Bui v Labour Exchange Pty Ltd
[2020] VCC 942
•3 July 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-19-04455
| LINH NHAT BUI | Plaintiff |
| v | |
| LABOUR EXCHANGE PTY LTD | Defendant |
---
JUDGE: | HER HONOUR JUDGE TSALAMANDRIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 May 2020 | |
DATE OF JUDGMENT: | 3 July 2020 | |
CASE MAY BE CITED AS: | Bui v Labour Exchange Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 942 | |
REASONS FOR JUDGMENT
---
Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the right hand – psychiatric injury – pain and suffering – loss of earning capacity – suitable employment.
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s325
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Harris v DJD Earthmoving Pty Ltd [2015] VSCA 188; Advanced Wire & Cable Pty Ltd & Victorian WorkCover Authority v Abdulle [2009] VSCA 170
Judgment: Leave granted to the plaintiff to bring proceedings for pain and suffering and loss of earning capacity damages.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Monti QC with Mr R Morrow | National Compensation Lawyers |
| For the Defendant | Mr B McKenzie | IDP Lawyers |
HER HONOUR:
Preliminary
1 Mr Bui is a sixty-one-year-old man who suffered an injury to his right dominant hand on 23 March 2016, whilst loading corn into a cutting machine, during the course of his employment with the defendant on a farm in Bairnsdale. As a result of this incident, Mr Bui suffered lacerations to the little, ring and middle fingers of his right hand, which were treated surgically. Mr Bui claims to suffer ongoing impairment from this right-hand injury, as well as a consequential psychiatric condition.
2 In order for Mr Bui to be entitled to claim common law damages, the impairment to his right hand must satisfy paragraph (a) of the definition of “serious injury” contained in s325 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”). In the alternative, Mr Bui must satisfy me that he suffers a psychiatric disease or disorder which meets the definition of serious injury contained in paragraph (c) of the same section of the Act.
3 The defendant did not formally concede that Mr Bui’s claim for pain and suffering consequences results from his right-hand impairment, but the focus of its defence in the hearing was the extent of Mr Bui’s claimed pecuniary loss. The defendant also contended that Mr Bui’s psychiatric impairment did not satisfy the statutory threshold for pain and suffering, or pecuniary loss.
4 Mr Bui was called to give evidence, which he did through the assistance of an interpreter. Also in evidence were medical reports and other material. I have read these tendered documents, together with the transcript of the proceedings. I shall not refer to all that material in the course of this judgment, but rather to those parts of the evidence and reports which I consider necessary to give context to and explain the conclusions reached in this judgment.
5 For the reasons that follow, I am satisfied that Mr Bui’s right-hand impairment has caused him to suffer a permanent loss of earning capacity of at least 40 per cent and that he should be granted leave to commence common law damages for the injuries he suffered in this work accident.
Mr Bui’s life before the work accident
6 Mr Bui was born in Vietnam and is sixty-one years of age. He is married and has five adult daughters.
7 Mr Bui was educated in Vietnam until the equivalent of Year 9. He then worked in his family’s fishing boat business. In 1981, Mr Bui left Vietnam and lived in a camp in the Philippines until 1983, at which time he was permitted to move to Australia.
8 Upon arriving in Australia, Mr Bui initially studied English before then working as a sewing machinist in his home for approximately six or seven years.
9 In 2002, Mr Bui was involved in a transport accident and suffered an undisplaced fracture of the sternum and fractured right wrist. Mr Bui had approximately twelve months off work following this accident and then, in 2004, he obtained employment with Fibremakers Australia as a forklift driver and machine operator. Mr Bui said he was made redundant from this workplace in 2015.
10 On 10 March 2016, Mr Bui commenced his employment with the defendant, and was employed to work 30 hours per week. As the farm was located a considerable distance from his home, Mr Bui spent his working week living in a rental property with his co-workers, and on weekends he returned to Melbourne to see his family.
11 Mr Bui said that prior to suffering his right-hand injury he led a very active and enjoyable life. Mr Bui said that when he had time away from work in Bairnsdale, he enjoyed fishing from the beach or in the rivers.
Mr Bui’s work accident and claimed consequences
12 In the work accident, Mr Bui suffered a laceration across his right hand involving the middle, ring and little fingers. Mr Bui said that as soon as he cut his hand, he saw blood, and was shocked and frightened. Mr Bui was initially taken to a medical centre in Bairnsdale, and was later taken to the Bairnsdale Hospital, before being subsequently transferred to Latrobe Regional Hospital in Traralgon. Whilst there, Mr Malcom Thomas performed surgery on Mr Bui, which involved a debridement and repair of the extensor tendon lacerations in his three fingers, as well as stabilisation of the proximal interphalangeal (PIP) joint of his right ring finger.
