Catanzaro v VWA

[2024] VCC 1147

p

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-24-00126

Frank Catanzaro	Plaintiff
v
VICTORIAN WORKCOVER AUTHORITY	Defendant

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JUDGE:	Her Honour Judge Sanger
WHERE HELD:	Melbourne
DATE OF HEARING:	31 July 2024
DATE OF JUDGMENT:	20 August 2024
CASE MAY BE CITED AS:	Catanzaro v VWA
MEDIUM NEUTRAL CITATION:	[2024] VCC 1147

REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION

Catchwords:              Serious injury application – injury to upper left limb, specifically the left forearm, elbow and hand – paragraph (a) - pain and suffering consequences – credibility – range – disentangling physical and psychological consequences

Legislation Cited:      Workplace Injury and Rehabilitation Compensation Act 2013 (Vic), s325(2), s335

Cases Cited:Humphries and Anor v Poljak [1992] 2 VR 129; Meadows v Lichmore Pty Ltd [2013] VSCA 2017; Peak Engineering & Anor v McKenzie [2014] VSCA 67; Barwon Spinners v Podolak (2005) 14 VR 622; Ellis Management Services Pty Ltd v Taylor [2013] VSCA 362; Dwyer v Calco Timbers Pty Ltd (No.2) [2008] VSCA 260

Judgment:                  Leave granted to the plaintiff to issue proceedings for the recovery of pain and suffering damages

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A. Macnab SC with Ms F. Blair	Slater and Gordon
For the Defendant	Ms G-J. Cooper	Wisewould Mahoney

HER HONOUR:

Introduction

1Mr Catanzaro is a fifty-one-year-old man who sustained injuries to his left upper limb in an incident on 8 September 2021 during the course of his employment with TFG Group Pty Ltd (“the employer”).

2Mr Catanzaro makes his application pursuant to s335 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) for a determination that his pain and suffering consequences to his left upper limb are “at least very considerable” and “more than significant or marked.”[1] He relies on paragraph (a) of the Act. He abandoned his reliance on paragraph (c) the day prior to the hearing.

[1]Humphries and Anor v Poljak [1992] 2 VR 129 at 140 (“Humphries”)

3Mr Catanzaro was the only witness to give oral evidence and be cross-examined. The parties tendered various reports from their respective court books. The defendant also relied on surveillance footage of Mr Catanzaro.

4I have considered Mr Catanzaro’s affidavits and evidence at the hearing, the lay affidavit of his partner, Ms Mary Tralci, and the evidence of the experts relied on at the hearing. While I do not propose to refer to all the evidence in providing my reasons, I shall refer to the evidence to the extent necessary to explain my reasons.

5Counsel for the defendant conceded that there was no dispute about the injury, that being left lateral epicondylitis,[2] and that it arose in compensable circumstances.

[2]Irritation of the tissue connecting the forearm muscle to the elbow, known colloquially as tennis elbow.

6The issues that needed to be resolved in this case were:

(a)   Credit: was Mr Catanzaro’s credit damaged by inconsistencies between his evidence, his histories to the medical practitioners and the surveillance material?

(b)   Injury: can the physical consequences of the organic injury be disentangled from the consequences attributable to the psychological injury?

(c)   Range: if yes to the above question, can the consequences arising from the left upper limb impairment be fairly described as being “very considerable”?

7For the reasons set out below, I find that Mr Catanzaro is entitled to leave to proceed with a claim for damages for his pain and suffering arising from the injuries sustained on 8 September 2021.

Brief relevant background matters

8The background facts were not in dispute.

9Mr Catanzaro was born in 1972. He completed Year 10 or 11 at secondary school, before commencing a carpentry apprenticeship. Although he learned how to complete carpentry work, he did not obtain a formal qualification.[3] However, this did not exclude him from working as a carpenter and as a concreter for many years.

