Captan v Victorian WorkCover Authority
[2022] VCC 668
•19 May 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-20-04501
| TOUFIC CAPTAN | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 April 2022 | |
DATE OF JUDGMENT: | 19 May 2022 | |
CASE MAY BE CITED AS: | Captan v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 668 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – impairment to the left elbow – scarring – pain and suffering only – credit – range
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s335(2)(d)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Dordev v Cowan & Ors [2006] VSCA 254; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Cakir v Arnott’s Biscuits Pty Ltd [2007] VSCA 104; Victorian WorkCover Authority v Brassington [2021] VSCA 236; Peak Engineering & Anor v McKenzie [2014] VSCA 67; Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326; Church v Echuca Regional Health (2008) 20 VR 566; Transport Accident Commission v Garcia [2015] VSCA 225
Judgment: Leave granted to bring proceedings for damages for pain and suffering.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms M Pilipasidis | Maurice Blackburn Pty Ltd |
| For the Defendant | Mr R Stanley | IDP Lawyers Pty Ltd |
HER HONOUR:
1This is an application for leave to bring proceedings for damages pursuant to s335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) for injury suffered by the plaintiff in the course of his employment with Viscount Plastics Australia Pty Ltd (“the employer”) on 1 February 2017 (“the said date”).
2The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.
3The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s325(1) of the Act. There, “serious injury” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
4The body function relied upon in this case is the left upper limb. There is also an application under clause (b) for permanent disfigurement. The application pursuant to ss(c) was withdrawn.[1]
[1]Transcript (“T”) 1
5Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.
6The impairment of the body function must be permanent.
7The plaintiff bears an overall burden of proof upon the balance of probabilities.
8By s325(1)(c) of the Act, the impairment must have consequences in relation to pain and suffering which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “at least very considerable” and “more than significant or marked”.
9Section 325(2)(h) of the Act requires all psychological consequences to be ignored in determining the plaintiff’s application in relation to the physical impairment.
10I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
11I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[2] and Haden Engineering Pty Ltd v McKinnon[3] in reaching my conclusions.
[2] (2005) 14 VR 622
[3](2010) 31 VR 1
12The plaintiff relied upon two affidavits and he was cross-examined. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
13The plaintiff’s credit was in issue in light of his recent affidavit evidence about his concurrent work as a cleaner. In terms of range, the defendant’s case was that a lot had been retained by the plaintiff, being still able to do heavy work. Further, the medical opinion was the plaintiff’s condition was of moderate severity.[4]
[4] T62
The Plaintiff’s evidence
14The plaintiff was born in Ghana in June 1966 and is presently fifty-five. Having finished technical high school, he then worked at a company which installed and repaired refrigerators and air conditioners.
15He migrated to Australia in 2000 and thereafter, undertook casual work as a factory hand and die setter in various companies for about ten years.
16He commenced work with the employer in February 2010 as a die setter at its Braeside factory. His work involved operating a moulding machine to manufacture plastic goods such as pales, buckets and Telstra pits.
17Prior to starting this job, he believed he was in good health and had not made any previous claims for compensation or had any problems with his left arm.
18He agreed that he had right shoulder problems in 2016, but with treatment and acupuncture they settled down and did not interfere with playing badminton.[5]
[5] T51
The incident
19On the said date, he was setting up the plastics moulding machine, climbing up the stepladder to reach the upper platform. As he put one step onto the platform, the stepladder moved beneath his other foot, causing him to fall heavily on his left arm, dislocating it (“the incident”).
20The plaintiff was driven by a co-worker to the company doctor, Dr Marshall, who told him to go directly to hospital. He attended Emergency at Monash Medical Centre, where he had an x-ray and was discharged with his arm in a sling.
21The next day, the plaintiff saw his general practitioner, Dr Vu, in Springvale, who arranged for him to have a further x-ray of his left elbow, which he understood showed a comminuted fracture of the coronoid process of the ulna.
22The plaintiff was referred to orthopaedic surgeon, Professor Tran, who told him he had sustained a left elbow fracture dislocation which needed surgery.
23The plaintiff tried to keep working using his right arm. A few days after the incident, the moulding machine which he had been using at the time of the incident was modified, the stepladder was taken away and a permanent platform was put in its place.
24On 21 February 2017, the plaintiff underwent an open reduction and internal fixation of the fracture and a washout procedure to remove bone fragments (“the surgery”), carried out by Professor Tran at South Eastern Private Hospital. He was an inpatient for two days and was discharged with his arm in a sling.
25After the surgery, he attempted to return to work on reduced hours and light duties but continued to suffer severe left arm pain. Professor Tran told him the screw on his left elbow was out of place and needed to be removed. Surgery to remove the screw was undertaken on 4 April 2017, and following that procedure, the plaintiff wore a sling for about a month.
26He had rehabilitation with Mr Chen at Maxvale Physiotherapy, which involved manual therapy, strengthening and hydrotherapy. Although his left elbow function and movement gradually increased, he continued to suffer from pain and stiffness, and weakness in his left arm.
27In addition to those problems, he suffered from pins and needles down his left arm, and numbness in his left thumb and index finger. In November 2017, Dr Rollinson carried out nerve conduction studies which the plaintiff was told showed abnormality in the distribution of the left median nerve.
Symptoms/pain
28As at May 2020, the plaintiff continued to suffer a constant ache in the left elbow. It became worse when he tried to hold his left arm straight for a long period or did anything strenuous with it. When he pushed, pulled or lifted using his left arm, elbow pain increased and extended down his left forearm. The level of pain in his left elbow increased over the course of a working day.
29He also continued to suffer from frequent numbness in his left thumb and index finger and his left hand grip was weak. He was told those symptoms were due to nerve damage sustained as a result of the fall and surgeries.
30Despite rehabilitation, his left arm still felt weaker than the right. He had also suffered from persistent stiffness and pain in his left shoulder since the incident which he understood was related to the way in which he now moved his left arm.
31The plaintiff’s left arm problems continue. He does not believe he has fully recovered from the incident injury.[6]
[6] Affidavit sworn 30 March 2022
32To date, he continues to experience a constant ache from his left shoulder down into his left elbow and he feels that his arm is still not 100 per cent. He has a feeling of heaviness in his left upper limb and often feels he has to support his left arm in activities such as driving or even walking distances. Any sudden movements can cause a sharp pain in his left elbow. He tries not to fully extend it, because that tends to cause an ache and pain. He feels that as long as he is avoiding doing anything heavy or repetitive with his left arm, he is able to cope with work and outside activities. He experiences some swelling around the left elbow, but not all the time. The pain is also worse in colder weather.
33He has reduced grip strength in his left hand, and also some numbness in his thumb and index fingers.
34When his left elbow and arm is very painful, particularly at the end of the day, he uses a heat pack, as well as taking Brufen. He feels he has lost strength in his elbow and left arm and into the left shoulder. His right arm is now overcompensating for his inability to use his left and he is beginning to also experience aching sensations in his right arm.
35He has difficulty sleeping because of left elbow and arm pain. Frequently he is woken at night and has difficulty getting back to sleep. He takes Brufen at night to help him sleep and take the edge off his pain.
