Chiluveru v Victorian WorkCover Authority
[2023] VCC 16
•24 January 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-22-01210
| PRASHANT CHILUVERU | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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| JUDGE: | HER HONOUR JUDGE MYERS |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 21 and 22 November 2022 |
| DATE OF JUDGMENT: | 24 January 2023 |
| CASE MAY BE CITED AS: | Chiluveru v Victorian WorkCover Authority |
| MEDIUM NEUTRAL CITATION: | [2023] VCC 16 |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to the right hip – pain and suffering and loss of earnings consequences
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s335 Cases Cited: Barwon Spinners Pty Ltd & Ors v Podolak [2005] VSCA 33; Jayatilake
v Toyota Motor Corporation [2008] VSCA 167; Meadows v Lichmore Pty Ltd [2013] VSCA 201; Peak Engineering & Anor v McKenzie [2014] VSCA 67; Dressing v Porter [2006] VSCA 215; Giankos v SPC Ardmona Operations Ltd (2011) 34 VR 120; Harris v DJD Earthmoving Pty Ltd [2016] VSCA 188
Judgment:Leave granted to the plaintiff to issue proceedings for the recovery of damages for pain and suffering and loss of earning capacity.
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| APPEARANCES: | Counsel | Solicitors |
For the Plaintiff | Mr A Saunders with Mr C Woollacott | Arnold Dallas McPherson Injury Lawyers |
For the Defendant | Mr G K Coldwell | Hall & Wilcox |
COUNTY COURT OF VICTORIA
250 William Street, Melbourne
HER HONOUR:
Introduction
1This is a “serious injury” application brought pursuant to the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”). The plaintiff, Mr Prashant Chiluveru, seeks the leave of the Court to commence a common law proceeding for both pain and suffering and loss of earning capacity.
2The plaintiff relies upon injury to his right hip, specifically, injury to the ligamentum teres, as the “serious injury”. As such, the plaintiff relies only on paragraph (a) of the definition of “serious injury”, being “permanent serious impairment or loss of a body function”.
3The relevant legal principles are well known and not in issue.
4There was no dispute that the plaintiff suffered a compensable injury.
5The defendant identified two bases upon which the plaintiff’s application was contested. First, whether the claimed impairment consequences are attributable to an organic injury to the plaintiff’s right hip.1 The defendant conceded that if that issue was determined in the affirmative, the consequences of the right hip injury meet the threshold of “being more than significant or marked, and as being at least very considerable”.2 Secondly, there is an issue as to the plaintiff’s capacity to work.3
6I have considered all the tendered evidence and the plaintiff’s viva voce evidence, but I shall only refer to it to the extent necessary in these reasons.
Transcript (“T”) 15-16
T76-77
T16-17
Background
7The plaintiff is a thirty-three-year-old single man. He was born and brought up in India.
8He completed the equivalent of Year 12 in India in 2005. Thereafter, he attended Osmania University and was awarded a Bachelor of Science in 2009.4 The plaintiff then attended Jawaharlal Nehru Technological University, Hyderabad, and was awarded a first-class Master of Business Administration in 2012.5
9Between 2012 and 2017, the plaintiff was employed in various managerial positions in India.6
10In June 2017, the plaintiff moved to Melbourne to pursue further studies.
11He commenced a Master of Information Systems at Deakin University in July 2017. He completed those studies in July 2019.7
12Whilst undertaking his studies at Deakin University, the plaintiff obtained part-time employment. Relevantly, he began working at Americold Logistics, Laverton North (“the employer”) in about October 2018.8 This work was casual, and initially the plaintiff’s employer was a labour-hire company. The plaintiff became a direct employee of the employer in September 2019. His role was that of a picker and packer, predominantly working in the freezers. His duties involved packing cartons onto pallets. Whilst he was studying, the plaintiff worked less than 20 hours each week.