[3]Exhibit P1, Plaintiff’s Court Book (“PCB”) 15 at paragraph [4]

10He also worked in the security industry with Wilsons Security for approximately six to seven years, and during this time he was licenced to carry a handgun. Ultimately, he decided to leave the security industry due to the increasing administrative demands and the requirement to use a computer, which were tasks that he struggled with.[4]

[4]Exhibit P1, PCB 15 at paragraph [6]

11He provided a brief relevant medical history in his affidavit, where he noted that he sustained a back injury approximately 10 to 15 years ago and underwent a spinal fusion.[5] Although he experiences back pain on occasion, this did not prevent him from returning to work in the construction industry, or from engaging in gym or other daily activities.   

[5]Exhibit P1, PCB 16 at paragraph [10]

12He also experienced psychological symptoms arising from this injury. He had discussed his symptoms with his general practitioner. He was “feeling very well within himself” prior to the incident.[6]

[6]Exhibit D1, PCB 97

13Mr Catanzaro was employed with the employer as a trades assistant in or around May 2021. The employer is a steel fabrication company and it was his role to assist the steel welders onsite by delivering equipment, removing waste and any other tasks as directed.[7] One of his tasks was to deliver and swap large argon gas bottles used by the welders, which weighed approximately 50-60 kilograms each.

[7]Exhibit P1, PCB 16 at paragraph [15]

14On 8 September 2021, one of these argon gas bottles, which was unsecured at the time, fell on the ground. Mr Catanzaro was startled by the sudden noise, and was concerned that the gas bottles could explode or become a missile if the top valve was damaged.[8] The bottle that fell struck a second bottle in the process, causing it to become unstable. Mr Catanzaro attempted to catch the second bottle as it fell, causing injury to his left arm and hand.

[8]Exhibit P1, PCB 17 at paragraph [18]

15Mr Catanzaro placed ice on the injured area and reported the incident to his supervisor. Due to the severity of pain, he left work early and consulted his general practitioner, who recommended he undergo an MRI.[9] He was also referred to an orthopaedic surgeon, Mr James Chui, who did not recommend surgery.

[9]Exhibit P1, PCB 18 at paragraph [23]

16On 12 May 2022, he underwent an ultrasound-guided cortisone injection and a local anaesthetic injection into his left elbow, which did not provide any lasting relief.[10]

[10]Exhibit P1, PCB 18 at paragraph [24]

17Mr Catanzaro has not returned to work since the date of the accident.

18Mr Catanzaro currently lives with Ms Tralci and her twin daughters. He has a daughter with his former partner, and he has a good relationship with both.

Credit

19Counsel for the defendant submitted that Mr Catanzaro was not a credible and reliable witness as his presentation in the surveillance material was inconsistent with his affidavit evidence. Counsel submitted that:

(a)   His affidavits described, and his presentation to doctors was of, someone who has very limited use of his left arm on a day-to-day basis, and is in constant and significant pain. It was also someone who was highly anxious, distressed and had difficulty leaving the house. Counsel submitted that this was not demonstrated in the surveillance footage. The footage instead revealed a man who uses his left arm in a free and unrestricted fashion, without any demonstration of avoidance behaviours.

(b)   The surveillance material was incongruous with the way that Mr Catanzaro presented to the psychiatrists and doctors who assessed him in this case. It is unlikely that the surveillance footage happened to catch Mr Catanzaro on his one good day, for both his physical and psychological symptoms, given his consistently poor presentation to medical practitioners. Counsel submitted it was more likely that Mr Catanzaro had exaggerated his symptoms. Counsel also submitted that Associate Professor Doherty's concerns about Mr Catanzaro's presentation[11] were borne out in the footage.

[11]        Exhibit D4, Defendant’s Court Book (“DCB”) 29

20Counsel for the defendant further submitted that the Court could not accept what Mr Catanzaro had said about his physical restrictions. Mr Catanzaro's exaggerated evidence regarding his psychological impairment was relevant to the assessment of his credit.