36He agreed, as Dr Raghozar reported, he has some stiffness of the left arm in the morning, but no significant interruption to his sleep.[7]
[7] T52
37He still has stiffness in his elbow maybe three times a week. His injury interferes with his sleep whenever he turns onto his left elbow. He tries to get back to sleep, and if that is not possible, he takes another pill.[8]
[8] T58
38He denied he had made an excellent recovery, because use of his left arm is a bit of a problem after the surgery. Movement was to a limited range and he “could not emphasise the strength of the elbow to full range”. He wears the brace the whole day, every day, until he gets home and has a shower and takes it off. It helps with this fingers and hand, and also with driving.
Treatment
39As at May 2020, the plaintiff was taking the anti-inflammatory, Brufen, about once every three days, for pain relief. He also took Glucosamine daily to relieve the pain and stiffness in his elbow joint.
40He did not think it was right, as the Medical Panel reported in September 2019, he was not taking any painkillers. He was.[9]
[9] T48
41He was having physiotherapy with Mr Chen, physiotherapist, twice a week, which allowed him to keep working. He squeezed a stress ball most days to try and improve his strength. He was seeing Dr Vu monthly and had last seen Professor Tran in about October 2019, who then told him there was no further surgery which could improve the function of his left arm.
42Although in October 2019, Professor Tran noted the plaintiff reported mild pain when working and settlement of pain, it was much more painful, that is why he went to see Professor Tran, to see if there was any inflammation of his elbow, but he told the plaintiff it was okay.[10]
[10] T40
43He accepted it was probably the situation the pain was mild when he was working. Further, Professor Tran’s testing would have shown nearly a full range of elbow movement.[11]
[11] T40
44In about March 2022, at his solicitor’s request, the plaintiff returned to Professor Tran, who arranged an x-ray of his elbow that month, which he was told showed degenerative changes in the left elbow.
45He told Professor Tran about ongoing symptoms and that he still had a loss of strength in the left arm, and was still having some numbness into his fingers, but Professor Tran advised surgery would not help. He told the plaintiff to continue physiotherapy and take anti-inflammatory medication. He also advised him he might require some change in his work duties to ensure he was not aggravating his elbow.
46He currently sees Dr Vu twice a month, who gives him acupuncture and prescribes Brufen. He also continues to see the physiotherapist monthly, although WorkCover ceased funding in November 2021. He has to have physiotherapy to be able to work so he pays for the $120 sessions himself. If he does not have that treatment, his arm gets stiffer and his elbow and arm becomes very painful.
47He has also been having physiotherapy at Dingley Medical Centre at PhysioWorks for a hip and hamstring injury for about the last three months.[12]
[12]T4
48He bought dumbbells in June 2021. He was doing exercise physiotherapy and was advised to buy them to help improve his left arm strength. He tries to do the exercises daily, but it is painful. He does stretches and uses a squishy ball and a band.
49He wears a brace over his left thumb and arm, which is helpful in relieving some of the pain. His physiotherapist told him to wear the hand brace.[13]
[13] T48
Work
50The plaintiff returned to work on light duties in about July 2017, which did not require lifting, pushing and pulling, such as performing quality checks. His recovery was slow, and he continued rehabilitation at Maxvale Physiotherapy up until July 2018.
51It took him a long time to be cleared for full pre-injury duties, and during that time, he felt under pressure and was very concerned he could be made redundant. Although struggling with persistent pain and weakness, and stiffness in his left arm, he wanted to get medical clearance due to his concerns about his job security.
52In February 2019, he finally resumed full duties. His pre-injury work involved a significant amount of heavy lifting, as well as frequent pulling and pushing using both arms, which he found aggravated his pain. After a few months back on full duties, he had to go back to his physiotherapist for further treatment due to an increase in pain. He continued to require ongoing physiotherapy to enable him to work as a die setter.
53Shoulder problems started when he started going back to full-time duties in about February 2019. He has not been referred to anyone, especially for his shoulder.[14] He agreed, when seen by Mr Robbins earlier this year, actively his shoulder movement was a few degrees short of a full range.[15]
[14] T48
[15] T49
54The plaintiff denied he had an excellent recovery of his elbow condition and that his elbow did not interfere with his ability to do heavy work. He denied there was a two-and-a-half-year break between his last attendances with Professor Tran because he had been progressing well. He disagreed that if he had a problem of any significance, he would have gone back to see Professor Tran.[16]
[16] T41
55As at May 2020,[17] the plaintiff continued to undertake pre-injury duties and while no longer having any certified restrictions on his work capacity, he found it took longer to complete his work because of his injury. He had to use two hands to do up nuts and bolts, and had difficulty carrying heavy loads and performing overhead tasks. He had to often ask co-workers for help.
[17] First affidavit sworn 8 May 2020
56Pre injury, he regularly did overtime, finishing up his normal duties, after his usual eight-hour shift. Post injury, he often knocked back overtime and only did it on weekends. After working his usual eight-hour shift, he could not work any longer because of pain and restrictions in his left arm.[18]
[18]T15
57Die setting is heavy work which requires use of both arms to lift, push and pull. As at May 2020, he was then struggling to continue to perform his full pre-injury duties with respect to function in his arm and he was worried about the future.
58He had only ever done manual work. If his job with the employer was to end, he was concerned he would not be able to obtain alternative employment as a die setter or factory hand because of his left arm injury.
59He has continued working as a die setter and moulder full time. His duties include changing over tools on the die setting machine and he also starts the machines. The second part to his duties involves assisting when the team leader is away, and he takes over his role. His duties involve lots of heavy lifting, tightening and loosening tools.
60He has difficulty tightening and loosening the die setting machine. Post incident, he was initially on lighter duties, but the employer put pressure on him to return to full-time and unrestricted duties, and as he did not want to lose his job, he agreed.
61This is the most physical aspect of the work and one he struggles with. After the injury, it was taking him a lot longer to do this aspect of the work and the employer was complaining he was too slow. The employer is now providing help, after initially refusing, with other co-workers helping him with this aspect of his work. He is worried he will lose his job, so he tries not to complain and tries to do whatever the employer asks him.
62He has only required help since the since the incident.[19] He gets help with his main job which is taking equipment in and out of a machine, loosening and tightening the clamps or bolts of the tool.
“It may get too hard on the strength of the bolt, so I need assistant to loosen that part off for me, so I can take it off. And then put it back, retighten it to the set amount – tight to finish the job. And later do the rest of the technical.”[20]
[19] T54
[20] T55
63On 2 December 2021, he took time off because his left arm was too painful and he went to the physiotherapist and had the rest of the day off.
64He is hopeful he will be placed on a more permanent supervisory role at work to get him off the die setting machine. He believes he will be able to cope if he is less hands on at work.
65He is currently working on the “big shed” machine, which is big and slow heavy work, but he is better able to cope than when he was working on the small shed, where the work was much faster, and he found the machine was aggravating his injury.
