Bogo v Galaxy No. 1 Pty Ltd
[2011] VCC 281
•16 March 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-10-01945
| MICHAEL BOGO | Plaintiff |
| v | |
| GALAXY NO. 1 PTY LTD | First Defendant |
| PATON’S MACADAMIA PLANTATIONS PTY LTD | Second Defendant |
| and | |
| XCHANGING | Third Defendant |
---
| JUDGE: | HIS HONOUR JUDGE MISSO |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 2 and 3 March 2011 |
| DATE OF JUDGMENT: | 16 March 2011 |
| CASE MAY BE CITED AS: | Bogo v Galaxy No. 1 Pty Ltd & Ors |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 281 |
REASONS FOR JUDGMENT
---
Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – identification of the compensable injury – whether the compensable injury resulted in pain and suffering consequences and loss of earning capacity consequences – identification of the pain and suffering consequences and loss of earning capacity consequences distinguishable from the consequences of other medical conditions also contributing to the same or similar consequences – Dressing v Porter [2006] VSCA 215 – whether the plaintiff had discharged the onus under ss.(19)(b) relevant to the claim for loss of earning capacity consequences: s.134AB(19)(b) and (38)(c) and (g).
---
Counsel Solicitors
APPEARANCES:
| For the Plaintiff | Mr G Chancellor | Drakulic Lawyers |
| For the Defendants | Mr R Gorton QC | Lander & Rogers |
| with Ms H Donmez | ||
| HIS HONOUR: |
Introduction
1 Before the Court is an application brought by Originating Motion filed on 6 May 2010 by which the plaintiff applies for leave, pursuant to section 134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”), to bring proceedings to recover damages for injuries suffered by him arising out of or in the course of his employment with the first defendant.
2 The plaintiff seeks leave to bring such proceedings for pain and suffering and loss of earning capacity.
3 Mr G Chancellor of Counsel appeared for the plaintiff and Mr R Gorton QC appeared with Ms H Donmez of Counsel for the defendants.
4 The body function which the plaintiff says has been lost or impaired is the left upper limb.
5 The following evidence was adduced during the hearing:
• The plaintiff gave evidence and was cross-examined; • Dr Hjorth, neurologist, gave evidence and was cross-examined; • Dr Vilagosh, general practitioner, gave evidence and was cross-examined; •
The plaintiff tendered his Court Book ("PCB"), pages 7-17; 35-91 and 112- 119: Exhibit A;
• The defendant tendered its Court Book ("DCB"), pages 1-117: Exhibit 1; •
The defendant tendered film taken of the plaintiff on 31 January 2011 and 4 February 2011: Exhibit 2.
The Statutory Scheme
6 The application is brought under the definition of “serious injury” contained in subsection (37)(a) of the Act which requires the plaintiff to prove that he has suffered a “permanent serious impairment or loss of a body function”.
7 The relevant considerations which apply to such an application are as follows:
(a)
The plaintiff must prove that he has suffered a compensable injury; that is, an injury which he suffered arising out of or in the course of his employment on or after 20 October 1999.[1]
(b)
The injury and the impairment must be permanent; that is, permanent in the sense that it is “likely to last for the foreseeable future”.[2]
(c)
The plaintiff bears the burden of proof to be determined upon the balance of probabilities, and in addition to the general burden imposed by subsection (19)(a), subsection (19)(b) and subsection (38)(e), impose a specific burden on the plaintiff in relation to a claim for loss of earning capacity.
(d)
Subsection (38)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by 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”.
(e)
Subsection (38)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise.
(f)
Subsection (38)(e) provides that in a claim for loss of earning capacity, that such loss must be to the extent of 40 per cent or more both at the date of hearing and permanently.
(g)
Subsection (38)(f) and (g) provide the formula to be applied by which a claim for loss of earning capacity is to be determined.
(h)
Subsection (38)(j) provides that the assessment of serious injury is to be made at the time of the hearing of the application.
(i)
Subsection (38)(b) provides that the consequences of an injury and impairment, in terms of pain and suffering and loss of earning capacity, are to be considered separately. Furthermore, if a plaintiff is successful in proving loss of earning capacity, it follows, without the necessity to determine the consequences to that plaintiff in terms of pain and suffering, that the plaintiff is entitled to leave to bring a proceeding for pain and suffering in any event;[3] an approach which I intend to follow in the appropriate case.
