Buono, Paul v Volmay Pty Ltd and VWA
[2009] VCC 1202
•14 September 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-09-00176
| PAUL BUONO | Plaintiff |
| v | |
| VOLMAY PTY LTD & VWA | Defendant |
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| JUDGE: | Her Honour Judge Davis |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 11 & 14 September 2009 |
| DATE OF JUDGMENT | 14 September 2009 |
| (with oral reasons): | |
| CASE MAY BE CITED AS: | Buono, Paul v Volmay Pty Ltd & VWA |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 1202 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Serious Injury Application – Accident
Compensation Act 1985 – s134AB(16)(b) –– pain and suffering – injury to the right elbow
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr N. Chamings | Ryan Carlisle Thomas |
| Ms M. Pilipasidis | ||
| For the Defendant | Mr R. Meldrum QC | Minter Ellison |
| Ms M. Taaffe | ||
| HER HONOUR: |
1 Mr Buono seeks leave to issue proceedings for the recovery of damages for pain and suffering only in respect of an injury to the right elbow sustained on 8 February 2006 during the course of his employment with the defendant as a panel beater.
2 The incident occurred when he attempted to stop a heavy welder from tipping over. He experienced sharp pain in his right elbow. He is right-handed. He tore the distal bicep tendon in the right arm and had the bicep tendon surgically repaired on 23 February, 2006. In June 2006, he had further exploratory surgery after an exacerbation of pain when catching his young child but in fact the tendon had not ruptured again.
3 The application is brought under s.134AB(16) of the Accident Compensation Act 1985 (“the Act”). The plaintiff says that he has suffered a serious injury within the meaning of sub-paragraph (a) of the definition of serious injury in s.134AB(37) of the Act.
4 The defendant agrees that the plaintiff suffered an injury to the right elbow in February 2006 and that he has some residual loss of extension in the right elbow, with intermittent pain and swelling. However, the defendant says that the plaintiff has exaggerated the extent of his pain and his ingestion of medication and that the account he has given doctors of the extent or frequency of medication taken by him since his injury is at odds with the very small number of scripts for Indocid and Panadeine Forte issued by his treating general practitioner, Dr Ngo, and with the small number of complaints to that doctor of pain and restriction.
5 The defendant also says that the plaintiff has been doing fairly heavy work with Stonnington Council using both hands, that he takes little medication, has ceased physiotherapy and has told some examining doctors that he is able to mow his lawns. In all the circumstances, the defendant says that the consequences of the right elbow injury are not fairly described as being more than significant or marked when compared with other cases in the range of possible impairments of the upper extremity.
6 I turn briefly to the legal principles applicable in this case. In order to make out a serious injury with paragraph (a) of the definition in s.134AB(37) of the Act, the plaintiff must establish that he has suffered a permanent serious impairment or loss of a body function and that the consequences to him in terms of pain and suffering are, when judged by comparison with other cases in the range of possible impairments or losses of a body function, fairly described as being more than significant or marked and as being at least very considerable.
7 On the authorities, decisions as to whether an injury is serious involve elements of fact, degree and value judgment[1]. A consequence may have a multiplicity of causes, including a multiplicity of compensable injuries[2]. The proper analysis involves establishing that the plaintiff suffered compensable injury after 20 October 1999, establishing what that injury was, determining the consequences which the plaintiff alleges have resulted and determining that those consequences were materially contributed to by the compensable injury and finally, determining whether those consequences meet the very considerable level in terms of pain and suffering3.
