Crowly v Victorian WorkCover Authority

[2024] VCC 1974

IN THE COUNTY COURT OF VICTORIA

AT BENDIGO

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-23-07126

SHANE EDWARD CROWLY	Plaintiff
v
VICTORIAN WORKCOVER AUTHORITY	Defendant

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JUDGE:	HER HONOUR JUDGE MYERS
WHERE HELD:	Bendigo
DATE OF HEARING:	13 November 2024
DATE OF JUDGMENT:	12 December 2024
CASE MAY BE CITED AS:	Crowly v Victorian WorkCover Authority
MEDIUM NEUTRAL CITATION:	[2024] VCC 1974

REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION

Catchwords:              Serious injury – injury to the right lower limb – pain and suffering

Legislation Cited:      Workplace Injury Rehabilitation and Compensation Act 2013, s335

Cases Cited:TTB SMS Pty Ltd v Reading [2020] VSCA 203; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260

Judgment:                  Leave granted.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Mighell KC with Mr M Fogarty	LHD Lawyers
For the Defendant	Mr S A Smith KC with Ms K M Manning	Wisewould Mahoney

HER HONOUR:

Introduction

1Mr Shane Crowly, the plaintiff, is a fifty-six-year-old former correctional officer.  He claims he suffered an injury to his right leg on 7 December 2021 in the course of his work for the GEO Group Pty Ltd (“the employer”).

2Mr Crowly seeks leave to bring a common law proceeding for pain and suffering damages pursuant to the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (“the Act”). His claim is that he has a “serious injury” of his right lower limb.

3For leave to be granted, Mr Crowly must demonstrate that the permanent impairment consequences of his compensable right lower limb injury are “serious”; that is, that they can be fairly described as being “more than significant or marked”, and as being “at least very considerable”.

4The Victorian WorkCover Authority (“the VWA”), the defendant, accepted Mr Crowly suffered a compensable right lower limb injury in the course of his employment.  There was no issue the relevant injury was a right rectus femoris rupture and a right lateral femoral cutaneous neuropraxia.

5The VWA contested the proceeding on the basis that the claimed impairment consequences do not satisfy the statutory threshold.

6The issues for determination are:

(a)   What are the permanent impairment consequences of Mr Crowly’s compensable right lower limb injury?

(b)   Are those impairment consequences “serious”?

7The relevant legal principles are well known and were not in dispute.

8For the reasons that follow, I find Mr Crowly has satisfied his onus to establish that the permanent impairment consequences of his right lower limb injury are “serious”.

Background

9The following matters were not controversial.

10Mr Crowly completed Year 12 and joined the army.  He served for ten years in transport and communications.  He rose to the rank of corporal.

11After leaving the army, he worked as a truckdriver and factory hand for several years.  He then spent some time working as a call centre operator through labour-hire agencies.  For a time, Mr Crowly ran a pest-control business, and also worked as an employee pest controller.

12In about 2017, Mr Crowly began working as a correctional officer for the employer.  

13In early 2020, Mr Crowly began to experience pain in his right knee, which was worse with walking.  He consulted his general practitioner (“GP”), Dr Zin Nuang, and was referred for an x-ray and ultrasound scan.  Mr Crowly said his pain gradually resolved over a few months.

14From September 2021, Mr Crowly undertook call centre work from home a few nights a week in addition to his work as a correctional officer.

15In the incident on 7 December 2021, at the Ravenhall Correctional Centre, Mr Crowly said he slipped on a chain on the floor and fell heavily on his right side.  Mr Crowly continued his shift, but attended the Werribee Mercy Hospital after work.  No scans were undertaken and he was discharged home with analgesic medication.

16On 9 and 20 December 2021, Mr Crowly consulted Dr Nuang about his right leg pain.  Dr Nuang advised Mr Crowly he did not treat WorkCover patients, so Mr Crowly began attending Dr Rifat Karim.  He first saw Dr Karim regarding his right leg injury in March 2022.