13In June 2019, when the plaintiff completed his studies, he increased his hours of work to full time. Thereafter, he generally worked five to six days a week for a total of 40 to 45 hours.9
Defendant’s Court Book (“DCB”) 152
DCB 153
T21-22
T22
Plaintiff’s Court Book (“PCB”) 5
T20
14The plaintiff’s right hip injury is said to have arisen because of the heavy and repetitive nature of his work duties with the employer, specifically handling and lifting approximately 1,600 cartons each day, weighing up to 12 kilograms each.10
15The plaintiff developed calf pain on 7 April 2020 and again on 10 April 2020 while at work. Over the coming days he began to experience pain in his right hamstring and right hip.11
16On 20 April 2020, the plaintiff lodged a WorkCover claim, which was accepted. He was placed on light duties. He continued performing light duties until 13 July 2020 when he was certified unfit to work. 12
17The plaintiff was off work until March 2021. At that point he returned to work with the employer in a gatehouse, working four-hour shifts, three times a week.13 The plaintiff continued performing those duties until 12 August 2021, when he was certified unfit for all work by his treating orthopaedic surgeon just prior to his second arthroscopy. He has not worked since.
18In November 2021, the plaintiff enrolled in a Diploma of Project Management. After attending a few sessions of this course, he deferred. He said he did so as he found he was unable to sit or concentrate because of his right hip pain.14
19When the plaintiff’s pain first manifested in April 2020, he attended the work doctor, Dr Tan, and was referred for physiotherapy.
20Even at this early stage there was some doubt as to the precise cause for the plaintiff’s symptoms.
PCB 5-6
PCB 6
PCB 6
T45
T22, T59
21Dr Tan referred the plaintiff for an MRI scan of his spine. The imaging results were reported to be essentially normal, with no explicable cause revealed for the pain the plaintiff was experiencing.
22The plaintiff first consulted his usual general practitioner (“GP”), Dr Rizvi, of the Keilor Downs Medi-Clinic on 29 April 2020 in relation to his right hip pain.15 Dr Rizvi referred the plaintiff for an MRI scan of his right hip.
23The MRI scan dated 18 May 2020 reported largely normal pathology except for the right piriformis muscle, which was reported to be “mildly bulky” being “bulkier than the left one by approximately 18% at the level of greater sciatic notch”.16
24In July 2020, Dr Rizvi referred the plaintiff to Professor Phong Tran, orthopaedic surgeon, whom he first saw on 16 July 2020.17
25Professor Tran recommended a CT-guided steroid injection into the right hip joint. This was administered on 11 August 2020. The plaintiff reported that the injection significantly improved his pain, but only for eight days.18
26The plaintiff’s response to the steroid injection led Professor Tran to opine that the likely cause for the plaintiff’s pain was intra-articular, most probably a ligamentum teres tear or labral tear.19 On that basis, Professor Tran recommended an arthroscopy of the plaintiff’s right hip.
27Initially, the WorkCover insurer declined to give approval for the proposed surgery, based on an opinion from Dr Iain Kelman, orthopaedic surgeon, dated 16 October 2020.20 Dr Kelman recommended the plaintiff undergo an MR arthrogram of his right hip to further assess whether the proposed surgery was appropriate.21
PCB 12
PCB 72
PCB 6
PCB 35-36
PCB 35-36
DCB 6
DCB 8
28The right hip MR arthrogram was performed on 22 October 2020. It revealed a full-thickness tear in the right hip joint at the base of the anterosuperior acetabular labrum.22 Based on the results of the arthrogram, Dr Kelman opined that it was reasonable to proceed with the proposed hip arthroscopy.23
29On 23 December 2020, Professor Tran performed the right hip arthroscopy. He identified a one-centimetre tear to the labrum, a partial tear to the ligamentum teres with an intraligament cyst, and moderate synovitis. Professor Tran debrided the cyst and repaired the labral tear.24
30Professor Tran administered a further steroid injection to the plaintiff’s right hip on 12 February 2021.25
31The plaintiff experienced a flare-up of his right hip pain in late February 2021 whilst moving house and lifting boxes.26
32Given the plaintiff’s continuing symptoms, a further MR arthrogram was undertaken on 30 March 2021. The reported findings included that there were “features of a past anterosuperior labral surgery, with no evidence of a re-tear,” with blunting of the tip of the corresponding part of the labrum and scarring through the base of the anterosuperior labrum. No other abnormality was observed. The ligamentum teres was reportedly intact and of normal thickness.27
33The plaintiff participated in a pain management program commencing in May 2021 but did not complete the eight-week program as he was not finding it of any assistance.28
PCB 74
DCB 16
PCB 49
PCB 6
PCB 41; T37-38
34Professor Tran recommended a further arthroscopy, which took place on 25 August 2021. The recorded operative findings included severe inflammation in the ligamentum teres. This was again debrided.29
35The plaintiff continued to complain of right hip pain following the second arthroscopy.
