety advisor on a 6-month contract which ended in early 2021. I believed this work would be easier on my hand. I was able to manage this work with my hand injury.
[20] My family and I have since moved house to the Otways, and my wife has given birth to our two sons. From early 2021 to about May 2022, I stayed at home caring for our first born, and in about May 2022, I started work as a casual relief teacher, working about 3 days a week.
[21] I am currently unemployed but keen to work and am actively looking for lighter work including in health and safety-related roles which I believe I could physically cope with, given my hand injury.”[15]
[15]Plaintiff Exhibit P1: plaintiff’s Affidavit ,sworn 2 December 2022, paragraphs [17]-[21] at PCB 12
43In his second Affidavit, Mr Benson stated:
“[3]… Since swearing my first affidavit, I have done bits and pieces of casual relief teaching but since the birth of our youngest son, my wife and I decided that I stay home with our two children and she continue to work full time. I applied for part time roles as a teacher recently but I wasn’t successful in my application.”
And:
“[26] I left teaching because the role was stressful at the time. I applied for the construction role because it was better pay and good working conditions. I really enjoyed my time with the blokes on the sites. I loved the physical aspect of my job. I am not capable of returning to my pre-injury duties because of my left hand condition because of the heavy, physical nature of the work. Although it’s not my dominant hand, I still require both hands to perform my pre-injury duties. Steel fixing requires grips strength and repetitive movement of both hands, of which I generally have difficulties. I miss my time on the construction sites.”[16]
[16]Plaintiff Exhibit P1: plaintiff’s Affidavit, sworn 16 November 2023, paragraph [3] at PCB 16 and paragraph [26] at PCB 19
Other activities of daily life
44Mr Benson described the impacts of his injury on other facets of his life, including on his parenting activities, his ability to undertake repairs and housework, and work on his car. He said that other activities, such as resistance training, playing the guitar and reading books, were also impacted.
45His sleep was interrupted, as he would wake most nights due to pain and tingling. He said he felt “tired most days due, in part to broken sleep, and in part due to parenthood”.[17]
[17]Plaintiff Exhibit P1: plaintiff’s Affidavit, sworn 2 December 2022, paragraph [30] at PCB 13
46In his second Affidavit, Mr Benson said that his injuries caused him difficulty with dressing and skinning rabbits, foxes and deer, which he would hunt on his property; and using a chainsaw, axe or splitter to chop wood for his family’s heating in winter.
47He also said that his left hand injury impacted upon him giving his wife shoulder and back massages which he alleged was a “staple part”[18] of their relationship.
[18] Plaintiff Exhibit P1: plaintiff’s Affidavit, sworn 16 November 2023, paragraph [25] at PCB 19
Oral evidence
Cross-examination
48In cross-examination, Mr Benson said:
· He tried to avoid activities that required the use of his left hand wherever possible.[19]
· He always tried to carry his son with his right hand.[20]
· Doing something as light as holding a spoon and stirring bolognaise sauce could bring on severe burning pain in his left hand at times.[21]
· Prior to his injury, he was not an avid guitar player, but might get the guitar out every few months and play for a few days in a row, and have the occasional practice.[22]
· The maintenance on his 197 acres was constant. If he was not looking after his children, he was doing some sort of maintenance.[23]
[19] Transcript (“T”) 18, Lines (“L”) 25-28 and T30, L27-31
[20] T33, L20
[21] T18, L7-12
[22] T21, L9-29
[23] T20, L14-16
49Mr Benson was involved in a transport accident in February 2020. He admitted that, after the transport accident, he spoke to his General Practitioner, Dr Ifana Akram, about chronic back pain, although he could not remember the exact date. He agreed that he had taken non-steroidal anti-inflammatory medication for chronic back pain which developed after the transport accident in February 2020. He stated the medication was “possibly Nurofen, possibly diclofenac”,[24] and was unable to say how long he had been taking medication for his back problems.[25]
[24] T63, L1-2
[25] T62, L20 – T63, L1-11
50He did not explain why the transport accident was not mentioned in his Affidavits.
51Mr Benson agreed that he was able to resume steel-fixing duties with the employer a few weeks after surgery. He worked until March 2020, when his role came to an end, as the section of the Westgate Tunnel he had been employed to work on had been completed.