(j)
In conformity with Barwon Spinners, I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent, that is, likely to last for the foreseeable future; and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in subsection (38)(c). I have applied the principles set forth therein in reaching my conclusions in this application.
(k)
In an application where it is alleged that the plaintiff had a pre-existing condition which arose prior to 20 October 1999, I must, in conformity with Barwon Spinners, identify the injury and impairment arising after 20 October 1999, and I must then determine the consequences of that injury and impairment by comparing the plaintiff’s condition before and after that injury: see Petkovski v Galletti.[4]
[1] S.134AB(1), and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph 11
[2] Barwon Spinners, at paragraph 33
[3] Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170
[4] (1994) 1 VR 436
8 I am required by section 134AE to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action and in doing so, to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.
The Plaintiff’s Background
9 The plaintiff was born in Yugoslavia on 21 November 1946. He is now sixty- four years of age. He is divorced. He lives with his brother in an housing commission flat. He is in receipt of Social Security payments which includes a Carer’s Pension which he receives as his brother’s appointed carer.
10 The first defendant is a personnel company. It placed the plaintiff with the second defendant at its factory at Knoxfield. The second defendant produces confectionery.
The Incident
11 On 15 February 2006, the plaintiff climbed up onto a frame, which was fixed around a hopper, in order to see whether the hopper was full. As he attempted to step down from the frame, he missed his footing, with the result that he fell backwards, mainly on his left side, onto the ground below.
12 The plaintiff experienced immediate pain in the left side of his chest and in his left arm and elbow. He remained at work, but did not perform any work tasks. Overnight, he was very sore, particularly to the left side of his chest and his left arm.
13 The plaintiff's brother is seriously disabled with a back condition. He is in receipt of prescriptions for medication. The plaintiff obtained some Panadeine Forte from his brother which he ingested overnight. Either overnight or the following day, he noticed that his left arm was swollen around the region of his left elbow. He experienced what he described as a “funny cold sensation” in his left arm and hand.
The Plaintiff's Medical Treatment
14 On the following day, the plaintiff saw Dr Won, general practitioner. The plaintiff told him that he had pain in the left side of his chest, left upper arm and left elbow as a result of the fall. Examination of the plaintiff's left upper limb disclosed tenderness and bruising over the left side of his lower chest; abrasions over his left upper arm and left elbow, but otherwise movement of his left arm was normal.
15 Dr Won referred the plaintiff to have a chest x-ray which showed that he had suffered a fracture of his left seventh rib. He reviewed the plaintiff on 27 February and 14 March 2006. Dr Won’s attention seems to have been largely directed to the injury to the plaintiff's rib injury. The only treatment he provided the plaintiff at that stage for his left upper limb was on 27 February 2006, when he prescribed the plaintiff antibiotics for a skin infection to his left elbow.
16 The plaintiff travelled overseas to visit his mother who lived in Serbia. She had suffered an injury as a result of a fall. Prior to his departure from Australia, and probably on 27 March 2006, Dr Won certified the plaintiff as being fit to work and fit to travel.
17 The plaintiff left Australia on 28 March 2006 and returned on 5 June 2006. He saw his mother's general practitioner, who prescribed him painkillers. Initially, the plaintiff complained of injury to his left upper limb by describing it as pain in his left arm and elbow. However, while he was in Serbia he obtained the painkillers because of pain he was having not only in his left arm and elbow, but also in his shoulder, and for headaches.
18 The plaintiff returned to Australia on 5 June 2006. He saw Dr Won on 13 June 2006 complaining of weakness and loss of sensation in his left forearm and hand, which had commenced three weeks before that consultation. On examination, Dr Won found weakness and wasting of the left arm.
19 Dr Won referred the plaintiff to Mr Davis, neurosurgeon, who saw the plaintiff some time in August 2006. He commented on the plaintiff's difficulty in providing a history. The plaintiff's capacity to keep his mind on track and to answer questions directly was very evident during cross-examination.[5]
[5] PCB 36-38
20 Mr Davis was of the opinion that the plaintiff probably had what he described as a combined median interosseous nerve palsy. He pondered whether the injury occurred as a result of a primary compression in the left arm or a stretch injury to the left shoulder. He was dissatisfied with the nerve conduction studies he inspected, so he referred the plaintiff to Dr Day, neurologist, for him to undertake more detailed EMG and nerve conduction studies. He provided the plaintiff with a prescription for Lyrica for pain relief and recommended to Dr Won that he increase the dosage if the plaintiff experienced ongoing pain.[6]
[6] PCB 35
21 Dr Day saw the plaintiff some time in October 2006. The plaintiff told him that he noticed persistent weakness and numbness in his left hand and a moderate level of pain in his left upper arm, forearm and hand. He also told Dr Day that he had been prescribed Panadeine Forte and Lyrica. He performed a detailed EMG study which demonstrated what he described as a moderately severe but incomplete left proximal median neuropathy with a milder musculocutaneous nerve lesion.