[1] Fleming v Hutchinson (1991) 66 ALJR 211[2] See Grech v Orica Australia Pty Ltd [2006] VSCA 172 at [58] 3 See Grech v Orica Australia Pty Ltd [2006] VSCA 172 at [80]8 In Dwyer v. Calco Timbers No.2[4], Nettle J noted that it would be unfortunate if an applicant who has been prepared to put up with his pain and suffering and got on with his business as best he could by returning to work, were treated less favourably than another, who being of less strength of character simply resigned himself to his injury. In Stijepic v. One Force Group Australia Pty Ltd & Anor[5], the Court of Appeal also noted that the whole of the evidence is to be considered and a successful return to work is not determinative against a worker on the issue of pain and suffering. Rather, the court must consider what the plaintiff has lost by virtue of the injury and what has been retained. Each case needs to be determined in light of its own facts.
[4] 2008 VSCA 60[5] 2009 VSCA 1819 I turn to the evidence in this case. The plaintiff's affidavits describe his pre- injury activities. He is forty years old. He had worked as a panel beater after completing his apprenticeship. Prior to his injury he was working full-time as a panel beater. He was going to the gym five days a week and he weighed around 105 kilograms due to his fitness regime. He enjoyed motorbike riding, jet ski riding and waterskiing. He went fishing with his father-in law.
10 After his injury and the subsequent surgery, he continued to have pain and occasional swelling in his right arm. He got back to full hours on modified duties with the defendant. His employment was then terminated, he believes because he could not do his normal duties as a panel beater. He was unemployed until January 2008, when he found casual work through a labour hire company and he has been employed through them with Stonnington City Council, working full-time with a road maintenance crew. The work involves cleaning grates and gutters and some use of crowbars and pitchforks.
11 As at September 2008, he said he had ceased any formal treatment such as physiotherapy and just limited what he did with his right arm. He continued to see Dr Ngo and take painkillers and anti-inflammatories. He has also been taking antidepressants. He deposed to regular pain in his right arm extending to his shoulder and to a decreased range of movement. Any work with his arm outstretched caused him pain and strenuous activity usually caused swelling. He experienced pain in the right arm if he held the steering wheel for too long and after mowing the lawn.
12 Prior to the injury he worked on his own and other cars at home but he could no longer do so as much. Repetitive use of his right arm in any physical activity was painful and caused his arm to swell. He had difficulty playing with his children. His relationship with his partner was affected.
13 As at August 2009, he deposed to taken Panadeine Forte about two or three times per week for the last few months and taking two to six tablets in a day when needed. He said he tries to do his work predominantly using his left hand; when the right hand is needed he often has pain and needs Panadeine Forte to get through the day. He has separated from his partner and lives with his parents.
14 At the hearing he said he has changed the way he works to avoid using his right hand. He takes Panadeine Forte if he has pain while working and gets help or changes duties. He has been taking antidepressants and seeing a psychologist to deal with depression relating to pain in his arm and other issues like losing his job and profession. He can never return to panel beating because he lacks the physical strength and his right elbow cannot cope with repetitive forceful work with the right arm. He had been involved in martial arts since the age of ten and weights training since the age of 17. Prior to the injury, he was training as a bodybuilder. Since the injury, he can no longer do martial arts or weights training and has lost over 20 kilograms.
15 The plaintiff was extensively cross-examined. He said he got his scripts for Panadeine Forte from Dr Ngo but also some tablets from the family. He agreed with the records tendered in relation to scripts written by Dr Ngo for Indocid and Panadeine Forte. He said he took medication when he was working and when he needed to but that he tried not to take it when he could do without. He said that when he was not working, he did not take them. He also said that in the past 21 months there were periods of some months when he was not working.
16 He said that he cannot fully straighten his right elbow and demonstrated this in court. He said his elbow is partly bent all of the time. He manages at work by using his left arm as much as he can. He agreed that sometimes the work is heavy but said that he gets help with it or rotates duties. He said that most of the work is light and he can mostly cope with it. He said that he no longer rides his motorbike and cannot jet ski because he cannot do it properly and hold on at speed. He can no longer hunt for rabbits because he fears the recoil from the gun might affect his shoulder. He mows the lawns one- handed. He can no longer rebuild car engines as he used to and can no longer go game fishing. He has had some tattoos put over his scars on his elbow to camouflage them but acknowledged that in hot weather he wears singlets and his scar is exposed.