66He has continued to work as a casual cleaner three hours a week, having commenced that job about twelve years ago. He ceased this job after the period after his injury and during his recovery.
67The cleaning work is done at a primary school. The duties are light in nature and primarily include emptying classroom rubbish bins and cleaning toilets.
68Pre incident, he did mopping duties at the school, but since, a colleague now undertakes all mopping, as the plaintiff is not able to use his left arm in concert with his right to mop the floors due to the lack of strength in his left arm and associated increase in pain.
69The plaintiff has worked as a cleaner with Menzies and also Industrial Contractor Services (Vic) Pty Ltd.[21] The “colleague” he worked with at Menzies is his wife. He has been working as a cleaner to help his mother financially after his father died about twelve years ago. He is also supporting two brothers and their families.[22]
[21]T7
[22]T5
70He splits up the duties with his wife, working three hours at the end of every day, Monday to Friday, starting just after 4.00pm. He drives straight from work to the cleaning job, which involves cleaning the students’ toilets but not the staff ones, which his wife cleans.
71He empties the small waste-bins into a larger bin and replaces the plastic bag. He then puts the rubbish on a waste trolley, which he takes to the dumpster in the car park, and empties the contents into a large industrial waste bin.[23] The rubbish would weigh a few kilograms. The trolley gets heavier the more rubbish is put on it. He thought he might clean up to eighteen waste bins in a day.
[23]T9
72In addition, he cleans the toilets, wipes the windows and the toilet seats, and cleans mirrors. His wife does the mopping and the vacuuming. He did not know why the word “colleague” was used in his affidavit when he was talking about his wife.[24] They were just a team, he and his wife.[25]
[24]T11
[25]T12
73Before the incident, he did more cleaning duties at the school. He no longer does the kitchen as it irritates his elbow.[26]
[26] T53
74His current overtime situation is now typically on a Sunday, maybe two weekends a month in a team leader role, because there is no one else to do that job on the weekends. He is working about fifty-seven hours a week for the employer, with occasional overtime, and then the three hours a night cleaning.[27]
[27] T44
75The plaintiff was taken through thirteen histories to various doctors to whom he gave no history of the cleaning work.
76When he spoke to Dr Strauss about his wife, he did not know why he did not say she was cleaning with him. It did not come up. She works at a factory in a different company.[28]
[28]T14
77He agreed that his affidavit was a rather extensive document that told the reader about his work history and his problems with the employer.[29]
[29]T14
78He confirmed he deposed to the ongoing difficulties in his current job, but did not know why he did not mention working five nights a week at Kimberley Valley doing the cleaning.[30] He disputed that he purposely held back information about his cleaning job. He could not explain what happened then or now. He thought it was a mistake. It just did not come up. He did not know whether he was worried about his work as a cleaner perhaps detracting from his claim.[31] He did not deliberately do that.[32]
[30]T16
[31]T17
[32] T18
79The Claim Form signed by him on 7 February 2017 was in his handwriting and he declared the contents were true. He did not complete the box whether he had any other employment at that time. He agreed that was a simple question, there was no response identifying his cleaning work. He had no idea why he did not answer it, he must have forgotten. It was not his intention deliberately not to disclose that additional job.[33]
[33] T20
80He agreed work was discussed with Dr Brasier on examination in October 2021 and he did not tell him about the cleaning job. He did not know why he did not, so he did not see it was an issue to mention it to him. He agreed he told him of ongoing problems with the employer. He denied he deliberately did not tell Dr Brasier about the cleaning job.[34]
[34] T22
81The plaintiff did not believe he told Dr Clark[35] in mid-2017 about his cleaning job when examined by him or during a worksite assessment. One reason he might not have is that, after the injury, he had to stop cleaning work for about six or seven months. He was not doing the work, so he did not tell him.[36]
[35] Dr Clark reported no relevant history
[36] T25
82He agreed he did not tell Dr Rahgozar at the worksite assessment in October 2017 or when he saw him soon after, about work as a cleaner. He denied the failure to tell him was intentional. He was not pulling the wool over the doctor’s eyes.[37] He did not accept that the conversation with that doctor would have given him the chance to mention cleaning, and again denied, not mentioning it, was not intentional.[38]
[37] T26
[38] T28
83He accepted the Medical Panel in September 2019 made no mention of the cleaning job under vocational history as it was something he did not tell them.[39]
[39] T29
84He agreed. when seen by Mr Robbins in March this year, he told him of his problems with his current job and need for help, but did not tell him about the cleaning work.
85He confirmed he has not deliberately withheld reference to the cleaning job. At the start, after the incident, he was not working in that job. Otherwise, he did not know it was relevant at the time. He did not know the purpose of the Claim Form.[40] The employer had to get someone to cover for him when he was not at work. He disclosed all the income from cleaning on his taxation returns.[41]
[40] T56
[41] T57
86The plaintiff agreed his current work is physically demanding at Viscount, but with the cleaning at school, he does the pushing and the rubbish bins in stages, not all in one go. He cannot push his left hand too high and pull at the same time. He can lift, that is fine, but he cannot use his left arm for the physical aspects of pushing and pulling too high.[42]
[42] T46
87Wage records showed the plaintiff earned $11,000 from cleaning before the incident and $9,000 in the year after. He thought he had about eight months off cleaning duties after the incident, although the records seem to suggest he only had about two months off, as he had sick leave.[43]
[43] T33
88His cleaning pay rates had increased after the incident, not because he was working more, but the rate went up around $5.00.[44] It was not a case of doing more hours.[45]
[44] T35
[45] T37
89The plaintiff has a rental property in Tarneit from which he received gross rent of $17,000 in 2019.[46]
[46] T38
Activities
90Pre incident, he enjoyed playing badminton with friends on Sundays. Thereafter, he tried to play badminton a few times but it had been too painful. Although he held the racquet with his right hand, he felt movements of his left arm aggravated his pain.
91He no longer plays badminton or tennis as he was also worried he could fall onto his left arm, and if that were to happen, he would be in agony.
92Pre incident, the plaintiff did the lawns, but since then his left elbow was not strong enough to push the lawnmower and he experienced increasing pain into his left elbow and shoulder, so he now has a gardener who mows the lawns for him. If he pushed or pulled with his left arm too forcefully, like pulling out weeds, he experienced severe pain, and he was not able to dig in the garden.
93He is able to assist at home by washing plates, but frequently drops them and breaks them. He has bought himself a new stick vacuum cleaner which he can operate using his right arm.
94Driving remains an issue because of ongoing stiffness and pain in the left arm and the plaintiff is unable to fully extend it out straight. He can put his arm up to a certain position but cannot fully extend it up or around, and does not have a full range of movement without pain. He feels his left elbow has become more stiff, and it aches, and it is not getting any better. His left arm feels weak compared to how it was pre incident.
Scarring
95He has two surgical scars on the inner and outer aspects of his left elbow, which were sometimes itchy.