36It appears that from late 2021, Professor Tran was considering whether a right total hip replacement should be undertaken. He scheduled a case conference at which the plaintiff’s circumstances could be presented to other orthopaedic surgeons to consider the options for managing the plaintiff’s condition.30
37The plaintiff’s recollection was that Professor Tran advised him that a total hip replacement would ultimately be required to treat his condition.31
38In May 2022, the plaintiff travelled to India. He consulted Dr AV Gurava Reddy, orthopaedic surgeon. Dr Reddy organised a further MRI scan. He concurred with Professor Tran’s diagnosis of severe inflammation in the right hip joint but advised the plaintiff against a total hip replacement because of his age.32 The plaintiff accepted Dr Reddy’s advice. The case conference organised by Professor Tran at Western Health was cancelled as the plaintiff had chosen non-operative management of his condition.33
39The plaintiff had a further cortisone injection into his right hip on 21 October 2021. This was unsuccessful at relieving his symptoms.34
40The plaintiff was diagnosed with Type 2 diabetes in January 2022.35 This was precipitated by a combination of weight gain and the acute effect of the steroids
PCB 28
T47
PCB 7; T39-40
PCB 58
PCB 47; T48
PCB 7
PCB 79
administered for his right hip condition.36 The plaintiff’s weight gain was partly due to inactivity because of his compensable injury.
41The plaintiff currently lives in a share house with two housemates but intends to return to live in India in January 2023.37
Is there a substantial organic basis for the claimed right hip impairment consequences?
42The plaintiff’s case was put on the basis that he suffers from an organic injury to his right hip, specifically severe inflammation of the ligamentum teres, and this injury causes impairment consequences that reach the threshold.
43The defendant submitted that there is no organic pathology explaining the plaintiff’s right hip symptoms. Three MRI scans have revealed no abnormality.38 Further, the defendant submitted that the plaintiff had not discharged his obligation to disentangle psychological consequences from physical consequences.39 It was also submitted that the evidence did not establish that the claimed consequences were due to the right hip rather than the plaintiff’s spine.40
44The defendant referred to a number of authorities in relation to the appropriate test to be applied in such circumstances.41
45I will briefly summarise the medical evidence relevant to this issue.
Dr Saima Rizvi, general practitioner
46In his first (undated) report, Dr Rizvi, diagnosed right piriformis syndrome, and appeared optimistic of recovery with treatment over the following three to four months.42
PCB 83
PCB 5, 11
T15
T70
T70
Barwon Spinners Pty Ltd & Ors v Podolak [2005] VSCA 33, Jayatilake v Toyota Motor Corporation
[2008] VSCA 167, Meadows v Lichmore Pty Ltd [2013] VSCA 201
PCB 21
47Dr Rizvi’s report, dated 10 February 2022, outlined the plaintiff’s attendances and treatment.43 He noted that it was not until receipt of the MR arthrogram of 22 October 2020 that a “decent explanation” was available as to the cause of the plaintiff’s ongoing right hip pain, that being a full-thickness tear of the acetabular labrum. Dr Rizvi noted the plaintiff underwent arthroscopic surgery on 23 December 2020, but his pain continued. He observed that a further MR arthrogram on 30 March 2021 was inconclusive as to the cause for the plaintiff’s ongoing pain.