13 Mr Bui subsequently returned to Melbourne and attended general practitioner, Dr Navani. At this time, Mr Bui was referred for physiotherapy, as well as hand therapy twice a week, with occupational therapist, Mr Arun Sharma. This hand therapy included massage, exercises and intermittent splinting. Mr Bui was also prescribed Celebrex medication at this time.
14 Mr Bui said that shortly after the accident, he began to experience flashbacks and nightmares about the accident. In June 2016, Dr Navani prescribed Mr Bui Endep medication and referred him to psychologist, Ms Sandra Nguyen.
15 Ms Nguyen diagnosed Mr Bui as suffering Adjustment Disorder with Mixed Anxiety and Depressed Mood, as well as PTSD. Ms Nguyen provided Mr Bui with counselling and cognitive behaviour therapy and has continued to treat him on a monthly basis since that time.
16 In approximately November 2016, Mr Bui was referred to hand plastic surgeon, Dr Jillian Tomlinson. On examination, Dr Tomlinson noted that Mr Bui had reduced flexion of the right ring finger and slightly reduced extension compared to the other fingers of his right hand. Dr Tomlinson recommended that Mr Bui undergo further hand therapy treatment in an attempt to improve his movement and hand use.
17 Thereafter, Mr Bui continued to obtain hand therapy from Mr Sharma. In a report dated 20 July 2017, Mr Sharma detailed the treatment that he had provided Mr Bui in relation to his right-hand injury. Mr Sharma noted that Mr Bui reported he was unable to use his right hand for activities such as cleaning, cooking, washing dishes and changing his clothes. Mr Sharma stated that the hand therapy treatment included: Passive mobilisation, scar management and an exercise program. In addition, a splint was provided for Mr Bui’s ring finger.
18 Mr Sharma was of the view that, at that time, the function of Mr Bui’s dominant right hand was limited to 50 per cent of his non-dominant left hand and that it resulted in a significant lack of independence for him, both in respect of personal care activities and domestic chores. At that time, Mr Sharma was hopeful that there would be further progress in muscular strength in building up Mr Bui’s hand muscles and therefore in his hand functioning.
19 In approximately September 2017, Dr Navani referred Mr Bui for a second opinion from hand plastic surgeon, Mr David McCombe. In a report dated 28 September 2017, Mr McCombe noted that Mr Bui had residual problems with a mallet finger deformity of his right small finger. Mr McCombe suggested that Mr Bui avoid further surgery and that he instead undergo further hand therapy and the use of a splint.
20 In April 2018, as Mr Bui still suffered ongoing psychological problems with anxiety, nightmares and a general lack of confidence, Dr Navani referred Mr Bui to psychiatrist, Dr Tung Nguyen.
21 In a report dated 30 April 2018, Dr Nguyen noted that Mr Bui reported high levels of anxiety and frequent nightmares. Dr Nguyen noted that Mr Bui reported anhedonia with activities. At the time it was noted that Mr Bui was taking Panadeine Forte, Celebrex and Endep medication. Dr Nguyen noted that Mr Bui reported that he had regained reasonable function of his right hand and that he had no problems with driving. At the time, it was noted that Mr Bui had numbness and some pain in the affected areas.
22 Dr Nguyen was of the opinion that Mr Bui was suffering from a Chronic Adjustment Disorder with Depressed Mood and Anxiety in the context of his work injury. Dr Nguyen recommended that Mr Bui increase his Endep medication to assist him as a suitable antidepressant medication to assist with his sleep, pain and anxiety. Dr Nguyen also recommended Mr Bui continue with ongoing counselling with his psychologist.
23 Mr Bui said that he attended Dr Tung Nguyen on just one occasion, as the WorkCover insurer would not agree to fund ongoing psychiatric treatment with Dr Nguyen, as Mr Bui was continuing to receive psychological treatment from Ms Nguyen.
24 In a report dated 5 December 2018, Ms Nguyen stated that Mr Bui still suffered insomnia, nightmares and was hypervigilant with his surroundings.
25 Mr Bui also continued to attend upon Mr Sharma for hand therapy. In a report dated 4 February 2019, Mr Sharma noted that, based upon the ongoing treatment provided during 2017 and 2018, there had been some improvement in Mr Bui’s performance of activities of daily living, but that Mr Bui continued to have difficulty with tasks which required fine hand movements. Mr Sharma noted that, at that time, Mr Bui’s grip strength was reduced in his right hand, and he also suffered a reduction in his pincer test.
26 Mr Sharma was of the opinion that Mr Bui was not able to attend to his pre-injury employment. Instead, Mr Sharma considered that Mr Bui was capable of attempting some light alternate duties on reduced hours. Mr Sharma stated that as Mr Bui’s hand strength was functioning at below 50 per cent, “longer hours or heavier grip use or repeated lifting has less chance of success”. Further Mr Sharma noted that at that time Mr Bui remained positive and keen to be employed and that he was attempting to upgrade his English communication skills.
