Blagojevic v Victorian WorkCover Authority
[2019] VCC 1383
•2 September 2019
| IN THE COUNTY COURT OF VICTORIA AT GEELONG COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-18-03000
| ALEKSANDAR BLAGOJEVIC | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE BROOKES | |
WHERE HELD: | Geelong | |
DATE OF HEARING: | 8 April 2019 | |
DATE OF JUDGMENT: | 2 September 2019 | |
CASE MAY BE CITED AS: | Blagojevic v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1383 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – right wrist injury – pain and suffering
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s335(2)(d), s325
Cases Cited:Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260
Judgment: Leave granted to commence proceedings and common law for pain and suffering damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A McNab with Ms R Dal Pra | Maurice Blackburn |
| For the Defendant | Mr W R Middleton QC with Ms K Manning | Wisewould Mahony |
HIS HONOUR:
1 By an Originating Motion filed in this Court, the plaintiff seeks leave pursuant to s335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) to bring proceedings at common law against his employer. He relies upon paragraph (a) of the definition of “serious injury” in s325 of the Act, namely, “permanent serious impairment or loss of a body function”, being the right hand.
2 Herein, the plaintiff confined his application to one seeking leave to claim pain and suffering damages only.
3 The plaintiff tendered in evidence affidavits sworn 14 February 2018, 8 February 2019 and 8 April 2019.[1] He also relied upon medical reports of treating and medico-legal practitioners. He also relied on radiological investigations of various dates.[2] The defendant relied on medico-legal reports from two practitioners.[3] The plaintiff was the only witness who attended for cross-examination.
[1]Exhibit “A”
[2]Exhibit “B”
[3]Exhibits 1 and 2
The Plaintiff’s background
4 The plaintiff was born in November 1970 and is aged forty-eight years. He lives with his partner, Peta, in Cullulleraine, which is near Mildura. They moved to a five-acre property there in August of last year, having previously resided in Leopold, Victoria. He has four children from a previous marriage. He completed approximately three months of Year 10 at a State high school in Brisbane.
5 Thereafter, he has essentially undertaken manual work to earn a living. His occupations have included factory work, farm hand, machine operator, welder, crowd controller and truck driver.
6 In 2011, he commenced work as a tree clearer and worked for the City of Greater Geelong, together with a number of other entities.
7 In April 2015, he commenced employment with the current employer and nominated defendant, Porter Construction Pty Ltd. He states it was heavy tree-clearing work, including clearing trees from beneath power lines. There was a lot of chainsaw work, and a lot of work dragging heavy branches, and the like, to load onto and off trucks. It is alleged it was heavier tree-clearing work than he had previously undertaken.
8 In about August 2015, he experienced the onset of pain in his wrists, the right being much worse than the left. He attended his general practitioner, Dr Nnopu, at the Gateway Plaza Family Medical Clinic.