96While in the witness box, the plaintiff showed his scarring, which consisted of a long scar and a shorter one next to it from the two operations. He explained he could not straighten the elbow fully, and if he stretched it, he suffered pain.[47]
[47]T6
97He hides the scarring and wears long-sleeved overalls, so it is always hidden. He denied that was because he was just worried about it being knocked. He has not been referred to a psychologist with concerns about his body image.[48]
[48] T52
The Plaintiff’s taxation summary
Financial Year Ending Main Salary or Wage Occupation 2010 $79,386.00 2011 $85,179.00 2012 $78,232.00 2013 $86,823.00 2014 $87,170.00 2015 $92,385.00 2016 $87,949.00 2017 $95,703.00 2018 $91,937.00 2019 $100,864.00 2020 $104,398.00 2021 $112,409.00
The Plaintiff’s medical evidence
Treaters
98The plaintiff attended Emergency at Monash Medical Centre on 1 February 2017, with left elbow pain further to a fall.
99On examination, there was tenderness over the radial head and mild pain on pronation and supination. No fracture was detected on x-ray. However, the lateral view showed clearly a rough triangular bone fragment immediately anterior to the head of the radius and two smaller rounded fragments just deep to this. These probably indicate a long past fracture causing the avulsion of three distinct fragments. Earlier examination for comparison would be helpful.
100He was provided with a sling and advised not to lift weight with the left arm for five weeks, and discharged.
101The plaintiff was reviewed in the Neurology Clinic on 31 August 2018. Subsequent to the Emergency attendance, he had undergone internal fixation of the fracture. Post-surgery, he had pain in his left arm and a subjective weakness of his left hand grip, with numbness affecting all his left fingers on both the dorsal and palmar aspects. Those symptoms had slowly improved.
102On examination, there was no left hand wasting, but some give way weakness of left finger extension and left small hand muscles.
103Nerve conduction studies in November 2017 at the Monash Neurology Clinic showed mild abnormality of left median nerve sensory function, consistent with a very mild left carpal tunnel syndrome. It was considered these symptoms were a nonspecific accompaniment to regional pain and some associated inhibition of muscle function, and it was not considered surgery would help.
Dr Kim Son Vu, cosmetic and general practitioner surgeon
104Dr Kim Son Vu most recently reported on 17 March this year, noting the incident injury and subsequent surgery, following which recovery was poorly.
105The plaintiff still had pain on his elbow and arm, and weakness on the left hand and numbness on the left forearm and hand. He had physiotherapy, hand therapy, acupuncture and analgesia for pain relief.
106Symptoms were improving slowly. The plaintiff regained his strength in the left hand and grip and had been able to return to suitable duties in early 2018, and full-time duties from 4 December 2018.
107The numbness on the left hand was almost gone and the plaintiff’s left-hand strength had improved. However, after about two years, he had experienced pain in his elbow during and after work, when returning to work on full-time duties. He had physiotherapy twice weekly for treatment and remained at work, However, the physiotherapy had been ceased by the insurer, and the plaintiff was unable to maintain work without physiotherapy treatment. Therefore, he had had to pay for it himself weekly and was able to maintain suitable duties.
108The plaintiff had been taking analgesia for pain relief and attended the clinic for acupuncture from time to time, having weekly physiotherapy. As at March 2022, the plaintiff still had mild tenderness of the left elbow and range of motion was significantly limited, marked on external rotation and extension. He also had pain in his left shoulder at night, and the range of motion was also limited in all directions and marked on abduction.
109Dr Vu arranged for scans of the left shoulder to find out any damage to the rotator cuff or frozen shoulder.
110He diagnosed a left elbow injury and Post-Traumatic Pain Syndrome related to the work incident.
111The condition was permanent and may aggravate over time, and have some impact on work capacity. The plaintiff could not perform his pre-injury duties, but is still able to perform suitable duties on a part-time basis.
112Rehabilitation, physiotherapy and psychological counselling may need to be considered for his better function. Review by a surgeon might be worth considering for any possibility of surgery, and an MRI scan of his left elbow may need to be done for better evaluation of function.
113In his most recent report of 31 March 2022, Dr Vu stated that the left shoulder adhesive capsulitis is also possibly a work-related injury due to pain strain on the left elbow making too much pressure on the plaintiff’s left shoulder when performing duties, leading to injury and inflammation to his left shoulder as a result.
114He confirmed his view the plaintiff has no capacity for pre-injury duties but still able to perform suitable duties part time. He also confirmed his thoughts about future treatment and that steroid injections under ultrasound guidance to the left shoulder may need to be also considered.
Professor Tran, orthopaedic surgeon
115Professor Tran reported in December 2018, noting the plaintiff’s first attendance on 2 February 2017 and progress following surgery when last seen on 7 June 2017.
116At that stage, the plaintiff’s elbow had regained its range of motion from nearly straight to 90 degrees of flexion. His power grip remained weakened, and he was taking Nurofen and Panadol.
117In his December 2019 report, he noted that the plaintiff represented on 9 October 2019 after his elbow had become acutely painful three weeks prior. It was worth noting the plaintiff advised he had been doing normal duties in his job since February 2019. Since the exacerbation, his elbow had been especially painful when his workload increased. He was taking Brufen and Panadol daily.
118Examination confirmed a good range of elbow movement with very minimal extension loss. The plaintiff was recommended, and subsequently underwent, an MRI scan, which, as expected, showed post-traumatic degenerative changes in the elbow.
119When seen on 29 October 2019, the plaintiff’s elbow again settled, with only mild pain when working. Range of movement had returned to nearly full, with good fluency.
120The plaintiff was advised of the diagnosis and recommended symptomatic treatment, as well as ongoing awareness of the elbow’s limitation. That would help to avoid further exacerbations with his manual duties, and he was discharged back to his local general practitioner.
121The plaintiff re-presented on 2 March this year at his solicitor’s request.
122The plaintiff then complained of having pain in his left shoulder and elbow, especially when performing a power grip, and such action caused discomfort in the lateral aspect of his elbow.
123For some reason, the plaintiff had been wearing a thumb elastic support, which gave him some relief. He took Brufen when he arrived home.
124Clinically, the plaintiff’s elbow had minor loss of terminal flexion, and extension range. There was full supination. He had some crepitus in the proximal radial head. Resistant muscle testing confirmed the reproduction of pain over the common extensor origin. He also demonstrated symptoms and signs consistent with a rotator cuff deficiency in the left shoulder. The primary injury in his left elbow was a fracture of the proximal radial head.
125Professor Tan noted, clinically, the plaintiff had made an excellent recovery from the elbow injury point of view. A March 2022 x-ray confirmed minimal degenerative changes in the elbow joint without any intraarticular loose bodies.
126Currently, the plaintiff was doing his pre-injury job, although with some discomfort, which was manageable with simple anti-inflammatory medication. Being right hand dominant, he is currently exhibiting symptoms of decompensation of his left upper limb, including symptoms in his shoulder, common extensor origin at the elbow and in his thumb.
127These symptoms may be present in his duties independent of the presence of his previous injury and related to the repetitive manual nature of his work. No surgery was recommended, but a formal vocational assessment of the workplace would ensure that the plaintiff could carry out his duties properly. Simple analgesics and anti-inflammatory support would also be helpful to ensure a comfortable working day for him.
