Dalrymple v Victorian WorkCover Authority
[2024] VCC 81
•23 February 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-23-02798
| CAMERON DALRYMPLE | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE MANOVA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 31 January 2024 | |
DATE OF JUDGMENT: | 23 February 2024 | |
CASE MAY BE CITED AS: | Dalrymple v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 81 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – crush injury to index finger on non-dominant hand – pain and suffering consequences – range case – impairment consequences not more than significant or marked when compared to the range of possible impairments – reliability of plaintiff – inconsistent and exaggerated evidence
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s5(1)(a) and s325
Cases Cited:Palmer Tube Mills (Aust) Pty Ltd and Anor v Semi [1998] 4 VR 439; Johns v Oaktech Pty Ltd [2020] VSCA 10; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181; Sutton v Laminex Group Pty Ltd (2011) 31 VR 100; TTB SMS Pty Ltd v Reading [2020] VSCA 203; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Tatiara Meat Co Pty Ltd v Kelso [2010] VSCA 12
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr Y Chen | Maxiom Injury Lawyers |
| For the Defendant | Mr L Howe | Wisewould Mahony |
HER HONOUR:
Introduction
1
On 16 October 2020, twenty-six year old Cameron Dalrymple was working night shift on the Pace Crew in a mine in Fosterville. A steel paste pipe, blocked with concrete, fell and crushed his left hand when he pulled a clamp off it
(“the incident”).
2Mr Dalrymple applies for leave to issue proceedings for pain and suffering pursuant to s325(1)(a) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the WIRCA”). The injury in question is a crush injury affecting the index finger of his non-dominant left hand.
3To succeed in his application, Mr Dalrymple must satisfy the Court on the balance of probabilities that his injury is a serious injury. In particular, that the pain and suffering consequences of the injury constitute a permanent serious impairment or loss of body function, and when judged by comparison with other cases in the range of possible impairments or losses of body function, they can be fairly described as being more than significant or marked, and as being at least very considerable (“the statutory test”).[1]
[1] s325 of the WIRCA
4There was no dispute that Mr Dalrymple suffered a permanent compensable[2] injury to his left hand at work and that as at the date of the hearing, it was continuing to have some consequences for him.
[2]s5(1)(a) of the WIRCA
5The defendant contested the application on the basis that the consequences did not meet the statutory test.
6For the reasons which follow, Mr Dalrymple has not discharged his onus of establishing that as at the date of hearing, the consequences of his injury meet the statutory test.
7The legal principles are well known and were not in dispute. Where relevant, I have set them out in this judgment.
8The hearing proceeded in the usual way. Mr Dalrymple gave oral evidence and the parties otherwise tendered reports and materials from their respective court books.
Background and summary of post-injury events
9Mr Dalrymple is now twenty-nine years old. He is a qualified motor mechanic, although he was not employed as such at the time of his injury.[3]
[3]Plaintiff’s Amended Court Book (“PACB”) 11 at paragraph [25]
10In July 2018, Mr Dalrymple commenced work as a nipper at the Fosterville Gold Mine. This was a starting position in the mines and required Mr Dalrymple to provide general assistance, such as the setup of tools and the provision of supplies and equipment.[4]
[4]Transcript (“T”) 10-11
11About twelve months prior to the October 2020 injury, Mr Dalrymple was promoted to truck driving. Six months later, he was promoted again, this time to Pace Crew, which position he held at the time of the incident.[5]
[5]T12
12On 17 October 2020, following the incident, Mr Dalrymple was admitted to Bendigo Hospital for treatment. He was found to have a macerated wound on the volar aspect of his left index finger, with a laceration over the middle and distal phalanges, and abrasions over the middle finger. He underwent exploration debridement, skin graft and repair of the wounds on both fingers. An x-ray did not reveal any fracture.[6]
[6]PACB 27-29
13Mr Dalrymple was unable to work for about two months, before returning to his previous role. He described this as a hybrid role, mainly truck driving and some Pace Crew work. He returned to work without medically-imposed restrictions, although he said, in cross-examination, that he was pacing himself and having breaks in his twelve-hour shifts.[7]
[7]T13
14Mr Dalrymple ceased work with that employer due to mental health issues and perceived ill treatment by his colleagues in relation to the injury to his left index finger.[8]
[8]Ibid
15Initially, Mr Dalrymple complained of difficulty moving the index finger joint and pain at work. He received physiotherapy and wore a splint at night.[9]
[9]PACB 31
16Despite these measures, Mr Dalrymple complained of ongoing pain, restriction of movement, and an inability to fully extend his index finger.[10]
[10]Ibid
17In February 2021, to address some of Mr Dalrymple’s symptoms, he underwent a scar release and a tenolysis procedure, which was performed by Dr Raminder Dhillon, plastic and reconstructive surgeon.[11]
[11]PACB 8 at paragraph [10]
18On 6 May 2021, to address a deformity in the tip of the index finger Mr Dalrymple underwent a fusion of the distal interphalangeal joint (“DIPJ”), also performed by Dr Dhillon.[12]
[12]PACB 8 at paragraph [13]; PACB 35
19Between 23 July 2021[13] and sometime in 2022, Mr Dalrymple attended hand therapy. He elected to cease attending sessions when the improvement he was experiencing plateaued.[14] Since that time, he has not had any active treatment.