17 He agreed that his right arm strength had improved but insisted that it was far less than his left arm now. He said he tried earlier this year to use five- kilogram dumbbells but had pain in the right arm. He said that the frequency and level of his right arm pain depended on his level of activity. He denied exaggerating the extent of his right arm weakness or the intensity or frequency of his right arm pain.
18 His friend Mr Walter gave evidence that for many years prior to the plaintiff's injury he and the plaintiff went to gym three to four times per week together, doing martial arts and weights training. He said that prior to the injury the plaintiff was a very big man but since the injury he no longer went to the gym with him and had lost a great deal of his bulk. Mr Walter said that before the plaintiff’s injury he had left his car for the plaintiff to do some body repair and spray painting, but that the work had not been done and he had since taken his car away.
19 I have considered the evidence from the treating practitioners, Dr Ngo and Mr Byrne. Dr Ngo reported in September 2007 that the plaintiff suffered a biceps tear on 8 February, 2006 at work, that he had surgical repair and in June of that year, further surgical exploration which showed the tendon was in fact intact. He was expected to return to modified duties with the possibility of attempting pre-injury duties in early 2007.
20 In February 2009, Dr Ngo reported that the plaintiff presented with depression in October 2007 due to financial difficulties after his work accident and that he was still experiencing and reporting pain in the right arm with repetitive movements. Dr Ngo concluded: "He will have difficulty with repetitive movements of the right forearm, particularly with heavy work. This is permanent. He can only work in duties not involving repetitive movements on the right elbow." He also noted it was unlikely that the plaintiff would ever be able to return to his pre-injury duties as a panel beater.
21 On 1 August 2009, Dr Ngo report that in April, the plaintiff presented with pain in the right arm and shoulder and he diagnosed chronic pain and prescribed Panadeine Forte. He last saw the plaintiff in May 2009 when the plaintiff attended for another script of Panadeine Forte for right arm pain.
22 Mr Byrne, the treating orthopaedic surgeon, reported in August 2006 that the plaintiff was progressing well after surgery and had a minor fixed flexion deformity in the right elbow. He was hopeful that the plaintiff would be able to return to his pre-injury duties later that year.
23 The plaintiff’s treating psychologist, Dr Ozgis, says that he has suffered from depressive disorder after his elbow injury and would benefit from further sessions of therapy.
24 The medico-legal reports relied upon by the plaintiff are the reports of Mr Russell Miller of January and August 2009. In his first report Mr Miller noted the plaintiff's complaint of right arm pain, worse with repetitive activities and fluctuating symptoms with weakness and noted that the plaintiff took anti- inflammatories and analgesics but tried to avoid them. He felt that there was only a fair prognosis. He noted the significant right arm pain, the plaintiff's reduced mobility, reduced capacity for heavy domestic work and gardening and the fact that he could not return to his martial arts, bodybuilding and fishing. In his second report, he noted that the plaintiff could not return to work as a panel beater and had not been able to resume a range of physical activities. He noted the likely permanence of the pain, reduced capacity for employment and for recreation activities.
25 The defendant relied on reports of occupational physician Dr Mutton, orthopaedic surgeon Mr Michael Troy, a treating doctor in November 2006, Dr Thevakumar and psychiatric opinions of Dr Entwisle, Dr Neill and Dr Kornan. I do not propose to examine the psychiatric material in any detail. The defendant relied on the histories and complaints to Dr Neill and Dr Kornan in some of his cross-examination.
26 Having regard to the plaintiff's evidence, which I accept for the reasons that will follow, I do not consider that the material raised by the defendant adversely affects the plaintiff's credit in relation to the symptoms suffered by him after the right elbow injury. I also note that there is material in Dr Entwisle's report consistent with the evidence of the plaintiff concerning his symptoms of pain and the fact that he does most things at work left-handed. Mr Troy conducted an impairment assessment in relation to the right elbow in February 2008. He noted the complaint of limited extension in the elbow and swelling if the plaintiff does repetitive lifting. He concluded that there was a permanent impairment relating to restricted movements of the right elbow.