52Mr Benson agreed it was possibly as soon as a week after finishing with the employer that he began at QA Steel Fixing on the Mentone Level Crossing Removal. Initially, he worked full time with eight-hour shifts, as the job involved a rail occupation.[26] He occasionally worked overtime shifts at twelve hours per shift.[27] Mr Benson thought this job finished in around April or May 2020.[28]
[26] T15, L 20-22
[27] T15, L28-29
[28] T16, L6
53Mr Benson was specifically cross-examined about the circumstances of his cessation of work with QA Steel Fixing. He said there was more than one contributing factor to the end of his employment.[29] This was despite his first Affidavit specifically stating that he ceased work with QA Steel Fixing because of the COVID-19 pandemic and lockdowns.
[29] T50, L29-30
54Mr Benson accepted that he gave Dr Peter Blombery and Mr John Crock the impression that his left hand was so painful, and provided such limitations, that it effectively forced him out of his work as a steel fixer. He maintained that the impression was true.[30]
[30] T52, L15-20
Social media material
55Mr Benson was taken to a number of Facebook posts from 2022 and 2023 and a single entry on the “True Local” website.
56The social media material did not impact on Mr Benson’s credit and I have placed no weight on it.
Surveillance material
57The VWA tendered thirty-nine minutes of surveillance footage, taken on 11 November 2023 and 25 November 2023.
58The following footage was played to the Court:
· 11 November 2023 (approximately eighteen minutes) ꟷ showing Mr Benson carrying a number of items to his car, then playing with and supervising his young child at a playground.
· 25 November 2023 (approximately twenty-one minutes) ꟷ showing Mr Benson carrying a child, unpacking items from his car and carrying items to the front door of a residence.
59Separately, I have watched the surveillance again for the purpose of providing these reasons.
60The following is a summary of my observations:
· In the 11 November 2023 footage, he carried a number of items to his car. I observed that he was able to grip a crockpot in his left hand. He was also able to carry a graphic equaliser in his left hand, which he supported with the four fingers of his left hand and gripped the top with his thumb. He picked a wooden speaker from ground level with both hands and carried it a few paces to the boot of his car. The wooden speaker was nearly as long as his torso, and its width was half its length. The view was obscured, but it is apparent he then placed the wooden speaker in the boot of his car.
· In the 25 November 2023 footage, while unpacking the car, Mr Benson carried items in his left hand, such as a wine box or a slab of beer, and his right hand was empty. On another occasion, he carried two plastic containers of food with his left arm, supporting the bottom with the four fingers of his left hand and the side with his left thumb. At the same time, he carried a six-pack of beer in his right hand (as depicted in the screen shot below)
· In the 25 November 2023 footage, when carrying objects, it did not appear that Mr Benson was favouring his left hand in any way. All of the movements appeared relaxed and unrestricted. He did not drop any of the items and he did not appear to have any difficulty gripping the items he was carrying.
· In the 25 November 2023 footage, there were approximately six instances when Mr Benson carried a young child using his left arm. He carried the child effectively on his left forearm, with his left hand holding on to the child’s leg/upper hip.
· On some occasions, while carrying his child in the left arm, he carried nothing in his right hand, and on other occasions he carried items in his right hand or used his right hand to open the front door to the house.