27 In June 2019, Mr Bui’s treatment with Mr Sharma was terminated by the WorkCover insurer. At that time, Mr Sharma recommended Mr Bui continue with home exercises.
28 In a report dated 25 November 2019, Mr Sharma detailed his ongoing treatment of Mr Bui. Mr Sharma stated that Mr Bui’s ring and little fingers were “visually and grossly deformed” mainly at the PIP of both fingers, with moderate flexion at this joint of both fingers. Mr Sharma noted that Mr Bui had an average right-hand grip of 27.2 kilograms when compared to 50.7 kilograms in his non-dominant left hand. In addition, Mr Sharma noted that Mr Bui had a reduced pinch test capacity with his right fingers in comparison to his left. Mr Sharma stated that the pinch testing shows that Mr Bui suffers moderate weakness in the pincer movements of his index and middle fingers, but that he suffers gross weakness in the pinch of his ring and little fingers. As a consequence, Mr Bui reported that he was using alternative techniques to do many of his personal chores and that he had moderate difficulties with personal tasks when using his right hand to do things such as getting dressed and preparing food.
29 Mr Sharma then stated that, in his opinion, Mr Bui was unable to return to his pre-injury duties which required him to pack vegetables and operate a machine. Mr Sharma stated that, in his opinion, Mr Bui would not be able to lift bags or load a machine and further he would not be able to unjam the machine as that would require force of his dominant hand.
30 In relation to Mr Bui’s capacity for alternate work, Mr Sharma considered that Mr Bui would be able to work modified, light duties, reduced, on a part-time basis. However, in such work, Mr Bui would not be able to use tools and the duties must allow him to alternate his hand so that he is not constantly using his right hand and further, that he is limited in his grip and pinch movements. Mr Sharma also noted that despite Mr Bui upgrading his English communication skills, he would benefit from further training to upgrade his employable skills.
31 Mr Bui stated that he continues to consult both Dr Navani and Ms Nguyen on a monthly basis. Mr Bui said that Dr Navani prescribes him Endep and Panadeine Forte, which he takes daily.
32 In a report dated 22 November 2019, Dr Navani stated that Mr Bui had residual deformity of his right hand, with restricted grip function and some weakness of pinch function. However, Dr Navani stated that the range of flexion in Mr Bui’s fingers had improved. Dr Navani also noted that Mr Bui was mentally fragile with low moods and general lack of confidence.
33 At that time, Dr Navani stated that Mr Bui was capable of working for six hours per day, four days per week. Dr Navani said that such duties would need to be gentle, light in nature and with lifting limited to 2 kilograms in the right hand. Dr Navani also stated that Mr Bui needed to avoid work, or strenuous gripping, with his right hand.
34 In his latest report dated 10 March 2020, Dr Navani repeated his view as to the work restrictions stated in his previous report. In addition Dr Navani stated that “considering his age, his past experience of manual work and poor literacy,” Mr Bui has “suffered a permanent impairment with no work capacity for the foreseeable future given the length of time since his injury, his physical impairment and his psychiatric injury”.
35 In her latest report dated 6 December 2019, Ms Nguyen detailed the ongoing treatment that she had provided to Mr Bui, and that over time she considered that it had assisted him to come to terms with his accident, and he had reframed his thinking regarding his fear, avoidance and anxiety and that his sleep patterns had improved. However, despite such improvements, from a work perspective, Ms Nguyen considered that Mr Bui was only suited to non-machinery type employment, on a part-time basis.
36 Mr Bui said he has not returned to work since the accident. He said his past work has relied upon him using his hands and he believes his hand injury now prevents him earning an income. Despite these concerns, Mr Bui said that he has applied for many different jobs since the accident, with the assistance of rehabilitation consultants, initially from WorkCover and more recently from Centrelink. He said he was assisted in the preparation of a resume, which detailed his past work experience and skills. However, Mr Bui said he has not been offered any jobs.
37 In 2019, Mr Bui completed a Certificate I in English. He said that whilst he commenced Certificate II, he did not complete this course as a woman from the insurance company attended the course every fortnight and instead of him studying, she assisted him in applying for jobs.
38 Mr Bui said he can use simple words in English, is able to read familiar words and can write some simple words. However, he said that he could not follow the news or read the newspaper. I note that Mr Bui relied heavily on the interpreter during the course of his evidence.
39 Mr Bui said he experiences pain in his three fingers. He said that pain in his little and ring fingers is constant and starts in his wrist and travels into his fingertips. Mr Bui said the pain in his middle finger is not constant but comes and goes and is not as intense as the pain in his other two fingers.