128Professor Tan expected the plaintiff would have some degree of permanent impairment in his left elbow, with some secondary decompensation sensation symptomatically of his shoulder, wrist and thumb.
Maxvale Physiotherapy
129Post incident, the plaintiff was seen at Maxvale Physiotherapy by Mr Chen, who diagnosed a fracture of the left elbow with open reduction and internal fixation, with fixtures removed in April 2017, left shoulder impingement due to muscle atrophy and restricted elbow movement due to scar tissue formation. The plaintiff was last in July 2018.
130In a report of December 2021, Ms Tang of that practice advised that the plaintiff had been having ongoing physiotherapy until recently, when his WorkCover funding was ceased. Treatment to that time had been managing his persistent pain from the overload of his left arm.
131Prior to this therapy period, the plaintiff had recommended physiotherapy treatment from 18 March 2019 after a break from July 2018. In that break, his condition deteriorated.
132During the current therapy period, the plaintiff was returning back to his full-time role and reported the sessions allowed him to keep going with work.
133Currently, the plaintiff’s pains were still persistent with his increased workload due to lack of staff and the need to cover supervision roles. Furthermore, in order to cope and be at work, he had topped up his own physiotherapy sessions privately to help manage with his flare ups.
134The plaintiff’s main complaint was left side dominant, originating from his left elbow and radiating to the left wrist up to his shoulder. The primary cause of the injury was the comminuted coronoid fracture.
135Secondary causes for his pain presentations were poor elbow range of movement, muscle atrophy post surgery, persistent pain resulting in altered muscle use and poor biomechanics, with high intensity load involving his arm. Therefore, the causes of his injuries were consistent with the stated cause. It was paramount to note the plaintiff was currently on his usual job role and taking on extra workload, which explains why his pain is persistent and unable to resolve completely.
136The plaintiff has good capacity for work, however, if he is to continue with his current work arrangement, increased load with his usual job as a die setter and additional supervisor work with excessive walking in the factory grounds, he would require further strengthening and conditioning to prevent further injuries to his condition.
Medico-legal evidence
Dr Kilner Brasier, occupational and environment specialist physician
137Dr Brasier examined the plaintiff in early 2022.
138Having noted the incident injury and subsequent treatment, Dr Brasier reported the plaintiff had returned to work on suitable duties since his injury and continued to struggle to do the heavier aspects of that work.
139There was no mention in this report of the plaintiff’s cleaning duties.
140The plaintiff is currently worked in a team leader role. He has supervisory experience; however, this has not been leveraged. He is keen to keep working, however, he is no longer able to forcefully use his left arm as before.
141The plaintiff complained of his left arm not feeling the same. He experienced a constant ache from his left shoulder down to the left elbow, and also a feeling of heaviness in the left upper limb, and has to support his left arm when walking long distances.
142Sudden movements of the left elbow cause a sharp pain and the plaintiff experiences intermittent swelling around his left elbow, with his symptoms being aggravated by cold weather. He complained of reduced grip in the left hand, and also numbness in the thumb and index finger.
143Dr Brasier noted significant muscle wasting of the left deltoid musculature. Movement of the left elbow was slightly restricted in extension, and also pronation and supination. There was some swelling around the left olecranon. There was some reduction of left shoulder movement. There was wasting of the thenar eminence musculature in the left hand and grip strength was less than expected given his past occupation.
144Dr Brasier had available the x-ray report of 2 February 2017. He diagnosed a comminuted fracture of the coronoid process of the left elbow superimposed on a previous injury to the head of the radius.
145Dr Brasier thought the symptoms and signs in the left hand were consistent with a carpal tunnel compression syndrome, probably unrelated to the incident, however, likely related to previous heavy work. He had no left shoulder investigations, however, lack of function would suggest the pathology to explain impingement signs and symptoms.
146The plaintiff’s left upper limb condition is consistent with the stated cause.
147The following permanent restrictions were appropriate in terms of the left upper limb injury.
· Avoid heavy pushing or pulling with the left upper limb.
· Avoid lifting weights greater than 20 kilograms using the left upper limb.
· Avoid the use of heavy power tools with the left upper limb.
· Avoid working above shoulder height with the left upper limb.
148The plaintiff has no capacity to return to his pre-injury position of employment and has a realistic capacity for work in a more sedentary role, such as a team leader or supervisor on a full-time basis.
149The prognosis is guarded, and the plaintiff is likely to experience further degenerative changes in his left elbow that may require further treatment and/or surgery.
Dr Nigel Strauss, psychiatrist
150Dr Strauss examined the plaintiff in February 2022. In his history, there was no mention of the cleaning job.
151Dr Strauss diagnosed a Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood because of employment.
Investigations
152The plaintiff had an x-ray of his left elbow on 2 February 2017, which showed a comminuted fracture at the coronoid process on the lateral view.
153Following a left elbow CT scan on 3 February 2017 organised by Professor Tran, it was reported there was a moderately comminuted fracture through the base of the coronoid process. The dominant, major fracture fragment measured 15 x 12 millimetres and was displaced by 10 millimetres.
154Multiple small fracture fragments were identified in the posterior elbow joint recess large effusion. Background osteoarthritis involves the radiohumeral articulation. There was no radial neck fracture and no distal humeral fracture.
155There was a left elbow x-ray organised by Professor Tran on 23 March 2017. It was reported a single screw was transfixed to the coronoid process of the humerus. The alignment was as demonstrated. Elbow joint effusion was noted.
156Dr Vu organised a nerve conduction study in November 2017. The study was mildly abnormal. The findings were consistent with electrically mild compression of sensory fibres of the median nerve of the carpal tunnel on the left side. The left radial nerve appeared electrically normal.
157Professor Tran organised an MRI scan of the left elbow in October 2019. It was reported the major abnormality was post-traumatic osteoarthritis and degenerative changes in the left elbow joint. Loose fragments likely incorporated into the joint capsule adjacent to the coracoid process.
158Dr Vu organised an x-ray of the left shoulder in September 2019. It was reported there was partial joint space narrowing seen at three compartments of the left elbow. Osteophytes were noted at the radial head and on the medial margins of the joint space between the trochlear and the coronoid process. An intraarticular loose body of 9 millimetres was seen anteriorly.
159There was a left hand x-ray in May 2021. It was reported there was no acute bony abnormality seen. There was minimal interphalangeal joint degenerative change present throughout, slightly more advanced at the level of the DIP joints. First carpal joint degeneration was also seen, as was early radiocarpal joint degeneration.
160Professor Tran organised an x-ray of the left elbow in March 2022. It was reported there was moderate OA changes at the radiocapitellar and ulnotrochlear joint, more marked at the ulnotrochlear joint. There was no intraarticular loose body, no effusion and no cortical break or articular erosion.
161Dr Vu arranged an ultrasound of the left shoulder in March 2022. The findings were nonspecific, with adhesive capsulitis one possibility. It was noted, if the conservative management was not adequate, steroid injection into the subdeltoid bursa might improve range of movement, a less invasive procedure compared to hydrodilatation.
