Brassington v Victorian WorkCover Authority
[2021] VCC 74
•10 February 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-20-02939
| GREGORY BRASSINGTON | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE PURCELL | |
WHERE HELD: | Melbourne via Zoom | |
DATE OF HEARING: | 22 and 25 January 2021 | |
DATE OF JUDGMENT: | 10 February 2021 | |
CASE MAY BE CITED AS: | Brassington v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 74 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – identification of body function – injuries to ankle and knee – whether aggregation of injuries permissible
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act (Vic) 2013, s325(1)
Cases Cited:Lu v Mediterranean Shoes Pty Ltd & Ors [2000] VSCA 65; Lexa v Transport Accident Commission [2019] VSCA 123; Target Australia Pty Ltd v Moloney [2000] VSCA 124; Yirga-Denbu v Victorian WorkCover Authority [2018] VSCA 35
Judgment: Leave granted to the plaintiff to bring proceedings for the recovery of pain and suffering damages and pecuniary loss damages
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T P Tobin SC with Mr G Pierorazio | Arnold Thomas & Becker |
| For the Defendant | Mr L B R Allan | Russell Kennedy |
HIS HONOUR:
Introduction and background
1The plaintiff, Greg Brassington, is a fifty-seven year old man. He finished Technical School at year 9 level and then completed an apprenticeship as a roof tiler. For most of his working life, he has been a roof tiler. Following a marriage breakdown in 2009, he obtained certificates to work as a security officer and commenced work as such.
2In approximately 2013, the plaintiff was working as a security officer at the Supreme Court of Victoria, when a Corrections officer attending Court suggested that he should “give Corrections a go”.[1] With hindsight, it is probably advice that he wishes he never received. In any event, he applied for and was accepted into employment as a Corrections (prison) officer at the Metropolitan Remand Centre in Truganina. He commenced there in February 2014.
[1] Transcript (“T”) 61, Line (“L”) 24-25
3In the course of employment as a Corrections officer, the plaintiff has been exposed to various traumatic events. He has been assaulted by prisoners. He has a significant and ongoing psychiatric condition related to his work as a Corrections officer – which I shall return to later in these reasons – for which he continues to receive Workcover weekly payments of compensation. He also suffered a work- related right elbow injury of some significance. He has ongoing elbow symptoms and restrictions.
4On 26 July 2018, he was working full time hours and duties as a Corrections officer. He was patrolling a unit at the Metropolitan Remand Centre at night and in a poorly lit area. He collided with a metal chair that was bolted to the floor. He hyper-extended his right knee and injured his right ankle (“the incident”).[2]
[2] Affidavit of plaintiff sworn 2 March 2020 at paragraph 18, Plaintiff’s Court Book (“PCB”) 25
5The plaintiff has had considerable conservative treatment for his right ankle and right knee injuries. He has been diagnosed with an inversion ligament injury to the right ankle and a meniscal injury to the right knee. His right ankle continues to give way, which has caused him to suffer several falls.[3] He described his ongoing situation in his first affidavit as:
“I continue to suffer from ongoing pain in my right knee accompanied by grinding and clicking sensations. In addition, I continue to suffer from ongoing pain in my right ankle which often swells and feels unstable.”[4]
[3] Ibid paragraph [34], PCB 27
[4] Ibid paragraph [40], PCB 27
6This is an application pursuant to s325(1) of the Workplace Injury Rehabilitation and Compensation Act (Vic) 2013 (“the Act”). The plaintiff seeks the leave of the Court to commence a common law proceeding for both pain and suffering and pecuniary loss damages.
7The plaintiff, by his counsel Mr Tobin SC and Mr Pierorazio, claims to have suffered a physical injury by way of a permanent serious impairment or loss of a body function. The body function is said to be impaired is the right lower limb.
8In the alternative, should I conclude that it is impermissible to rely on the body function of the right lower limb, then the plaintiff submits that he has suffered a serious injury to each of the right ankle and the right knee.