17Dr Karim ordered an ultrasound scan and referred Mr Crowly for physiotherapy. 

18In April 2022, Dr Karim referred Mr Crowly to Mr Raghavan Unni, orthopaedic surgeon.

19Mr Unni diagnosed a tear in the proximal aspect of the rectus femoris muscle.  He did not recommend a surgical repair.

20Mr Crowly stopped working as a correctional officer in about March 2022.  He said he did so because he no longer had confidence in his ability to respond to emergency situations by reason of his right leg injury.  Mr Crowly recalled he stopped that work on the advice of his doctor.

21In late 2022, Mr Crowly resumed working as a pest controller.  He obtained work with Statewide Pest Control. 

22Mr Crowly resigned from Statewide Pest Control in late 2023 and has not worked since.  Mr Crowly’s decision to cease work was partly due to feeling unable to continue to do the pest-control work because of his right leg injury.  It was also partly due to Mr Crowly and his terminally-ill partner deciding to semi-retire, and relocate to Sea Lake. 

23Mr Crowly’s right leg injury has been treated conservatively.  He last had physiotherapy treatment in about October 2022.  He takes Panadol and Nurofen once or twice a week and Panadeine Forte approximately once a month for his right leg pain.

24Mr Crowly’s partner has passed away and he now lives alone in Sea Lake. 

What are the permanent impairment consequences of Mr Crowly’s compensable right leg injury?

25Mr Crowly tendered two affidavits, affirmed by him on 17 August 2023 and 14 October 2024.

26Mr Crowly deposed he continued to suffer ongoing pain, discomfort and restriction of movement in his right leg.  The pain is constant, but varies in intensity.  Mr Crowly described a dull ache that turns into a sharp burning pain when aggravated.  Using the Visual Analogue Scale, he said:  “My pain goes from 3 out of 10 up to 10 out of 10 when it is particularly bad”.[1] 

[1]        Plaintiff’s Amended Court Book (“PCB”) 12.

27Mr Crowly said that walking, standing and being on his feet for long periods, and walking on uneven surfaces, aggravate his right leg pain.  In his oral evidence, Mr Crowly said:  “I spend most of my life walking on eggshells with my leg.”[2] 

[2]Transcript (“T”) 8.

28In his oral evidence, Mr Crowly did not agree his pain was at its worst level about once a month.  He said that, once or twice a week “it will hurt like the blazes”[3] and that could last “anything from 15 minutes to an hour or more”.[4]

[3]T21.

[4]T22.

29Mr Crowly deposed he avoided taking medication if at all possible. 

30Mr Crowly deposed that kneeling is uncomfortable and he has difficulty running.  Movements that involve twisting his right leg, squatting, or flexing the right leg, aggravate Mr Crowly’s pain.  He struggles to climb ladders. 

31Mr Crowly deposed to experiencing increased pain in his right leg when driving for long periods.  In his oral evidence, Mr Crowly said he would stop periodically on long drives and stretch his leg.  This tended to slow down the increase in his pain.

32Mr Crowly deposed to his sleep being affected each night because of pain in his right leg.

33Mr Crowly said he was unable to continue working as a correctional officer by reason of his right leg injury.  He subsequently found he struggled to work as a pest controller because of his right leg injury. 

34Prior to the incident, Mr Crowly had expressed an interest in joining Victoria Police.  He was contacted by Victoria Police after the incident, but did not feel able to pursue that career path because of the pain and restriction he experienced due to his right leg injury.

35Prior to the incident, Mr Crowly had achieved a black-tip brown belt in karate.  He deposed to having a passion for martial arts and self-defence.  Mr Crowly deposed he had taken a break from karate in the year prior to the incident as he had moved to Werribee, but he had planned to get back into it and become a black belt.  He said his goal was to become an instructor.  Mr Crowly deposed he has not undertaken any karate since the incident and believes he would be unable to do so because of his right leg injury. 

