Dickinson v Victorian WorkCover Authority
[2019] VCC 67
•6 February 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-18-03383
| NATHAN LEE DICKINSON | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE O’NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 February 2019 | |
DATE OF JUDGMENT: | 6 February 2019 | |
CASE MAY BE CITED AS: | Dickinson v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 67 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – laceration injury to right hand – pain and suffering only – plaintiff resumed work after injury – whether consequences “very considerable”
Legislation Cited: Accident Compensation Act 1985, s134AB
Judgment: Leave granted in respect of pain and suffering damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R N Morrow | Slater and Gordon Ltd |
| For the Defendant | Ms M Tsikaris | Russell Kennedy |
HIS HONOUR:
Preliminary
1 On 20 March 2015, in the course of his work as a roofing plumber, Mr Dickinson slipped and lacerated his non-dominant right hand on the edge of a piece of roofing material. He was taken, eventually, to Cabrini Hospital, where Mr Damon Thomas, plastic surgeon, performed surgery to repair damaged tendons, ligaments and nerves to the right palm area. Mr Thomas performed further surgery in October 2016.
2 After three months rehabilitation, Mr Dickinson returned to employment with his employer, Mr Anthony Eason. In July 2016, he moved to another roofing company, Kanga Roofing Melbourne Pty Ltd (“Kanga”), and remained working there as a roofing plumber until November 2017. He said he encountered difficulties with the work because of limitations in the use of his hand and needed assistance with many tasks.
3 For a number of reasons, including the prospects of better pay, he left Kanga and started to work for a labour-hire company, Raw Recruitment Services Pty Ltd. From that time he has worked, sometimes full time and sometimes part time, in a range of jobs with that company, including traffic control and general labouring. On a number of occasions he has, without pay, helped some friends with roofing work.
4 Although the surgery was successful, he claims a range of recreational and sporting activities have been lost, including tennis, golf and playing the guitar.
5 Mr Dickinson says he suffers constant pain in the right hand, exacerbated depending upon the activities in which he is involved, has lost dexterity and strength in the hand, and suffers pins and needles into the fingers. He says, because of problems using the hand, detailed in his second affidavit,[1] work as a roofing plumber is beyond him and he expects not to be able to resume that work again.
[1]Plaintiff’s Court Book 18-24
6 This is a serious injury application. Leave is sought in respect of pain and suffering only. The claim in respect of loss of earning capacity was abandoned. The body function said to be lost or impaired is the right hand.
7 Ms Tsikaris, for the defendant, identified the issues in the application:
· When regard was had to other cases in the range of possible impairments, the consequences to the plaintiff did not meet the “very considerable” test (“range”).
· There were significant credit issues, and I ought to have reservation in accepting the nature and extent of the consequences claimed by the plaintiff (“credit”).
· The plaintiff had the capacity to return to full-time unrestricted work as a roofing plumber, and I should not accept his claim that that area of employment was lost to him (“work capacity”).
8 At the conclusion of the application on 5 February 2019, I indicated I was satisfied the consequences to the plaintiff of the workplace injury met the statutory test, and that I would grant leave to bring proceedings. These are the reasons.
Range
9 After the first surgery, Mr Dickinson, undertook hand therapy with Ms Angela Chu. He was off work for about three months. According to Ms Chu’s report, she said Mr Dickinson was diligent with the exercises she recommended. He required further surgery in 2016 because of stiffness and lack of grip in the right hand. She provided therapy again. She measured the grip strength in July 2016 as significantly less in the right hand than the left, although noted that his range of movement had improved. She said Mr Dickinson continued to have difficulties with fine motor manipulation. She thought he had a full capacity for his then current pre-injury work, although he may have some difficulty with fine manipulation of objects.
10 Mr Dickinson’s plastic surgeon, Mr Damon Thomas, reported in October 2016. He said Mr Dickinson would have a permanent deficit in the right hand in relation to reduced movement of the middle finger. He said there would be reduced dexterity and strength. He said there may be some altered sensation. Mr Thomas discussed a further possible procedure, although Mr Dickinson was not keen to undergo further surgery.