Claim documentation
162The plaintiff signed a Claim Form on 7 February 2017, setting out an injury to the elbow in the incident. He left blank the box which read “Did you have any other employment at the time you were injured?”
163By letter dated 14 February 2017, CGU advised the plaintiff that his claim for medical and like expenses and weekly payments in relation to the incident injury had been accepted.
164By letter dated 29 April 2019, CGU advised the plaintiff his s98 claim in relation to the left elbow had been accepted, but liability was rejected for the left shoulder, left arm and left hand, based on the assessment by Mr Gale, general surgeon.
The Defendant’s medical evidence
Clinical notes
Dr Vu
165Dr Vu noted on 22 August 2016, the plaintiff complained of right shoulder pain for three weeks. He was advised it was a soft tissue strain and Panadol and massage was suggested.
166The next visit for the right shoulder was 2 November 2016, when it was noted the plaintiff had a painful right shoulder head at the biceps tendon region. Testing of the right shoulder was ordered and Brufen prescribed.
167The plaintiff attended a week later, complaining of similar symptoms. On 24 December 2016, the plaintiff presented for review of the same problem.
168The plaintiff attended on 27 February 2017 for review, having had a fall at work and injuring his elbow, and having had surgery.
Professor Tan
169After 20 June 2017, the plaintiff next saw Professor Tran on 9 October 2019, when it was noted:
“left elbow become sore and stiff - normal duty and job since Feb 2019. …
3 wks ago - acute pain in the left elbow especially with lot of work
…
normal range with minimal extension loss.”
170On 29 October 2019, the history was:
“[L]eft elbow - settling with pain when working, nearly full and fluid range.”
171The key diagnosis was OA.
Medico-legal evidence
Dr P D Clark, occupational physician
172Dr Clark examined the plaintiff in relation to his statutory benefits’ entitlements a couple of months after the incident, seeing him in May 2017.
173He thought the plaintiff had residual dysfunction of his left upper limb following a left elbow fracture treated surgically and that it would be a further two or three months before the plaintiff would be fit to resume his pre-injury duties.
174On 6 June that year, Dr Clark attended a worksite assessment and noted a platform had been installed to overcome the access problem which contributed to the incident.
175Dr Clark then thought the plaintiff was fit to return to largely administrative duties.
Dr Majid Rahgozar, consultant occupational physician
176Dr Rahgozar examined the plaintiff in October 2017.
177There was no mention of the plaintiff’s concurrent work as a cleaner in that report.
178On examination, there was no abnormal gait, posture or behaviour. There was mild swelling of the left elbow and the surgical scar. Shoulder joint movement was normal. Range of motion of the left wrist revealed about 30 degrees and mildly reduced extension to about 45 degrees.
179Neurological examination of the upper limb was consistent with hyperaesthesia in the distribution of the median nerve in the left wrist and hand, and the possibility of some wasting in the thenar area. There was reduced force of muscles enervated by the median nerve and overall grip strength.
180There was tenderness over the lateral epicondyle and anterior aspect of the joint. A range of left elbow movement caused pain.
181Dr Rahgozar then thought the plaintiff had a capacity for normal hours of restricted work.
182The plaintiff had a fall at work resulting in fracture of the coronoid process of the left elbow and was not fit for pre-injury duties. The return to work plan at that stage was reasonable.
183In a supplementary report, having reviewed the left elbow CT scan of 3 February 2017, as well as the operation reports and the nerve conduction studies, Dr Rahgozar diagnosed mild carpal tunnel syndrome on the left, which had not resolved at that stage.
184Following a worksite assessment in March 2018, Dr Rahgozar thought the plaintiff was not fit for pre-injury duties.
185He thought the plaintiff had had a significant injury to his elbow requiring surgery, and when he was reviewed, had evidence of ongoing mechanical dysfunction of the left elbow. He also had evidence of nerve entrapment in the forearm and wrist, consistent with medium neuropathy and carpal tunnel syndrome.
186The activities of the role of die setter had the potential to aggravate the plaintiff’s left elbow condition as well as his carpal tunnel syndrome. He was not fit for his pre-injury role on a long-term basis.
187On re-examination in March 2018, there was no abnormal gait, posture or behaviour. The plaintiff had tenderness over the medial epicondyle of the left elbow and crepitations on passive movements. Range of movement of the left elbow was normal and symmetrical with the right.
188The circumference of the biceps at 15 centimetres above the acromion on the right was 32 centimetres and 31 centimetres on the left. The circumference of the forearm at 10 centimetres below the acromion was 28 centimetres on the right and 26 centimetres on the left. Range of motion of the wrist joints was normal, as was grip strength in neurological examination of the upper limbs.
189Dr Rahgozar thought the plaintiff was not fit for pre-injury duties without restriction. He should avoid forceful grabbing or grasping with the left hand and lifting, pushing or pulling heavy objects in a repetitive fashion.
190In the long term, an attempt should be made to change the direction of the plaintiff’s employment to activities that do not require forceful grabbing, grasping, lifting, pushing or pulling of heavy objects in a repetitive manner. He was not fit for unrestricted pre-injury work.
The Medical Panel
191The Medical Panel, in September 2019, allowed a 5 per cent whole person impairment relating to the left elbow injury – made up of abnormal motion, nerve injury and scarring to the left elbow.
192There was no mention in its vocational history of the plaintiff’s cleaning job.
193The Panel noted it came to a different conclusion to Mr Gale’s assessment of 1 per cent.
Mr Thomas Robbins, hand, plastic and reconstructive surgeon
194Mr Robbins examined the plaintiff on Telehealth in October 2020.
195The plaintiff’s complaints, then, were not being able to lift his shoulder high and not fully flex his elbow. He complained of loss of sensation in his thumb and index finger and in adjacent parts of the palm. He also complained of reduced grip. He complained of pain all the time, but especially when using his left elbow, and after using it.
196On examination, there was a reduced abduction of the left shoulder by a few degrees and 10 degrees loss of extension of the left elbow.
197On examination by video, Mr Robbins was sceptical of the restrictions demonstrated. He thought the findings with respect to the left shoulder were consistent with a similar age and gender, and work background. Grip strength could not be tested, but the grip strength measured by the Medical Panel was equal on both sides.
198Mr Robbins was sceptical about the apparent reduced abduction of the left shoulder and reduced flexion of the left elbow, and apparently sensory changes in the left hand. If they were real, he considered them to be slight and should recover with time. No further treatment was necessary.
199He believed the plaintiff’s symptoms were largely due to functional overlay and exaggeration, possibly for compensation purposes. He did not then believe the plaintiff’s employment was materially contributing to any incapacity or impairment. It was now four-and-a-half years since the incident and the injury would be expected to have completely resolved by now.
200On re-examination in March 2022, Mr Robbins noted the plaintiff’s “claimed” injuries are injury to the left elbow involving a comminuted fracture of the coronoid process requiring surgery, impairment of the left median nerve causing sensory loss in the left arm and hand, loss of function of the left upper limb, injury to the left shoulder, loss of grip strength, surgical scarring and psychological reaction.