[13]PACB 41
[14]PACB 16 at paragraph [7]
20Sometime after January 2023,[15] Mr Dalrymple commenced fly-in fly-out (“FIFO”) work with a labour hire company. He was employed as a leading hand in a mine in Western Australia, initially a gold mine, and later a nickel mine. Mr Dalrymple said this role was a promotion from his previous role and included a higher rate of pay.[16]
[15]A specific date was not available on the evidence; these dates are arrived at by reference to the first and second affidavits
[16]T14-15
21Mr Dalrymple described the leading-hand work as a managerial position. It included supervisory and training duties, some work “on the tools”, including use of a rock drill, a rattle gun and various spanners. The rock drill is operated with both hands being used to place the drill into the rock at the beginning and remove it at the end of the task. During the drilling, only the right hand is required to hold a hose; the left hand is not required.[17]
[17]T16
22Some weeks prior to the hearing, Mr Dalrymple was made redundant.[18]
[18]T15
23Mr Dalrymple is currently engaged in preparing his house for sale. He plans to relocate to Queensland to join his partner, who has moved there to be closer to her family. He hopes to find FIFO work in Queensland.[19]
[19]Ibid
The medical evidence
24Mr Dalrymple tendered a number of treater reports from the Bendigo Hospital: Mr George Owen, orthopaedic surgeon; Dr Dhillon, treating plastic surgeon; Ms Tamika Fasoli, physiotherapist; Ms Janelle Kilcullen, hand therapist; and a general practitioner (“GP”), Dr Hlaing Bwar. The evidence was that Mr Dalrymple attended the Eaglehawk Medical Centre, but did not have a regular doctor at that clinic.
25Mr Dalrymple also tendered a Certificate of Opinion and Reasons of a Medical Panel as to the degree of permanent impairment of his left upper limb and a medio-legal report of Dr Damon Thomas, a plastic and reconstructive surgeon.
26The defendant tendered two reports of Dr Thomas Robbins, a hand and plastic surgeon, and various extracts of football statistics relevant to Mr Dalrymple from PlayHQ.
Bendigo Hospital
27On 17 October 2020, following the injury, Mr Dalrymple attended the Bendigo Hospital Emergency Department. He was surgically treated with washout, debridement and skin graft wound repair of the index and middle finger, and was subsequently discharged home in a sling, on the same day.
Mr George Owen, orthopaedic surgeon
28On 11 November 2020, Mr Owen reported to Mr Dalrymple’s GP. Mr Owen considered that, following surgery, Mr Dalrymple was recovering well and no further treatment was required. He recommended a return to work in two weeks.[20]
[20]PACB 26
Ms Tamika Fasoli, physiotherapist
29Between November 2020 and July 2021, Mr Dalrymple attended for physiotherapy treatment with Ms Fasoli. In February 2021, Ms Fasoli noted a DIPJ lag of 15 degrees when not working and 30 degrees after five days at work.[21] Mr Dalrymple was complaining of his skin tightening up, which caused him pain. A night extension splint was recommended.
[21]PACB 31
30In July 2021, Ms Fasoli reported that Mr Dalrymple was doing well and had been back at work for one week without any issues. His right and left grip strength were 70/60 respectively, with no pain.[22]
[22]PACB 32
Dr Rhaminder Dhillon, plastic and reconstructive surgeon
31
On 10 February 2021, Dr Dhillon diagnosed a mallet DIPJ deformity, being an inability to extend the distal phalanx, and scar contracture of the index finger.
Dr Dhillon recommended a new graft to address the scar contracture.[23]
[23]PACB 35
32In April 2021, Mr Dalrymple had suggested his finger be amputated, but Dr Dhillon considered this too drastic and recommended a DIPJ fusion to provide stability to the tip of the finger and to enable him to work.[24]
[24]Ibid
33In June 2021, Dr Dhillon reported that Mr Dalrymple was doing well after the DIPJ fusion performed in May 2021.[25]
[25]PACB 37
34In November 2021, Dr Dhillon recorded that Mr Dalrymple was complaining of pain at work when using vibrating tools. Dr Dhillon attributed this to the various surgeries and suggested that it would improve with time, but may not settle completely.[26]
[26]PACB 38
Ms Janelle Kilcullen, hand therapist
35Between July 2021 and March 2023, Mr Dalrymple attended Ms Kilcullen for hand therapy. Ms Kilcullen reported to Mr Dalrymple’s GP that he was presenting with symptoms of carpal tunnel syndrome and recommended referral to a hand surgeon for assessment and treatment.[27]
[27]PACB 41
36
In March 2023, Dr Bwar (GP at Eaglehawk), referred Mr Dalrymple to Dr Dhillon for assessment of carpal tunnel syndrome.[28] The referral is the only report of
Dr Bwar in evidence.
[28]PACB 43
37On 28 March 2022, Ms Kilcullen reported that Mr Dalrymple was exhibiting signs and symptoms of median nerve compression which coincided with an increase in his work duties, in particular, gripping and driving. Ms Kilcullen opined that the index finger injury was a cause of the carpal tunnel symptoms.
38Ms Kilcullen’s two reports focused on carpal tunnel syndrome[29] and did not address the consequences of the left finger injury in any meaningful way.