Re-examination
61In re-examination Mr Benson was asked to:
· Clarify the limitations he experienced when he returned to work after the surgery. Mr Benson said:
“… When you’re steel fixing, you’re wearing a heavy belt and because I’m right hand dominant, I twitch my steel – I twitch my wire with my right hand. After – when I’m twitching a bar, I would have to support the weight of that bar with my left and sometimes you’re in an awkward position. You have restrained … physical movement and the ability to lift and keep lifting a bar in place with my left whilst tying with my right was severely impaired by the injury because the weight of the bar would put pressure on exactly where the injury was.”[31]
[31] T65, L25 – T66, L4
· Elaborate on what he meant in saying there was more than one contributing factor to the end of his employment. He said:
“… when COVID hit and the construction industry slowed down, we were given the option to kind of take a redundancy or stay on and I said, ‘Look, if you’ve got to get rid of blokes, I’ll put my hand up and you can – and you can cut me from the crew’.”[32]
And:
“… I didn’t feel I was performing at my - at the level I wanted to perform ... and I didn’t – to be honest, I didn’t know how long I could keep doing it. I was taking a lot of painkillers to get through the day, I was – I was drinking when I got home at night … and I didn’t want to continue.”[33]
[32] T67, L7-12
[33]T67, L13-19
62He said that, where he used the words “severely impaired”, he meant he was experiencing a “fair degree of pain”.[34]
The VWA’s submissions on credit
[34] T66, L5-6
Mr Storey submitted:
· Mr Benson’s Affidavit and oral evidence was not merely exaggerated in parts ꟷ it was simply untrue.[35]
· The Affidavit material presented a picture of disability, leaving the reader with the impression that Mr Benson avoided lifting, gripping and carrying things in his left hand wherever possible, and avoided tasks involving his left hand wherever possible.
· An example of Mr Benson’s unreliability was that he had given incorrect histories to Dr Blombery and Mr Crock about the reasons he stopped steel-fixing work.
[35] T97, L10-14 and T97, L27-31
Mr Benson’s submissions on credit
64Mr Czarnota submitted:
· Mr Benson was stoic and presented as credible and honest in the witness box, and made appropriate concessions.
· Mr Benson had been placed under surveillance for a total of 44.7 hours over a period of eight days. There were days when Mr Benson was not sighted. It was submitted that there was a discrepancy in hours of surveillance footage shown versus the overall surveillance period. This submission was not expanded upon.
· Surveillance was just a snapshot of Mr Benson’s activities.
· The playground surveillance on 11 November 2023 should not impugn his credit as it simply showed Mr Benson doing his best to parent, which was consistent with his evidence.
Findings on credit
65I accept the submission that the footage at the playground taken on 11 November 2023 showed Mr Benson undertaking parental duties and does not impugn his credit.
66The surveillance film taken on 25 November 2023 is different from that taken on 11 November 2023. While it showed Mr Benson attending to parental duties similar to those on 11 November 2023, it also showed him lifting and carrying items, such as boxes or groceries, with his left hand, often when the right hand was free.
67These activities were in marked contrast with Mr Benson’s Affidavits, his oral evidence given before the surveillance was shown and what he told medico-legal examiners.
68I will not repeat Mr Benson’s Affidavit evidence regarding pain and dexterity which are set out above.
69Prior to the surveillance being shown, in cross-examination Mr Benson said that he always tried to carry his child with his right hand. He said that the lightest application of pressure could bring on pain in the hand.[36] He said he could not carry items in his left hand, and that he lacked grip strength and had lost manual dexterity.
[36]T18, L17-18
70When he attended Dr Blombery in September 2023, it was recorded that he said:
“… he has to take care if he tries to carry items such as glass jars in his left hand as he drops them occasionally. … .”[37]
[37]Plaintiff Exhibit P6, PCB 63
71Mr Benson told Mr Crock, in September 2023, that he:
“… now has difficulty regarding pushing, pulling and lifting, lifting on a repetitive basis, and prolonged repetitive reaching, pushing, pulling. His manual dexterity is impacted by the sensory changes in his thumb. … .”[38]
[38]Plaintiff Exhibit P7, PCB 68
72I have already set out a summary of my observations of the surveillance above at paragraph 60 – I observed a man effectively using his left hand in a normal manner without any restrictions on lifting or carrying items.
73I find that Mr Benson has overstated the extent of his pain, restrictions and impairment consequences. I conclude that the surveillance material has impugned Mr Benson’s reliability.
74Consequently, I have viewed Mr Benson’s evidence as to the ongoing consequences of the injuries with caution, and I will only accept the asserted consequences if there is other objective evidence to support them.
Medical material
75The medical evidence central to the resolution of this application was contained in the three medico-legal reports tendered by Mr Benson, comprising reports from Dr David Elder, dated 13 September 2022; Dr Peter Blombery, dated 5 September 2023 and Mr Crock, dated 13 September 2023, respectively.
76The following summary of the medical evidence is in the context of the adverse finding I have made regarding the reliability of Mr Benson’s evidence.
