Dimasi v Qantas Airways Limited
[2022] VCC 450
•13 April 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-21-03084
| FRANCO DIMASI | Plaintiff |
| v | |
| QANTAS AIRWAYS LIMITED | Defendant |
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JUDGE: | HIS HONOUR JUDGE PILLAY | |
WHERE HELD: | Melbourne (via Zoom) | |
DATE OF HEARING: | 15 March 2022 | |
DATE OF JUDGMENT: | 13 April 2022 | |
CASE MAY BE CITED AS: | Dimasi v Qantas Airways Limited | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 450 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – workplace injury – impairment to left ankle – injury sustained while working as a baggage handler – stoical Plaintiff – whether Plaintiff’s retained work capacity demonstrates a failure to meet the requisite test
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013 (Vic)
Cases Cited:Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260
Judgment: Application granted
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr N Dunstan | Slater and Gordon Lawyers |
| For the Defendant | Ms A Bannon | Hall & Wilcox |
HIS HONOUR:
1Mr Franco Dimasi injured his left ankle while working as a baggage handler for Qantas Airways Limited (“Qantas”) in 2011. The only issue before the Court is whether the impairment consequences from his left ankle injury result in an affirmative finding of serious injury or not. This requires me to decide whether the injury to his left ankle has resulted in impairment consequences: [1]
“when judged by comparison with other cases, in the range of possible impairments … of a body function … [are] fairly described as being more than significant or marked, and as being at least very considerable.”
[1] Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), s 325
2The Defendant denies that they do.
3For the reasons which follow, I am satisfied that the impairment consequences result in an affirmative finding of serious injury.
Brief chronology
4Mr Dimasi was born in April 1961. He left school at the end of Year 11 and worked in a supermarket as a retail assistant for about eight years. He then worked in real estate for about seven years before joining Qantas, at Tullamarine, in 1993. He was employed there as a baggage handler full time. His duties involved loading and unloading bags and containers from planes and operating tugs to pull aircraft about the tarmac. He accepted this was a physical job.[2]
[2] Transcript (“T”) 13, Line (“L”) 22-23
5Mr Dimasi’s past medical history is not overly relevant. He had sustained an injury to his left knee requiring an arthroscope in about 1982 and he had issues with cholesterol and blood pressure, which do not bear on the present application.
6On 5 August 2011, the subject incident occurred. He was at work driving a tug.[3] He was climbing down from the tug onto the tarmac when he stepped into a pothole.[4] His left ankle twisted. He was in immediate pain. He was taken by ambulance to hospital where he was assessed.[5] Imaging revealed a complete rupture of the anterior talofibular ligament (“ATFL”) in the lateral aspect of the left ankle.[6] He remained off work and attempted non-operative therapies, but continued to report swelling and instability. He was referred by his treating doctor to Dr Andrew Beischer, orthopaedic surgeon. He considered the imaging and clinical signs indicated a tear of the ATFL and an osteochondral defect.[7] He advised surgery to reconstruct the ligament and to debride the area.[8]
[3] Plaintiff’s Court Book (“PCB”) 17, at paragraph [8]
[4] Ibid
[5] PCB 17, at paragraph [9]
[6] PCB 30
[7]PCB 35
[8] PCB 35
7Mr Dimasi came to surgery under the hand of Dr Beischer on 28 November 2011.[9] Surgery was uncomplicated. His post-operative course was similarly uncomplicated, but he continued to have persisting ache and swelling over the next seven months.[10] He attempted physiotherapy, which improved the function of his left ankle, but it was noted by April 2012 that he continued to have swelling and a limp. Ultimately, he was discharged from Dr Beischer’s care in late June 2012, with both persistent ache and swelling in the left ankle.[11]
[9] PCB 35
[10] PCB 36
[11]Ibid
8He had returned to work on part-time modified duties during the early part of 2012. He was then sent by his employer, to see Dr Vicki Grove at ERA Health on 10 July 2012.[12] Dr Grove cleared Mr Dimasi for full duties work.[13] However, she noted that his ankle was not 100 per cent and that he should avoid running and jumping as much as possible, as he may have ongoing symptoms.[14] On that basis, Mr Dimasi returned to full duties work. In evidence, however, he stated that he gave up both golf and running, which were his two recreational pursuits, as a result of problems with his left ankle and also the doctors’ advice.[15]
[12] Defendant’s Court Book (“DCB”) 70-71
[13]DCB 14
[14] DCB 70
[15] PCB 19, paragraphs [20]-[21]; PCB 39; T23, L3-10; T21, L19-21; T25, L8-9
9Thereafter he worked doing normal baggage handling duties from 10 July 2012 until April 2020, when he was made redundant due to COVID-19.[16] It is accepted that he did not seek medical treatment for his left ankle in this period.[17]
[16] PCB 18, at paragraph [16]
[17] T15, L17-25
10After leaving Qantas, he trained as a traffic controller and obtained work with VCRETE Contractors Pty Ltd, a construction company, between 3 August 2020 and 1 December 2020,[18] when he was made redundant again.[19] The next day, he began employment with Construct Pty Ltd,[20] as a traffic controller, working at both construction sites and also COVID-19 testing sites. Both these traffic-controlling jobs were done on a full-time basis. Since beginning work with Construct, he gave evidence that he works on average 45 hours per week, but has often worked up to 70 hours due to surges in COVID-19 requiring test sites to be open longer.