9 Nerve conduction studies were undertaken on 7 October 2015.[4] The clinical problem was cited as “? Bilateral Carpal Tunnel Syndrome”. The conclusion included:
“This study shows evidence of median neuropathy at the wrists bilaterally, of moderate severity on the right, and of mild severity on the left, in keeping with the clinical diagnosis of carpal tunnel syndrome.”[5]
[4]Plaintiff’s Court Book (“PCB”) 187
[5]PCB 187
10 Thereafter, the plaintiff was referred to orthopaedic upper limb and hand surgeon, Mr Kevin Eng, who reported to the general practitioner on 8 February 2016.[6] At that stage, his diagnosis was atypical pains for carpal tunnel syndrome.[7] His plan was to obtain x-rays of his wrists and obtain copies of nerve conduction studies.[8]
[6]Exhibit “D”, PCB 189
[7]Exhibit “D”, PCB 189
[8]Exhibit “D”, PCB 189
11 Mr Eng took a history that the plaintiff had been working as an arborist when, in approximately October 2015, he started getting electric shocks in his wrists. He did not think much of the symptoms at the time, but started waking at night with pain and tingling in his middle finger, ring finger and little finger. He was unable to continue his arborist duties, and at that stage, was driving trucks for the same company and the numbness had reduced. However, the plaintiff reported he still had pains located in the hypothenar and thenar eminence, radiating across the wrist and up into the forearm. They were worse when gripping or loading his hand. On conducting an examination and not having the benefit of the nerve conduction tests at that stage, Mr Eng reported:
“… I am uncertain as to his exact anatomic reason for his symptoms”.[9]
[9]Exhibit “D”, PCB 189
12 On 11 February 2016, Mr Eng reported to the general practitioner that the nerve conduction studies from 2015 showed possible Carpal Tunnel Syndrome; however, he noted that the –
“… anatomic distribution of his neurological symptoms does not match classical carpal tunnel syndrome. Although there are anatomical variants, his symptoms are really more widespread than I would expect.”[10]
[10]Exhibit “D”, PCB 190
13 Mr Eng again reported to the general practitioner on 8 March 2016. He noted there was no response to a carpal tunnel injection. His plan at that stage was to have an MRI scan of his wrist to check for intercarpal ligamentous injury, before considering carpal tunnel release.[11] He stated further:
“… I am going to investigate his wrist for other pathologies which may explain his radial sided wrist pain which radiates up the radius. One of these is scapholunate disassociation and although there is no gross dynamic deformity, I certainly think it is worth looking with an MRI and I will see him back after this.”[12]
[11]Exhibit “D”, PCB 191
[12]Exhibit “D”, PCB 191
14 An MRI scan was conducted on 7 March 2016, and reported to Mr Eng. Several irregular findings were recorded and the conclusion was:
“1. Perforation of the dorsal portion of the scapholunate ligament. No evidence of intercalated segmental instability.
2. The triangular fibrocartilage is torn at its radial attachment.
3. Intrasubstance tear of the extensor carpi ulnaris.”[13]
[13]Exhibit “B”, PCB 185
15 On 16 March 2016, Mr Eng sought permission to perform right wrist surgery on the plaintiff. He stated:
“… This would involve arthroscopic evaluation of the wrist with arthroscopic +/- open excision of volar radial ganglia around his wrist. This would be followed by a carpal tunnel release.”[14]
[14]Exhibit “D”, PCB 192
16 At operation on 15 June 2016, the record recites:
“Right Wrist – Carpal Tunnel Release – endoscopic +/- open – Scope - Ganglion Excision.”[15]
[15]Exhibit “B”, PCB 186
17 Under the heading “Technique”, it is recorded:
“Minor wear on SL [scapholunate]”
and:
“small radial TFCC tear [triangular fibrocartilage]”.[16]
[16]Exhibit “B”, PCB 186
18 On 30 June 2016, Mr Eng reported to the general practitioner that the plaintiff was “2 weeks post carpal tunnel release and volar ganglion excision” and his plan was to “Start hand therapy”.[17]
[17]Exhibit “D”, PCB 193
19 On 28 July 2006, Mr Eng reported to the general practitioner that he planned to continue hand therapy and to consider retraining. He considered that his carpal tunnel symptoms had resolved, but there was still some tenderness around the volar radial aspect of his wrist. At that stage, he considered that returning to heavy manual labour was “likely to result in the recurrence of wrist symptoms or new ones in his left wrist”[18]
[18]Exhibit “D”, PCB 194
20 By 19 September 2016, Mr Eng noted that the plaintiff’s previous job involved a lot of heavy handling of trees and lifting heavy machinery dealing with those trees, and he considered that retraining was the way to go.[19]
[19]Exhibit “D”, PCB 195
21 By 20 December 2016, Mr Eng reported to the defendant’s WorkCover insurer:
“Aleks’ wrist is not going well. We have serious doubts as to any further gains to be made from surgery. I suspect he will have ongoing wrist pains into the future and Aleks and I feel that re-training is vitally important here as he is motivated and experienced. Your support for this would be greatly appreciated.”[20]
[20]Exhibit “D”, PCB 197
22 On the same day, Mr Eng reported to the general practitioner as follows:
“Aleks’ pre-operative symptoms have essentially returned but now there is more of a tearing pain 5cms proximal to his wrist when he goes to lift things or flex his wrist. However, it is completely non tender and I cannot feel any masses in the area.