Professor Phong Tran
48In his report dated 13 August 2020, Professor Tran noted that the plaintiff’s positive response to a steroid injection to his right hip demonstrated that the source of pain was intra-articular, most likely a ligamentum teres tear or labral tear. He noted that if the plaintiff’s pain recurred, he may need an arthroscopy.44
49Professor Tran reiterated his opinion regarding the cause of the plaintiff’s right hip pain in his report dated 27 August 2020, specifically noting that the intra-articular hip pathology had not been found on the MRI.45
50In his report dated 29 October 2020, Professor Tran reported that the plaintiff was experiencing ongoing progressive pain in his right hip. He noted that the new MRI (evidently the arthrogram of 22 October 2020) demonstrated a labral tear.46
51The operation report dated 23 December 2020 records Professor Tran’s operative findings as follows:47
·“Labral tear – 1 cm – repaired,
·Femoral Head - normal
·Ligamentum teres - partial tear with intraligament cyst - radiofrequency ablation
·Synovitis - moderate.”
PCB 24-25
PCB 26
PCB 36
PCB 37
PCB 27
52The plaintiff was next seen by Professor Tran on 1 February 2021.48 In his report of the same date, he noted the plaintiff had ongoing discomfort. On examination, he walked with an antalgic gait and was unable to hold a one-legged stance or perform a one-legged squat; however, his hip joint moved well. Professor Tran arranged for a steroid injection and recommended a set of exercises. Whilst he was of the view that the plaintiff was not fit to return to work at that time, he anticipated significant improvement over the following four to six weeks.
53In his report dated 4 March 2021, Professor Tran noted that the plaintiff had been doing very well with his right hip until the previous Friday, when he had a recurrence of pain whilst moving house. On examination, his hip was irritable.49 He prescribed meloxicam and noted that if the plaintiff’s discomfort continued, he should have a further MRI scan.
54Professor Tran performed a second arthroscopy on 25 August 2021. The operation report records his operative findings as follows:
·“Labral repair - intact
·Femoral Head - normal
·Ligamentum Teres - severe inflammation - radiofrequency ablation
·Synovitis - severe.”50
55In a report dated 21 October 2021, Professor Tran noted that the plaintiff was “still very sore which is expected with his current condition”.51 He arranged for a steroid injection and a course of oral steroids. He noted the plaintiff remained unfit to work for the following few months. He said that in the event the plaintiff did not respond to steroid therapy, the plaintiff ought to see a chronic pain physician.
56In his report dated 5 April 2022, Professor Tran opined that the plaintiff continued to experience severe pain in his right hip secondary to his severe ligamentum teres inflammation.52 He noted that the plaintiff was unable to take oral steroids because
of his diabetes, and steroid injections had not been effective. He noted that the plaintiff had previously tried a pain management program, and nothing further could be offered in that regard. Professor Tran opined that a surgical option would be to completely remove the ligamentum teres or undertake further ligamentum teres reconstruction. However, the only person who performed such surgery would not accept WorkCover patients. He noted that the other surgical option was a hip replacement, but the plaintiff was very young to be considering this.
57Two subsequent reports from Professor Tran were tendered, dated 27 May 2022 and 25 July 2022.53 These reports were addressed to Unified Healthcare Group for the purposes of the plaintiff’s total and permanent disablement claim. Once again, Professor Tran diagnosed the plaintiff’s condition as severe inflammation of his ligamentum teres. He noted that the condition was not responding to medical or surgical management. He opined that there was no other evidence-based treatment for the condition. He noted that the plaintiff’s symptoms were very severe, outlining significantly impaired functional tolerances. He opined that it was unclear whether the plaintiff’s functional limitations were permanent, but they were likely to be prolonged, particularly because there was no clear management plan. Professor Tran stated that the plaintiff had chosen non-operative management, which he fully supported. He opined that the plaintiff was unfit to work because of his pain and was unlikely to work in the future unless there was a significant improvement in his pain.
Dr AV Gurava Reddy
58The plaintiff was seen by Dr AV Gurava Reddy on 9 June 2022. Dr Reddy sighted the surgical images from the second arthroscopy. In his report dated 4 August 2022, Dr Reddy opined that the plaintiff was suffering from a severe inflammation in his hip joint for which there is no treatment.54 Dr Reddy noted making this diagnosis in the context of the MRI revealing no significant abnormality. He stated
PCB 45, 47
that the plaintiff will require a total hip replacement in the future, but it ought to be delayed for as long as possible given his age.