22 Dr Day examined the plaintiff, finding moderate restriction of his left shoulder; mild wasting of the left medial upper arm; moderate to severe wasting of the left distal forearm and thenar muscles, with corresponding severe weakness of thumb abduction, finger flexion and forearm pronation; depression of left biceps and brachioradialis reflexes; reduced pain sensation in the left median nerve territory involving the digits, palm and thenar eminence, and subjective reduction of pin sensation over the left medial upper arm, forearm and radial forearm.
23 Dr Day recommended that the plaintiff undertake a course of physiotherapy, and that he continue his use of Lyrica for pain relief. Dr Day ceased his treatment of the plaintiff as at October 2006.[7]
[7] PCB 45-47
24 Dr Won then referred the plaintiff to the Box Hill Hospital. He was seen by Professor Bladin, neurologist, and Dr Szoeke, neurology registrar, on 14 June 2007. He was later seen at the hospital on 23 June 2006. Dr Szoeke inspected an MRI scan which was taken in July 2006, which revealed a rotator cuff injury. It would appear that she also had the EMG studies undertaken by Dr Day.
25 Dr Szoeke examined the plaintiff and found reduction in finger grip and sensation. She noted muscle wasting on the left arm compared with the right arm. At that stage, she considered that the signs elicited were consistent with Reflex Sympathetic Dystrophy. She noted coldness in his index finger, a history of colour changes and pain in his right arm.
26 Dr Won continued to treat the plaintiff until January 2008. He provided the plaintiff with a Certificate of Capacity issued on 10 July 2008, but related to an examination which he conducted on 14 January 2008. The injury described on the certificate is as follows:
“Pain and Weakness Left arm
L Traumatic Median Nerve Neuropathy.”[8][8] DCB 84-85
27 The Certificate described the plaintiff's capacity for work as being unfit for any duties from 14 January to 11 February 2008. This Certificate is in contrast to the Certificate of Capacity put to Dr Won by Mr Gorton issued on 27 March 2006. The Certificate refers to the diagnosed injuries as:
“Left chest pain and left elbow pain
Fracture L 7th and skin infection L elbow.”[9][9] DCB 15-16
28 Dr Won certified the plaintiff as fit for normal duties from 28 March 2006. Despite the diagnosis of the injuries and the certification of fitness, it is abundantly clear to me that Dr Won had diagnosed the injuries without the benefit of the opinions of Mr Davis, Dr Day, Professor Bladin or Dr Szoeke.
29 Dr Won’s opinion regarding the injuries suffered by the plaintiff changed with the Certificate issued 5 July 2006 when he referred, among other things, to the possibility of nerve entrapment secondary to the left elbow trauma.[10] He again altered his diagnosis when he issued a Certificate on 29 November 2006 in which he described the injuries consistently with the Certificate issued on 10 July 2008. It is more than coincidence that the latter Certificate was issued after Dr Day first saw the plaintiff some time in October 2006.[11]
[10] DCB 17-18
[11] PCB 39. Dr Day's report is dated 16 October 2006. He did not refer to the date upon which he first saw the plaintiff. I infer that he must have seen the plaintiff shortly prior to the date of the report
30 Dr Won last saw the plaintiff in January 2008. The plaintiff had seen Dr Vilagosh in 2006, but he did not see Dr Vilagosh between January 2006 and December 2006. Otherwise, it would appear that the plaintiff preferred to see Dr Won for treatment of the injuries he suffered in the incident until January 2008, when he stopped seeing him. Dr Vilagosh has subsequently treated the plaintiff for his injuries.
31 Dr Vilagosh provided a report dated 23 February 2011 in which he referred to all of the conditions for which he is presently treating the plaintiff. It was clear to me during his oral evidence, that he was more concerned to treat the plaintiff conservatively for all of his medical conditions and did not pay any particular or separate attention to the injuries which are the subject of this application.