Aleks and I have had a long discussion today with his wife Peta. I doubt there is much more we can do to improve his wrist. His pains are widespread involving the thenar, hypothenar and the entire pan like pain around the wrist and despite the operations we have done there has been no real improvement.
For completeness sake I will check for a mass lesion 5cms proximal to the wrist but even that would not explain all the widespread pains and I am not sure that I can offer him much more. I will see him back after his scan.”[21]
[21]Exhibit “D”, PCB 198
23 By 3 January 2017, Mr Eng reported that there was not much more he could do and he would refer the plaintiff for pain relief to “Pain Matrix”.[22]
[22]Exhibit “D”, PCB 199
24 On the same day, Mr Eng wrote to Pain Matrix with a diagnosis of:
“Chronic right wrist pain, hand pain, thenar pain and hypothenar pain with no improvement from surgery”.[23]
[23]Exhibit “D”, PCB 200
25 Inter alia, Mr Eng stated:
“… We were always uncertain about the outcome of surgery and on 15th of June we decided to proceed with surgery being fully aware of these uncertainties. A ganglion was removed from around the volar scaphoid and a carpal tunnel release was performed. Despite this, essentially symptoms have not really improved although perhaps some of the tingling has reduced. A repeat scan has not shown any pathology that would be amenable to surgery.
Aleks is very stoic and understands the situation. He has already started to see a psychologist and his plan is to retrain. Any input you could provide into helping him manage his pain would be greatly appreciated.”[24]
[24]Exhibit “D”, PCB 200
Identification of compensable injury
26 Both parties obtained opinions from experienced hand surgeons.
27 Mr Felix Behan reported to the plaintiff’s solicitors on 21 November 2018.[25] Within the report, he stated:
“The patient to my mind has not had a satisfactory release of his CTS [carpal tunnel syndrome] and his compression of the ulnar nerve in the Canal of Guyon. … .”[26]
[25]Exhibit “H”
[26]Exhibit “H”, PCB 85
28 Mr Behan’s diagnosis was one of right wrist Carpal Tunnel Syndrome and right Canal of Guyon compression of the ulnar nerve, which has resulted in a:
“… loss of strength, persistent pain, ongoing ulnar nerve dysfunction in the palm and this disability prevents him carrying on work and such tasks as handling industrial saws.”[27]
[27]Exhibit “H”, PCB 86
29 In light of the ongoing symptomatology, Mr Behan considered that the plaintiff:
“… should be referred to [a] Hand Surgeon for re-exploration and [he] would suggest Mr David McCombe of Victorian Hand Surgery Associates. … .”[28]
[28]Exhibit “H”, PCB 87
30 In being asked to comment on the defendant’s hand surgeon, Mr Damian Ireland’s report dated April 2018, Mr Behan stated:
“He diagnoses median nerve dysfunction following (R) CTS release and uses the word ‘possibly’ a mild (L) CTS. He mentions the point of abnormal sensations in the ring and little fingers rather than the radial digits and talks about a Martin Gruber aberrant anastomosis.”[29]
[29]Exhibit “H”, PCB 92
31 Mr Behan’s comment is thus:
“So be it and I have throughout this report talked about the simple compression of the carpal ligaments irritating the ulnar nerve and what is called the canal of Guyon. From the clinical story this was not adequately released.”[30]
[30]Exhibit “H”, PCB 92
32 In conclusion, Mr Behan noted:
“The 3 surgical exploration sites do not help to visualise the extent of the pathology. In my hands, operatively, the thenar based scar would have joined the scar No 2 and extended this across the wrist to No 3 to give full exploration and release of the median and ulnar nerves.