[29]PACB 42
Dr Ali Kian Mehr, rehabilitation medicine and neurophysiology
39On 14 June 2022, Dr Mehr reported to Dr Dhillon that a nerve conduction study was performed and there was no electrodiagnostic evidence of carpal tunnel or pronator syndrome.[30]
[30]PACB 45
Medical Panel
40Mr Dalrymple tendered a certificate of opinion and reasons of the Medical Panel, dated 29 November 2022. The Certificate of Opinion related to the degree of whole person impairment resulting from the accepted injury to the left upper limb.
41The Medical Panel noted a history of a restricted range of movement in the index finger, and to a lesser extent, the middle finger, with some numbness or altered sensation of the tip of the index finger. Medication use was reported to be on average six Panadol per fortnight, six Nurofen per fortnight and occasional Panadeine Forte (one tablet at night before sleep to reduce pain after a hard day’s work).[31]
[31]PACB 51
42On examination, the Medical Panel found there was a fixed flexion deformity of the DIPJ of the index finger and no medial, lateral or rotational deformity of any digit of the left hand. The nail of the index finger was slightly shortened and slightly beaked, with the terminal part of the index finger shortened by 3 millimetres. There was a full-thickness skin graft along the index finger pulp and three small scars. One extended from the proximal interphalangeal (“PIP”) joint crease, another on the volar aspect of the middle finger and the third, barely visible, along the left wrist crease.
43Grip strength was assessed as normal on repeat measurements. There was a restricted range of motion of the left wrist in flexion and radial deviation.[32]
[32]PACB 52
Dr Damon Thomas, plastic and reconstructive surgeon
44On 28 November 2023, Dr Thomas diagnosed a crush injury to the left index and middle fingers with post-traumatic issues, with reduced range of motion, pain and scarring, culminating in a DIPJ fusion of the index finger.
45Dr Thomas opined that no further specialist or hand therapy treatment was necessary. He noted that medication treatment was paracetamol and Nurofen as required.
46Dr Thomas considered Mr Dalrymple would be subject to restrictions in his workplace due to reduced physical capacity on the left and reduced ability to use vibrating tools, grip strength and cold tolerance. Dr Thomas recorded an inability to help with house renovations, because doing carpentry work with nails was a struggle for him.
47Dr Thomas considered Mr Dalrymple’s physical restrictions to be permanent and stable.[33]
[33]PACB 60-62
48A number of colour photographs of both of Mr Dalrymple’s hands were appended to Dr Thomas’s report. These photographs show Mr Dalrymple’s index finger, with a slight bend visible at the second joint, and a very small and almost imperceptible scar on the top of the finger between the first and second joints.[34]
[34]PACB 70-72
49Mr Dalrymple also tendered a photograph of his finger which demonstrates a slight bend at the first joint.[35]
[35]PACB 85
Defendant’s medical evidence
Dr Thomas Robbins, hand and plastic surgeon
50The defendant tendered two reports of Dr Robbins. The first report was prepared following an in-person assessment and the second following a Telehealth assessment.
51On 20 June 2022, Dr Thomas reported that Mr Dalrymple had sustained a crush injury to his index and middle fingers which had been repaired, and he was complaining of pins and needles in the index, middle and lateral fingers, which was being investigated with nerve conduction studies.[36]
[36]Defendant’s Court Book (“DCB”) 4
52Dr Thomas opined that Mr Dalrymple did not need to continue with hand therapy and that his carpal-tunnel-type symptoms might settle after ceasing that therapy. In his opinion, no medication was required for Mr Dalrymple’s accepted work-related injury.[37]
[37]DCB 8
53On 2 May 2023, Dr Robbins reported that the distal phalanx of the index finger was ankylosed at 20 degrees of flexion and there was no evidence of the skin graft. Aside from the ankylosis, the finger movement was normal.
54Dr Thomas considered that Mr Dalrymple was grossly exaggerating his difficulties and symptoms, and was also being deliberately manipulative. In particular, Dr Robbins reported that Mr Dalrymple’s claimed pain due to the ankylosed DIPJ was not physically explainable.
55
I accept the submission made by counsel for Mr Dalrymple that Dr Robbins has not provided sufficient justification in his report for his opinion that Mr Dalrymple was grossly exaggerating his symptoms and being deliberately manipulative.[38]
I have given no weight to this aspect of the opinion.
[38]T93-94
56Dr Thomas reported that there was a minor functional impairment of the left non-dominant index finger, which did not interfere with Mr Dalrymple’s ability to perform all of his work duties and all other activities he could do prior to the injury, with the exception of some minor awkwardness in a few functions.[39]
[39]DCB 14
57Dr Robbins recorded a history that Mr Dalrymple had prepared a list of activities he could no longer do and referred to that list during the assessment. Among the activities were opening jars, holding a fishing line, repairing his car, going camping, playing football, holding a cup or doing renovations. I accept that the inability to do these activities is not recorded in either the affidavit material, nor the histories taken by other doctors. I accept Mr Dalrymple’s evidence that he could do the activities nominated, but with restriction. I have given no weight to this aspect of the report.[40]
[40]DCB 12
Affidavits
58Mr Dalrymple tendered three affidavits affirmed by him, and one by his partner, Ms Mikayla Gregory.