21Counsel for the defendant played video surveillance that was 58 minutes in length taken between 10:19am and 2:35pm on 10 April 2024. Counsel advised that Mr Catanzaro had been subjected to 15.75 hours of surveillance over three separate days,[12] and that the surveillance footage shown in Court was the only video that had been obtained.[13]

[12]Transcript (“T”) 42, Lines (“L”) 14-31

[13]T43, L3-13

22The video surveillance showed Mr Catanzaro:

(a)   Loading the back of a ute between 10:19am and 10:30am. He is seen using both arms to open and close the ute tray gate, loading boxes into the tray, with the assistance of his partner at times, opening and closing the cab door, and driving the ute out of the driveway. He is also seen checking the mailbox, opening the flap with his left arm.

(b)   Eating at a café with his partner between 1:23pm and 1:44pm. The footage shows him eating using both hands to bring the food to his face, and unscrewing a bottle lid with his left hand. He is also seen opening a door with his left hand and speaking to staff.

(c)   Having a haircut between 1:51pm and 2:16pm at a hairdresser in a local shopping centre. The shopping centre did not appear to be crowded or busy. Mr Catanzaro is seen sitting with his hands by his side under a barbers’ smock. He lifted either his left or right hand to touch his face and chin several times during this part of the footage. He spoke with a passerby, and with his partner, who entered and exited the hairdressers a few times throughout. 

(d)   At his parked car with his dog between 2:18pm and 2:35pm. The footage shows Mr Catanzaro open the car boot with his left arm, then lift his large dog into the boot using both arms to support the dog’s underbelly. The remainder of the footage depicted Mr Catanzaro sitting in the car after closing the boot door with his right arm.

23The most significant aspects of the footage were Mr Catanzaro unscrewing a bottle with his left hand, opening a door with his left arm, and being in a shopping centre.

24Prior to the video being shown, Mr Catanzaro said that he had difficulty unscrewing the lids of bottles, although he could do it.[14] Thus, I did not find that his presentation on the video was inconsistent with this evidence.

[14]        T11, L22-24, 30

25The footage did not show him opening the café door with any force. Thus, I did not find it inconsistent with his evidence.

26While he told Dr Wyatt that he avoided shopping centres, when this was put to him in cross-examination he said that may have been the case at that time. He said that he went to the local shopping centre with his partner, and that his partner stayed with him. While the video surveillance showed his partner coming and going while he was having a haircut, I did not find this inconsistent with his evidence. His evidence was that the hairdresser and owner of the café were known to him. He made a distinction between his local familiar shopping centre and other shopping centres when answering questions after the video surveillance was shown. In considering his evidence overall, I found that his evidence regarding his ability to attend shopping centres was not inconsistent with his presentation on the video surveillance.

27I found the video surveillance to be unremarkable. The video surveillance was not shown to any of the medical experts, and thus there was no evidence from them regarding any inconsistencies between Mr Catanzaro’s presentation in the video as compared to his presentation to them. I found that the activities and movements that the footage showed Mr Catanzaro undertaking were consistent with the restrictions outlined by the practitioners who had examined him.

28Mr Catanzaro gave his evidence in a credible fashion and made concessions where appropriate. I found him to be a straightforward witness. I find he was not trying to mislead the Court or exaggerate his symptoms or injury.

29I therefore find that Mr Catanzaro was a credible and reliable witness. I accept his evidence.

Injury and disentanglement  

30Counsel for the defendant submitted that Mr Catanzaro had either failed to disentangle the consequences arising from the lateral epicondylitis from his psychological injury based on the medical evidence (“the first submission”),[15] or in the alternative, that the consequences arising from the psychological injury were so profound that any consequences properly attributed to the physical injury could not meet the test for serious injury (“the second submission”).[16]

[15]Meadows v Lichmore Pty Ltd [2013] VSCA 2017, [29] (“Meadows”)

[16]Peak Engineering & Anor v McKenzie [2014] VSCA 67, [24]

31The first submission was relevant to consideration of ‘injury’. The second was relevant to consideration of ‘consequences’.