The Neurological Evidence
32 Although the plaintiff has been examined by a number of orthopaedic surgeons, it occurred to me that they took a very different tack in diagnosing the plaintiff's injuries than the neurologists. It seemed to me that the reason for that was that the injury lay more within the discipline of neurology than orthopaedic surgery.
33 In addition to the neurological evidence which I have reviewed thus far, the plaintiff was examined by Dr Hjorth, neurologist, and Professor Balla, neurologist.
34 Dr Hjorth examined the plaintiff on 6 May 2008 and again on 25 February 2011.[12] On the first occasion on which he examined the plaintiff, he found a bit of mild diffuse wasting of the muscles of the plaintiff's upper arm and forearm. He noted that the plaintiff had difficulty flexing and extending his index and middle fingers on his left hand. He was of the opinion that the problems which the plaintiff had with his left forearm and hand were largely secondary to damage to the left median nerve, which he considered accounted for the plaintiff's difficulty contracting and flexing his index and middle fingers.
[12] PCV 66-69 and 90-91
35 On the second occasion on which he examined the plaintiff, Dr Hjorth was of the opinion that the plaintiff had damaged the nervous system, probably in the brachial plexus, describing it as a group of nerves which leave the spinal cord and run down to form the main nerves in the upper arm. He was also of the opinion that there might have been some damage to the median nerve lower down in the arm.
36 At the time of both examinations, Dr Hjorth had a report from Dr Day and was aware of the EMG study which Dr Day undertook, demonstrating an incomplete left proximal median neuropathy with a milder musculocutaneous nerve lesion.
37 As a result of both examinations, Dr Hjorth was of the opinion that, given the plaintiff's vocational background and his age, together with nature of the injury on which he was asked to make comment, the plaintiff would not be able to work.
38 Professor Balla examined the plaintiff some time in August 2008. He was provided with a report of Dr Hjorth in which he referred to the EMG study undertaken by Dr Day. He examined the plaintiff, finding similar neurologically related deficits, including some wasting, which he described as slight thinning of the left upper arm compared to the right.
39 Professor Balla was of the opinion that the plaintiff had probably suffered a partial median nerve lesion, being the nerve supplying sensation to the thumb, index and middle fingers, and the outer side of the ring finger. He noted that it was these areas in which the plaintiff had abnormal sensation to touch. He also noted that it was the same nerve which supplied the muscles which flex the same fingers and also the area where the plaintiff had weakness.[13] He concluded that the plaintiff had ongoing symptoms with pain and abnormal sensation affecting the left index and middle fingers and, to a lesser extent, the ring finger, and injury to the left median nerve above the elbow.
[13] DCB 102-104
The Other Medical Evidence
40 Mr Grossbard, orthopaedic surgeon, examined the plaintiff on a medico-legal basis on 13 May 2008. He was of the opinion that the plaintiff had suffered what he chose to describe as a direct nerve injury. It would appear he derived his understanding of the nature of that injury from a report of Dr Day. In addition, he diagnosed that the plaintiff was suffering from a left rotator cuff dysfunction; capsulitis affecting the left shoulder and Reflex Sympathetic Dystrophy of the arm, which he considered was combined with the direct nerve injury.