Mr Benson’s medical material
Treating material
77Mr Benson did not tender any medical reports after his discharge from hospital on 19 July 2019. There was no explanation for this.
Footscray Hospital Emergency Department
78Mr Benson tendered a letter from the Footscray Hospital Emergency Department, dated 16 July 2019, addressed to Mr Benson’s General Practitioner clinic,[39] which confirmed Mr Benson presented on that day with a 7-centimetre laceration to the thenar eminence of the left hand.
[39] Plaintiff Exhibit P3, PCB 52
Sunshine Hospital
79Mr Benson tendered an operation report of Sunshine Hospital, dated 17 July 2019,[40] together with a discharge summary,[41] which have been set out at paragraph 24 above.
[40] Plaintiff Exhibit P2, PCB 51
[41] Plaintiff Exhibit P4, PCB 53
80Mr Benson was discharged home on 17 July 2019, the same day as his surgery, with dressings and simple analgesia. A review was booked for one week following the surgery.
81No records of such review were tendered, and the Court does not know if the review took place.
Dr Akram, General Practitioner, Romsey Lifeline Medical Centre
82Mr Benson tendered a clinical note of Dr Akram, dated 4 September 2020, which recorded that Mr Benson complained of chronic back pain and the need to take “NSAIDS” regularly.[42] This entry did not refer to the left hand and is of no assistance to the Court.
[42] Plaintiff Exhibit P11
Alternaleaf
83Mr Benson tendered a letter from a registered nurse at Alternaleaf, dated 3 November 2023, with attendance notes of 31 March 2023 and 5 September 2023.[43] The letter confirmed that Mr Benson was approved to use medical cannabis by the Therapeutic Goods Administration (“TGA”) for chronic pain, but the location of the pain was unspecified.
[43]Plaintiff Exhibit P5, PCB 54-60
84On 1 March 2023 and 5 September 2023, Mr Benson was prescribed various medical cannabis products. The items were dispensed on 7 September 2023 and 19 October 2023. No explanation was provided to the Court about the apparent delay in filling out the prescriptions for the cannabis products.
Mr Benson’s medico-legal reports
Dr David Elder, Consultant in Occupational and Environmental Medicine[44]
[44]Plaintiff Exhibit P8, PCB 71-78
85Dr Elder assessed Mr Benson under the AMA[45] Guides for the purposes of his impairment benefits claim.
[45] American Medical Association
86Dr Elder noted that Mr Benson displayed almost full movement of his hand. There was altered sensation down the length of the ulnar digital nerve. He had not regained the soft-tissue bulk of his thenar eminence, resulting in grip strength loss.
87On examination, Dr Elder recorded slightly reduced movement in the thumb joints. He measured a 16 per cent loss of grip based on three repeated grip strength measurements of 50 kilograms on the left side, compared to 60 kilograms on the right side.
88Dr Elder’s assessment of whole person impairment percentages under the AMA Guides does not inform the Court as to the nature and seriousness of the consequences of Mr Benson’s injury.
Dr Peter Blombery, Consultant Physician (Vascular Disease and Pain Medicine)[46]
[46]Plaintiff Exhibit P6, PCB 61-65
89Mr Benson attended Dr Blombery on 24 August 2023. Dr Blombery recorded that Mr Benson complained of tingling over the ulnar side of the proximal phalanx of the thumb and an increasing ache in the thumb which would radiate up his arm towards the elbow after thirty minutes of trying to do tasks. The pain occasionally woke him from sleep.
90Mr Benson rated his pain as 0.5/10, 90 per cent of the time. He also reported weakness in the area in terms of the power of his hand grip.
91Mr Benson told Dr Blombery that he had had two sessions of hand therapy and then started physiotherapy and regained movement reasonably.[47]
[47] Mr Benson did not mention in his affidavits that he had had physiotherapy for his hand.
92Mr Benson reported taking Panadol or Nurofen as required, and occasionally took his wife’s OxyContin tablets if his pain was severe. Dr Blombery also noted Mr Benson occasionally smoked marijuana for pain and that he drank a moderate amount of alcohol.