201On examination, all movements of both left shoulder and elbow, actively, were a few degrees of full range compared to the right. Passively, they could be extended to full range, but the plaintiff complained of pain. There was a full range of movement of the fingers and wrist. He complained of numbness in the index finger and thumb, extending to his elbow.
202Mr Robbins believed the plaintiff had made a full recovery and his complaints were difficult to explain physically. He thought the prognosis was guarded, mainly due to the plaintiff’s attitude to his injury. He did not believe he needed further treatment.
203The plaintiff claimed the injuries had affected his work capacity, in that any heavy use of the right hand required assistance because of pain, but Mr Robbins was sceptical of this. He thought the plaintiff had a capacity for suitable employment without restrictions.
204He thought the plaintiff’s symptoms were either due to functional overlay or were deliberate for the pursuit of compensation. He did not believe the employment was materially contributing to any incapacity or impairment, noting the incident was over five years ago and the injuries sustained would have been expected to have completely resolved by now. Also, the plaintiff is working full time, with full duties,
Overview
205There is no dispute but that, as a result of the incident, the plaintiff suffered a left elbow fracture dislocation which required surgery on 21 February 2017 by way of an open reduction and internal fixation carried out by Professor Tran. Further surgery to remove the screw in the elbow was undertaken in April that year.
206The plaintiff’s claim was accepted, and he received an impairment benefit in September 2019 of 5 per cent for scarring, reduced movement and nerve damage to the left elbow.
Credit
207As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[49]
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
[49](supra) at paragraph [12]
208Counsel for the defendant indicated this initially was not a credit case but had become so when the plaintiff, in his most recent affidavit, for the first time mentioned having a cleaning job as well as his work with the employer:
“The borderline case had gone backwards, with this ability to do two jobs, which speaks of capacity beyond what he deposes to and then it comes to credit as to late divulging. It was submitted it was fanciful to accept that he would not have been asked when the affidavit was being drafted as to alternative sources of income.”[50]
[50] T64
209The initial affidavit was at pains to describe the difficulties at Viscount and the plaintiff’s failure to mention the cleaning cannot be excused on the basis it was not relevant. Clearly, the enquirer, in drafting the affidavit, would have made such an enquiry and would have received a falsehood.[51]
[51] T64
210The topic of concurrent work came up in doctors’ histories, and the absence of such history given by the plaintiff must speak of a deliberate attempt.[52] There were thirteen reported histories of opportunities to disclose this, and he did not. It was implausible it was anything other than a deliberate attempt to deceive. In those circumstances, the Court must then view complaints of subjective pain and restriction “through a lens of some distrust”.[53]
[52] T64
[53] T65
211The doctors rely on a history of difficulties with the job with the employer and no history of cleaning. In all those circumstances, the failure of those doctors to have a full picture of the plaintiff’s work capacity calls into question the totality of their opinion.[54]
[54] T66, Dordev v Cowan & Ors [2006] VSCA 254 at paragraph [66]
212Further, Mr Robbins thought the plaintiff was exaggerating his condition.[55]
[55] T70
213There was no affidavit from the plaintiff’s wife, with whom he worked and lived, and would know intimate details of his work in the cleaning job and any restrictions he has.[56]
[56] T53
214Completing a taxation return and mentioning the cleaning job did not make any difference because the plaintiff was obliged to file a return. Even when the plaintiff divulged his cleaning duties, it was submitted he remained somewhat loose with his candour, talking about a colleague in his affidavit when he was working with his wife. Why would you say that if it was his wife?[57]
[57] T66
215Counsel for the defendant accepted the plaintiff gave his evidence as best he could, but the explanation he gave of failing to divulge such an important aspect could not withstand appropriate rigour. The conclusion must be there was an attempt to deceive and that the doctors were operating on a misapprehension of the plaintiff’s abilities.[58]
[58] T67
216Counsel for the plaintiff submitted the plaintiff is someone who should be accepted as a credible stoic who clearly has the need to continue to work and work two jobs.[59]
[59] T88
217The Court should accept the plaintiff as a witness of truth, who gave his evidence in a frank and direct manner, and made appropriate concessions. He just did not consider the cleaning job in his first affidavit, and it was appropriately addressed in his second affidavit sworn on 30 March 2022, giving the defendant time to challenge the plaintiff’s evidence about his difficulties at work and his need for assistance.[60] The defendant had not done so.
[60] T76
218Generally, I found the plaintiff to be a truthful witness, although it was difficult to understand why he had not mentioned his cleaning work to any examiners or until his second affidavit. In any event, in my view, the light nature of the cleaning duties would not have affected the medical examiner’s ultimate conclusions in any material way. Further, the plaintiff declared all his earnings from cleaning in his taxation returns.
219In the absence of this issue, counsel for the defendant conceded that the plaintiff gave his evidence in a straightforward and truthful way, as I have found.
220In my view, the plaintiff’s attempts to return to work with the employer after the initial surgery and later on, are indicative of a level of stoicism and motivation to work, despite elbow pain.
221As Nettle JA commented in Dwyer v CalcoTimbers Pty Ltd (No 2),[61] he suspected:
“… but for the way the appellant has been prepared to put up with his pain and suffering and get on with his business as best he can, the respondent may well have not disputed his claim … But it would be unfortunate and in my view wrongheaded if in future such an applicant were treated less favourably than another who, being of less strength of character, simply resigned himself to his injury.”
[61] [2008] VSCA 260 at paragraph [4]
222In any event, despite the importance of credibility, reliable medical evidence should not be disregarded merely due to concerns about the plaintiff’s credibility. The case must be decided on the whole of the evidence including evidence of diagnostic tests which are unaffected by the plaintiff’s credit.[62]
[62] Cakir v Arnotts Biscuits Proprietary Limited [2007] VSCA 104 at paragraph [49]
223In the incident, the plaintiff suffered a comminuted fracture of the coronoid process of the left elbow superimposed on a previous injury to the head of the radius – an organically based condition – shown on post-incident investigations.[63]
[63] T77
224While Mr Robbins is a hand surgeon, he is alone in his view any current left elbow problem is not organically based and is functional or a deliberate pursuit of compensation by the plaintiff. He describes the fracture as a “claimed injury” and was sceptical at the outset about the veracity of the plaintiff’s complaints. He provided no timeline or analysis of when the plaintiff’s operated elbow condition became non-organic in circumstances where no other examiner had concerns of this nature.
225Mr Robbins is an outlier, while all other examiners, including five reports from those engaged by the defendant in 2017 and 2018, are supportive of the elbow condition having an organic basis.[64]
[64] T77
226Further, counsel for the plaintiff submitted the left upper limb impairment also included some sensory loss in the left forearm and also left shoulder capsulitis. It was submitted it was permissible for these conditions to be aggregated with the left elbow injury when considering the left upper limb impairment as recently held by the Court in Victorian WorkCover Authority v Brassington.[65]
[65] [2021] VSCA 236; T74
227On the limited evidence, I am not satisfied that any left shoulder condition or minor carpal tunnel syndrome is related to the incident injury.