9The defendant, by its counsel Mr Allan, accepts that the incident occurred and that the plaintiff suffered physical injury to the right ankle and right knee. The defendant submits that the plaintiff cannot aggregate the injuries to the right ankle and right knee to an overall claimed impairment or loss of body function of the right leg. In support of that submission, the defendant relies on Lu v Mediterranean Shoes Pty Ltd & Ors[5] and Lexa v Transport Accident Commission.[6]
[5][2000] VSCA 65
[6][2019] VSCA 123
10The defendant further submits that if the right ankle and right knee cannot be aggregated to the body function of the right lower limb, then the medical evidence does not sufficiently disentangle the consequences from the right ankle and from the right knee either in respect to pain and suffering or pecuniary loss consequences.
11Finally, the defendant raises in submission a further disentangling issue in respect to the plaintiff’s comorbid conditions – in particular the psychiatric condition – which do not form part of this application.
Can the plaintiff aggregate the right ankle injury with the right knee injury?
12It is convenient to deal firstly with the primary question as to whether the plaintiff can aggregate the right ankle injury with the right knee injury to rely upon the impairment of the right lower limb.
13The defendant accepts that “in the right factual circumstance you might have injuries to two very closely connected body parts that would be said to impair the one body function”. However, the defendant submits that on the facts of this application the injury to the right ankle and right knee “are not so closely connected”.[7]
[7]T106, L11-15
14In submissions, the defendant drew an analogy with the factual circumstances in Lu v Mediterranean Shoes Pty Ltd (“Lu”)[8]. In Lu, Chernov JA, with whom Winneke P agreed (Buchanan JA dissenting), stated that, on the facts of that case, the two injuries in question impaired two separate body functions, namely, the plaintiff’s right shoulder area and his right elbow area respectively. Consequently, they could not be relevantly aggregated. The mere fact that those injuries had, in one sense, an effect on the movement of the appellant’s right arm did not mean that the arm was the relevant body function. Chernov JA stated that:
“A body function that is indirectly, albeit detrimentally, affected by two separate injuries to two body functions, is ordinarily not thereby relevantly impaired by those injuries for the purpose of s.135A(19)(a). Thus, an injury to the big toe of one foot and a later injury to the knee of the same leg may have a detrimental effect on the use of that leg, but ordinarily, it would be inaccurate to describe the two injuries as having impaired the one body function, namely, the leg.”[9]
[8]Lu (op cit) [2000] VSCA 65
[9]Lu (op cit) at paragraph [23]
15Further, in Lu, Chernov JA said:
“Thus, if several workplace injuries have caused impairments to several body functions, those impairments cannot be relevantly aggregated. But where the injuries impair the one body function and have arisen out of the one incident they may be relevantly aggregated for the purpose of determining if the impairment of that body function is serious and long term.”[10]
[10]Lu (op cit) at paragraph [27]
16Lu was most recently considered in Lexa v Transport Accident Commission (“Lexa”).[11] In Lexa the Court said:
“While Lu makes it clear that it is permissible in some circumstances to aggregate the effects of injuries to two body parts arising from of a single incident, the impairment must be to one ‘body function’.”[12]
[11]Lexa (op cit) [2019] VSCA 123
[12]Lexa (op cit) at paragraph [43]
17In the present case, there is no argument that the plaintiff suffered injury to the right ankle and right knee in a single incident. The issue is whether the injuries can be aggregated to cause impairment to one body function, namely the right lower limb.
18In Target Australia Pty Ltd v Moloney[13] the meaning of a “body function” was discussed. Batt JA said:
“ ‘A body function’ denotes a physical act or operation, not some ‘applied’ activity.”[14]
[13][2000] VSCA 124
[14]Supra at paragraph [18]
19For the following reasons, I conclude that the facts of this application before the Court demonstrate a factual circumstance where two injuries impair the one body function:
a)Firstly, the injuries arise from the one incident, unlike the factual circumstance in Lu.
b)Secondly, in my opinion and based on the medical evidence in this case, the two injuries are so closely connected so as to impair the one body function.[15]
c)Thirdly, as a matter of common sense, the ankle and knee are so closely connected so as to affect the physical act or operation of the lower limb.