The fact that the patient has persistent symptoms indicates to mind, the ongoing fascial compression of these 2 neural structures and as a reflection of this would indicate a need for further exploration.”[31]
[31]Exhibit “H”, PCB 92
33 On behalf of the defendant, the plaintiff was examined by Mr Ireland, specialist hand surgeon, who reported on three different occasions, being 6 April 2018, 21 November 2018 and 22 January 2019.[32] In his first report, he recorded that the examination was essentially normal and his diagnosis was:
“Mild right median nerve dysfunction of forearm and wrist following carpal tunnel syndrome treated surgically.
Possible mild left carpal tunnel syndrome”.[33]
[32]Exhibit 2
[33]Defendant’s Court Book (“DCB”) 22
34 Mr Ireland considered that because the symptoms came on in the context of heavy manual work, using both upper limbs, that:
“The clinical presentation is consistent with a history of onset of symptoms and the work involved.”[34]
[34]DCB 23
35 Mr Ireland thought that:
“… The current condition is minor residual median nerve dysfunction following median nerve compression neuropathy treated surgically. It is also probable that he suffers from the same but incipient condition of the left hand. The distribution of symptoms affecting the middle, ring and little fingers rather than the radial digits of the hands suggest an aberrant Martin-Gruber anastomosis accounting for the aberrant symptom distribution.”[35]
[35]DCB 23
36 In his second report, Mr Ireland repeated his diagnosis and included:
“… mild soft tissue work degenerative disease right wrist.”[36]
[36]DCB 26
37 Later in his report, Mr Ireland stated:
“I believe the worker[’]s residual symptoms on the right side are related to minor soft tissue degenerative changes involving the wrist joint. In the absence of any positive objective findings of sensory changes affecting the median nerve on either side, I find it difficult to ascribe residual symptoms to median nerve compression neuropathy.”[37]
[37]DCB 27
38 Mr Ireland again reiterated:
“There is no evidence that any factors beyond his work have any relevance to the onset of the condition.”[38]
[38]DCB 27
39 In his third report, Mr Ireland joins issue with Mr Behan as to the aetiology of the presenting problem. In any event, he repeated:
“… As I previously stated, it is my opinion that the nature of his work at the time of onset of symptoms has been a significant contributing factor but certainly has not been the cause of this man’s carpal tunnel syndrome.”[39]
[39]DCB 30-31
40 Mr Ireland further stated:
“As Mr Behan notes in his extensive report and bibliography, it is not uncommon for symptoms to persist after carpal tunnel release surgery. This is not an indication of ‘inadequate release’, but moreover a reflection of chronic compression of the median nerve causing scarring which often leads to incomplete resolution of symptoms. Further surgery is unlikely to benefit the patient, and moreover further interference with the median nerve at further surgery frequently causes further scarring and further compression neuropathy by scar contracture.”[40]
[40]DCB 31
41 Finally, Mr Ireland postulates:
“I have suggested that the residual symptoms affecting the ulnar digits of the right hand following carpal tunnel release surgery could indicate a Martin-Gruber anastomosis rather than a compression neuropathy of the ulnar nerve or even radicular pain from the cervical spine. I respectfully suggest that this is a more probable explanation for the symptoms than compression of the ulnar nerve in Guyon’s canal. Compression of the ulnar in Guyon’s canal is usually caused by an easily identifiable physical mechanical structure such as a ganglion cyst from the arthritic underlying piso triquetral joint or a fracture of the hamate or another type of space occupying lesion. None of the examination findings or preoperative studies indicate any of these possible causes for compression of the ulnar nerve.”[41]
[41]DCB 31
42 The defendant also tendered two reports from occupational physician, Dr Ralph Poppenbeek, dated 6 November 2017 and 14 June 2018.[42]
[42]Exhibit 1