40 Mr Bui said the pain is worse in colder weather, or if he bumps or knocks his fingers.
41 Mr Bui said he has not experienced an improvement in his pain.
42 Mr Bui said that despite the pain and restriction of movement in his right hand, he can still use his thumb and index finger.
43 Mr Bui is right-hand dominant. He said that prior to the accident he relied on his right hand 100 per cent, whereas now he uses it “up to 50 per cent maximum”.
44 Mr Bui said he sometimes drops things with his right hand.
45 Mr Bui said he can do some household duties such as vacuuming and sweeping, but does so using his left hand, which he finds clumsy, awkward and inefficient.
46 Mr Bui said that when he overuses his right hand, he gets tired and has to stop. He said that after only a few hours of performing very basic domestic tasks at home with rest breaks, he experiences increased pain in his right hand and generally ceases for the day.
47 Mr Bui said he uses his left hand now more than he did before the accident, and specifically uses his left hand for heavier activities. He said he feels slow, clumsy and awkward when using his left hand.
48 Mr Bui said he is able to go shopping with his wife and that he carries the lighter bags. He also said that in his garden he is able to water the plants and either uses his left hand or his right thumb and index finger.
49 Mr Bui said that when driving a car, he tends to rest his left hand on the steering wheel as he feels his right-hand grip of a steering wheel is compromised. However, Mr Bui said that despite that, he is able to drive an automatic car without restriction.
50 Mr Bui said he finds shaking hands with people awkward and embarrassing. He said he is self-conscious of the “ugly appearance” of his right hand.
51 Mr Bui said he continues to experience regular nightmares and flashbacks. He also said he regularly feels sad about his injury, and inability to work. Mr Bui also complained that he struggles to sleep at night, but in his affidavit he did not state whether this was due to his right-hand pain, his psychological upset or a combination of both.
Medico-legal evidence
52 In April 2018, Mr Bui was examined by hand surgeon, Mr Damian Ireland. In a report dated 11 April 2018, Mr Ireland noted that Mr Bui complained of weakness of grip in his right hand, as well as restricted motion in the little and ring fingers of his right hand, with intermittent pain on the dorsum of the hand when there is a change to cold weather. Mr Ireland noted that there was no evidence of disuse atrophy in the forearm of Mr Bui’s right forearm, but the grip strength on his right hand was measured at 26, 27 and 28 kilograms in comparison with 50 and 58 kilograms on his left hand.
53 Mr Ireland considered that there was a work stain on Mr Bui’s right thumb relative to his left non-dominant hand, but no work callus on either hand.
54 Mr Ireland diagnosed Mr Bui as suffering mild dysfunction of his right middle, ring and little fingers following soft tissue injuries which had been surgically treated. Mr Ireland was of the opinion that Mr Bui was able to return to his pre-injury duties.
55 When Mr Ireland’s findings of no evidence of disuse atrophy in the right hand, were put to Mr Bui, he stated that before the accident his right hand was stronger than his left. Mr Bui said he still uses his right hand, although less than he did before the accident.
56 In May 2019, Mr Bui was examined by occupational physician, Dr Robyn Horsley. In a report dated 28 May 2019, Dr Horsley detailed Mr Bui’s social, educational and occupational history. In relation to his education, Dr Horsley noted that Mr Bui had reached Level II in his studies of English. When this was put to Mr Bui in cross-examination, he said he was not sure what he had told Dr Horsley, but he was adamant that he had not completed the Level II English course.
57 Dr Horsley noted that Mr Bui complained of ongoing pain in his right hand, with this pain worse in winter than in summer. It was noted that with activity, Mr Bui’s pain levels could rise to 6-8/10. Dr Horsley noted that Mr Bui complained of reduced function in his hand and difficulty with fully extending his fourth and fifth fingers. He also noted that Mr Bui had poor grip and reduced power in his right hand.
58 Dr Horsley noted that in addition to scarring on Mr Bui’s middle, ring and little fingers, there was also evidence of a swan neck deformity of the middle finger. Further, Mr Bui’s little finger at the PIP joint had a reduced capacity for extension and a fixed flexion deformity. There was also a reduction in the extension of his right ring finger. Dr Horsley then noted that there was some mild wasting of the hypothenar eminence of the right hand.
59 Dr Horsley stated that for Mr Bui to return to work, she considered he would need to perform work that did not involve repetitive gripping or forceful activities involving the right hand. Dr Horsley stated that Mr Bui should not use tools with a vibratory component and that he should not lift items greater than 5 kilograms, except on an occasional basis. Dr Horsley also stated that Mr Bui should not be involved in activities which involved repetitive fine manipulative tasks.