59In his first affidavit, affirmed on 20 January 2023,[41] Mr Dalrymple deposed to having three surgical procedures and hand therapy treatment for the index finger injury. Mr Dalrymple deposed to the following consequences:
[41]PACB 6-14
(a) weakness and loss of dexterity in the left hand;
(b) difficulty with using small items or appliances, gripping keys or fine manipulation when preparing fishing equipment;
(c) difficulty with using heavy vibrating equipment for work;
(d) an aching pain most of the time, worse in cold weather;
(e) pins and needles from the wrist to the hand associated with repetitive activities, such as driving,
(f) difficulty gripping the steering wheel while driving, relying heavily on the right hand when driving;
(g) when pain is worse or aggravated, he takes Panadol; in cold weather, Panadeine Forte;
(h) sleep is affected due to pain;
(i) using the right hand as much as possible to do personal-care activities like spraying deodorant or shaving;
(j) difficulty fishing (tying the hook and reeling the fish in);
(k) struggling to play football, grip the ball, mark, handball or use the left hand. These activities can aggravate the pain and make it necessary to take Panadol before and after the game;
(l) difficulty with lifting and carrying camping gear and tying knots with the left hand; and
(m) relying heavily on the right hand when working with vibrating tools and taking pain relief when the pain is aggravated.
60In his second affidavit, affirmed on 24 January 2024,[42] Mr Dalrymple deposed to the following consequences:
(a) pins and needles in the left hand had improved to a degree, but remain;
(b) numbness at the tip of the left index finger;
(c) difficulty with grip strength and weakness in the left hand, which was much weaker than the right; inability to make a strong fist and difficulty in opening a jar with the left hand;
(d) needing to take Panadol or Nurofen painkillers on days when at work due to flare-up of symptoms, and rarely Panadeine Forte for hand pain;
(e) doing hand exercises and sometimes wearing a night splint;
(f) relying on the right hand at work and experiencing difficulties with work tasks such as using a hand-held rock drill, doing up nuts and bolts and performing other manual tasks;
(g) continuing to struggle when playing football and relying on painkillers to get him through, playing and training less than before the injury; and
(h) being unable to carry a paint tin with the left hand, lacking in strength and endurance, and relying on the right hand to paint, and for more physical tasks.
[42] PACB 15-20
61In his third affidavit, affirmed on 30 January 2024,[43] Mr Dalrymple deposed to the following consequences:
(a) having been made redundant recently. This gave Mr Dalrymple an opportunity to perform work on a friend’s farm using farm machinery, mostly relying on his right arm;
(b) selling his house in Victoria and planning to relocate to Queensland to join his partner; and
(c) hoping to find work as a leading hand when he relocates to Queensland.
[43] PACB 86-89
62In her affidavit, affirmed on 25 January 2024,[44] Ms Gregory deposed to the following observations of Mr Dalrymple:
(a) holding his index finger as if to rub it, indicating discomfort;
(b) taking medication (mainly Panadol and sometimes Nurofen);
(c) having difficulty conducting renovations to their home (struggling to use a nail gun and grab nails with his left hand);
(d) having difficulty with holding a paint tray in his left hand while using his right arm for painting; and
(e) having difficulty with sleep.
[44] PACB 21-25
Mr Dalrymple’s credit
63In an application such as this, the credit of the plaintiff is often of great importance, both directly and indirectly.
64The opinions of medical witnesses and other experts depend upon what they have been told by a plaintiff and upon his behaviour and performance on examination and on testing.[45]
[45]Palmer Tube Mills (Aust) Pty Ltd and Anor v Semi [1998] 4 VR 439 at 448 per Brooking JA; Johns v Oaktech Pty Ltd [2020] VSCA 10 at paragraph [76]
65Credit is also important because the Court must be satisfied of the alleged consequences and their impact on the plaintiff’s residual capacity.
66Counsel for the defendant submitted that Mr Dalrymple was not deliberately misleading the Court, however, there was an element of exaggeration associated with the way he delivered his evidence, as well as exaggeration about the claimed consequences of his injury.[46]
[46]T60
67The defendant submitted that the return to playing club football required significant use of both hands to mark, punch or handball the football, which at times could be heavy and waterlogged.[47] This was said to be indicative of the true extent of Mr Dalrymple’s disability. Being able to play football and handle the ball with both hands shows that Mr Dalrymple is not restricted in any significant way.[48]
[47]T62
[48]T64
68The defendant also submitted that the return to work in pre-injury duties was inconsistent with Mr Dalrymple’s allegations that he struggled to:
(a) put his automatic car into gear;
(b) hold a coffee cup with his left hand; and
(c) bait a hook on a fishing line.[49]
[49]T60-61
69Counsel for Mr Dalrymple submitted that there was no surveillance or cross-examination on a number of matters and no adverse inference should be drawn against Mr Dalrymple in respect of matters which were not explored in cross-examination.[50] Further, that Mr Dalrymple was candid in Court and made appropriate concessions which warranted his evidence being treated favourably.[51]
[50]T86 and T113
[51]T85
Exaggeration
70Mr Dalrymple deposed to difficulty gripping a shaver in his left hand[52] and difficulty with opening jars and bottles with his left hand.[53]
[52]PACB 11 at paragraph [22]
[53]PACB 12 at paragraph [26]
71Mr Dalrymple is right handed.
72In oral evidence, Mr Dalrymple conceded that it was unusual to use the non-dominant hand to open a jar when the dominant one is available.[54]
[54]T20-21
73Counsel for Mr Dalrymple conceded that a person would not usually shave or open a jar with their non-dominant hand.[55] However, he submitted that, in his affidavit, Mr Dalrymple was detailing the way his left hand is restricted, even if he could perform those activities with his right (dominant) hand.[56]
[55]T91
[56]T93
74I do not accept that submission. The affidavits do not tell the reader that Mr Dalrymple is right handed. Deposing to being unable to use the left hand for activities ordinarily performed with the right is an exaggeration of his difficulties.