[18] DCB 172
[19] T31, L30-31
[20] T32, L4-7
11He returned to see Dr Beischer on 4 November 2021, complaining of pain and ongoing instability in the left ankle. He was referred for MRI imaging, which revealed osteoarthritis in the tibiotalar compartment of the left ankle.[21] The CT scan was reported in the following terms by the radiologist: [22]
“I note evidence of old trauma within the hind foot with significant irregularity at the anterior process of the calcaneum and multiple bone densities are identified which are ununited.”
[21]PCB 31
[22]PCB 32
12Dr Beischer considered the clinical signs and the imaging and reported that Mr Dimasi had a significantly sized medial talar osteochondral defect.[23] He considered it was stable at present, but may need an arthroscopy to debride the area and then potentially an arthrodesis.[24]
[23] PCB 34
[24]PCB 34. At PCB 36, Dr Beischer opined that the likelihood of Mr Dimasi experiencing symptoms in his left ankle which would require further surgery is between 10-20%
The impairment consequences relied upon
13Mr Dimasi relies on the fact that he has sustained an injury which is stable and permanent. The starting point is the injury itself. The injury occurred in circumstances which required Mr Dimasi to be taken by ambulance to the hospital. This denotes the significance of the insult. Next the radiology which details the injury, and is largely non-controversial, revealed an osteochondral defect with an ATFL rupture requiring surgery.[25] Mr Dimasi had surgery to repair the rupture and debride the area surrounding the defect. He was off work for several months and only returned on modified duties thereafter. It was only 11 months after the initial injury that he managed to return to work on full-time duties. The fact that Mr Dimasi required such a substantial period of time off work, and surgery is, I consider, an indication of the severity of the injury. It was noted, however, even on his discharge from Dr Beischer’s care and Dr Grove’s clearance for full-duties work, Mr Dimasi continued to have persistent ache and swelling.[26] The fact that these conditions had not been alleviated by surgery, physiotherapy or medication during this period of time speaks to the gravity of the injury to the left ankle and its persistence.
[25] PCB 35
[26] PCB 36; DCB 71
14The second part of this assessment regards the updated imaging obtained by Dr Beischer in late 2021 which revealed, not only a “significantly sized” osteochondral defect,[27] but also irregular healing of an old fracture.[28] Dr Simon Journeaux considered there was evidence of longstanding post-traumatic osteoarthritis.[29] These matters are all consistent with a deterioration of the initial disruption in the left hind foot. They also underpin Mr Dimasi’s ongoing complaints of organic problems at the left ankle. Based on the above reasons, I find that Mr Dimasi has a permanent significant impairment of a body function being the left foot.
[27] PCB 34
[28]PCB 32
[29]DCB 50
15Turning to consider the impairment consequences complained of in sequence, the first, being that of pain. The Court in Haden Engineering Pty Ltd v McKinnon,[30] set out the criteria by which such an impairment consequence must be assessed. Of course, while the Court there searched for consistency in the application of principle in such an assessment, it also recognised that each assessment is made specific to the worker’s experience. Here, it is uncontroversial that Mr Dimasi sustained a frank injury with immediately painful consequences. He was taken by ambulance to the hospital, came under the care of his treating doctor and within a short period of time went on to have surgery on the left ankle. This was followed by a period of physiotherapy and attempting to return to work. His full return to work occurred only after some 7 months from surgery and 11 months from the onset of the symptoms.
[30](2010) 31 VR 1
16Thereafter, despite the fact he returned to work on full duties in a physical job, he deposes to suffering from daily pain in his left ankle.[31] He deposed: [32]
“I suffer from daily pain in my left ankle that comes and goes but I am always conscious of my left ankle pain and try not to doing [sic] anything that is likely to aggravate it. I often get pain when I first stand up when I get out of bed in the morning or when I get up out of the chair. When the weather is cold I tend to get more severe pain in my ankle. My left ankle pain tends to be aggravated by any prolonged activity and involves my left ankle joint.”