60 Dr Horsley re-examined Mr Bui in November 2019. In her report dated 7 November 2019, Dr Horsley noted that Mr Bui had a grip strength of 18 kilograms on his right side and 50 kilograms on his left side. Dr Horsley also noted some mild wasting of the hypothenar eminence at the right hand compared to the left.
61 Dr Horsley considered that Mr Bui’s hand therapy had reached its plateau of effectiveness and his condition was stabilised. Dr Horsley stated Mr Bui was left with a residual right dominant hand disability which significantly disadvantaged him as a manual worker with poor English skills. Dr Horsley considered Mr Bui was totally and permanently disabled and that he had come to the end of his working life from a physical perspective alone.
62 Mr Bui has been examined by plastic and reconstructive surgeon, Mr John Anstee, on two occasions. It is unclear as to when the first examination was conducted. In a report dated 6 February 2017, Mr Anstee stated that he had seen Mr Bui at his room on 6 December 2017, this report also referred to a date of examination of 6 February 2018. The three dates provided are hard to reconcile. In any event, in his first report, Mr Anstee detailed Mr Bui’s complaints in respect of his right-hand injury, as well as Mr Anstee’s physical examination of Mr Bui. He noted there was scarring on the three fingers of Mr Bui’s right hand and that the range of movement in his middle, ring and little fingers was reduced. Mr Anstee also considered that there was “some right thumb dirt staining,” which Mr Anstee believed indicated that Mr Bui was “working reasonably hard at something”.
63 Mr Anstee was of the opinion that Mr Bui had the capacity to work. He considered that Mr Bui’s injury did not affect the efficiency or power of his grip, and that although his hand would not be as efficient as it was prior to the injury, Mr Anstee considered that Mr Bui should still be able to perform most reasonably light duties. At that time, Mr Anstee considered Mr Bui could work for four hours, five days a week and increase his hours over a period of time. Mr Anstee considered that Mr Bui could specifically work in light assembly duties or as a delivery driver. In his report, Mr Anstee stated that Mr Bui could return to work immediately if suitable employment was found, because Mr Anstee considered that Mr Bui was “working quite hard at something and with a dirt stained right thumb”.
64 In a supplementary report dated 24 February 2020, Mr Anstee stated that, in his opinion, Mr Bui was capable of most work, such that he could have returned to work within three months of the date of his initial injury.
65 In August 2018, Mr Bui was examined by hand, plastic and reconstructive surgeon, Mr John Buntine. In a report dated 8 August 2018, Mr Buntine noted that Mr Bui complained that he had pain in his injured fingers, which was worse in cold conditions. However, Mr Bui did not complain of any tenderness in the scars of his fingers. Mr Buntine noted that Mr Bui’s right-hand grip was very weak and that there was impaired sensation over his three fingers, especially the end of his ring finger. On examination, Mr Buntine noted that the fingers on his right hand did not fully extend and that this applies mostly to the little finger which hyperextends at its PIP joint.
66 Mr Buntine was aware of Mr Anstee’s observations of Mr Bui’s palms and he too considered that his observations of the palmar keratin and of the muscles of the palms were not consistent with Mr Bui’s claims about the minimal degree to which he uses his hands for work-like activities, and was not consistent with him having any difficulty undertaking simple domestic activities.
67 Mr Buntine measured Mr Bui’s grip strength at 31, 21 and 20 kilograms on the right hand, compared with 51, 52 and 53 kilograms on the left. Mr Buntine noted that the circumference of Mr Buntine’s right forearm was 28.5 centimetres compared to 28 centimetres on the left. Mr Buntine formed the conclusion that Mr Bui was not demonstrating his full strength when conducting the testing of his right-hand grip strength.
68 Mr Buntine considered that Mr Bui’s injuries were largely resolved, and did not accept Mr Bui’s demonstration of his full-strength use of his right-hand grip. Therefore, ultimately, Mr Buntine stated that there were no significant limitations affecting the use of Mr Bui’s right hand.
69 In February 2020, Mr Buntine re-examined Mr Bui. In this report, Mr Buntine observed that when Mr Bui took off his jacket during the medical examination, he considered he did so “in order to avoid the possibility of being seen to use the fingers of the ulnar side of the hand while doing so”, such that Mr Buntine considered that Mr Bui brought his hand forward and made a point of demonstrating he was using only his thumb and index finger. In closing submissions it was noted that this suspicion by Mr Buntine was not put to Mr Bui and he was not given the opportunity to respond to it.
70 Further in Mr Buntine’s report, he considered that Mr Bui’s right hand showed changes which were consistent with “recent undertaking of considerable light manual work”, such as working with farm produce. When this was put to Mr Bui in cross-examination, he denied doing any farm work.