Inconsistent or incongruous evidence
75In his first affidavit, Mr Dalrymple deposed that, prior to the injury, he played club football on weekends when he was not working. After the injury, he continued to play club football but struggled[57].
[57]PACB 12 at paragraph [29]
76In cross-examination, when asked about his post-injury football activities, Mr Dalrymple conceded he played football when it was cold and wet. He also conceded that, at times during the game, the ball may become waterlogged and heavy, and he may have to mark the ball using his outstretched hands.[58]
[58]T38
77Mr Dalrymple said that he could bend down to the ground to pick up the ball using both hands and could, if necessary, use his left hand to hold the football and guide it down to his left foot (although he did not have cause to do this often). Mr Dalrymple said he would need to have his fingers taped up to perform these activities.[59] Later, in evidence, Mr Dalrymple said he did not experience pain when marking a ball, only after the game.[60]
[59]T39-40
[60]T47, Line/s (“L”) L6-10
Exaggeration
78Mr Dalrymple also said that holding the steering wheel and putting his car into drive (with his left hand) caused him pain.[61] Mr Dalrymple explained that the automatic transmission control on his car has a ball shape and a small button, and when he presses the button (with his middle finger) to release the gear, this causes him pain, and that this pain continues for a number of hours afterwards.[62]
[61]T26
[62]T27-28
79It was not clear, on the evidence, whether the pain was to the middle finger or the index finger. I understood the pain experienced by Mr Dalrymple to be in his index finger.
80The evidence about the absence of pain arising when playing football, and the pain arising from changing gears and steering his car, was apparently contradictory and did not sit comfortably together.
81I reject Mr Dalrymple’s evidence that he is unable to change gears on his car without experiencing pain for hours afterwards and yet can play football using his hand, without pain until after the game. I do so because it makes no sense.
82Overall, my impression of Mr Dalrymple was that there were some aspects of his evidence which were inconsistent with other aspects. Further, there was some evidence of overstating minor problems or exaggerating the extent of his difficulties.
Impairment consequences
Pain
83In his first affidavit, Mr Dalrymple deposed to having an aching pain most of the time, which was worse in cold weather. In his second affidavit, he deposed to needing to take Panadol or Nurofen on work days (and when playing football) due to a flare-up of symptoms and, rarely, he also took Panadeine Forte for hand pain.
84In his oral evidence, Mr Dalrymple said he could not recall the last time he used Panadeine Forte. He said he does not rely on it and uses over-the-counter medication.[63]
[63]T28, L15-20
85There is no evidence from any treating doctor that Mr Dalrymple needs any over-the-counter or other pain-relieving medication for his condition.
86In oral evidence, Mr Dalrymple said that he takes between two or three to eight Panadol when working. When not at work, he does not take it every day.[64]
[64]T25-26
87The defendant did not challenge this account.
88I note the history of medication use recorded by the Medical Panel documents a much smaller intake of Panadol (six per fortnight). That history was not put to Mr Dalrymple in cross-examination. As such, I give little weight to the inconsistency between it and his evidence.
89I accept Mr Dalrymple’s evidence that, depending on his activities, he might experience pain which at times requires over-the-counter medication.
90Given my findings that he had a tendency to exaggerate his difficulties, I am unable to make a finding about the amount of over-the-counter medication Mr Dalrymple takes.
Work
91It may be recalled that following the injury, Mr Dalrymple returned to his pre-injury Pace Crew duties.[65]
[65]T12
92He went on to a promotion as a leading hand in the mines in Western Australia, using his existing skills.[66]
[66]T13-14
93The leading-hand work included about 50 per cent of time “on the tools”. Mr Dalrymple described being able to work with a rock drill, rattle gun and spanners without restriction, using both hands. However, Mr Dalrymple said that, at times when using his left hand only, he felt discomfort or found it challenging.[67]
[67]T16-18
94There is no evidence that any treating doctor or therapist has imposed any ongoing restrictions on Mr Dalrymple’s return to work. In oral evidence, Mr Dalrymple conceded that, but told the Court, “I still had a restriction on myself”.[68]
[68]T13, L3
95Counsel for Mr Dalrymple submitted that, following the injury, Mr Dalrymple has been, and will continue to be, restricted in the choice of occupation he can undertake and that he was now limited to supervisory-type roles. The medical evidence relied upon for that submission was the opinion of Dr Thomas.[69]
[69]T105
96Counsel for the defendant submitted Dr Thomas’s opinion is the only opinion before the Court on occupational restriction and it ought to be given little weight, as it was based on an inaccurate history.
97Dr Thomas reported as follows:
“At the time of the accident, he was working as a right hand dominant paste (sic) crew worker. He had to leave his job due to physical restraints and did truck driving and has now returned to paste (sic) crew work in the same job albeit in a supervising role.
Therefore, this has demonstrated that he has reduced capacity for work, and he has had to transition away from his original role. This is due to reduced physical capacity on the left hand with reduced ability to use vibrating tools in the mining industry, grip strength and cold intolerance.”[70]
[70]PACB 62
98I accept the defendant’s submission that this history is inaccurate. Mr Dalrymple did not leave his pre-injury job due to physical restraints. He returned to work on full duties after the incident, and only left the position because he perceived he was being bullied. He went on to a leading-hand position, which he described as a promotion.