d)Fourthly, the plaintiff in the present case does not rely upon some applied activity such as the function of standing or walking or, as in Lexa, the body function of lifting an object with both arms.[16]
e)Fifthly, I am fortified in my conclusions by the fact that his treating General Practitioner, Dr Deepakanthi Wijayathilaka, has been treating the right ankle and knee injuries as an impairment affecting the right lower limb,[17] as has the treating physiotherapist Mr Andrew Hall.[18]
[15]T107, L13-22
[16]Lexa (op cit) at paragraph [47]
[17] PCB 66
[18] PCB 49
20Having concluded that the plaintiff can rely upon the “loss of body function” of the right lower limb, I shall now deal with the evidence regarding impairment and consequences for the purposes of the claim for “serious injury”. At the end of that task I shall return, for completeness, to consider the plaintiff’s alternate submissions; namely, whether in isolation either the right ankle or right knee is “serious”.
Is the impairment of the right lower limb serious?
21In support of his application, the plaintiff swore affidavits on 2 March 2020[19] and 21 December 2020.[20]
[19]PCB 23
[20]PCB 31
22In the affidavits the plaintiff deposes to his right ankle giving way and causing him to suffer falls. He says that he continues to suffer from ongoing pain in the right knee, accompanied by grinding and clicking sensations. In addition, he describes continuing to suffer from ongoing pain in his right ankle, which often swells and feels unstable. He describes a need for over-the-counter medication, and difficulty “walking for more than about half a kilometre”. He also describes difficulty standing for prolonged periods of time. He describes sharp stabbing pains in both the ankle and knee. He wears an ankle brace. On bad days he takes Panadeine Forte, about once a week. He requires ongoing physiotherapy.
23The plaintiff was cross-examined about some of the described restrictions for his hobbies of motorbike-riding and kayaking, as well as interference with sleep. Quite candidly in cross-examination the plaintiff conceded that kayaking and motorbike-riding had been significantly impacted because of his right elbow injury, and that he had a longstanding problem with sleep. I disregard those restrictions, as they are unrelated to the impairment to the right lower limb.
24In the ‘witness box’ the plaintiff struck me as a dignified and honest man. He gave appropriate answers to questions and made appropriate concessions. This is not a case in which the defendant takes issue with his credit. I am satisfied that I can rely upon his description of pain and suffering consequences. He also struck me as a stoic, as evidenced by the fact he was working full time and unrestricted duties at the date of the incident, notwithstanding the earlier right elbow injury and exposure to psychologically distressing events at the Metropolitan Remand Centre.
25There is no need to deal with the medical evidence in great detail at this point. Suffice to say medical examiners have found the plaintiff to present in a consistent manner, with no evidence of functional overlay.[21] As mentioned, the defendant concedes that the incident occurred. The defendant concedes that injury was suffered to the right ankle and right knee. The plaintiff was not really challenged in cross-examination as to his affidavit evidence of ongoing pain in his ankle and or knee or restrictions for weight-bearing activities, such as walking.
[21]See, as an example, the report of Dr Wyatt of 9 August 2020 (DCB 106)
26Mr Hall is the plaintiff’s treating physiotherapist. In a report of 10 December 2019,[22] Mr Hall diagnoses a right knee medial meniscal tear and a right ankle lateral collateral ligament injury. In respect to the diagnosed injuries, Mr Hall then opined that the plaintiff had the following restrictions:
― standing tolerance 20 minutes
― walking tolerance 20 minutes
― driving tolerance 20 minutes (then needs a break for 10 minutes)
― stairs tolerance one flight
― unable to kneel
― unable to deep knee bend
― unable to use a ladder
― significant difficulty on uneven surfaces (brace on)
― lifting, carrying limited to 5 kg, no more than 12 times per hour.[23]
[22] PCB 47
[23]PCB 49
27Mr Hall further opined that the plaintiff may require future knee surgery or future ankle surgery. He said that both regions have affected and are currently affecting the plaintiff’s work capacity and quality of life. He said further that the plaintiff did not have a current work capacity due to the most recent ankle flare-up.[24]
[24] PCB 49
28In re-examination, the plaintiff essentially confirmed that the symptoms and restrictions as recorded by Mr Hall have continued to date.[25] He gave evidence that 500 metres would be the absolute maximum walking tolerance for him.[26] He described ongoing stabbing pains in the knee and ankle that get “quite frequent”.[27]
[25] T87, L13-30
[26] T87-88
[27] T88, L14-15
29I accept without hesitation the plaintiff’s description of pain and restrictions.