11 As to work capacity, Mr Thomas said:
“I last saw Mr Dickinson in June 2016. According to my paper documentation, he was cleared for full duties on 15 June 2016. I would not expect this to have changed and therefore he should be able to continue with his normal work. Assuming he can undertake his normal duties, I would not expect him to have any deficits in work in general or in the future.”[2]
[2]Plaintiff’s Court Book 72
12 Other than the treatment described above, Mr Dickinson has not sought any further specialist treatment. He does not consult his general practitioner in relation to the hand, and takes no medication.
13 According to his affidavits, Mr Dickinson says he has suffered the following consequences:
· He has constant pain in the right hand, made worse in cold weather. The pain is in his little ring and middle fingers. He also suffers pins and needles into those fingers and uses a heat pack.
· He has lost strength in the right hand, as measured by a number of practitioners.
· He cannot fully make a fist with the right hand, and dextrous, fine movements are difficult.
· Some recreational activities are affected, in particular, tennis, golf and billiards. He cannot hold a tennis racquet, nor a golf club, because of lack of grip strength. The loss of golf is particularly significant to him.
· He played the guitar for enjoyment prior to the injury. He did not have lessons, but learnt from a friend. He said he enjoyed playing guitar, as it helped him relax after work in the evening. He says he cannot play the guitar as he cannot use his right hand to properly grip the neck of the guitar.
· He cannot lift weights as before.
· He cannot return to work as a roof plumber.
14 In the course of cross-examination, Mr Dickinson was questioned about his attendances at a local gymnasium. He goes there about four times a week for an hour or an hour-and-a-half per session. He does a range of exercises, mainly using machines, and pushes, pulls or lifts weights using his hands. He said he is not able to perform in the gymnasium as well as he had before injury. Using the machines makes the exercises easier.
15 In relation to his recreational activities, he has taken up surfing and surfs regularly, even from time to time in cold weather.
16 He was taken to a number of extracts from a Facebook page which showed him travelling overseas and within Victoria, enjoying recreational activities, including on one occasion paddling a canoe, and steering a motor scooter and quad bike.
17 Mr Dickinson was examined in 2018, and again this year, by Mr John Henderson, orthopaedic and general surgeon. That practitioner noted that Mr Dickinson’s right hand was weaker than his left, that there was restriction of movement, and reduced grip strength. He reported sensory disturbance and hypersensitivity. Mr Henderson described the right hand as “substantially disabled”. In relation to work activities, Mr Henderson said that while Mr Dickinson had a work capacity, he would be restricted in climbing ladders, holding and controlling tools or handling sheet metal. He considered Mr Dickinson would not return to his former employment.
18 A Certificate of Capacity signed by Mr Thomas dated 7 June 2016 indicated Mr Dickinson had a capacity for pre-injury employment.
19 Mr John Buntine, hand surgeon, provided a report of April 2017. He received a history of a range of restrictions, particularly in relation to work. Mr Buntine measured grip strength as significantly less in the right hand than the left. He noted the surgery had been successful in repairing tendons, nerves and blood vessels, but said that there was an incomplete recovery in relation to the range of movement of the injured fingers, with diminished grip, especially of narrow objects. He said Mr Dickinson would be prone to drop things at work, at the risk of injuring himself and others, if he continued to work as a roof plumber, so it was sensible to consider another occupation.
20 Mr Thomas Robbins, hand and plastic surgeon, provided a report of July 2018. At that time, he diagnosed Mr Dickinson as having a restriction in finger movements which he thought might improve over time. He thought he was capable of returning to pre-injury duties, and said:
“The worker complained of a number of lifestyle and other factors which he states affect him but in my opinion as I examined to him today, there is no reason why these activities could not be pursued. I consider the worker was exaggerating any difficulties. I do not consider there were any lifestyle factors contributing to the injury or his impairment.
…
I think the worker’s multiple complaints are not consistent with the findings and he is exaggerating his difficulties. I think he is physically capable of returning to his work as a roof plumber.”[3]
[3]Defendant’s Court Book 24
Credibility of the Plaintiff
21 Ms Tsikaris questioned Mr Dickinson closely, in particular about the activities he performed in the gymnasium, and recreational pursuits on a number of holidays over recent years, which she said was inconsistent with his claimed incapacity. She further emphasised the report of Mr Robbins, who found there was an exaggeration of the effects of injury.