32Counsel for Mr Catanzaro acknowledged that disentanglement was required in this case.[17]

[17]        T60, L29-30

33In support of her first submission, counsel for the defendant took me through the reports of the treating and medico-legal practitioners. In summary, she submitted that:

(a)   The treating physiotherapist and general practitioner, Mr Seng and Dr Dassanayake respectively, believed there was a very significant psychological component to Mr Catanzaro’s presentation.[18]

[18]        Exhibit P4, PCB 50; Exhibit P7, PCB 65 and 68; T50, L18-21

(b)   Mr Ghobrial, the treating physiotherapist, had not made any attempt to disentangle the physical and psychological consequences of the impairment.[19]

(c)   Mr Moaveni relied on limited radiology, with the latest document being an MRI of Mr Catanzaro’s left elbow dated 29 March 2022, and limited objective findings on examination before providing his diagnosis, and he did not engage with Mr Catanzaro’s psychological condition.[20]

(d)   Dr Thomas had not been able to point to any objective evidence of nerve irritation, and had recommended psychological treatment, from which I could infer that he knew that there was a significant psychological component to the injury.[21]

(e)   Dr Serry’s opinion regarding the limitations imposed on Mr Catanzaro by reason of the injury reveal that these limitations are based on his psychological condition. It is his psychological condition which prevents him from returning to work in any capacity.[22]

(f)    Dr Horsley’s opinion was that the psychiatric condition was really the primary driver of his recovery.[23]

(g)   Dr Long, who Mr Catanzaro saw three months after the injury, anticipated recovery of the physical injury within two to three months.[24]

(h)   Associate Professor Love did not differentiate between the physical and psychological consequences, and recommended an inpatient stay for Mr Catanzaro’s psychological symptoms.[25]

(i)    While Associate Professor Romas was an outlier with respect to causation, his clinical examination revealed a lack of objective signs of physical injury.[26]

(j)    Dr Wyatt formed the view that Mr Catanzaro’s mental ill health was impacting his physical presentation beyond what she would expect to see.[27]

(k)   Associate Professor Doherty found Mr Catanzaro had no work capacity based on his psychological condition.[28]

[19]        Exhibit P8, PCB 71; T50, L29-30

[20]Exhibit P9; T51, L27-30; T52, L1-6

[21]Exhibit P10, PCB 89-90; T52, L22-31; T53, L1-3

[22]Exhibit D1, PCB 103; T53, L19-21

[23]Exhibit P11, PCB 119; T54, L4-5

[24]Exhibit P12, PCB 125; T54, L26-31; T55, L1-4

[25]Exhibit P13, PCB 134;T55, L8-13

[26]Exhibit D2, DCB 10-11; T56, L8-9

[27]Exhibit D3, DCB 13; T57, L19-24

[28]Exhibit D4, DCB 29; T58, L2-5

34Having considered counsel’s contentions and reviewed the medical material, I reject these submissions.

35Dr Dassanayake and Mr Seng were long term treating practitioners of Mr Catanzaro, and thus had the benefit of having seen him many times. Both referred to Mr Catanzaro’s profound mental health issues and resulting consequences in their reports.[29] However, both of them grounded their opinion in the physical, organic injury, and offered their opinion about the ongoing restrictions Mr Catanzaro will have arising from the organic injury.[30]

[29]        Exhibit P4, PCB 50; Exhibit P7, PCB 66 and 68

[30]        Exhibit P4, PCB 48, 50 and 55; Exhibit P7, PCB 66 and 68

36Dr Dassanayake was asked about Mr Catanzaro’s capacity for work as a result of his physical injury, to which he said that Mr Catanzaro was not yet in a position to return to his pre-injury work. While he noted that the pain that Mr Catanzaro experienced was not accompanied by any obvious swelling, redness or deformity, his answer to this question differed from his answer to the question about his general capacity for work. In that regard, he found that Mr Catanzaro was not yet ready to return to work because of his psychological symptoms.[31] This shows that he addressed the issues associated with the physical injury and the psychological symptoms separately when providing his opinion.