30The plaintiff was seen for medico-legal purposes by Dr Mary Wyatt, occupational physician, at the request of the defendant. She examined the plaintiff by video conference on 6 August 2020 and provided a report dated 9 August 2020.[28] In that report, she notes the plaintiff’s current status as having soreness under the kneecap, particularly with walking, bending, squatting and twisting the knee. She notes the knee gives way and there is grinding and locking. She notes constant soreness at the right ankle and achilles tendon, and that the ankle gives way easily and the plaintiff had a recent fall due to the ankle rolling.[29] She notes ongoing treatment with Panadeine Forte as required, and that the plaintiff wears a knee brace regularly and has ongoing physiotherapy. On examination, she described the plaintiff as a pleasant man.[30] She did say that his description of pain is more than she expected for the type of problem that has occurred,[31] but by the same token, she found no evidence of a pain disorder or functional overlay.[32] She states that from a physical perspective, the plaintiff was fit to do work activities that did not require long periods of walking, walking over uneven ground and the requirement to kneel or squat. With duties within those restrictions, she thought the plaintiff was fit for fulltime work.
[28] DCB 99
[29] DCB 101
[30] DCB 102
[31] DCB 105
[32] DCB 106
31Dr Wyatt’s reporting of the plaintiff’s symptoms and restrictions is consistent with the overall medical evidence and the plaintiff’s own evidence. As mentioned, I consider him stoic based on his presentation to the Court. While his pain may be out of proportion or greater than what Dr Wyatt expected to find, that does not mean that it is not genuine and is not genuinely suffered by him.
32The ongoing pain and limitation for any activity that requires him to stand, walk or kneel is, in my opinion, a serious “pain and suffering” consequence.
33The defendant does not concede that the totality of the right ankle and right knee injuries (the lower limb injury) would amount to a serious injury even if they can be aggregated. However, Mr Allan candidly said in final submissions on behalf of the defendant that while pain and suffering would not be conceded if the injuries could be aggregated, it would be a matter for the Court.[33]
[33] T108, L25-28
34I conclude that the impairment consequences to the body function of the right lower limb are such so as to produce a “very considerable” pain and suffering consequence.
35In respect to loss of earning capacity consequences, it is relevant that the plaintiff is now fifty-seven years of age. He has limited computer skills.[34] He has only ever engaged in manual employment. There is no suggestion that he is now fit for manual employment or for work as a Corrections officer. He has never used computers at work.[35] He starts with considerable limitations as to the transferable skills he has. Those limitations were described by the Occupational Therapist Ms Janette Ash as “he presents with a very limited range of transferrable skills and would essentially be limited to low skill employment options that are within his physical restrictions”.[36]
[34] Plaintiff’s affidavit, PCB 27, at paragraph [39]
[35] Vocational Assessment of Ms Ash, DCB 116
[36] DCB 116
36The plaintiff was employed 40 hours per week to work as a Corrections officer for earnings of approximately $1,336 gross per week.[37] His claim for loss of earning capacity serious injury is put simply on the basis that he is now totally and permanently unfit for any suitable employment.
[37] Plaintiff’s affidavit, PCB 24, at paragraph [10]
37The plaintiff was cross-examined about his experience and transferable skills in light of the vocational assessment report of Ms Ash of Recovre dated 14 December 2020[38] and Dr Wyatt’s supplementary report commenting upon Ms Ash’s opinion.[39]
[38] DCB 111
[39] DCB 109
38In particular, the defendant cross-examined the plaintiff about two jobs identified in Ms Ash’s report. The first was a job as a control room screening security officer at Melbourne Airport. The second was as a desk packer/clerk.