93On examination, Dr Blombery recorded a 5-centimetre scar over the thenar eminence on the left side. There was reduced sensation to light touch over the inner aspect of the thumb distal to the scar, but sensation on the radial side of the thumb was intact. Power of hand grip on the left side was 40 kilograms versus 60 kilograms on the right side.
94Dr Blombery diagnosed a laceration of the left thenar eminence and the left ulnar digital nerve to the thumb, which triggered a pain syndrome in the affected area, with central sensitisation, which was exacerbated by movement.
95Dr Blombery opined Mr Benson had no capacity to perform his pre-injury duties as a steel fixer on a regular, reliable and consistent basis. Dr Blombery opined generally that Mr Benson would not be able to do any tasks where he had to use his left hand for any significant manual work.
96Dr Blombery was informed that Mr Benson had worked in steel fixing until April 2020 – he was told that Mr Benson left steel fixing because of his hand injury. Dr Blombery was also told that Mr Benson had worked as an OH&S supervisor for six months from home and that he had done some occasional relief teaching.
97Dr Blombery opined that Mr Benson would be able to undertake work which did not involve heavy use of the left hand, such as teaching, initially part-time, and then on a full-time basis.
Mr John Crock, Plastic and Reconstructive Surgeon[48]
[48]Plaintiff Exhibit 7, PCB 66-70
98Mr Crock examined Mr Benson on 12 September 2023. In contrast to the history given to Dr Blombery a few days earlier, Mr Benson told Mr Crock that he smoked marijuana recreationally and drank alcohol socially.
99Mr Benson presented to Mr Crock with numbness and neuropathic pain on the ulnar side of the thumb, affecting his hand function.
100Mr Crock did not provide a specific diagnosis. Mr Crock opined Mr Benson’s manual dexterity had been impacted by the sensory changes in this thumb, but that he still had good grip strength. He expected that Mr Benson would have pain and numbness in the distribution of the ulnar digital nerve to the left thumb, but considered that he had made an excellent recovery from surgery.
101Mr Benson told Mr Crock that he had decided to change career because of the injury.
102Mr Crock was not provided with any details of the work undertaken by Mr Benson after the incident.
103Mr Crock declined to comment on suitable employment, as it was outside his area of expertise.
104Mr Crock did not comment on the specific impacts of Mr Benson’s injury on his domestic and recreational activities, other than saying Mr Benson had always been very physically active and enjoyed camping, fishing, hunting, and regularly doing maintenance work around his rural property.
105Mr Crock said that the injury had some bearing on his social, domestic and recreational activities. He noted that Mr Benson had been able to resume doing a significant number of the activities that he did prior to the accident in his social and recreational settings.
The VWA’s medical material
Treating doctors
106The VWA tendered a Certificate of Capacity dated 8 August 2019, completed by Dr Paramenthiran Ramathan, which certified Mr Benson as having no capacity for employment between 15 August 2019 and 18 August 2019. The Certificate cleared Mr Benson for pre-injury employment on 19 August 2019, with the qualification that he “could do his normal duties as tolerated and with his judgement” and his treatment plan was ”as per hand therapist advise (sic)”.[49]
[49] Defendant Exhibit D6, Defendant’s Amended Court Book, page 23
VWA’s medico-legal reports
107The VWA tendered no medico-legal reports.
Mr Benson’s impairment benefits claim
108As mentioned above, Mr Benson made a claim for impairment benefits assessable under the AMA Guides. He tendered a Notice of Entitlement dated 19 September 2022 from the defendant’s claims agent which showed that the defendant accepted liability for impairment benefits in relation to his left hand, left thumb, nerve damage and scarring.
109Counsel for the plaintiff submitted the acceptance of liability for an impairment benefits claim was not conclusive on the issue of “serious injury” but could be treated first, as an admission that the injuries were sustained in the course of employment and second, that the injuries were permanent and caused ongoing consequences.
110The authorities make it clear that the acceptance of an impairment benefit claim can been viewed as an admission that the injuries were suffered in the course of employment. In this case such an acceptance is of little consequence as the defendant conceded that the injury occurred in compensable circumstances.
111I do not accept the second part of Mr Benson’s submission. The meaning of “permanent impairment” under the AMA Guides is not the same as the meaning of permanent injury in the context of a serious injury application.