99In the absence of evidence from his treating doctors, and in circumstances where the only medical opinion on the issue is based on an inaccurate history, I find Mr Dalrymple has not established that he is subject to any occupational restrictions now, or in the future, on account of his compensable injury.
Football
100Mr Dalrymple played club football prior to the injury whenever he was off work. He played for regional teams, often in the reserves. After the injury, he continued to play football, but claims he struggled to play at the same level.
101The defendant tendered extracts of his player history, which demonstrate his participation in the following clubs and games:
(a) 2017 ꟷ Cowwarr Football Netball Club (Reserves), twelve games out of a season of sixteen;[71]
(b) 2018 ꟷ Boolarra Football Netball Club (Seniors), fifteen games;[72]
(c) 2019 ꟷ Boolarra Football Netball Club (Reserves), eleven games;[73]
(d) 2020-2021 COVID years ꟷ injury occurred in October 2020;[74]
(e) 2022 ꟷ Rushworth Football Club (Seniors), six games; Rushworth Football Club (Reserves), one game; Boolarra Football Club (Reserves), two games; and Maldon Football and Netball (Reserves), one game. This totalled ten games;[75] and
(f) 2023 ꟷ Boolarra Football Netball Club (Reserves), two games.[76]
[71]DCB 29; T30-32
[72]DCB 27; T33
[73]DCB 25
[74]DCB 21; these years were not relied on by either party as true indicators of consequence, see T123
[75]DCB 18-20
[76]DCB 16
102In oral evidence, Mr Dalrymple agreed that “on paper”, there was no discernible difference between his pre-injury and post-injury participation in football.[77]
[77]T40
103Mr Dalrymple said that, in 2023, he was working FIFO in Western Australia, twelve hours a day, fourteen days on and fourteen days off. He said he did not have much time to train for football while he was working and had become unfit.[78]
[78]T56
104Mr Dalrymple’s counsel submitted that he has been playing less football than he did prior to the injury, on account of the injury. Further, that he has to take Panadol and strap his finger in order to play.
105Counsel for the defendant submitted that Mr Dalrymple’s ability to return to football is a very significant indicator of the true level of his disability. The reason was because of the necessity to use both hands in the game, to mark a ball, handball, pick the ball up from the ground using both hands, or handpass with the ball in his left hand.
106In 2019, before the injury Mr Dalrymple played eleven games. In 2022, after the injury, he played ten games. Given he was doing FIFO work after the injury, I do not consider the difference of one game to be material.
107Counsel for Mr Dalrymple submitted that the two games played in 2023 was indicative of the injury-related reduction of football participation. Counsel was unable to point to any evidence to explain an injury related reduction from ten games in 2022.
108There was no medical evidence in support of the contention that Mr Dalrymple has any restrictions in his ability to play football.
109I accept Mr Dalrymple’s evidence that he has some discomfort in the left index finger when he plays, however that is not such as to cause him to wear a glove.[79] He tapes it up. The injury does not restrict his participation, often in cold and wet weather, during football season. The key determinant for his participation is his work.
[79]T40, L26
110I find that, despite the injury, Mr Dalrymple has been able to play football at the same, or almost the same, level as he did prior to the injury.
Camping
111Mr Dalrymple said that carrying and lifting camping gear for prolonged periods, increases the pain in his left hand. Camping in cold weather also increased his pain.[80]
[80]PACB 13 at paragraph [31]
112In oral evidence, Mr Dalrymple said that he does not go camping as much as he would like. He said this was partly due to work commitments and partly because of his injury, due to the need to rely on others to help him carry his gear and set up.[81]
[81]T41
113Mr Dalrymple said he stores his camping gear in tubs and he usually goes camping with friends. There are four to five tubs of camping gear in the trailer.[82] He said lifting the camping gear causes him a lot of pain. Mr Dalrymple said he was able to carry the tubs using his four good fingers with the index finger resting to the side, but it was inconvenient and it gave him pain.[83]
[82]Ibid
[83]Ibid
114I accept that, as a result of the injury, Mr Dalrymple may have some discomfort or inconvenience carrying his camping gear, however I do not accept that it is of such magnitude as to inhibit his ability to go camping or enjoy it when he goes. Any impact on this activity does not go beyond being mild.
Fishing
115Mr Dalrymple deposed that, prior to the injury, he went fishing “as much as possible”. Since the injury, he had only been once, as he struggled tying the hook or reeling in the fish, which made him feel embarrassed.[84]
[84]PACB 14 at paragraph [30]
116In oral evidence, Mr Dalrymple said, that before his injury, he would hold the hook with his left hand and bait with his right. After the injury, he would hold the hook with his right hand and bait with his left. He explained that it was awkward to use the other fingers of his left hand to hold the line, as his index finger gets in the way.[85]
[85]T21-22
117Mr Dalrymple said that, before the injury, he went fishing most weekends on his stepdad’s boat, or with friends, but could no longer go, as he was embarrassed that he could not bait the hook properly. He does not go on his own, because he gets angry with himself and he just cannot do it.[86]
[86]T23
118In re-examination, Mr Dalrymple said that he had now learned to use his middle finger to feed a line though the hook, but it was difficult at the start, because he is right-hand dominant.[87] It was not clear why he could not hold the hook with his left hand (now using his thumb and middle finger instead of his index finger) and bait with his right, as was his habit prior to the injury.