Dr Iain Kelman
59The plaintiff tendered two reports of Dr Iain Kelman, orthopaedic surgeon, dated 16 October 202055 and 7 December 2020.56 Dr Kelman did not examine the plaintiff.
60In his first report, Dr Kelman opined that an MR arthrogram ought to be undertaken to determine if the plaintiff’s right hip was the source of his pathology.57
61Following the arthrogram, Dr Kelman opined that there was evidence of a full- thickness labral tear, chondral changes and an indication of chondral wear within the articulating femoral head acetabular articulation. He noted that such changes would produce clinical symptoms of hip pain. He stated that the proposed hip arthroscopy might be helpful but noted that it “often does not produce the desired result”.58
Mr Arshad Barmare
62The plaintiff tendered a report of Mr Arshad Barmare, orthopaedic surgeon, dated 14 September 2021.59 Mr Barmare examined the plaintiff on 18 June 2021 (prior to the second arthroscopy). Mr Barmare opined that the March 2021 MRI showed features of past anterior superior labral surgery with no evidence of re-tear, and no other abnormalities. He opined that there was no specific cause for the plaintiff’s gluteal region pain evident in that imaging. Mr Barmare’s impression was that the plaintiff had an irritable right hip post labral repair and an associated hip- spine syndrome. He suggested multi-disciplinary pain management and noted
DCB 6
DCB 15
DCB 10
DCB 16
PCB 50
that “hip sensory nerves radio-frequency ablation might be required”.60 If that did not help, he said the plaintiff may benefit from a capsular release.
Dr David Love
63The defendant tendered a report of Dr David Love, orthopaedic surgeon, dated 21 March 2022.61 Whilst his report did not specify the material with which he was provided, the parties agreed that he had been provided with each of the documents listed on page 2 of the report of Mr Dunin dated 26 July 2022.62 These documents included the surgical images from the second arthroscopy.
64Dr Love noted that the findings of the second arthroscopy were that the labral tear was well repaired and intact, and the articular cartilage was intact.63 He did not mention or comment upon the surgical images from the second arthroscopy nor the operative findings of severe inflammation of the ligamentum teres and severe synovitis.
65Dr Love noted, upon examination, that the plaintiff walked with an antalgic gait and “clearly has discomfort in his right hip”.64 Dr Love concluded that the plaintiff was suffering from pain in his right hip and lower limb radiating down his thigh and leg to his calf, associated with back pain and groin pain.
66Dr Love also observed that based on his symptoms alone, the plaintiff’s condition was very descriptive for a nerve root impingement. However, he noted that the MRI of the plaintiff’s lumbar spine performed in 2020 showed a minor disc bulge without neural compression and did not reveal evidence of nerve root impingement.65
67
Dr Love stated that the plaintiff’s medical condition with respect to his right hip was unclear. He opined that such pathology as had been found in the plaintiff’s right
DCB 52
DCB 18
DCB 30; T107
DCB 19-20
DCB 20
DCB 21
hip was relatively minor, had been treated, and such treatment had not changed the plaintiff’s symptoms.66 This led Dr Love to conclude that the plaintiff was likely suffering from back-related pathology rather than right hip pathology. He opined that a repeat MRI scan of his spine was required.
Dr Diarmuid McCoy
68The plaintiff tendered a report of Dr Diarmuid McCoy, pain medicine physician, dated 21 July 2022.67 Dr McCoy examined the plaintiff via Telehealth. He opined that the plaintiff appeared to be suffering from a musculoskeletal injury involving his groin on the right side in his right hip joint. I find he was thus diagnosing an organic condition of the plaintiff’s right hip.
Mr Anthony Dunin
69The defendant tendered a report from Mr Anthony Dunin, orthopaedic surgeon, dated 26 July 2022.68 Mr Dunin noted the plaintiff walked with an unusual, stiff hip gait.69 Upon examination, he recorded that the plaintiff was very irritable in both his right hip and lumbar spine.70 Mr Dunin viewed radiology undertaken of the plaintiff’s spine and right hip and noted they did not demonstrate any significant abnormality.