41 Mr Grossbard then described the plaintiff as presenting with a mixed picture of injury to his left upper limb and chest. He concluded that the injury had resulted in some median nerve or brachial plexus dysfunction complicated by the development of Reflex Sympathetic Dystrophy.[14]
[14] PCB 72
42 Mr Bittar, neurosurgeon, examined the plaintiff on a medico/legal basis on 17 January 2011. He obtained a history from the plaintiff of neck pain, pain radiating from the left shoulder into the elbow, forearm and hand with numbness in the left index and middle fingers, and from headaches. He was of the opinion that the plaintiff was suffering cervical radiculopathy secondary to aggravation of cervical spondylosis and C5-6 foraminal stenosis, and left median and musculocutaneous peripheral nerve injuries as a result of the direct trauma to his left arm.[15]
[15] PCB 82-83
43 Mr Miller, orthopaedic surgeon, expressed a similar opinion to that of Mr Bittar. He was of the opinion that if the plaintiff's injuries were a combination of injury to his cervical spine, left shoulder and left arm, he believed the plaintiff had suffered a neurological injury to his left arm, but found it difficult to determine the components of radiculopathy from the cervical spine, the brachial plexus injury and the neurological injury to the median nerve, ulnar nerve and musculocutaneous nerve. In the end, he was of the opinion that the neurological problems merged into the symptoms which were present in the plaintiff’s cervical spine and left shoulder.[16]
[16] PCB 87-88
44 Dr Barton, occupational physician, examined the plaintiff on a medico-legal basis on 3 August 2006. His opinion is out of keeping with the preponderance of the medical evidence. It would appear that he was unaware of the diagnosis made by Dr Day of a neurological injury. He was unimpressed by the plaintiff's conduct during his examination of him, which led him to conclude that there were significant functional components about his complaints. He seems to have doubted whether there was a fractured rib and a soft-tissue injury around the left shoulder, describing the occurrence of such injuries as being possible.[17]
[17] DCB 88-89
45 Dr Barton was subsequently provided with the report of Dr Day, but despite what he must have read in that report, he chose not to alter his opinion in any material sense.[18]
[18] DCB 90
46 Mr Wearne, orthopaedic surgeon, examined the plaintiff on a medico-legal basis on 8 February 2008. He was in no doubt that the plaintiff had suffered a fractured rib and had also suffered what he described as a closed injury to the nerves of the left forearm and hand, particularly the median nerve and the musculocutaneous nerve. He offered the opinion, which is consistent with my own conclusion, that the correct diagnosis of the injuries was not made by Dr Won. He considered that the plaintiff was recovering from his neurological injuries.[19]
[19] DCB 93-94
47 Mr Jones, orthopaedic surgeon, examined the plaintiff on a medico-legal basis some time in December 2011. Mr Jones limited his examination of the plaintiff to his area of specialty, that is, orthopaedic surgery. He was not convinced that the plaintiff had suffered any injury of significance nor any significant neurological injury. He was of the opinion that the plaintiff's major problem was left arm dysfunction, but the only injury he said he could identify was an old and longstanding tear of the left rotator cuff.
48 However, Mr Jones suggested that the plaintiff should be reviewed by a neurologist, but added that if there was a straining injury to the brachial plexus, it had long resolved.[20]
[20] DCB 115-116
The Claimed Injury
49 Mr Chancellor initially opened the plaintiff's case on the footing that the plaintiff had suffered a neurological injury to his left upper limb, and also an injury to his cervical spine. He abandoned the application relevant to the injury to the plaintiff’s cervical spine, and limited the plaintiff's application to the neurological injury.
50 The first issue which arises for my consideration is a determination of the injury suffered by the plaintiff.
51 I return to my initial position that, after reviewing all of the medical evidence, it occurred to me that the injury suffered by the plaintiff is neurological in nature and is within the specialty of neurology, not that of orthopaedics.
52 It is very clear to me that Mr Davis, Dr Day, Dr Hjorth and Professor Balla are essentially of the same opinion regarding a diagnosis of the neurological injury suffered by the plaintiff to his left upper arm.
53 The common features which are present in the opinions of Dr Day, Dr Hjorth and Professor Balla are those similar findings on examination, particularly the neurological deficits of the left upper arm; some muscle wasting; and weakness and loss of sensation in the index and middle fingers of the left- hand, probably caused by an injury to the brachial plexus, and the median nerve.
54 There is support for that conclusion in the opinions of Mr Grossbard, Mr Bittar, Mr Miller and Mr Wearne, and some limited support in the opinions of Dr Won and Dr Vilagosh.
The Consequences
55 I was not called on by either Mr Chancellor or Mr Gorton to determine whether the plaintiff's employment materially contributed to the medical conditions affecting the plaintiff's cervical spine and left rotator cuff syndrome. However, on the evidence, it would appear that neither can be satisfactorily linked to the incident.
56 The plaintiff said that he first experienced symptoms in his cervical spine to some modest degree prior to the occurrence of the incident, but was aware of having symptoms in his neck late in 2007.[21] However, the medical reports I have reviewed do not impress me that the plaintiff was suffering from symptoms in his cervical spine until much later. The reference to such symptoms really only occurred in the medico-legal examinations of recent days.