112The Notice of Entitlement is of limited relevance in this case and I place little weight on it.
Does Mr Benson have impairment consequences caused by his left hand injury which meet the statutory test ?
Mr Benson’s submissions on range
113In summary, Mr Czarnota submitted:
· Mr Benson experienced ever-present burning and tingling sensations, with pulsation and a feeling of swelling after a long day. It was submitted that Mr Benson had reduced grip strength and ongoing dexterity issues. The reduced grip strength in the left hand was supported by the findings of Dr Elder, Dr Blombery and Mr Crock.
· Mr Benson had tried hand therapy and medications which did not assist. Dr Blombery said that Mr Benson was unlikely to require future treatment beyond analgesics as required. It was submitted that Mr Benson manages his pain with CBD and THC oil, and cannabis flower, prescribed by Alternaleaf.
· Mr Benson was stoic and his injury ought not be viewed any less serious merely because he managed to remain active with day-to-day life.
· The mere fact Mr Benson performed duties around his property, such as chopping firewood for winter, or using a motorcycle to get around the property, did not equate to having a regular and reliable capacity to work as a steel fixer.
· Mr Benson had lost his capacity for pre-injury employment which was a role that he “loved” and “miss”[es] and that this ought be considered as a pain and suffering consequence.
The VWA’s submissions on range
114Mr Storey submitted:
· The parts of the medical opinions relating to work capacity, limitations and how the injury impacted upon Mr Benson, were based on false or inaccurate histories – therefore Dr Blombery and Mr Crock’s opinions were severely compromised and almost no weight ought to be given to them.
· Mr Benson had demonstrated he was capable of heavy steel-fixing work shortly after the incident and continued to be capable of that kind of work today.
· Mr Benson had retained much and remained largely unaffected by his injury.
· Mr Benson had retained the capacity for the Macedon Ranges Shire Council role, as well as teaching, and had chosen not to work because of an agreement with his wife that he would stay at home to look after the children.
· While Mr Benson said his pain is at the extreme end of the scale, he did essentially nothing about it. He did not go to the doctor or seek advice and treatment. He takes Panadol and Nurofen occasionally.
· Mr Benson had demonstrated an ability and willingness to look after his children, and an ability to perform work around the house and the farm; he was able to do things like ride a motorcycle, he could operate tractors and drive a car. Mr Benson had retained the ability to tinker on tractors, gearboxes and go fishing – albeit to a reduced extent.
· Mr Benson’s evidence was that his sleep was impaired, partly due to his left hand pain and partly due to having young children.
Findings on range
115Applying the analysis in cases such as TTB SMS Pty Ltd v Reading[50] and Connelly v Transport Accident Commission,[51] I am required to assess Mr Benson’s impairment by comparison with other cases in the range of possible impairments or body functions and determine whether it can fairly be described as being “more than significant or marked” and “at least very considerable”. I am also required to consider the claimed consequences collectively to determine whether the relevant test has been met.
[50][2020] VSCA 203 at paragraph [31]
[51] [2024] VSCA 20
116While there is no checklist which needs to be completed by a plaintiff in order to succeed in a serious injury application, as was noted in Popal,[52] the Court would ordinarily be assisted by the following:
· Up-to-date Affidavit material from Mr Benson.
· Up-to-date medical records from the treating practitioners.
· Opinions of medico-legal examiners based on accurate histories.
· Evidence from lay witness(es) attesting to observations as to Mr Benson’s activities prior and subsequent to the subject injury.
[52](Supra) at paragraph [58]
117I consider that this was a borderline case.
118There is very little objective evidence to support Mr Benson’s application.
119There is a shortage of treating material. The only treating material before the Court related to the surgery which occurred on the day after the accident.
120There are no supporting lay Affidavits that are often seen in these types of applications, such as from a partner. Mr Benson’s wife would have been able to attest to her observations of his health and level of activity before the subject accident and his claimed consequences after it.
121Other than obtaining prescriptions for CBD oil, which appears to be used topically, Mr Benson has not had any treatment or medication prescribed for his left upper limb condition for some years. No additional treatment is planned. The precise circumstances surrounding the prescription for CBD oil has not been explained to the Court. The material from Alternaleaf lacks specificity and is of no assistance to the Court.