[31]        Exhibit P7, PCB 68

37Dr Seng also demonstrated that he was addressing the issues associated with the physical and psychological symptoms separately in his answer to the question about work capacity.[32]

[32]        Exhibit P4, PCB 51

38Mr Ghobrial offered his opinion on the consequences of the physical injury, while acknowledging the complex nature of Mr Catanzaro’s presentation, demonstrating that he was cognisant of both when providing his opinion.[33]

[33]        Exhibit P8, PCB 71

39Mr Moaveni is an expert orthopaedic surgeon. He was asked to provide his opinion on the consequences emanating from the physical injury alone. He examined Mr Catanzaro and reviewed the radiological material before providing his opinion. He reported that there was no abnormal illness behaviour,[34] which leads me to conclude that he did not believe that psychological symptoms were affecting Mr Catanzaro’s presentation on examination. He was clear that as a result of his physical injury, Mr Catanzaro has permanent restrictions, including for the type of work that he will be capable of doing in the future.

[34]Exhibit P9, PCB 80

40Dr Thomas is an expert in rehabilitation and pain management. He answered questions he was asked about Mr Catanzaro’s physical injury following an examination and review of the relevant material. He did not raise any issues or concerns about his ability to answer questions about the consequences arising from the physical injury in the context of his diagnosis. Dr Thomas has applied his expertise in pain and pain management to identify consequences arising from Mr Catanzaro’s physical and psychological symptoms separately. The fact that he recommended psychological treatment does not diminish his diagnosis or opinion regarding consequences arising from the physical injury.

41While Dr Horsley acknowledged Mr Catanzaro’s psychological symptoms, she provided a clear opinion regarding the movement and weight restrictions Mr Catanzaro is subject to because of his left elbow injury only.[35] These restrictions were grounded in the organic injury, and isolated from the restrictions arising from the psychological injury.

[35]Exhibit P11, PCB 118

42Associate Professor Love also acknowledged the psychological injury in his  diagnosis of the physical injury.[36] While he suggested further psychological treatment, this is outside his area of expertise. The treatment that he recommended within his area of expertise was platelet rich injections, which were recommended for the physical injury.[37] Approval for these injections was refused by the WorkCover insurer.[38] His answers to Questions 11 and 12 of his report of 29 December 2023, when taken together, outline his opinion regarding the restrictions Mr Catanzaro is subject to because of the physical injury.[39] These answers and his opinion show that he grappled with, and was able to disentangle the consequences emanating from the physical and psychological injuries.

[36]        Exhibit P13, PCB 132

[37]        Exhibit P13, PCB 134

[38]        Exhibit P15, Plaintiff’s Supplementary Court Book (“PSCB”) 5-6

[39]        Exhibit P13, PCB 135

43While Dr Wyatt also acknowledged the psychological injury, she was asked to provide an opinion about the restrictions Mr Catanzaro had for employment as a result of his physical injury alone, and then asked to detail specific work options. Her answers to these two questions, when read together, show that she was able to isolate the consequences arising from the physical injury from those arising from the psychological injury. In essence, she was of the view that Mr Catanzaro had a capacity for light duties based on his physical injury, but no capacity when his psychological symptoms were taken into account.[40] While she is not an expert in psychological issues, she was able to isolate the consequences that emanated from the physical injury alone.

[40]Exhibit D3, DCB 14

44Counsel for the defendant made appropriate concessions regarding Associate Professor Romas being an outlier on causation. I was troubled about his comments on causation given the temporal connection between Mr Catanzaro’s report of the event and the pain that flowed from it, as well as the absence of diagnostic investigations in his possession when he provided his opinion. These deficiencies were so foundational that I have concluded that I cannot place weight on Associate Professor Romas’s report and opinion with respect to any of the issues to be resolved in this case.

45Associate Professor Doherty and Dr Serry provided expert opinions on Mr Catanzaro’s psychological symptoms and consequences. I have considered their opinions in the context of all the medical evidence. Dr Serry, Dr Dassanayake, Dr Thomas, Dr Horsley, Associate Professor Love and Dr Wyatt acknowledged Mr Catanzaro’s psychological symptoms while providing an opinion on the consequences arising from the physical injury, including the permanent restrictions for employment. I have found that their opinions sit comfortably with the opinions of the other practitioners with respect to disentanglement.

46I considered Dr Long’s opinion in the context of a report that was provided three months after the injury. Other than for confirmation of the initial diagnosis, I neither found his report helpful nor unhelpful in resolving the question of disentanglement.