[21] Transcript 35
57 Curiously, the orthopaedic surgeons all diagnosed significant damage to the plaintiff’s left rotator cuff, and consequent impairment of function of the left shoulder. However, the plaintiff did not complain of symptoms in his left shoulder until some significant time after the occurrence of the incident. Dr Day referred to left shoulder capsulitis as early as October 2006, but in a rather passing way, limiting the involvement of the plaintiff's left shoulder condition to the production of pain, causing limitation of movement.[22]
[22] PCB 39
58 I have no difficulty in concluding that the plaintiff suffered a compensable injury to his brachial plexus and median nerve which has impaired the function of his left upper limb, nor do I have any difficulty concluding that the impairment is permanent.
59 Where I have difficulty is determining what the consequences are of the impairment of the function of the plaintiff's left upper limb for which the compensable injury is responsible.
60 I am acutely aware of what was said by Ashley JA in Dressing v Porter:[23]
“… What his Honour had to do was to decide what symptoms afflicted the appellant in consequence of his compensable injury, and with what effect. If, by reason of pain and suffering consequences the compensable injury met the serious injury test, it was beside the point that some other condition might also have satisfied the test by reason of its pain and suffering consequences. His Honour’s reasons rather suggest that he approached the matter on the footing that there must only be one condition which could satisfy the test.”[24]
[23] [2006] VSCA 215
[24] paragraph 47
61 In addition to the medical conditions affecting the plaintiff’s cervical spine and left shoulder, he has a number of other medical conditions which doubtless impact upon his general capacity to function. Dr Vilagosh is treating the plaintiff for medical conditions affecting his right shoulder, lower back, and for anxiety and depression.[25]
[25] PCB 55-56
62 Mr Gorton submitted that I should be cautious in accepting anything deposed to by the plaintiff in his affidavits because of the multiplicity of causes for the consequences claim by the plaintiff of the compensable injury; because much of what the plaintiff swore to is not accurate, and because of the films which showed the plaintiff to be capable of using his left arm and hand in circumstances which are in contrast to what he deposed to in his affidavits.
63 The plaintiff said that he suffered pain and weakness in his left arm and hand; experienced difficulty lifting in carrying objects with his left arm and hand; suffered an aggravation of pain in his left upper limb if he engaged in repetitive activities or overhead activities, and had difficulty using his left arm for power tasks and physical tasks.[26] The plaintiff said that the reference in his affidavits to being unable to play soccer and engage in boxing is wrong. He had not engaged in any of those activities for thirty years.[27]
[26] PCB 12 and 15
[27] Transcript 10
64 In contrast, the films of the plaintiff taken on 31 January and 4 December 2011 call into doubt the extent to which the compensable injury has consequences for him of the degree he has deposed to.
65 In the film taken on 31 January 2011, the following significant events were shown:
• From about 11:16 am to about 11:19 am, the plaintiff carried a plastic mesh basket in his left hand while shopping in a supermarket. He placed what appeared to be small items in the basket. • At about 11:20 am, he entered a licensed premises and emerged carrying a package of beer held in his left hand with his fingers under the package. He held the package against his left side. • At about 11:21 am, he drove his car from a car park with both hands on the steering wheel. 66 In the film taken on 4 February 2011, a significant event was shown. At about 11:24 am, the plaintiff carried a large green garbage bag, weighed down by its contents, in his left hand, holding it away from his body.
67 The two films otherwise showed the plaintiff driving his car, alighting from his car and walking through shopping areas, but none of those activities were of any particular moment.
68 The plaintiff said that he exercised his hand using a rubber band pulling against the fingers of his left hand and also by squeezing a rubber ball in his left hand to try to improve the function of his left hand and fingers.[28] He conceded that he now has greater function in the fingers of his left hand than he did when he was under active treatment.
[28] PCB 11 and Transcript 26
69 I have no hesitation in accepting the plaintiff's evidence that he suffered a major impact to his left upper chest, left upper arm and elbow as a result of the incident. I also have no hesitation in accepting that the compensable injury significantly impaired the function of his left upper limb for a significant period of time, and I think that is obvious enough from the treatment the plaintiff obtained from Dr Won, Mr Davis and Dr Day, and confirmed in the medico- legal opinions of Dr Hjorth and Professor Balla.
