Calvert v VWA

[2018] VCC 1884

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CIVIL DIVISION

Revised
(Not) Restricted
Suitable for Publication

SERIOUS INJURY

Case No. CI-18-02454

KEITH CALVERT	Plaintiff
v
VICTORIAN WORKCOVER AUTHORITY	Defendant

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JUDGE:	JORDAN
WHERE HELD:	Melbourne
DATE OF HEARING:	19,20 November 2018
DATE OF JUDGMENT:	20 November 2018
CASE MAY BE CITED AS:	Calvert v VWA
MEDIUM NEUTRAL CITATION:	[2018] VCC 1884

REASONS FOR JUDGMENT
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Subject:  ACCIDENT COMPENSATION
Catchwords:            Serious injury-left ankle
Legislation Cited: Accident Compensation Act 1985
Cases Cited:            
Judgment:                Leave granted to bring proceedings for the recovery of damages

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Mighell QC with Ms	Zaparas Lawyers
A Smietanka
For the Defendant	Mr B McKenzie	Lander and Rogers

HIS HONOUR:

1       On 7 July 2009 Mr Keith Calvert fell from the trailer of his truck when a ratchet broke. He injured both ankles. He was taken to Dandenong Hospital. He had sustained some fractures in the left lower leg and he now seeks serious injury leave based on the impairment of his left ankle. It is sought for both pain and suffering and pecuniary loss damages. He has an admitted compensable injury to his left ankle.

2       He is a fifty one year old man who has some very serious impediments to work. He is illiterate. He has suffered from an intellectual disability since birth. He had to go to a special school. Accordingly his two affidavits have had to have been read out to him. He has some criminal convictions in Victoria and New South Wales. He has served time in prison for dishonesty offences. Not surprisingly his work record has been very intermittent and only involved unskilled positions.  I accept that the long period between his injury and the current application is due to his ignorance of his legal rights.

3       The uncontested evidence of his sister corroborated his intellectual disability and illiteracy. She also  confirmed his motivation to work. [1]

[1]Plaintiff’s Court Book(PCB)57-58

4       There have been long periods in which he has not been able to work when he has been on a disability pension but he had obtained employment as a truck driver with Metropolitan Express driving a semitrailer transporting steel mostly from Blue Scope. Constantly assessing impairments and work capacity in this jurisdiction, it would be difficult for an English speaking worker to have a more limited capacity for suitable employment even leaving aside his compensable impairment.

5       There are only two real issues for determination. The defendant indicated that the left ankle impairment did not reach the bar of “very considerable” consequences in terms of pain and suffering. As to the claim for lost earning capacity the defendant submitted that the plaintiff had a residual capacity for suitable employment in the form of a recycling/garbage truck driver job in spite of his compensable ankle injury.

6       There was another issue peripheral to the two main ones I have described, namely that he has also suffered a left knee injury on 25 February  2010 which he claims was really a consequence of the weakness flowing from the left ankle impairment. On that day he was climbing up into his truck when he felt symptoms in his left knee which by the next morning had become very swollen and painful. The plaintiff does not rely on any injury to or symptoms in the knee in this application. The defendant does not concede that the left knee injury is causatively  related to or is a consequence of the left ankle injury.

7       I am satisfied after considering all the evidence that his knee symptoms have all but gone. I accept him when he said it “doesn’t give much trouble”  and when he said his left “leg’s never happy” he was speaking about ankle symptoms only.[2] There is no relevant impairment of his knee now nor any symptoms of significance in that area of the left leg at the present time.  

[2]Transcript(T)33

8       If I am wrong and there are some minor knee symptoms still troubling him, then on the probabilities this application can be disposed of by just assessing the discrete left ankle impairment. There is no need to deal in any detail with left knee problems as of themselves they cause no symptoms of consequence in regard to capacity for work or of enjoyment of life.  

9       The plaintiff is a man who is very simple. The advantage of both hearing and observing a plaintiff in the witness box has been commented on and is applicable to this case. Within a few minutes in court it was obvious to all that the court process was hard for him to comprehend and he is quite an inarticulate man who at times did not understand quite basic words.

10      To his credit he has obtained a semitrailer licence as well as a motorbike and boat licence. I accept he has obtained these by undergoing oral tests rather than the usual written requirements. Understandably for this man these were achievements he is proud of and he has renewed them over the years.[3] The fact he has renewed what for him would have been a hard won semi-trailer licence, does not translate into some capacity to hold down a job driving one. 

[3]T29

11      There was limited attack on credit including in regard to lack of recent treatment, his February 2010 left knee injury, motivation and capacity. Film over one day in May, one day in June and two days in October 2018 was tendered. But it did not show him doing anything strenuous, walking quickly, running, jumping he exerting any pressure on his left leg nor anything inconsistent with his affidavit and oral evidence about symptoms.[4] He did not even stand for any lengthy period. At times when standing for even a short period he leaned on something nearby. He limped on occasions in the June and October film.  