47I am conscious that where at least some of the medical evidence suggests a significant psychological component, the evidence relied on by Mr Catanzaro will need to be in a condition to enable the Court to clearly identify whether and to what extent the pain and disability has an organic basis.[41]

[41]        Meadows, [29]

48I am satisfied in this case that it does.

49While the issue of permanency of the injury was not raised in this case, for the sake of completeness, I find that the permanent restrictions outlined by those practitioners I have relied on with respect to identification of the organic injury and its consequences support a finding that the consequences of the impairment are permanent.[42]

[42]Exhibit D1, PCB 103; Exhibit P7, PCB 68; Exhibit P10, PCB 90 and 93; Exhibit P11, PCB 118-119, Exhibit P13, PCB 134; Exhibit D3, DCB 14 and 20

50Considering that, I make the following findings:

(a)   Mr Catanzaro sustained an injury to his left forearm, elbow and hand, leading to a diagnosis of lateral epicondylitis as a result of the workplace injury of 8 September 2021.

(b)   The impairments produced in consequence of that physical injury can be isolated and identified to a satisfactory degree.

(c)   Those impairments arising in consequence of the physical injury are permanent.[43]

[43]Barwon Spinners v Podolak (2005) 14 VR 622, [33]

Consequences

51Counsel for the defendant submitted that if I were able to determine the consequences that arose from the organic injury, that Mr Catanzaro’s psychological condition was so restrictive that any consequences associated with the left arm were inconsequential.

52I have considered that submission. I have considered the medical evidence that relates to the restrictions Mr Catanzaro has from his organic injury, together with his evidence, in arriving at my findings on consequences to Mr Catanzaro's left upper limb.

53I find that Mr Catanzaro has the following pain and suffering consequences arising from his physical injury:

(a)   Pain:

(i)He has constant pain that extends from his left elbow to his wrist which increases with activity. He has sharp, stabbing pain, which shoots into his left mid-forearm when gripping with his left hand.[44] He suffers from numbness and tingling from his elbow into his hand and fingers.

[44]Exhibit P1, PCB 19 at paragraph [29]

(ii)He is more reliant on his right hand as he tries to avoid using his left hand. His grip strength on his left hand is reduced.[45]

[45]Exhibit P1, PCB 19 at paragraph [30]

(iii)The pain and restrictions of his left forearm impact many aspects of his day-to-day life, as he struggles to complete any type of task that requires dexterity, such as fastening buttons or tying his shoelaces.

(iv)He takes paracetamol and ibuprofen daily. He avoids prescription medication because of the side-effects he experiences. Platelet rich injections have been recommended. He wears a splint on his elbow and uses a sling from time to time to relieve the symptoms. He has physiotherapy once a fortnight.

(b)   Sleep:

(i)He has difficultly finding a comfortable position to fall asleep and often wakes up during the night due to pain. He is tired, lethargic and irritable.[46]

[46]Exhibit P1, PCB 19 at paragraph [34]

(c)   Activities of daily living:

(i)He has some restriction in his ability to perform self-care and personal hygiene, including showering, dressing, eating, toileting and washing his hair.

(ii)He experiences some restriction in managing shopping duties and household chores, including dishwashing and cooking. While his partner did most of this prior to his injury, he assisted with these tasks.[47]

[47]T13, L23-27; T14, L1-4

(iii)He has some difficulty in gardening and lawn maintenance. He avoids using a lawn mower.

(iv)He has a driving tolerance of up to one hour and drives primarily with his right hand.

(d)   Social and recreational activities:

(i)He used to undertake gym activities daily, either at home or at the gym. He is no longer able to do so.[48] He has put on weight.

[48]        I accept his evidence that his inability to attend the public gym is connected with his anxiety. I have

therefore excluded this from my consideration of the consequences arising from his physical injury. I have based my finding on the absence of being able to use his home gym as deposed to in the uncontested evidence of his partner, Ms Tralci.

(ii)He rides his Harley Davidson motorbike about once a month now.[49] If he did not have the injury to his left arm, he would be ride it daily.