70 Both Dr Hjorth and Dr Vilagosh were shown the films. When confronted with what was shown on the films when compared with the history he obtained from the plaintiff and his clinical examinations, Dr Hjorth said:
Q: “When you examined Mr Bogo in 2011, was his presentation to you then consistent with what you saw and the activities seen in the film just a little while ago?--- A: Look, I think so. He had a bit of weakness in the hand but - I'll just get my notes - but he wasn't too bad. I think, you know, I think what I saw in the film was that he was using the hand and I would consider, you know, that would all right on a temporary basis. Whether he'd be able to do it over long periods I couldn't say but that was - I thought that was compatible, yes. Q: Did you see anything in the film which indicated a restriction of use
of the left hand and arm?---A: No, I didn't. Q: Is the carrying of a slab of beer under the left arm something that you would have anticipated he could do at the time of your last examination?--- A: When I saw him February he had - he had some weakness. I wouldn't have been able to, you know, I wouldn't have been able to predict if he would have done that. I'd have been inclined to think that he would have put it under his right arm."[29] [29] Transcript 43-44
71 And Dr Vilagosh said:
Q: “Does that film, in your mind, show any protection by Mr Bogo of
his left arm?---A.
I think it's pretty - well the supermarket scene I think is pretty silent on it, in the sense all he is doing is holding a fairly light basket and he's doing most of the movement with his right arm selecting things, et cetera. The carrying the slab, again the shoulder is not moving much. Now, he's not displaying weakness of the arm muscles there, but none of that really shows much movement, and certainly the supermarket stuff I don't think really shows anything special at all. The slab stuff, well it shows that he can hold it; he's strong enough to hold the slab in that position.
Q:
The point you were making before was it doesn't seem to show any real strain on the shoulder and therefore it is not inconsistent with his presentation?---
A:
Yes, well he's not really - on any of that vision he's not really moving the shoulder in any way, he's not selecting stuff with his left shoulder, et cetera. So I don't know whether you can really read a lot into that.
Q: You see his left arm problem as being fundamentally a shoulder
rotator cuff problem, do you?---A:
Well, I think he's got all the other things there. If we're talking about the film and if we're saying well does it show whether he's got a good or a bad shoulder, I'm not sure that - certainly I don't think anything can be said of the supermarket footage, and what you can say with the slab of beer footage is that he's got enough strength in the shoulder girdle and in the arm to actually hold the slab up. I suppose that's what you can say."[30]
[30] Transcript 72
72 What is clear from the evidence of Dr Hall and Dr Vilagosh, after they saw the films, is that Dr Hjorth was, to some extent, influenced by what he saw in the films, and in particular, the plaintiff committing his left arm to the task of carrying a package of beer. Dr Vilagosh was relatively unmoved by what he saw on films.
Serious Injury
Pain and Suffering
73 After considering all of the evidence, the conclusions I have reached are that the plaintiff suffered a major impact injury to his left upper chest, left upper arm and elbow as a result of the incident. Through treatment and exercise, the plaintiff has improved the condition of his left upper limb significantly, and that appears consistent with the conclusion reached by Dr Hjorth.
74 However, I accept that the plaintiff has been left with a residual level of impairment of the function of his left upper limb which has resulted from the compensable injury to the extent that he has pain, and has lost the full, free and unrestricted use of his left upper limb.
75 The plaintiff has been shown to have a capacity to use his left upper limb, evident in the activities he undertook at the supermarket, carrying a package of beer, and carrying the large green garbage bag. I am largely influenced in my treatment of the film by the evidence of Dr Hjorth, and to a lesser extent, Dr Vilagosh. I did not consider the evidence of Dr Hjorth to suggest that the films influenced him greatly in his opinion regarding the consequences of the compensable injury.
76 I accept the evidence of Dr Hjorth and Dr Vilagosh that whilst the plaintiff is capable of the physical activities using his left arm as shown in the films, he would not be able to sustain that activity to any significant degree.
77 Although the compensable injury affects the plaintiff’s non-dominant arm, it almost goes without saying that an inability to engage in bilateral manual activity is a significant impairment to any individual. It also almost goes without saying that most activities undertaken in the normal course of an individual’s domestic life require the use of both hands and arms to successfully carry out even simple domestic functions. I accept the plaintiff’s evidence that he has pain which requires the use of medication,[31] and he has lost a degree of the important function of his left upper limb.[32]
[31] Dr Vilagosh prescribes the plaintiff medication not only for the compensable injury to his left upper limb, but for other muscular ligamentous medical conditions - PCB 55-56
[32] The approach I have taken is consistent with the approach enunciated by Tate JA in Sutton v Laminex Group Pty Ltd [2011] VSCA 52 relevant to the treatment of the evidence of pain and suffering and loss of enjoyment of life.