70Mr Dunin made no mention in his report of the operative findings from the second arthroscopy of severe inflammation in the ligamentum teres.
71For reasons which are not articulated, Mr Dunin opined that the plaintiff’s “back is causing a significant amount of his symptoms including right hip pain”. However, he went on to state “the exact cause of his ongoing back pain and hip pain remains unclear”.71 In light of those opinions, Mr Dunin concluded that the plaintiff’s presentation was more in keeping with regional pain syndrome rather than any
DCB 21
DCB 22
DCB 29
DCB 32-33
serious organic pathology in his lumbar spine or right hip. This conclusion appears to be premised upon the lack of pathology in the imaging of the right hip and lumbar spine. He did not mention or discuss the findings of the second arthroscopy, the treating surgeon’s diagnosis, the recommendation for oral steroid treatment, or the plaintiff’s inability to undergo that treatment because of his diabetes. Further, to the extent Mr Dunin opined that the plaintiff suffers from a psychological pain syndrome, such diagnosis is beyond his expertise as an orthopaedic surgeon.
Dr Dush Shan
72The defendant tendered a report from Dr Dush Shan, psychiatrist, dated 31 August 2022.72 Dr Shan diagnosed an Adjustment Disorder with mixed depression and anxiety.73 He did not diagnose a psychological pain syndrome.
Findings
73I find that the plaintiff is suffering from an organic injury in his right hip. I prefer the opinions of Professor Tran and Dr Reddy that the plaintiff has severe inflammation of the ligamentum teres in his right hip, and this is the cause of severe pain and functional limitations.
74Professor Tran has been treating the plaintiff’s right hip condition for more than two years. He has seen the plaintiff many times and has performed two arthroscopies. I find that in those circumstances, he is best placed to opine as to the cause of the plaintiff’s ongoing symptoms.
75Dr Reddy specifically opined as to the significance of the operative images from the second arthroscopy in the context of an MRI scan revealing no significant abnormality. As with Professor Tran, I find that Dr Reddy’s opinion reflects a consideration of all aspects of the plaintiff’s presentation.
DCB 37
DCB 42
76Dr Kelman has not examined the plaintiff and his most recent report pre-dates the first arthroscopy. His reports are of limited assistance as to the current cause of the plaintiff’s symptoms and impairment consequences.
77Mr Barmare’s examination pre-dated the second arthroscopy, so is of limited assistance. Noting that the imaging did not identify a specific cause for the plaintiff’s gluteal region pain, his impression was that there was an organic right hip injury that could respond to radio-frequency ablation or a capsular release.
78Dr McCoy’s report also supports a finding of an organic injury to the plaintiff’s right hip.
79I do not find the opinions of Mr Dunin or Dr Love regarding diagnosis to be of assistance as neither doctor mentioned nor discussed the findings of severe inflammation in the ligamentum teres in his report.
80As I have found that the cause of the plaintiff’s pain and restriction in his right hip is inflammation of the ligamentum teres, I find that there is a substantial organic basis for the plaintiff’s right hip injury.
Injury to the spine
81The plaintiff appears to have suffered a low-back injury at the same time as suffering his right hip injury in April 2020. He has complained of ongoing low-back pain since that time. He has also complained of thoracic and cervical spine pain in the period since April 2020.
82The defendant submits that the plaintiff has not established which impairment consequences are caused by his right hip injury as distinct from his spine in the manner required.74
83I do not accept this submission for several reasons. First, I note that imaging of the plaintiff’s spine on 27 April 2020 and 14 July 2022 did not identify any
Peak Engineering & Anor v McKenzie [2014] VSCA 67
significant pathology. Secondly, the plaintiff’s treating orthopaedic surgeons (whose opinions I prefer for the reasons already articulated) have identified his right hip as the source of severe pain and restriction and treated him accordingly. Thirdly, Mr Barmare and Dr McCoy also opined that the plaintiff’s right hip was the primary cause of the plaintiff’s pain and restriction.75
Pain and suffering consequences
84The plaintiff’s evidence was that he experiences constant pain in his right hip which radiates into his right leg. The defendant did not seek to contradict that evidence, but rather submitted that he also experiences pain elsewhere, in particular in his spine. However, my task is to assess the right hip condition and its impact separately and decide whether it amounts to a serious injury.76
85I note that when the plaintiff first experienced symptoms at work he complained of injury to his low back and right hip.77 Dr Simone Ryan, occupational physician, examined the plaintiff at the request of his solicitors on 17 August 2022. In her report of the same date, which carefully analysed the circumstances of injury, she opined that the plaintiff’s back pain was aggravated by his impaired gait consequent upon the right hip injury.78 I accept that opinion and thus find that part of the plaintiff’s low-back pain is consequential upon his right hip injury.