228Nerve conduction studies in 2017 showed mild abnormality of the left median nerve sensory function consistent with mild left carpal tunnel syndrome. Dr Brasier thought the carpal tunnel was unrelated to the incident and likely related to the heavy nature of the plaintiff’s work.[66]
[66] T72
229There has been no suggestion of surgery for this condition and the plaintiff has received no other treatment in relation thereto.
230The plaintiff’s left shoulder problems came on two years after the incident. There has been no proper analysis as to any causal relationship between the shoulder and the incident injury.[67] Further, Dr Brasier had no shoulder investigations and simply stated lack of function would suggest some pathology there to explain impingement symptoms and signs.
[67] T71
231Professor Tran’s comments about left shoulder symptoms being part of decompensation of the left upper are hard to follow.
232While Dr Vu diagnosed adhesive capsulitis, he did not link it to the incident, commenting it was possibly a work-related injury due to strain on his left elbow marking too much pressure on his left shoulder when performing duties leading to the injury.[68]
[68] T72
233The plaintiff agreed, when he was recently seen by Mr Robbins, his range of shoulder movement was nearly full.
234In these circumstances, any incident-related left upper limb impairment is limited to the left elbow.
Consequences
235As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[69]
“The evidentiary basis of the pain assessment will ordinarily comprise, inter alia, what the plaintiff says about the pain (both in court and to doctors); … .” [70]
[69] Supra
[70]at paragraph [11]
236Although his treating surgeon, Professor Tran, considered the plaintiff had made an excellent recovery from the surgery, I accept that the plaintiff continues to experience a constant ache and a feeling of heaviness in his left elbow.
237Certain movements can cause a sharp pain in his left elbow, and he tries not to fully extend it, because that tends to cause an ache and pain. He avoids any heavy activity with his left arm and feels he has lost strength in that limb. He has an aching sensation in his right arm as a result of avoiding use of his left.[71]
[71] T75
Treatment
238The plaintiff has remained under the care of his general practitioner, Dr Vu, for his ongoing elbow complaints.
239After the initial two surgical procedures, the plaintiff has attended specialists at Monash Neurology in August 2018 and also been referred back to Professor Tran in September 2019. While the plaintiff recently saw Professor Tan for medico-legal purposes in March this year, he complained to him of ongoing elbow problems.
240The plaintiff has had regular physiotherapy treatment, initially with Dr Chen until July 2018, and recommencing in March 2019 with Ms Tang, who confirmed there was a deterioration in his condition during that break in treatment. In more recent times, the plaintiff has self-funded physiotherapy at $120 to enable him to continue working as he described, and Ms Tang confirmed.[72]
[72] T84
241The plaintiff takes Brufen, uses a heat pack and wears a brace at his physiotherapist’s suggestion. He also does his own exercises at home.
Examination findings
242There have been findings of upper limb wasting by Dr Rahgozar and Dr Brasier.
243Range of elbow movement has varied on examination.
244In September 2019, the Medical Panel allowed a percentage for restriction in elbow flexion and pronation. In his March 2022 report, Dr Vu noted mild tenderness in the elbow with significant limited movement on external rotation and extension. Professor Tran recently found a minor loss of terminal flexion and extension. Mr Robbins found range of elbow movement a few degrees short of full.
Work
245Counsel for the defendant submitted that over the last four years, the plaintiff had been able to work hard each day for eight-and-a-half hours a day with the employer and dutifully attend his cleaning job for three hours in a role that had some physical tasks.
246The worksite assessment showed, both pre and post injury, the plaintiff was doing very physical work.
247In terms of the cleaning job, while not significantly physical, it still had a physical component, and a division of labour would be common in any scenario absent injury.[73] Further, cleaning work is sometimes done under pressure.
[73] T62
248It was submitted the return to work is not a case of stoicism in circumstances where the plaintiff requires limited medication. He is very proud of his income and provides for his family. He has continued to work full time for the employer and retained the ability to earn $25,000 more than pre injury.[74]
[74] T74
249Counsel for the plaintiff relied on the plaintiff’s unchallenged evidence as to the alteration in his normal duties post incident, with the need for a co-worker to help.[75]
[75] T77
250Post-surgery, the plaintiff undertook light duties for about eighteen months from July 2017. Dr Clark, and later Dr Rahgozar, who examined the plaintiff on the insurer’s behalf, were supportive of this course.
251He was finally cleared to resume full-time duties in February 2019 but sought this clearance as he felt his job was in jeopardy. His concerns about his job security continue.
252His elbow symptoms were aggravated on his return to heavier duties, and he sought further treatment in 2019 including specialist referral. He continues physiotherapy to assist him cope with his current duties. He has also been given assistance with his duties by the employer at his request. He would be more suited to supervisory duties if they were made available to him.
253Overtime with the employer is now limited to supervisory duties on weekends, not working extra time in his job after work as was the situation pre incident.
254In my view, the plaintiff is somewhat of a stoic who has done his best to continue working after two operations.
255I accept he continues to do his duties with the employer with some difficulty, requiring assistance, as he is no longer able to use his left arm forcefully as he did pre incident. As recently as December last year, he required a day off because of increased elbow pain.
256As a result of his elbow injury, the plaintiff has lost the capacity to do unrestricted work as occupational physician, Dr Brasier, concluded – a significant consequence for an unqualified man who has done only manual work. Loss of ability to undertake pre-incident work is relevant when considering pain and suffering.[76]
[76] Haden Engineering (supra) at paragraph [15]; Peak Engineering & Anor v McKenzie [2014] VSCA 67 at paragraph [38]; Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326 at paragraph [35]
257I accept the cleaning work which the plaintiff does with his wife is light and somewhat self-paced. Further, these light tasks would largely be done with his right hand.
Other activities
258The plaintiff is a man with limited hobbies. Since the incident he has been unable to play social badminton and tennis due to his elbow injury.
259He is limited in the gardening activities he is able to perform and now has to employ someone to mow the lawns. His ability to undertake heavier household tasks is also restricted.
260Driving remains an issue due to ongoing pain and stiffness in his left arm and difficulty straightening it.
261There is some impact on his sleep if he rolls onto his elbow at night. He takes Brufen to help him sleep.
262Taking into account all the evidence,[77] I am satisfied that the consequences of the left elbow impairment are “serious”.
[77] Church v Echuca Regional Health (2008) 20 VR 566
263Despite surgery and conservative treatment, the plaintiff’s left elbow problems have continued some five years post incident. In those circumstances, I accept the impairment is permanent, as Dr Vu, his long-term treater, concluded.
264Accordingly, I grant leave to the plaintiff to bring proceedings for damages for pain and suffering.
265Having found the plaintiff has a serious injury in relation to his left elbow, it is not necessary to consider the application under (b) for disfigurement.
266However, in my view, the surgical scars – a 9 centimetre scar and a 5 centimetre scar[78] – were well healed and do not constitute a serious disfigurement.[79]
[78] Medical Panel examination on 10 September 2019
[79] T73; Transport Accident Commission v Garcia [2015] VSCA 225
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