71 Mr Buntine stated that he was not convinced of the mallet deformity in Mr Bui’s right little finger or the right ring finger, which he suspected may be the result of a prior injury. Ultimately, Mr Buntine considered that Mr Bui had consciously exaggerated symptoms of pain, limitation of movement and strength of the fingers and inability to work.
72 The defendant obtained a vocational assessment report from Recovre dated 25 November 2019. In it, numerous jobs were identified as constituting suitable employment for Mr Bui, based upon the physical restrictions identified in the medical reports. Recovre considered that the roles of pick/packer, product assembler and process worker, were suitable, as such roles did not require lifting beyond 5 kilograms and could be performed with minimal English language skills.
73 In a final report dated 11 March 2020, Mr Buntine stated that he believed that Mr Bui had the physical ability to perform the jobs outlined in this Recovre report on a full-time basis. Mr Buntine suggested that Mr Bui could initially start with part-time work, possibly with some restrictions, but that he could build up over a period of four weeks to full-time work.
74 In November 2019, Mr Bui was examined by occupational physician, Dr David Barton. In a report dated 4 November 2019, Dr Barton detailed his findings on examination and noted that Mr Bui’s right finger was partially flexed, and examination of his little finger showed some fixed flexion deformity. Dr Barton stated that he considered there were general signs of use in both Mr Bui’s hands which were equal in both sides. In particular, Dr Barton stated there was slight soiling and roughening of the thumb pad of both hands, but no wasting in the small muscles of either hand. Dr Barton noted that the circumference of the right arm was greater than the left arm, but that grip strength on the left was measured at 55 kilograms, whereas on the right it was 30 kilograms.
75 When this aspect of Dr Barton’s report was put to Mr Bui, he stated there were occasions when he had to use both hands. Mr Bui said, for example, when he turns up to apply for a job and the prospective employer asked him to do certain things, he would use both hands. Further, Mr Bui stated that as he is right handed, he has always tended to use his right hand more than his left and that he still does so, provided that it is a light task and does not affect his three injured fingers.
76 Dr Barton stated that, in his opinion, Mr Bui was not as disabled as he portrayed and he considered that the right arm, having greater muscle bulk than the left, suggested that Mr Bui was using his right arm for more activities than his left, which suggested a capacity for some physical activities. Dr Barton stated that he considered Mr Bui’s injury had caused a relatively minor effect on his capacity for suitable work. Dr Barton considered that because Mr Bui could make a near-complete fist and his right arm was of greater muscle bulk than the left, together with the state of his palms, Mr Bui had a capacity to do normal daily activities. Therefore, Dr Barton considered that Mr Bui could graduate through reduced hours to normal work if he was sufficiently motivated and “with the right job”. Dr Barton stated that given Mr Bui’s previous experience with machine-operating tasks, he could do such work, provided he did not have to undertake significant or forceful gripping with his right hand.
77 In a supplementary report dated 13 February 2020, Dr Barton stated that he considered Mr Bui could perform the jobs identified by Recovre on a full-time basis.
78 Mr Bui was examined by medico-legal psychiatrist, Dr David Weissman, in April 2018, August 2019 and January 2020. Over these three examinations, Dr Weissman consistently diagnosed Mr Bui as suffering from a Chronic Adjustment Disorder with Anxious and Depressed Mood. Following his most recent examination in January 2020, Dr Weissman recommended that Mr Bui continue to see his general practitioner for supported therapy, and continue to see a psychologist, Ms Nguyen, on a monthly basis. In addition, Dr Weissman recommended that Mr Bui may potentially benefit from a therapeutic dose of a modern antidepressant medication (having considered that his Endep medication was at a low dose).
79 Based on his psychiatric condition, Dr Weissman was of the opinion that Mr Bui was unable to perform his pre-injury duties, or any other work associated with machinery or blades. Further, due to his depressive and anxiety symptoms, Dr Weissman considered that Mr Bui is partially psychiatrically incapacitated and would not be able to work on a full-time basis. Therefore, Dr Weissman concluded that, from a psychiatric perspective, Mr Bui has only a partial capacity for suitable duties. Dr Weissman then stated, that in considering Mr Bui’s prospects of obtaining employment in the “real world”, Dr Weissman considered he would find it extremely difficult, if not impossible, to obtain part-time suitable employment on the open market, given his age, language difficulties and lack of transferable skills outside of manual labour.
80 In a supplementary report dated 22 May 2020, Dr Weissman stated, from a psychiatric capacity, Mr Bui could possibly work three hours per day, three days per week in suitable duties.