36Mr Crowly’s oral evidence regarding his participation in karate over the twelve months prior to the incident was somewhat confusing.  In contrast to his affidavit, Mr Crowly said he did participate in karate after moving to Werribee to work at Ravenhall Correction Centre.[5]  He also said he had not been participating in karate as much as he would have liked because of his shiftwork.  Mr Crowly candidly accepted that continuing shiftwork may have restricted his ability to pursue his karate.[6]

[5]T3.

[6]T5.

37Prior to the incident, Mr Crowly enjoyed caving several times a month at various locations around Victoria.  He had been a member of the Victorian Speleological Association for about ten years.  He has not been able to go caving since the incident because of his right leg injury.

38In addition to karate and caving, prior to the incident, Mr Crowly enjoyed prospecting every few weekends.  He has been able to return to this activity since the incident, but is unable to prospect for as long as before and has had to avoid steep hills, creek lines and riverbanks because of his right leg injury.

39This is a convenient point to consider the medical evidence which was tendered by Mr Crowly.  The VWA did not tender any medical evidence.

Medical evidence

Treating doctors

Mr Raghavan Unni, orthopaedic surgeon

40Mr Crowly tendered three letters from Mr Unni dated 4 May 2022, 18 May 2022 and 10 August 2022. 

41When Mr Unni first saw Mr Crowly, he noted a “moderately boggy swelling in the proximal aspect of his Right thigh with some fluctuating fluid mass palpable”.[7]  Mr Unni suspected a torn quadriceps muscle and a large haematoma collection.  He ordered an MRI scan.

[7]        PCB 50.

42Upon review on 18 May 2022, Mr Unni noted the MRI scan findings were in keeping with the clinical examination and previous ultrasound findings.  There was a moderate-sized tear in the proximal aspect of the rectus femoris which had retracted, forming a lump.  He noted there was no gross weakness either in the hip flexors or the knee extensors.  Mr Unni opined Mr Crowly’s pain was “more related to the bruising and fluid collection” which would likely settle gradually.[8]  Mr Unni advised gentle exercise.

[8]        PCB 51.

43Mr Unni last reviewed Mr Crowley on 10 August 2022.  Mr Crowly had reported some improvement after physiotherapy.  Mr Unni opined Mr Crowly was likely to be able to get back to his pre-injury duties, but the best person to assess his capacity was his physiotherapist.[9]

Medico-legal doctors

Dr John Swan, orthopaedic surgeon

44Mr Crowly tendered two reports from Dr Swan dated 1 August 2023 and 19 September 2024.  Dr Swan examined Mr Crowly on 26 July 2023 and 4 September 2024 at the request of his solicitors.

45On examination, Dr Swan found a normal gait.  There was a reduction of power in right hip flexion associated with significant discomfort on testing.  Dr Swan found:

“… a visible and palpable defect in the anterior aspect of [the] right thigh at a level consistent with the proximal one third to distal two thirds junction of his quadriceps. When he performed active contraction of his quadriceps, the proximal muscle portion visibly retracted proximally.”[10]

[10]PCB 28.

46Dr Swan diagnosed a right rectus femoris rupture and right lateral femoral cutaneous neuropraxia.

47Dr Swan opined that the prognosis was as follows:

“… fair with regards to [the] rectus femoris muscle rupture. [Mr Crowley] has mild weakness of right hip flexion but a full and functional range of motion of his hip and knee. He has ongoing symptoms of pain and occasional burning sensation in his lateral thigh, consistent with a lateral femoral cutaneous nerve of the thigh neuropraxia injury. His injury has stabilised and is not likely to worsen. It is likely that he will continue to experience mild weakness of right hip flexion and discomfort during certain activities of daily living.”[11]

[11]        PCB 30.

48Dr Swan opined that no further treatment was indicated save for occasional anti-inflammatories or analgesia as required.  Physiotherapy would not be of any benefit.