27 Dr Mutton provided a number of reports. In the latest report of July 2009, he noted a slight loss of right elbow extension and a similar presentation as in the previous assessment of December 2008. He noted that the plaintiff's ongoing problems related to the loss of full extension and some pain and discomfort with physical activity of the right upper limb. He concluded that there was some incapacity for work on account of the residual disability in the right elbow and there may be difficulties returning to work in pre-injury duties. He recommended weight limitation of no lifting more than ten kilograms with no repetitive elbow flexion or extension. He felt the effects of the injury would be permanent and that Panadeine Forte daily was appropriate. I do not considerate it necessary in the light of this report to canvass the older reports of Dr Mutton in detail but I have had regard to them.
28 I noted that in the report of December 2008, Dr Mutton concluded that "[it] is likely that he may have some symptoms with physical activities such as throwing a ball or similar." This is consistent with the plaintiff's evidence that he does in fact have such difficulty.
29 In essence, this case is a threshold case in relation to pain and suffering. Having regard to the whole of the evidence, but leaving aside any psychological consequences of his injury, I consider that the consequences of the right elbow injury suffered in February 2006 are more than marked when compared with other cases in the range of possible upper limb impairments. I do so for a number of reasons. I found the plaintiff to be a straightforward witness. I do not consider that the minor discrepancies in accounts of symptoms, severity or frequency of ingestion of medication given to examining doctors detract from the thrust of his uncontradicted evidence, which is supported by the medical evidence, that he suffered a permanent impairment to the right elbow, resulting from the injury in February 2006, which has left him with an inability to fully straighten the right arm, to perform his pre-injury duties as a panel beater or to undertake repetitive or forceful activities with the right arm.
30 In turn, these limitations have resulted in a permanent loss of enjoyment, flowing from the loss of a major leisure or fitness pursuit, that is the gym and weight training and martial arts training, which he enjoyed and pursued with such regularity prior to his injury.
31 In addition, the plaintiff suffers persistent right arm pain, worse with activity and sometimes requiring analgesia. He works full-time doing manual work but manages by relying more heavily on his left arm, putting up with the pain and sometimes by taking medication. Where necessary, he gets help from others.
32 I consider that although the plaintiff has retained the ability to work and perform the activities of daily living and still engage in some outside activities such as fishing from a boat, he has lost a great deal as a result of the 2006 injury. He is only 40 years old, he has had to give up the occupation of panel beater for which he was trained and in which he worked full-time for at least six years prior to the injury and for other periods before then, from the time he completed his apprenticeship. Given his level of fitness prior to his injury, he might have expected to continue working in that trade until the age of retirement. He is right-handed and has had to learn to use his left hand for most activities (at work and elsewhere) requiring the application of force or for any repetitive activities. He suffers persistent pain, sometimes requiring medication. To his credit, he has worked full-time since 2008 in another capacity as described above but he can no longer perform panel work on his own cars for pleasure or for others for reward. In particularly, he has had to give up and abide in recreational bodybuilding and martial arts training which he enjoyed. He has a permanent, fixed flexion deformity of the right elbow which means he will never be able to stretch it fully. Performing any activity with the right arm outstretched causes pain and I accept his evidence that it also occasionally causes swelling.
33 I note that there is no video surveillance relied upon by the defendant to contradict the plaintiff's account of what he can and cannot do. His treating surgeon noted that his right bicep muscle was weak and this was consistent with his own evidence.
34 For these reasons, leave is granted to the plaintiff to bring proceedings for the recovery of damages for pain and suffering only, in respect of the injury to the right upper limb, suffered on 8 February 2006, during the course of his employment with the defendant.
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