81 In December 2017, Mr Bui was examined by psychiatrist, Dr Nicholas Ingram. In a report dated 18 December 2017, Dr Ingram detailed the psychological symptoms which Mr Bui complained of subsequent to the workplace accident. Dr Ingram considered that Mr Bui was suffering from a Chronic Adjustment Disorder with Depressed Mood which was a secondary consequence of the accident, together with PTSD. Dr Ingram considered that Mr Bui was able to work in a part-time capacity from a psychological perspective. In October 2019, Dr Ingram re-examined Mr Bui. At that time, Dr Ingram noted that Mr Bui had recently started a cleaning course which was to extend for a six-month period, after which he would obtain a certificate which would allow him to find employment. When this aspect of Dr Ingram’s report was put to Mr Bui, he said he could not cope in the course and his teacher had to complete the exercises for him because he struggled with the content of it, in part due to his limited understanding of English. Mr Bui also stated the course was more to do with sales than cleaning, and he did not complete it.
82 Dr Ingram considered since the previous examination of Mr Bui there had been a significant improvement in his depression, that his flashbacks had stopped, and the nightmares had become less frequent. Dr Ingram ultimately diagnosed Mr Bui as suffering a mild Chronic Adjustment Disorder with Depressed Mood and residual symptoms of Post-traumatic Stress Disorder (“PTSD”). Dr Ingram considered that Mr Bui’s psychological problems would not prevent him working and that he had the capacity for pre-injury employment from a psychological perspective.
Mr Bui’s credibility
83 Mr Bui answered questions through the interpreter in a simple and straightforward manner. He openly conceded that he still uses his right hand, but not as much as he did before the accident.
84 In cross-examination, Mr Bui was asked whether he could do a job now, if offered one. He said he would give it a go, although he felt that his psychological condition would limit him in the number of hours he could work per week. In such evidence, I considered Mr Bui to be co-operative in his answers and he was open about his genuine desire to at least try some work.
85 The tendered video footage was a snapshot of Mr Bui’s life, recorded last year, over the course of a few minutes, on just a few days. It showed him going about his activities of daily living, including going to his local shops, the hairdresser and running errands. At one stage, Mr Bui is seen attending to the bumper bar at the front of his car. In cross-examination, Mr Bui said that he tried to push the bumper bar in with his right hand. I did not consider this activity to be inconsistent with his oral evidence, that he still uses his right hand, but not as much as he did before the accident.
86 The defendant relied upon the observations of Mr Ireland, Mr Anstee, Mr Buntine and Dr Barton, that there was the apparent work staining on Mr Bui’s hands. However, these are assessments made by doctors who have only seen Mr Bui after his work accident, and therefore there was no comparison with what his right hand looked like before. For a man who has worked with his hands for much of his working life, and who still uses his hands to a limited degree, I attach little significance to these doctors’ observations.
87 I note that Mr Bui denied he has worked since the accident, and with no evidence to the contrary, save for the abovementioned observations, I accept Mr Bui’s evidence on this.
88 Overall, I accepted Mr Bui as a genuine and creditworthy witness and have no hesitation in accepting his evidence, including his accounts as to his experience of pain. This bears significantly upon my assessment as to his capacity for suitable employment.
Impact of Mr Bui’s hand impairment upon his earning capacity
89 Mr Bui bears the onus of satisfying me that, as at the date of hearing, as a consequence of his right hand impairment, he has sustained a loss of earning capacity of 40 per cent or more; and that he will continue permanently to have a loss of earning capacity which produces a financial loss of 40 per cent or more. In making this assessment, I must consider what Mr Bui is capable of earning, whether in suitable employment or not.
90 The definition of suitable employment is an objective test which looks at a plaintiff’s current suitability for work, taking into account matters such as the plaintiff’s age, education, experience, and whether the work is a reasonable distance from the plaintiff’s place of residence.[1]
[1]Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at paragraphs [25] and [28]
91 As was noted by the Court of Appeal in Harris v DJD Earthmoving Pty Ltd,[2] the assessment as to what constitutes suitable employment for a plaintiff is a test of physical capacity, not employability. It involves a consideration of what Mr Bui might, in the foreseeable future, be able to do on a regular and consistent basis, allowing for such improvement as might be thought likely or possible after undertaking vocational education.[3]
[2][2016] VSCA 188
[3]Ibid at paragraph [49]
92 In undertaking this task, I must compare what Mr Bui is capable of earning in suitable employment, with his pre-injury earning capacity.
93 The parties agreed the figure that most fairly reflected Mr Bui’s pre-injury earning capacity is $821.56 gross per week.[4]
[4]This was based upon Mr Bui’s gross income of $648.60 for a 30-hour per week and rounded up to a 38-hour week.
94 Mr Bui must therefore satisfy me that, as a consequence of his right-hand impairment, he has suffered a permanent loss of earning capacity, such that he is incapable of earning more than $492.93 gross per week, and that such a restriction on his earning capacity will be permanent.