78 In the end, I am satisfied that the evidence discloses that the plaintiff suffered a major impact injury. This resulted in a compensable injury, and in turn has resulted in the plaintiff suffering consequences in terms of pain and suffering which, at the time of the hearing, are still troubling him to a significant enough extent for me to be satisfied that the consequences in terms of pain and suffering deserve the description of being “at least very considerable”.
Loss of Earning Capacity
79 It is trite to say that the onus is borne by the plaintiff to prove that he has suffered the requisite degree of loss of earning capacity: subsection (19)(b). I am not satisfied that the plaintiff has discharged that onus.
80 I have firmly in mind that the task set for me is to determine whether the consequences of the compensable injury, in terms of loss of earning capacity, meet the statutory test, and I am obliged to do so even if there are other medical conditions (whether compensable or not) which might equally be productive of the requisite degree of loss of earning capacity.
81 What is actually causing the plaintiff’s loss of earning capacity is difficult to determine. The compensable injury may have been the initial cause of the plaintiff’s loss of earning capacity but at the time of the hearing the plaintiff was also suffering from a number of other medical conditions, some or all of which, collectively or individually, make some contribution to the plaintiff's present loss of earning capacity.
82 The task for me is to determine whether the compensable injury is productive of the plaintiff's loss of earning capacity to the requisite degree. It seems to me that he has recovered a fair degree of his capacity to use his left arm productively, and perhaps could work in suitable light employment where it did not require him to undertake repetitive tasks and lifting moderate to heavy weights.
83 Dr Vilagosh was not convinced that the plaintiff would be able to undertake suitable light employment because of the impairment of the function of his left upper limb. However, he included the left rotator cuff disruption as part of the basis for his opinion. In any event, I am not satisfied that I should accept the evidence of Dr Vilagosh relevant to his opinion on the plaintiff's capacity to undertake suitable employment.
84 Dr Vilagosh made an extraordinary observation when he was cross-examined about the plaintiff's capacity to undertake suitable employment, saying that the plaintiff could not work 40 hours per week, and then added:
"So he could probably lift a glass or something like that. So I think it would certainly mean that he couldn't do any manual work but he'd be able to perhaps use the arm, well, he does use the arm for some ordinary things but I don't think it's an arm that's capable of employment, let's put it that way."[33]
[33] Transcript 65
85 The answer is replete with inherent contradictions. He conceded that the plaintiff could work, but with the qualification that he could not do manual work save for some level of use of his left arm. He then made the extraordinary observation that the plaintiff could probably lift a glass or something like that. I am prepared to assume that it was a throwaway line, and something which he would probably not adhere to given a chance to revisit that statement.
86 Dr Vilagosh conceded that any one of the conditions for which he was treating the plaintiff, when viewed alone, would be productive of loss of earning capacity.[34]
[34] Transcript 68
87 Mr Chancellor submitted that the fact that the plaintiff has a compensable injury which has consequences for him in terms of loss of earning capacity, should see him succeed in satisfying the statutory test because, at sixty-four years of age, he is essentially incapacitated for all suitable employment, and in addition, he pointed to the plaintiff's poor English and transferable vocational skills.
88 Whilst I recognise that there was some merit in Mr Chancellor’s submission, I am not satisfied that the compensable injury is necessarily productive of a loss of earning capacity which satisfies the statutory test in a setting where a multitude of other medical conditions also contribute, which produces a real difficulty in determining what are the actual consequences of the compensable injury in terms of loss of earning capacity as opposed to the consequences of the other medical conditions.
89 Furthermore, the evidence seems to me to be equivocal on the issue of whether the plaintiff has a residual capacity for employment. The evidence of Dr Vilagosh suggests that the plaintiff does have a capacity for work. I think there is some merit in the submission made by Mr Gorton that the plaintiff's age, modest English and lack of other vocational skills cannot see him succeed in proving loss of earning capacity in the absence of a material level of incapacity for employment produced by the compensable injury. As I have already observed, I am not satisfied that the evidence adduced by the plaintiff permits me to conclude what capacity for suitable employment he has lost due to the compensable injury.
Conclusion
90 On the basis of the foregoing reasons, findings and conclusions, I grant the plaintiff leave to bring a proceeding at common law pursuant to section 134AB (16)(b) of the Act to recover damages for bodily injuries for pain and suffering arising out of his employment with the defendants.
91 After discussion with counsel, I will pronounce formal orders and will hear the parties on the question of costs.
- - -
0
5
0