122Mr Benson is independent with his personal activities of daily living. He can undertake domestic activities, including gardening, albeit with some increased ache or pain at the time or the following day. On the evidence, Mr Benson does most of the cooking for the family.
123There is a discrepancy between Mr Benson’s complaints of pain contained in his Affidavit and his oral evidence, compared to that provided to the medico-legal experts.
124In August 2023, Dr Blombery recorded that Mr Benson rated his pain at 0.5/10 on a visual analogue score[53] and it was at this level for 90 percent of the time.
[53]Commonly understood to be: “0” representing no pain and “10” being the worst pain imaginable.
125In relation to sleep, Dr Blombery was told that pain occasionally woke Mr Benson – this is to be contrasted to Mr Benson’s Affidavit evidence that he had significant problems with sleep – waking most nights with left hand pain and tingling.[54]
[54]Plaintiff Exhibit P1: plaintiff’s Affidavit, sworn 2 December 2022 at [30] PCB 13
126Mr Benson relied heavily on the assertion that he could not return to steel-fixing work, which was a job he said he loved. He did not explain how his voluntary move to the Otway Ranges could, or would, impact on his ability to find such work.
127Counsel for Mr Benson submitted Mr Benson had lost his career as a steel fixer and this should be seen as evidence of serious injury.[55] Mr Benson relied upon Hunter v Transport Accident Commission & Avalanche[56] to support this proposition. In Hunter, the Court made it clear that whilst pecuniary disadvantage may be, in the appropriate case, viewed as an obvious measure of the severity of the injury, it is not by itself determinative of the issue.
[55]Plaintiff’s written submissions at paragraph [31]
[56][2005] VSCA 1 at paragraph [34] (“Hunter”)
128The case of Ellis Management Services Pty Ltd v Taylor[57] involved a labourer who had worked in a range of manual roles, and who was substantially illiterate and had relied upon his physical dexterity more than a person with a greater skill set might need to do.[58] In that case, it was accepted that a plaintiff might suffer a loss of enjoyment of life in being unable to perform work which he or she used to enjoy. There may also be a pain and suffering consequence in respect of any frustration for a plaintiff who has been unable to perform activity that he or she used to be able to perform.
[57][2013] VSCA 326 (“Taylor”)
[58]Taylor at paragraph [51]
129This case is different from Taylor in a number of ways:
· credit was not in issue in Taylor.
· Mr Benson is not illiterate and he is well educated.
130Having considered all the evidence, I do not find that Mr Benson’s cessation of work as a steel fixer was due to his left hand injury. The cessation of work in that field was due to other factors, including the taking of a voluntary redundancy from the subsequent steel-fixing job during the COVID-19 pandemic and the decision by Mr Benson to move to the Otways and to be a stay-at-home, full-time parent.
131On the evidence before me, I cannot find that the CBD oil has been prescribed for the left hand injury.
132I find that the description of pain provided to Dr Blombery of 0.5/10 is very low. It is evidence of a relatively minor ongoing problem and is consistent with my observations of the surveillance.
133I do not accept Mr Benson’s subjective complaints of hand pain, nor that his inability to work and the restrictions claimed, are a result of his left hand injury.
134I do not accept that Mr Benson struggles to hold onto things or drops things because of weakened grip in this left hand, or that he is so restricted, that even stirring a pot of bolognaise sauce with a spoon, aggravates his left hand and thumb pain.
135I find that Mr Benson has overstated his pain levels for the purposes of this application.
136The following findings have weighed against Mr Benson:
· He has not produced any supporting material from any treating practitioners.
· He has not provided an explanation for the absence of such material.
· He takes no medication.
· His cessation of work as a steel fixer was due to other factors.
· He has voluntarily adopted the role of full-time parent in a remote area of Victoria.
· The surveillance material has impugned his reliability.
137In undertaking the value judgement required of the Court, and bearing in mind the whole of the evidence, including the unreliability of Mr Benson’s evidence, I am not persuaded that the impairment consequences could be fairly described as being “more than significant or marked” and as being “at least very considerable” when considered in the range of impairments.
Disposition
138The application is dismissed.
139The parties are requested to provide a minute of orders including orders for costs.
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