49When Dr Swan re-examined Mr Crowly in September 2024, Mr Crowly described symptoms which were essentially the same.  Mr Crowly had ceased work and was caring for his partner.  Dr Swan opined that Mr Crowly could perform his pre-injury employment in the future if he wished to return to work.  Dr Swan was not able to find objective weakness in Mr Crowly’s right quadriceps, but noted:

“… [Mr Crowley’s] incapacity for employment is mainly based upon subjective symptoms of pain and discomfort and probable fatiguing during repetitive activities.  I would expect his discomfort and probable fatiguing to be present into the foreseeable future as a result of his injury.”[12]

[12]        PCB 38.

50Dr Swan opined that Mr Crowly had the capacity to perform suitable employment on a full-time basis.

Dr Eman Awad, occupational physician

51Mr Crowly tendered a report of Dr Awad dated 22 August 2024.  Dr Awad examined Mr Crowly on that day via Telehealth.

52Dr Awad opined Mr Crowly was unfit for his pre-injury duties and unfit for any work requiring prolonged walking, walking on uneven surfaces, running, climbing or squatting, and working at heights or in confined spaces.[13] 

[13]PCB 46.

53Dr Awad was of the view Mr Crowly had the capacity to work up to twenty-five hours a week in a sedentary role.[14]

[14]PCB 46.

Findings

54I accept the opinion of Dr Swan that Mr Crowly suffers from a right rectus femoris rupture and a right lateral femoral cutaneous neuropraxia.  Those diagnoses were not contested by the VWA.

55Further, I find Mr Crowly was a candid witness who did not embellish or prevaricate.  Indeed, the VWA acknowledged Mr Crowly’s evidence displayed a “refreshing amount of candour”,[15] albeit that sometimes it was a little confusing. 

[15]        T26.

56Senior Counsel for the VWA submitted Mr Crowly generally suffers from only mild pain with irregular use of over-the-counter analgesia.  The exacerbations likely occur about once a month, corresponding with the need for Panadeine Forte.  The exacerbations are relatively short lived.  It was submitted that experience of pain “doesn’t get close to the statutory definition of serious injury”.[16]

[16]T27.

57I accept Mr Crowly suffers from constant pain at a level of “3 out of 10”, which can reach “10 out of 10” once or twice a week.  Those exacerbations can last from fifteen minutes to an hour or more. 

58I accept Mr Crowly avoids taking analgesia as much as he can, but nonetheless takes Panadol or Nurofen once or twice a week and Panadeine Forte about once a month.  For the most part, he tries to avoid exacerbating his pain by activity modification.  That is, he tries to avoid driving for long periods, kneeling, walking for long periods, walking on uneven ground, running, squatting and climbing ladders, in an effort to manage his pain.

59I find Mr Crowly’s shift pattern impacted to an extent upon his ability to pursue karate prior to the incident.  However, I accept Mr Crowly is no longer able to participate in karate by reason of his right leg injury.  That is a significant loss to him.

60I also find Mr Crowly’s shift pattern impacted to a degree on his ability to go caving prior to the incident.  I find Mr Crowly is no longer able to pursue his hobby of caving by reason of his right leg injury.  That loss is also significant to Mr Crowly.

61I do not accept karate and caving had ceased to be an important part of Mr Crowly’s life prior to the incident.[17]

[17]T30.

62Mr Crowly’s ability to go prospecting is now limited.  That is, he does so less frequently, for shorter periods, and is restricted to relatively-flat terrain.

63I accept the opinion of Dr Awad that Mr Crowly is unfit for his pre-injury role as a correctional officer.  I accept her evidence on this issue given her speciality as an occupational physician.  I further note Dr Awad’s opinion reflects both diagnoses of Mr Crowly’s injury and the ongoing symptoms which Mr Crowly experiences.  

64I also accept Dr Awad’s opinion Mr Crowly is unfit for work that involves squatting, working at heights and in confined spaces.  Those restrictions prevent Mr Crowly from working as a pest controller. 