86The plaintiff has undergone two arthroscopies and five cortisone injections for the treatment of the injury in his right hip. He takes significant quantities of analgesia on a daily basis.79 He has been advised that a total hip replacement may be necessary in the future but should be avoided for as long as possible because of his age.
87
In summary, I find that the plaintiff is suffering from severe inflammation of the ligamentum teres in his right hip, and consequential Type 2 diabetes. I further find
PCB 52, 25
Dressing v Porter [2006] VSCA 215 at paragraph [47]
T22
PCB 67
PCB 13
that the plaintiff’s right hip condition has not been able to be treated effectively because the plaintiff is unable to take oral steroids due to his diabetes. I also find that the plaintiff’s right hip condition is the cause of very significant constant pain and restrictions as identified by Professor Tran.80 In the context of those findings, the defendant properly conceded that the consequences meet the “very considerable” threshold. In the circumstances, no further analysis is required in relation to the claim for leave in respect of pain and suffering consequences.
Loss of earning capacity
88For the plaintiff to succeed in his claim for the loss of earning capacity consequence, he must establish:
(a)his loss of earning capacity consequence is, when judged by comparison with other cases in the range of possible impairments or losses of a body function, fairly described as being more than significant or marked, and as being at least very considerable (the narrative test); and
(b)he has a loss of earning capacity of 40 per cent or more measured as set out in s325(2)(f) of the Act; and
(c)after the date of the hearing, he will continue permanently to have a loss of earning capacity productive of a financial loss of 40 per cent or more.
89The parties agreed the plaintiff’s “without injury” earning capacity to be $104,562 per annum.81 Therefore, in order to succeed in his claim, the plaintiff must establish that he is incapable of earning more than 60 per cent of that sum in suitable employment; that is, no more than $1,206 per week.
90The plaintiff’s case was that he is totally incapacitated for all employment now and into the foreseeable future by reason of his right hip condition.
PCB 45-48
T66
91The defendant submitted the plaintiff is a highly educated man with a broad capacity for a variety of sedentary roles. As such it was said that he has not established a permanent loss of earning capacity, even if his impairment consequences are due to the right hip injury and are organically based. The defendant emphasised the plaintiff’s optimism for future self-employment or managerial style employment and his various academic qualifications and work experience.82
92I find that the plaintiff is a highly intelligent, well-educated man who has the intellectual aptitude to perform a wide range of sedentary, managerial roles. Indeed, it was not contended on his behalf that he lacked the intellectual capacity to perform the roles identified in the Co-Work vocational assessment report. Any of those jobs performed on a full-time basis would provide the plaintiff with gross weekly earnings exceeding $1,206.
93The real question here is whether the plaintiff has the realistic capacity to perform any work now and in the foreseeable future on a consistent and reliable basis.
94I will summarise the medical opinions on this issue.
95The plaintiff’s GP, Dr Keane, continues to certify him unfit for all work.83
96Professor Tran, in his report of 25 July 2022, stated that the plaintiff “is unable to return to work due to his chronic pain … He is unlikely to return to work in the future unless there is a significant improvement in his pain.”84 The pain to which Professor Tran referred emanates from his right hip injury.
97
In his report dated 14 September 2021, Mr Barmare opined that the plaintiff was fit for the gatehouse duties he was performing when examined by Mr Barmare. However, this opinion was provided prior to the plaintiff being certified unfit to work by Professor Tran in August 2021, and prior to the second arthroscopy. In those
T91
PCB 90-91
PCB 47
circumstances, I do not find Mr Barmare’s opinion as to work capacity of assistance.