[87]T53
119In closing submissions, counsel for the defendant accepted that Mr Dalrymple had some difficulty baiting a hook, but submitted that fishing cannot have been such a significant hobby for him if he gave up after just one attempt. I accept that submission.
120The evidence, taken as a whole, does not establish anything greater than a mild impact of the index finger injury upon Mr Dalrymple’s ability to bait a hook. He could go fishing if he wished to do that.
Household jobs
121Mr Dalrymple deposed to various household difficulties arising from the injury to his left index finger. These included, lifting a frying pan with his left hand, vacuuming or removing cobwebs, and closing the buttons on his bedsheets. He deposed that he relies on his partner to hold heavy grocery items, as he cannot grip them with his left hand, and he has difficulties using a “Gerni” to wash his car.[88]
[88]PACB 12 at paragraphs [22] and [26]-[28]
122In cross-examination, Mr Dalrymple was asked whether he could perform household chores unrestricted. He said “yes” he could, but he was limited in the length of time he could do the activity. He conceded that his partner bears most of the responsibility for household chores and he could help out in an unrestricted way if he was asked to do that.[89] He agreed he could use garden tools, such as a mower and leaf blower, and had done so in the last few weeks.[90]
[89]T43
[90]Ibid
123Mr Dalrymple was not cross-examined about any difficulty with other household jobs. Ms Gregory’s affidavit referred to Mr Dalrymple taking Panadol when doing household jobs and to observing him having difficulty in using a lawn mower or whipper snipper[91] or taking longer to do gardening tasks.
[91]PACB 23 at paragraphs [6] and [9]
124During his closing address, I raised with counsel for Mr Dalrymple, my impression that many of the alleged difficulties related to tasks which could and would ordinarily be performed by a person with their dominant hand. Counsel submitted that Mr Dalrymple was detailing in his affidavit, how his left hand is restricted, even if it is correct to say he can rely on his dominant hand to perform these activities.[92]
[92]T99
125I do not accept that submission. It may be correct that Mr Dalrymple experiences discomfort in his left hand when performing everyday activities. However, nowhere in the affidavits does he depose to being right handed. It is misleading to suggest he cannot perform with his injured left hand, activities which one normally performs with their dominant hand.
Servicing his car and return to work as a mechanic
126Mr Dalrymple is a qualified motor mechanic.[93] In oral evidence, he said that he does not service his four-wheel drive himself, but before the injury, he did service his own “ute”.[94]
[93]PACB 11 at paragraph [25]
[94]T42
127In re-examination, he was asked why he does not service his car. Initially, Mr Dalrymple said:
“It just gets too hard, great difficulty with stuff. But in saying that like, servicing a car, there is a lot to it.”[95]
[95]T57, L16-19
128Mr Dalrymple also said his current vehicle is a 2023-model Hilux, under warranty, with servicing (including computer servicing) included under the warranty.[96]
[96]T57, L25-26
129When asked by the Court whether that was the reason he did not service his car, Mr Dalrymple said “yes and no”.[97] It was not clear what he meant by that and it was not explored further by his counsel. Mr Dalrymple did say he did not have the facility to perform the computer servicing, but could do the remainder, if he had an ABN.[98]
[97]T57, L30
[98]T58, L1-4
130There is no medical evidence supporting the assertion in his affidavit that he could not now return to working as a mechanic.[99]
[99]PCB 11 at paragraph [25]
131On the evidence, it appears that Mr Dalrymple had not worked as a mechanic for a number of years prior to his injury. The reasons for this were not explored in cross-examination.
132I accept that Mr Dalrymple may experience some degree of discomfort or may need to make some accommodation on account of his left hand if he is to work on a car. However, given he is right-hand dominant, any such accommodation or discomfort is modest.
Sleep
133Mr Dalrymple deposed that his pain is worse at night and wakes him a few nights a week. His sleep is affected by finger and hand discomfort.
134In cross-examination, Mr Dalrymple said his sleep difficulties do not affect him every night,[100] and depending on what he might have done during the day, for the majority of nights he had no issues with his sleep.[101]
[100]T29
[101]T29-30
135In re-examination, Mr Dalrymple said, on a workday, he struggled to sleep, so he slept on the couch two to four times a week.[102] This answer was inconsistent with the evidence Mr Dalrymple gave in cross-examination that, for the majority of nights, he did not have problems with his sleep.
[102]T54
136I accept that Mr Dalrymple may from time to time experience pain or discomfort at night due to the index finger injury, which impacts on his sleep. However, given my findings about the inconsistencies in his evidence and his tendency to overstate his difficulties, I am unable to make a finding on the extent of the impact on his sleep.
Grip strength and weakness
137One of the consequences relied upon by Mr Dalrymple is reduced grip strength and weakness in the left hand. He has difficulty making a fist due to the slight bend in the tip of his index finger.
138A photograph of his two hands in a fist was tendered as part of the report of Dr Robbins. In the photograph, Mr Dalrymple had not formed a full fist with his left hand, the index finger was curved slightly outwards.[103]
[103]DCB 15
139There was conflicting evidence with respect to the degree of loss of grip strength of the left hand.
140On 15 July 2021, Mr Dalrymple’s physiotherapist assessed the grip strength in the right hand at 70, and in the left hand at 60, “with no pain”.[104] There was no evidence about whether this was attributable to the difference normally found between the dominant and non-dominant hand.