39In isolation, the plaintiff could understand the requirements of the jobs put to him in cross-examination and possibly perform physical aspects of them. However, the assessment of work capacity is not undertaken in isolation. At the end of the day, it is a matter of judgment and conducting an analysis, as required by a gateway provision.[40]
[40] Yirga-Denbu v Victorian WorkCover Authority [2018] VSCA 35 at paragraph [89]
40The plaintiff is fifty-seven years of age with no real computer skills. He is clearly at a significant disadvantage for even sedentary-type employment. Even if he could improve his computer skills to a level which enabled him to perform the sedentary jobs relied on by the defendant, that does not mean that he is physically capable of those jobs. At the very least, he would need to be able to physically attend at a workplace which, on any view, would be extremely difficult with his walking tolerance of a maximum of 500 metres. In circumstances where he has an unstable ankle and regular flare-up of pain with even limited weight-bearing activity, I conclude that it is unrealistic to expect him to be capable of attending for work. He would need to drive a car, or travel by public transport to work. That would require him to weight bear or walk. But even if he could attend for work, the jobs put forward by the defendant as evidence of ‘suitable employment’ all have some requirement to stand, walk or weight bear that based on his evidence is now physically beyond his residual capability.[41]
[41] T88, L1-27; T89, L1-10
41In my opinion, the whole of the evidence demonstrates that totality of his right lower limb condition is such that the plaintiff has no residual capacity to undertake ‘suitable employment’. Accordingly, he has loss of earning capacity consequences that are ‘very considerable’ as defined in s325(2)(c) and (e) of the Act.
42For completeness, in assessing the plaintiff’s incapacity for work, I disregard any contribution from the comorbid conditions, namely the psychiatric condition or the right elbow condition. This is not a case of “disentanglement” from those conditions. No medical practitioner says an assessment of the right lower limb is impossible because of, as an example, a florid psychiatric condition. In circumstances where the evidence establishes that the compensable injury produces a complete destruction of the plaintiff’s capacity for employment, it is unnecessary to “disentangle”.
43On that basis and relying on the loss of body function of the right lower limb, I shall grant leave to the plaintiff to commence a proceeding for both pain and suffering and pecuniary loss damages.
44Although it is strictly speaking not necessary to do so, for completeness I now turn to consider the alternate case of the plaintiff that each of the right ankle injury and the right knee injury are “serious”.
The Plaintiff’s alternate case
Right ankle injury
45I have already set out some of the medical evidence regarding the plaintiff’s right ankle injury. In particular, I have already set out the evidence from Mr Hall, the treating physiotherapist.
46In respect to the right ankle injury, the plaintiff attended Mr Hamish Curry, foot and ankle orthopaedic surgeon, on 23 January 2019. In a report to the plaintiff’s solicitors dated 5 March 2019,[42] Mr Curry records swelling around the lateral malleolus and that the plaintiff was tender over the anterior talofibular ligament and anterolateral ankle. Mr Curry had available an MRI scan from November 2018. He recorded the plaintiff as having ongoing ankle instability and pain due to his injury. Mr Curry recommended ongoing physiotherapy and the use of a brace, but, if that did not improve the plaintiff’s ankle stability, the next step would be surgery in the form of a lateral ligament reconstruction. At that time Mr Curry anticipated a return to normal function. He opined that the plaintiff could undertake seated duties in normal hours, but at that time would struggle with prolonged standing and walking, uneven ground, or physical duties such as may be required of a prison officer.[43]
[42]PCB 54
[43]PCB 55
47The plaintiff has not come to ankle surgery. He has no plan to undergo such surgery. No doctor suggests that it is unreasonable not to have surgery. Dr Wyatt, in her report of 9 August 2020, recommends ongoing self-management treatment. Mr Curry principally recommended ongoing physiotherapy treatment, which is what the plaintiff has in fact accessed. Mr Hall has stated that the plaintiff will just need to live with it.[44]
[44] PCB 46
48In isolation, the plaintiff has a painful and unstable ankle which of itself limits his capacity to stand and walk. He requires the use of an ankle brace. He requires ongoing physiotherapy and painkillers for the ankle injury. He suffers falls due to the unstable ankle. An inability to stand or walk more than 500 meters obviously impacts on the ability to undertake even relatively simple day to day activity. The right ankle injury in isolation is productive of a ‘very considerable’ pain and suffering consequence.