98Dr Ryan, in her report of 17 August 2022, agreed with Mr Dunin’s conclusion that due to his right hip injury, the plaintiff “is in a disabled state with an inability to return to work now or in the foreseeable future”.85 Dr Ryan noted that the plaintiff was unable to sit or stand for prolonged periods of time and takes a plethora of pain-modulating medication.86 The plaintiff submitted that as an occupational physician, Dr Ryan is best qualified to opine as to work capacity.87
99In his report dated 21 March 2022, Dr Love opined that the plaintiff was unable to work because of his inability to sit, stand or walk comfortably.88 He suggested that with appropriate diagnosis and treatment, the plaintiff may be able to perform office-based duties. Given my findings as to the nature of the plaintiff’s injury and the plaintiff’s inability to tolerate oral steroids, I find that, contrary to Dr Love’s optimism, the plaintiff’s condition is unlikely to improve in the foreseeable future and therefore his current incapacity is likely to continue.
100Dr McCoy, in his report dated 21 July 2022, suggested that the plaintiff had the capacity to undertake some work with modifications, but noted “sitting standing lifting would be particularly affected and any consideration of a position would need assessment by an occupational therapist in the first instance”.89 I find that Dr McCoy’s opinion as to the plaintiff’s work capacity is unrealistic given the level of pain and restriction the plaintiff has presented with since April 2020.
101In his report dated 26 July 2022, Mr Dunin opined that the plaintiff is not fit for any suitable employment, and that incapacity is likely to persist for the foreseeable future.90 His opinion is not based upon an organic injury to the plaintiff’s hip or
PCB 67
PCB 67
Giankos v SPC Ardmona Operations Ltd (2011) 34 VR 120 at paragraph [96]
DCB 19
DCB 25
DCB 35-36
spine, but rather a Regional Pain Syndrome. I have, however, found that the plaintiff’s impairment consequences are caused predominantly by his organic hip injury.
102The defendant submitted that any incapacity for employment ought not to be found to be permanent in the requisite sense.91 It was submitted that the injury is of very recent origin, and the plaintiff has put his rehabilitation and retraining on hold because of his decision to return to India to live.92 The defendant noted that the plaintiff believes that the warmer weather in India will help his condition,93 as was the case when he returned there for seven weeks May/June 2022.94
103The defendant submitted that I ought to find that the plaintiff has the capacity to pursue managerial positions or self-employment in India such that he has not established the requisite loss of earning capacity is permanent.95
104The plaintiff aspires to be in a position to invest in businesses in India as a means of earning money.96 His evidence was a little ambiguous as to the role he envisaged taking in such a business – that is, whether it would be a pure investment, or whether he would participate in the management. In the former circumstance, such income may not be income from personal exertion, whereas in the latter case it would.97
105I am required to determine permanence by making a realistic assessment of the evidence by reference to the plaintiff’s limitations due to his right hip injury and what might or might not be suitable employment for him in the foreseeable future.98
106I accept and prefer the opinions of Dr Keane, Professor Tran and Dr Ryan that, by reason of his right hip injury, the plaintiff has no current capacity for suitable
T85
T86
PCB 11
T49-50
T91
T54, T58, T62
Section 325(2)(a) of the Act; Transport Accident Act 1986, s6(2)
Harris v DJD Earthmoving Pty Ltd [2016] VSCA 188 at paragraph [48]
employment, and that incapacity is likely to persist into the foreseeable future. Given the plaintiff’s ongoing severe pain and restrictions, which are unlikely to improve in the foreseeable future, I find that he does not have, and is unlikely to have, a realistic capacity to engage in any suitable work on a reliable and consistent basis. I am therefore satisfied that the plaintiff satisfies both the narrative test and the threshold tests for loss of earning capacity.
107Leave is granted to the plaintiff to issue proceedings for the recovery of damages for pain and suffering and loss of earning capacity in respect of the injury to his right hip sustained during the course of his employment with the employer.
108I will hear the parties on the question of costs.
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