43 In his first report, Dr Poppenbeek notes the various pathologies referred to in the MRI scan of the right wrist dated 7 March 2016, referred to above. He opined:
“I believe [the plaintiff’s] right wrist problem is rather complex. Firstly, he does have historical evidence of bilateral carpal tunnel syndrome, but the left wrist is much less affected than the right. The severity of the right wrist problem might relate to internal derangement within the carpal joints and tear of the triangular fibrocartilage complex. These other two issues may also explain in part, the ulnar nerve distribution of symptoms rather than the typical median nerve distribution of symptoms involving the thumb, index and middle fingers in a typical carpal tunnel syndrome.”[43]
[43]DCB 5
44 Accordingly, Dr Poppenbeek stated:
“… I think that the diagnosis is bilateral carpal tunnel syndrome associated with internal derangement and triangular fibrocartilage tear in the right wrist, but not the left. It is for these additional reasons that the right wrist problem is rather more complex and more severe than the left.”[44]
[44]DCB 6
45 Dr Poppenbeek also considered that there was a significant work contribution to the pathology and that the plaintiff would be able to return to full pre-injury hours but not pre-injury duties.[45]
[45]DCB 6
46 It would appear from all the medical practitioners referred to that the plaintiff is suffering from the residual effects of a compensable physical injury to the right wrist, the exact aetiology of which is the subject of diverse medical opinion. The common thread, however, is that there is a compensable right wrist injury, the effects of which have lasted to the present time and will do so into the future. In my view, defence counsel correctly identified the primary issue in his opening to be that of a “range case”.
The Plaintiff’s evidence
47 The plaintiff was subjected to a fair but searching cross-examination; however, he was not challenged on the following material in his first affidavit:
“15.I suffer from pain in my right hand which is there most of the time. The pain ranges from a dull ache up to a severe pain where I feel like cutting my hand off. The pain is mainly in my right wrist area, but when the pain is severe it can travel up towards my right elbow. I continue to take painkillers to help manage the pain.
16.I get strong cramping sensations in my right hand which are unpredictable. I also at times get swelling in my right hand, especially when I try to use it. I also get occasional numbness in the thumb and fingers of my right hand. I have various scars around my wrist area from the operation.
17.The pain, cramping and swelling in my right hand get worse the more I use my right hand. This severity restricts my activities. I now have to avoid any activities which involve heavy lifting or repetitive strenuous use of my right hand with pushing and pulling. I have lost grip strength in my right hand. I now have to rely much more upon my left hand. This is a problem for me because I still have some ongoing symptoms in my left hand as well with occasional pain in my left wrist and tingling in the fingers of my left hand.
18.I am right hand dominant. I now struggle with writing with my right hand because it causes my hand to cramp up and it causes increased pain. Due to my right hand injury I struggle with the normal chores around the home and garden. I now have to avoid the heavier chores around the garden such as digging and hedging. I no longer use the heavier power tools at home such as the chainsaw and my welding equipment. I no longer do the vacuuming and heavy scrubbing because it puts too much strain on my hand.
19Before suffering my hand injuries I enjoyed fishing, bike riding, gold detecting and camping. All of these activities have been severely restricted by my injuries … .”[46]
[46]Exhibit “A”, affidavit sworn 14 February 2018, PCB 17, 18 and 19
48 In cross-examination, the plaintiff said he had been camping since his injury, but he needed to hammer in the tent pegs with his left hand. He also said that bike riding was problematic on his new property as it is mainly dirt tracks and would not be easy in any event. He also stated there was no opportunity for gold detecting where he is currently living.