65Both of those roles are occupations which Mr Crowly enjoyed and is now unable to pursue by reason of his right leg injury.

66I accept Mr Crowly’s working life has included a range of occupations.  He remains physically able to perform call-centre work.  That work is not available in Sea Lake, although he could likely perform it from home, as he did previously while living in Werribee. 

67I accept Mr Crowly’s sleep is impacted most nights, likely by reason of his right leg pain.

68I find Mr Crowley’s impairment consequences are permanent in the requisite sense.

Are the permanent impairment consequences “serious”?

69In TTB SMS Pty Ltd v Reading,[18] the Court of Appeal said:

“… The evaluation required of the trial judge, and this Court, involves a comparison of the worker’s impairment not just with other impairments of the hand, but also with other types of physical impairment that may be suffered, including impairment of the brain, the spine and large joints such as the knee and shoulder.  Those other physical impairments may involve constant pain, significant medical treatment and medication.  They may involve sleep deprivation, or an inability or reduced ability to socialise or work.”

[18][2020] VSCA 203 at paragraph [31]

70I also note the remarks of the Court of Appeal in Haden Engineering Pty Ltd v McKinnon, [19] wherein it was said:

“… the cases recognise that some plaintiffs may be more ‘stoical’ than others. This means that such a plaintiff is, to an unusual degree, prepared to endure pain in order to maintain a desired level of function. The injury suffered by the ‘stoical’ plaintiff is not to be viewed as any the less serious merely because he/she manages to remain more active than might have been expected given the level of pain. … .”

(Footnote omitted.)

[19] (2010) 31 VR 1 at paragraph [13].

71The VWA submitted Mr Crowly’s permanent impairment consequences do not satisfy the statutory threshold.  Senior Counsel for the VWA submitted his pain is not at a level which could be described as “at least very considerable”, he remains capable of his pre-injury employment, and his participation in his hobbies of karate, caving and prospecting was already much reduced.  Those submissions do not accord with my findings.

72I find Mr Crowly likely remains capable of working in suitable sedentary employment.  That is a factor to consider.  But I also take into account he is no longer capable of unrestricted employment, in particular, the work as a pest controller and correctional officer, that he enjoyed.[20]  Pursuit of employment as a police officer has been closed off to him.

[20]Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326 at paragraphs [39] and [49].

73I do not accept the submission Mr Crowly’s decision to pursue work as a pest controller after his injury is an indicator that his right leg injury was, and is not, as problematic as he claims.  I rather find it reflects Mr Crowly’s stoic attitude.  Although the reasons behind giving up that work were multifactorial, I accept Mr Crowly’s evidence he had difficulty performing that work because of his right leg injury.  As I have said, I accept Dr Awad’s opinion that work is not suitable for him.

74I am required to consider what has been lost in the context of what is retained.[21]

[21]Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 at paragraph [27].

75Mr Crowly did not claim his right leg injury prevented him from performing his own personal care.  He did not claim any particular impairment in his capacity to perform other activities of daily living, such as housework or cooking.  Mr Crowly did not claim any impairment in his ability to socialise.  He did not claim his pain, or medications for pain, affected his cognitive functioning.

76The loss of ability to pursue karate and caving are significant losses to Mr Crowly.  He is still able to go prospecting, but in a more limited way. 

77In making the value judgement required of me and considering the various impairment consequences Mr Crowly suffers collectively, I find he has established the consequences of his injury satisfy the requisite threshold.  The impairment consequences which tip the balance here are Mr Crowly’s constant, variable pain and the complete loss of his hobbies of karate and caving, as well as his loss of previously-enjoyed work.  In my view, when those matters are considered together with Mr Crowly’s ongoing need to adapt how he goes about many of his day-to-day activities, and his daily sleep interference, the consequences to him meet the relevant threshold.

Conclusion

78Mr Crowly is granted leave to bring a common law claim for pain and suffering damages for the injury to his right lower limb sustained in the incident on 7 December 2021.

79I will hear the parties on the issue of costs.

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