49In respect to pecuniary loss consequences, when assessed in isolation, I conclude that there is insufficient clear evidence regarding the right ankle impairment consequences to prove a very considerable loss of earning capacity consequence. The affidavits and medical reports largely assess an injury to the right lower limb, without dealing with the impairment and consequences in isolation from each injury. There is force in the defendant’s submission regarding disentangling when it comes to looking at the evidence of pecuniary loss in isolation in respect to the right ankle (and it should be said to the right knee) and that was largely accepted by senior counsel for the plaintiff in closing submissions.[45]
[45] T142, L25-30
Right knee injury
50The plaintiff has a diagnosed meniscal tear to his right knee. He describes a crunching and grinding sensation in the knee. He describes limitations for activity that require him to bend, kneel or squat. He requires physiotherapy for the knee injury and the use of painkillers from time to time.
51Pausing. The assessment of pain and suffering consequences is not a “one size fits all”. I accept that some described restrictions for day-to-day activity and recreational pursuits are due to the plaintiff’s comorbid conditions, including his right ankle injury. In particular, as previously mentioned, hobbies of motorbike-riding and kayaking, as well as his sleep, have been interfered with due to conditions and injuries other than the right knee. That does not, however, mean that the right knee cannot be productive of serious pain and suffering consequences to the plaintiff.
52In my opinion, the pain and suffering consequences referable solely to the right knee injury are properly described as “very considerable”. He is restricted in activity that requires him to kneel, squat or bend the knee. Sitting with the right knee bent for more than a relatively short period of time provokes pain. The right knee has an altered sensation of grinding. The knee injury causes fluctuating pain, with the need for pain killers and physiotherapy treatment and the possibility of further deterioration and surgery.
53Again, however, the situation is less straightforward when it comes to the claim for pecuniary loss serious injury. The ‘disentangling’ issue arises again. The medical evidence suggests an impediment to the plaintiff being able to walk anything more than a relatively short distance is the right ankle injury, although he also has an unstable and painful right knee. The knee injury would cause limitation for activity that requires the plaintiff to bend, kneel, or squat. But the plaintiff has described those restrictions as manageable.[46] I am not persuaded that those ‘manageable’ restrictions in isolation would preclude the plaintiff from engaging in light work and in particular engaging in the jobs identified by Ms Ash and as relied on by the defendant. For similar reasons to those given in the discussion regarding the right ankle injury, I conclude that the evidence does not establish that the impairment consequences of the right knee injury causes the plaintiff a very considerable loss of earning capacity consequence.
[46] Mr Hall, report dated 10 December 2019, PCB 48
Summary and conclusion
54By way of summary and conclusion:
a) The plaintiff can aggregate the right ankle injury and the right knee injury to rely on the loss of body function as the right lower limb;
b) The impairment to the right lower limb is “serious” in respect to both pain and suffering and loss of earning capacity consequences within the meaning of s325(2) of the Act. Leave shall be granted to commence a common law proceeding for both pain and suffering and pecuniary loss damages;
c) Although not necessary to decide the alternate way in which the plaintiff puts his case based on the conclusions expressed in paragraphs (a) and (b) above, for completeness and as the issue was the subject of evidence and submissions, I am of the opinion that the right ankle injury is “serious” in respect to pain and suffering but not in respect to loss of earning capacity consequences;
d) Again, although not necessary to determine but for completeness, I am also of the opinion that the right knee injury is “serious” in respect to pain and suffering but not in respect to loss of earning capacity consequences.
55I will hear the parties as to appropriate costs and ancillary orders.
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