95 As I stated previously, I am not persuaded by the opinions of Mr Buntine, Mr Anstee, Mr Ireland and Dr Barton that apparent work staining on Mr Bui’s hands is an indication that he is doing more things now than he claimed. I therefore consider their suspicions on this, which I reject, have greatly influenced their opinions in respect of his work capacity. I consider their opinions on his work capacity, to be unrealistically optimistic.
96 I note that Mr Buntine did not accept Mr Bui’s demonstration of his grip strength; however, I note that a reduced grip strength was consistently observed by other doctors, as well as Mr Sharma in his ongoing treatment of Mr Bui. I am therefore satisfied that Mr Bui has a reduced grip strength due to his hand injury.
97 I consider that Mr Buntine’s findings were influenced by his consideration that Mr Bui was exaggerating his symptoms. However, as stated previously, I accepted Mr Bui as a credible and reliable witness and therefore am not assisted by the opinion of Mr Buntine.
98 Dr Navani was of the opinion that Mr Bui could not return to his pre-injury duties, but that he could theoretically perform alternative duties, six hours per day, four days per week. Dr Navani stated that such work would need to be sedentary, not repetitive or involve lifting over 2 kilograms, and that it should also not involve strain to Mr Bui’s right hand and wrist.
99 I consider that Mr Sharma is the health care professional most familiar with Mr Bui’s hand injury given the regular treatment provided over a three-year period. Despite some improvements, Mr Sharma noted that Mr Bui had ongoing restrictions in the use of his hand. In particular, Mr Sharma noted that Mr Bui had to use alternative techniques to do tasks with his hand, and that he still had moderate difficulty in doing simple tasks such as getting dressed and preparing food. Mr Sharma’s identification of Mr Bui’s ongoing restrictions, in the context of a non-English speaking sixty-one-year-old, who has worked his entire life doing labouring work with his hands, is persuasive in my assessment of Mr Bui’s capacity for suitable employment.
100 Dr Horsley considered that Mr Bui’s right-hand injury resulted in a range of work restrictions, including no repetitive gripping and no lifting weights above 5 kilograms. In her most recent report, Dr Horsley considered Mr Bui’s right-hand disability, for a manual worker with poor English skills, was such that he was totally and permanently disabled.
101 I accept Mr Bui’s account of ongoing pain, which is exacerbated if he does activities in his home for more than a few hours. I also accept that he takes pain medication daily to assist him in controlling his pain.
102 My acceptance of these claimed consequences is most consistent with the opinions of Dr Navani, Mr Sharma and Dr Horsley, that Mr Bui has, at best, a very limited capacity for suitable employment.
103 I am satisfied that Mr Bui could only do light work for a maximum of three hours each day. I note that this is less than what Dr Navani considered possible. However, this is consistent with my acceptance of Mr Bui’s evidence that he suffers increased pain after doing a few hours of basic tasks at home. I am satisfied that increased pain levels would interfere with Mr Bui’s ability to work any more than three hours a day, on a reliable and consistent basis.
104 I do not accept that all the roles identified by Recovre would be suitable for Mr Bui. I note for example that the role of picker may involve pushing trolleys with a force of up to 7 kilograms and fine manipulation in picking up very small items. However, even accepting such roles were suitable, the hourly rates for each are such that when working a maximum of 15 hours per week, Mr Bui will earn less than the sum of $492.83 gross per week. Therefore, I am satisfied Mr Bui presently suffers a loss of earning capacity of at least 40 per cent.
105 I am also satisfied that this loss of earning capacity is permanent. Given Mr Bui underwent hand therapy for several years, with no significant improvement, I am satisfied that there is no prospect of his earning capacity improving in the future.
106 Once the threshold of 40 per cent reduction in earning capacity has been met, it is still necessary for me to consider whether the consequences to Mr Bui meet the “very considerable test”.[5] Given my acceptance that Mr Bui’s right-hand impairment restricts him to performing, at best, some light part-time work, the pecuniary disadvantage to him is so great that I consider his loss of earning capacity can be described as “at least very considerable”.
[5]Section 325(2)(c) of the Act
107 As Mr Bui has satisfied me that he suffers a serious injury in respect of loss of earning capacity arising from his right-hand impairment, it is not necessary for me to consider separately his pain and suffering consequences.[6]
[6]Advanced Wire & Cable Pty Ltd & Victorian WorkCover Authority v Abdulle [2009] VSCA 170 at paragraph [63]
Mr Bui’s psychiatric impairment
108 In circumstances where I am granting leave to Mr Bui to seek common law damages under both heads for his right-hand impairment, it is also not necessary for me to separately consider whether his claim for psychiatric impairment also meets the threshold.
- - -
0
4
0