22 Mr Dickinson gave evidence in a straightforward manner. He made appropriate concessions in cross-examination. He accepted he was able to do a range of activities, in particular in the gymnasium. I detected no exaggeration, nor any intension to embellish the effects of the injury. His presentation was that of an honest witness giving a fair account of the consequences of injury.
23 I do not accept the opinion of Mr Robbins that he was exaggerating. That stands in contrast to my assessment, and to the assessment of the other medical practitioners.
24 I do accept that Mr Dickinson is active at his gymnasium, four or so times a week, and uses his hands in a number of exercises mainly involving machines; however, I accept his evidence that he is restricted and although he is able to grip parts of the machines with his hands, that does not require fine dextrous movements he was able to undertake before. Further, although he has holidayed regularly, the photographs tendered are snapshots in time and although he does use his hand in various activities, his description of the activities involved do not stand in contrast to the claims in his affidavit, or the histories given to the various practitioners.
25 All in all, I am satisfied that he is a credible witness, and I have little hesitation in accepting his description of the consequences which have resulted from his hand injury.
Work capacity
26 Mr Dickinson returned to employment as a roofing plumber some three months after the first surgery. He had a further month off after the second surgery. He remained working for Kanga until November 2017. Throughout that period, he worked as a roofing plumber; however, I accept his evidence that he had a benevolent employer and required assistance from one or two other employees, particularly in using power tools, moving roofing iron and the more dextrous fine movements involving his right hand.
27 His second affidavit sets out the details of the restriction in his work as a roofing plumber. These are:
· Handling sheets of iron which he is required to grip in both hands.
· He cannot properly use a hammer, nor tinsnips, which require the use of both hands.
· He has difficulty using a riveter which requires squeezing pressure in the hand, and also a marker and tape.
· Power tools, including grinders, drills, circular saws and shears are difficult, where two hands are required, or where he uses his right hand in confined spaces.
· Climbing a ladder using his right hand is difficult.
28 I accept his evidence that, in the real employment market, while he may be able to take on some of the tasks of a roofing plumber, generally the job is beyond him. I accept his evidence that the loss of the area of employment in which he had undertaken an apprenticeship is a significant loss for him. I accept he considered starting his own business as a roofing plumber, even notwithstanding one of the reasons he left the area was to pursue better wages as a traffic controller and general labourer. It is clear from his earnings details that he has earned considerable money over the last year or so in that area.
29 Generally, I accept the limitations he describes in relation to roofing work. Given the restrictions applied by most of the treating and consulting medical practitioners, I accept that he would have difficulties in using these tools, and in a range of work activities.
Conclusions
30 Accepting the plaintiff as a witness of truth, I accept that he suffers pain, restriction of movement, grip strength, and a reduction in his ability to undertake fine motor movements of the fingers of his right hand.
31 I accept his evidence that a number of recreational activities, including playing a guitar, golf, tennis and billiards, are restricted. As Ms Tsikaris points out, he has taken up a number of other activities, including surfing, and is able to travel regularly and enjoy tourist activities. The authorities are clear that an assessment of the consequences of injury must take account not only of that which is lost, but also that which is retained, and those activities which have been acquired. While he has some plusses and minuses in that regard, I accept that, in particular, the loss of golf and guitar playing are significant consequences to him.
32 Most importantly, in my view, is that I accept he has restriction in the work he would be otherwise able to carry out as a roofing plumber. It is clearly an area of employment which requires strength and dexterity of both hands. I accept the opinions of most practitioners that he has significant restrictions in that regard. Although his treating surgeon, Mr Thomas, was of the view, in 2016, he had the capacity to return to work duties. That is now more than two years ago and he has not had the benefit of Mr Dickinson’s history from that time to the present. In any event, that surgeon accepted that he had a range of restrictions in the use of his right hand.
33 In these circumstances, I accept that the consequences to Mr Dickinson achieve the “very considerable” test the legislation requires. I shall grant leave to bring common law proceedings.
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