[4]Exhibit 1

12      For approximately five minutes he used a motor mower on a small portion of nature strip. It was obvious he moved quite slowly during this exercise. At times he used one hand outstretched on the mower rather than two hands in a normal mowing motion walking up and down behind a machine. At the end of those short few minutes of mowing a limp was more discernible.

13      It has to be remembered that for a man who was injured almost nine and a half  years ago this film represents only a few brief snapshots of activity. There was nothing that damaged his credit in this film and it needs to be recorded that there were unexplained gaps in what was shown. On a number of occasions he was in the picture and for no apparent reason the film just jumped to him suddenly in the picture again but minutes later. There was no explanation offered as to when or why his  activity being shown suddenly just ended in the first time frame and suddenly started up in the second timeframe.

14      It needs to be noted there was only a little over thirty minutes of film shown out of more than thirty hours of surveillance.  

15      He was asked about the absence of ankle treatment in recent years. This was perhaps directed to credit and maybe to some submission about the extent of the impairment. It went nowhere on either point. The absence of treatment is only relevant if there is some reasonable treatment open to him that has also been suggested to him and not followed. Neither is the case here. He has a condition he has basically been stuck with for many years and is still stuck with.

16      He has tried several  returns to work in both driving and other manual tasks. He could not cope and only lasted a few weeks.[5]  Mr Calvert is a man with real handicaps but is motivated to work if he could. If anything he is rather understated about his ankle  impairment and the cards life has dealt out to him and there was no exaggeration about any of his difficulties. He has been diagnosed with throat cancer and required treatment for that problem which is fortunately now in remission”.[6] He could be fairly described as a stoic.

[5]PCB4,T22

[6]PCB9,T

17      In the end I accept the evidence in his affidavits and his oral testimony about his symptoms and the limitations the ankle impairment causes him. He was a reliable witness. The definition of “suitable employment” under the Act has to be considered with the realities of the open employment market in mind. This illiterate man now in his fifties had a capacity to drive very large trucks in unskilled transport jobs but he has permanently lost that capacity due to his impaired left ankle. His motivation to get work is demonstrated by jobs he has been able to find in spite of dishonesty convictions and prison time.

18      I do not need evidence to convince me about the demands of even getting in and out of the large cabins of modern semi-trailers and garbage trucks. They are encountered in virtually every road trip of any distance around this ever growing city these days. Also the necessary operation of pedals with his left foot would have its own demands on his ankle.[7] The symptoms he still suffers make any capacity for a  truck driving job no more than theoretical.[8]

[7]T61-62

[8]PCB4-5,9-10

19      There is little medical issue in this case. A number of reports are really too old to assist much in judging an impairment now more than nine years later and others only deal with the knee injury in February 2010. These limitations apply to the  treaters being doctors Booth, Steele and Meaney. They all reported back in 2011 or earlier.[9]  

[9]PCB19,21,22,23

20      The same problem of now being out of date applies to the hospital records from Dandenong and the physiotherapist, Lee Cresswell.[10] Mr Cresswell only discussed the knee. A WorkCover certificate from another physiotherapist, R Wilson, who did treat the ankle is well out of date being in October 2009. [11] What the early records do confirm is the admitted compensable left ankle injury  and active conservative treatment in the early days.

[10]PCB18,20

[11]Defendant’s Court Book(DCB)25

21      Radiology in July 2009 demonstrated extensive pathology including avulsion fracture of the distal left fibula, possibly a fracture of the malleolus with a probable fracture of the anterior left calcaneum.[12] Ultrasound in August 2009 showed further damage with a rupture of the anterior talofibular ligament and post traumatic changes within the soft tissues of the ankle joint.[13] A month later Mr Calvert was admitted to the Knox Private and under an orthopaedic surgeon for a very swollen leg with torn capsule lateral ligaments in the ankle. Physiotherapy was to be the follow up treatment.[14]

[12]PCB29

[13]PCB30

[14]PCB19

22      The assessment of the impairment has to be made now many years after these early reports. The relevant recent material is found in the 2018 medico-legal reports from Mr Iain McLean, orthopaedic surgeon and Associate Professor Umberto  Boffa , occupational and environmental physician.[15] These are self-explanatory and need little comment except to say I accept their clearly articulated opinions.