49 In his second affidavit, the plaintiff recited how he has relocated to Cullulleraine in North-West Victoria, which is approximately 60 kilometres west of Mildura. His partner has obtained a job in the area and they have purchased a small rural property of about 5 acres.[47] He also swore:
“3.Given the extent of my symptoms and the difficulties that I had with the use of my right dominant hand there is no way I could get back to doing my pre-injury work. This upsets me greatly. I have always relied on my ability to do manual work. My ability to do heavy manual work is permanently restricted.
4.As a result of my injury I do not believe that I will be able to find suitable work in the open labour market. I am keen to do some work. I have looked for work without success. I have found this very frustrating. I am only 48 years of age.
5.I have decided to try and set up a small market garden on our property. I am currently growing chillies and I have a vegetable patch. I have registered the business name. I can undertake this work on my property at my own pace. If I need to rest or stop work I can.”[48]
[47]Exhibit “A”, PCB 21
[48]Exhibit “A”, PCB 21
50 Under cross-examination, the plaintiff said that he can perform gardening work on his property but would do so over two or three days, when normally it could be done in two or three hours.
51 Further in his affidavit, the plaintiff swore:
“15.As a result of my injury I still avoid bike riding as the vibration causes me too much pain. I find that heavy or vibrating machinery can also cause me problems. I am able to fish, camp and undertake gold detecting. I am also able to work in the garden and I can undertake chores around the home. I just need to pace myself and I try to avoid the heavier tasks.”[49]
[49]Exhibit “A”, PCB 22
Conclusion
52 I find that the plaintiff was an honest and straightforward historian under cross-examination and made appropriate concessions. I note that his treating surgeon, Mr Kevin Eng, stated:
“… He is not at work and this is certainly not like him. He is very frustrated, essentially losing his functional level.”[50]
[50]Exhibit “D”, PCB 191
53 I also find Mr Eng’s statement that the plaintiff is “very stoic”[51] consistent with his whole presentation.
[51]Exhibit “D”, PCB 200
54 I also note the defendant’s practitioner, Mr Poppenbeek, noting:
“… [The plaintiff] needs to adjust to this situation and I think his anger regarding the treatment is justified as he is currently no longer able to do a job which he enjoyed and which paid well. … .”[52]
[52]Exhibit 1, DCB 8
55 I also note Mr Ireland’s comment:
“Although there is a minor discrepancy between the severity of the subjective symptoms of which he complains and the presence of corresponding objective physical findings, I don’t believe there is any significant functional component.”[53]
[53]Exhibit 2, DCB 23
56 Mr Ireland further stated in his second report:
“There is no evidence of any significant non physical component to this man’s clinical presentation.”[54]
[54]Exhibit 2, DCB 27
Legal principles
57 The plaintiff must prove in this proceeding that the pain and suffering consequences of his injury, when judged by a comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being “more than significant or marked” and as being “at least very considerable”. Accordingly, this task involves a value judgement in which matters of fact and degree, and of impression, are operative.
58 Having accepted him as a witness of truth, I do not doubt that the plaintiff’s disabilities disclose pain and suffering consequences which are both “marked” and “significant”. I also accept that the incapacity of his right hand is giving him a great deal of frustration and made him upset. Finally, I am reminded of the dicta of Nettle JA in Dwyer v Calco Timbers Pty Ltd (No 2),[55] to the following effect:
“… I suspect that, but for the way in which the appellant has been prepared to put up with his pain and suffering and get on with his business as best he can, the respondent may well not have disputed his claim. It is unnecessary for present purposes to reach a concluded view about that and I have not done so. But it would be unfortunate, and in my view wrongheaded, if in future such an applicant were treated less favourably than another who, being of less strength of character, simply resigned himself to his injury.”
[55][2008] VSCA 260 at paragraph [3]
59 Accordingly, I consider that the plaintiff has proved that the consequences of his right-hand injury can be fairly described as being “more than significant or marked” and as being “at least very considerable”.
60 Leave will be granted as sought and I will hear the parties as to any subsequent orders.
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