[104]PACB 32
141On 29 November 2022, the Medical Panel assessed Mr Dalrymple’s grip strength as normal on repeat measurements.[105] The Medical Panel also found that there was a reduced range of motion in the left wrist, which was restricted in flexion and radial deviation.
[105]PACB 51
142Counsel for Mr Dalrymple accepted that, on the day of the Medical Panel’s assessment, Mr Dalrymple did not have any significant grip strength problems.[106]
[106]T110
143I accept the additional submission made on Mr Dalrymple’s behalf that difficulties with endurance and maintenance of strength are not addressed by that finding.
144Although grip strength may have been assessed as normal, the other findings of the Medical Panel suggest that Mr Dalrymple is restricted in the range of motion of the wrist, and I accept that this may affect the strength and weakness of his left hand.
Analysis
145Mr Dalrymple’s left index finger injury poses no impediment to his participation in social activities. At best, it creates a very mild impairment of his performance of some domestic activities.
146Mr Dalrymple’s partner is responsible for the lion’s share of domestic chores. I accept he may have to make some minor accommodations to domestic activities because of the injury, but he is mostly able to perform them unrestricted, save for their duration. He is able to use garden tools, such as a mower or leaf blower.
147I accept Mr Dalrymple has trouble shaving with his left hand, but given he is right handed, this seems of little, if any, consequence. I accept that, if he is eating with a knife and fork in each hand, he would have to accommodate the utensil in his left hand and would be unable to hold it as he did prior to the injury, but would be able to hold it in some other adapted way.
148There is no impact on his ability to live independently.
149There is no impact on his cognitive functioning on account of prescription medication. He is not prescribed any medication for his injury.
150Mr Dalrymple ceased hand therapy in 2023, when the level of his improvement plateaued.
151There is no evidence of any visits to his GP for treatment of the injury in recent times, or at all.
152No future treatment has been recommended or is planned.
153I accept that Mr Dalrymple experiences pain or discomfort at times, which he treats with over-the-counter-medications. I have been unable to make a finding about the frequency of his use of such medication.
154Mr Dalrymple gave inconsistent evidence about the impact of the injury on his sleep. I find there has been some impact on sleep, but due to inconsistency in his evidence and my findings about Mr Dalrymple’s overstatement of his difficulties, I have been unable to make a finding about whether the extent of that impact amounts to anything more than a mild impairment.
155I take into account Mr Dalrymple’s age, he is currently almost thirty years old and will have to live with the impaired index finger for the rest of his life. I take into account the surgeries he has undergone and the fusion in the first joint of his index finger, which affects his ability to bend it and make a complete fist.
156I accept the submission made on behalf of Mr Dalrymple that, when using his left hand, the presence of pain and functional impairment affects that use and he has to make accommodations. However, I do not accept that these amount to anything more than a mild impairment.
157In assessing the claimed consequences of an alleged serious injury, comparison must be made, not just with other impairments of the same type, but with a broad spectrum of cases, including those not resulting in litigation.[107]
[107]Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181 at paragraph [42]; Sutton v Laminex Group Pty Ltd (2011) 31 VR 100 at paragraphs [88]-[89]; TTB SMS Pty Ltd v Reading [2020] VSCA 203 at paragraph [31]
158The significance of what has been lost will be informed by what has been retained.[108]
[108]Dwyer v Calco Timbers (No 2) [2008] VSCA 260 at paragraph [27]
159Mr Dalrymple has been able to continue to play club football. I accept he experiences some discomfort and pain marking, holding, handballing and picking up the ball from the ground. He has to tape up his fingers in order to play and takes Panadol to address the pain, however he has been able to continue to enjoy this activity, despite the injury. His level of participation in football has not been significantly affected by the injury.
160I accept Mr Dalrymple may have some inconvenience or discomfort carrying camping gear in tubs. However, there is no evidence he could not go camping if he wished to do so, even if he had to carry the camping gear himself.
161Mr Dalrymple may have to make accommodations in baiting a hook, but he is not precluded from doing so. He is able to go fishing alone or with friends, if he wished to do that.
162Mr Dalrymple was able to return to unrestricted pre-injury duties at work. There is no convincing medical evidence of any inhibition to his ability to work on account of the injury. Mr Dalrymple has enjoyed promotions at work into more managerial roles which include the use of tools.
163Counsel for the defendant relied on two cases, being TTB SMS Pty Ltd v Reading[109] and Tatiara Meat Co Pty Ltd v Kelso,[110] as being illustrative of the relevant principles applicable to cases of this kind.
[109](Supra)
[110][2010] VSCA 12
164Counsel for Mr Dalrymple submitted that there were differences between those cases and the present case.
165I accept that submission. Each case turns on its own facts.
166In this case, when comparison is made with the range of possible impairments, including impairments of the brain, spine, and weight-bearing joints, the impairment to Mr Dalrymple’s non-dominant index finger falls far short of the statutory threshold. There is no prescription medication or future treatment required, the pain is not constant and does not inhibit his ability to work in his pre-injury work, nor inhibit his ability to participate in his hobbies to any significant degree.
167I accept that it may be appropriate to describe the consequences to Mr Dalrymple as being of some significance to him. However, I am not satisfied that, when compared to the range of possible impairments, they meet the statutory test of being “more than significant or marked” and “at least very considerable”.
Conclusion
168The application is dismissed.
169I will hear the parties with respect to costs.
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