[49]T37, L2-5

(iii)When walking his dog, he ensures the lead is in his right hand.[50]

[50]Exhibit P1, PCB 22 at paragraph [49]

(e)   Restrictions for work:[51]

[51]Exhibit P11, PCB 118

(i)Avoidance of repetitive over reaching.

(ii)Avoidance of repetitive pushing and pulling.

(iii)Avoidance of lifting items greater than five kilograms except on an occasional basis.

(iv)Avoidance of repetitive flexion and extension of the elbow.

(v)Avoidance of repetitive supination and pronation.

(vi)Avoidance of using tools with vibratory competent.

(f)    Capacity for employment:

(i)His employment options are permanently reduced. He is permanently unfit to undertake the manual work he could perform prior to sustaining his injury.

Analysis

54Mr Catanzaro has constant pain which varies in severity. He manages this through taking paracetamol and ibuprofen and using a splint for his elbow or a sling for his arm. He has tried prescription medications but ceased taking them due to the side-effects. Platelet rich injections have been recommended, but he has not had these as they were not approved by the WorkCover insurer. He has physiotherapy once a fortnight to treat his pain.

55Mr Catanzaro has limited transferable skills. Dr Horsley opined that Mr Catanzaro’s history was highly suggestive of a learning disability, with Mr Catanzaro having managed to keep his literacy issues and lack of computer skills to himself for many years.[52] While Mr Catanzaro is not relying on pecuniary loss in this application, I am required to consider the pain and suffering consequences associated with his loss of his employment capacity.[53] Mr Catanzaro had limited options in the labour market prior to his injury, but nonetheless maintained consistent employment. The loss of ability to use his left arm in an unrestricted way will have a more significant impact on his residual occupational capacity than it would for other workers, given his very limited transferable skills.

[52]Exhibit P11, PCB 117

[53]        Ellis Management Services Pty Ltd v Taylor [2013] VSCA 362, [35]

56This is a very considerable loss for Mr Catanzaro.

57He has also lost the ability to enjoy riding his motorbike daily. He has been riding motorbikes for years. He described riding his Harley Davidson as being very important to him. His determination to continue riding his motorbike about once a month despite the challenges it poses demonstrates how much he enjoys it. His loss of ability to undertake this as frequently as he did prior to sustaining his injury is a very considerable loss.

58He has also lost his ability to stay fit and healthy by undertaking gym work. He has put on weight. He is embarrassed and ashamed about his weight gain. Mr Catanzaro’s evidence was that he stopped going to the public gym because of his social anxiety. However, the uncontested evidence of his partner was that prior to his injury, on days he did not attend the gym he would undertake gym activity at home using his home gym. Her evidence was that since the injury, he does not use his home gym or attend a public gym anymore. His inability to undertake gym activity at home relates to his physical restrictions, and thus I have taken those into account when considering the pain and suffering consequences of his left elbow injury.

59His ability to undertake many day-to-day activities such as dressing, self-care, gardening, driving, and sleep has been affected by his injury.

60In considering what he has lost I am also required to consider what he has retained.[54] He has retained:

(a)   An ability to ride his Harley Davidson once a month using cruise control to minimise the vibrations he experiences in his left arm.

(b)   An ability to use gym equipment if it does not involve pain to his left arm.

(c)   An ability to undertake day to day activities, albeit with restriction. For example he said that he could put his socks on, but it would cause an increase in his pain symptoms.

(d)   An ability to attend his local shopping centre with his partner.

(e)   He can sleep, albeit that it is broken when he wakes with pain.

[54]Dwyer v Calco Timbers Pty Ltd (No.2) [2008] VSCA 260, [27]

61Considering the above, I find that the consequences for Mr Catanzaro, when judged in comparison other cases of injuries and impairments, are fairly described as being at least very considerable and more than significant or marked.

Conclusion

62I therefore find that Mr Catanzaro is entitled to leave to proceed with a claim for damages for his pain and suffering.

63I will ask the parties to draft orders to reflect this finding and will hear from the parties on the question of costs.