[15]PCB33,48

23      Mr McLean’s comprehensive report set out the diagnosis of ankle damage. It went beyond the fractures and involved ligament damage as well as degeneration.[16]  The prognosis was very guarded. His opinion was that the plaintiff could not return to work as a truck driver at any time in the foreseeable future and he went on to deal very clearly with other possible jobs “Again given the described pain and limitations to his activities relative to his left ankle with the limitations of function and pain, and then considering his education and previous work experience and background, I do not feel he has a present current work capacity. This will continue into the foreseeable future.”[17]

[16]PCB39

[17]PCB41

24      Associate Professor Boffa said only two weeks ago that “From a purely physical point of view, the worker is fit for a graduated return to alternative duties that avoid prolonged standing and walking and repetitive lifting and carrying more than 5kg. However he is precluded from obtaining suitable employment by his illiteracy, education, training, experience and likely difficulty with retraining… the worker has a poor prognosis for recovery of the left ankle condition and for a return to work in suitable employment.”[18] I accept that realistic view of Mr Calvert’s capacity. Realistically that  amounts to none at all.

[18]PCB51

25      The defendant tendered two reports from Mr M Dooley, orthopaedic surgeon, who saw the plaintiff once in August this year. He took a very brief and incomplete history from Mr Calvert.[19] He diagnosed disruption of the lateral ligament complex, interior capsule of the ankle and medial ligament. He said “it is a very painful injury”.[20] In the end he thought the plaintiff fit for “light physical work and clerical type work”.[21]

[19]DCB1-2

[20]DCB3

[21]DCB5

26      How Mr Dooley could say this illiterate man was capable of clerical work is simply not explained. It is a mystery. A few minutes in court made it more than  clear just how limited this man is in terms of general comprehension and intelligence. Unfortunately he is illiterate.

27      The Recovre vocational assessment report was sent to Mr Dooley outlining a lot more detail about Mr Calvert. His illiteracy was noted. Yet Mr Dooley did not recant his “clerical work” comment. I can only infer that Mr Dooley did not properly read the Recovre report or did not note the obvious general limitations Mr Calvert has when he attended him. I give very little weight to Mr Dooley’s report. It is not properly explained nor does it indicate adequate attention to the plaintiff and the written materials that were sent to him.

28      Dr D Yong diagnosed left tibular fracture and severe left ankle ligament tear. He observed an obvious limp. He recorded the left knee injury had resolved. [22] Therefore when he spoke of the objective signs of abnormality on the worker’s leg on examination and listed eight dot points they were clearly all related to the ankle injury. They were extensive findings. The points  were “Mild swelling of the left ankle. Reduction in range of movement of the left ankle. Tenderness laterally in the left ankle. Reduced power of the left ankle. Non-dermatomal sensory loss in the left lower leg. Walking with a limp. Trouble with tip toe, heel stand and partially squat. The inability to weight bear on the left leg.”[23]

[22]DCB15

[23]DCB15

29      He put very real limitations on this man’s capacity to work when he said “Mr Calvert could do tasks with the following restrictions. Avoid prolonged standing and walking tasks. Avoid exposure to uneven surfaces. Avoid repeated climbing squatting and kneeling tasks. Avoid repeated firm pushing and pulling tasks. Reduction in working hours.”[24] I accept these limitations as very real restrictions and with respect to the ankle on its own. They amount to a man such as Mr Calvert  having no realistic capacity for suitable employment.

[24]DCB16,20

30      Dr Yong also made the following statement which I accept as accurate “I do note a significant barrier in the return to work process. Mr Calvert reports that he is illiterate. This does limit the number of potential jobs that he could return to.”[25]

[25]DCB16

31      The Recovre vocational assessment report pointed to four alternative suitable employment options but in the end the defendant only relied on one. This was a sensible concession in view of what Dr Yong who the defendant engaged had said. It was only the driving of a recycling truck that was relied on ultimately by the defendant as suitable alternative employment.

32      Recovre suggested the recycling truck job and only some brief comments are needed about what it requires. There is a  requirement to complete paperwork.[26] The driver is required to get in and out of the cabin of the large truck in the course of this job and that is a difficulty for Mr Calvert with his ankle injury.[27] The driver has to read and interpret the word-based communication.[28] Mr Calvert is limited in mental function and even in regard to this communication he will have significant difficulty. He has to log in the reasons for non-collection into a computer system.[29] This must demand some literacy skills if it is to be done properly. Dynamic standing is also required. [30] This is something he cannot do on a reliable and regular basis, day in day out, as required in a real job for a real employer.

[26]DCB34

[27]DCB36

[28]DCB37

[29]DCB38,40

[30]DCB39

33      Even on Recovre’s own description of the demands of this alternative job suggestion the defendant relied on, it is beyond the worker’s capacity when a realistic view is taken of the evidence.

34      The plaintiff had a very limited earnings capacity even before injury on 7 July 2009. I am satisfied this fifty one year old man now has no real capacity for any suitable employment and this is a permanent situation as a result of the impairment of his left ankle on its own. The plaintiff has proved a permanent loss of earning capacity of 40% or more.

35      I give leave to bring proceedings for pecuniary loss damages. It follows in accordance with practice I also give leave with respect to pain and suffering damages.