[31]PCB 19, at paragraph [19]
[32]Ibid
17He gave slightly different histories to doctors. To Mr Thomas Kossmann and Associate Professor Anthony Buzzard, he seems to have given a history of having intermittent pain in his left ankle.[33] After seeing Mr Dimasi on 13 October 2021, Dr Beischer recorded that Mr Dimasi had ongoing issues with pain and instability symptoms, but did not comment on the constancy or otherwise of the pain.[34] However, with Dr Journeaux, he reported constant pain of variable severity and instability.[35]
[33]Mr Kossmann at PCB 47; Associate Professor Buzzard at DCB 18
[34]PCB 36
[35]DCB 44
18The Defendant submitted that, on this point, the medico-legal reporting is to be preferred to the evidence of Mr Dimasi. It is to be noted that the Defendant did not mount a wholehearted attack on the credit of Mr Dimasi. Rather, they suggested the affidavit had been embellished in certain aspects to “play up” the severity of the impairment consequences. This was said to arise in a number of different areas. These were the frequency of his pain, the frequency with which Mr Dimasi played golf before August 2011, the frequency with which he jogged before August 2011, and the ability to work, involving standing and walking on uneven ground, as required in his current duties. My assessment of the Plaintiff’s credit is that he was a direct and honest witness. He attempted to give answers openly and made concessions appropriately. It is undoubted that at times he was confused by dates, such as treatment for a right ankle injury in 2019[36] but, overall, I considered him a witness of truth. I consider that the evidence in respect of his golf and running activities prior to August 2011 was inexact and imprecise. However, it was broadly supported by Mr Antonino Gullaci, the other witness in the case, that he played golf regularly with Mr Dimasi prior to the subject incident.[37] It may not have been at the level of three times per week, but it was certainly a regular pastime of theirs, and one in which they derived enjoyment from. As to running, Mr Dimasi conceded in cross examination that it was not perhaps 30 to 40 minutes of running regularly on a consistent basis, but might have involved some walking.[38] I do not consider the affidavit material was structured in a way to leave the Court with a false impression, but was, rather, imprecise. I record my finding that I accept Mr Dimasi’s evidence and consider him a witness of truth.
[36] T56, L31 – L57, L1; T57, L18-30
[37] PCB 78, Mr Gullaci’s affidavit at paragraph [8]
[38] T27, L9-10; T27, L23-25
19Turning back to the consideration of the frequency and duration of pain that he suffers, I accept the evidence given in his affidavit that his pain is constant. I consider this to be the more likely situation given that, at the time of discharge from the care of his treating practitioners in 2012, they recorded ongoing pain and swelling. Mr Dimasi’s evidence is that he required ongoing Panadol for this persisting pain while with Qantas until 2020 and thereafter. This is supported by Mr Gullaci who deposes to working with Mr Dimasi, observing him limping, struggling with walking on inclines and constantly complaining of pain in his left ankle.[39] There was then evidence that the joint itself remains in a troubled state. All that tends to suggest that while the pain may vary in intensity, there is a constant general soreness, which increases in intensity at times. I note that all doctors who have assessed Mr Dimasi have not only found organic clinical signs of ongoing dysfunction on examination but have also found they are consistent with the radiological findings.[40] Assessing all that evidence and combining it with my finding as to credit, I therefore accept that he suffers from constant pain which varies in intensity depending on activity and time of day, and requires ongoing medication. I find, in accordance with his affidavit, that he struggles being on his feet for long periods of time and takes rest when he can to stay off his foot and, most notably, by the end of the day, when being on his feet aggravates the pain in his left ankle.[41]
[39] PCB 79, at paragraphs [14]-[16]; PCB 80, at paragraph [18]
[40]Associate Professor Buzzard, DCB 22; also Dr Wood DCB 32 at (e); Dr Journeaux at DCB 50
[41]PCB 20, at paragraph [24]
20Next, considering what Mr Dimasi does about the pain, the Defendant pointed to the fact he had not had any treatment from 2012 until he consulted with his treating doctor in September 2021. The Defendant submitted this revealed there was no real ongoing problem which disrupted Mr Dimasi’s life or social activities. Mr Dimasi, however, deposed that he had been told that there was not much more to be done in respect of his ankle in 2012 and therefore he simply had to put up with ongoing discomfort and limitation.[42] He gave evidence that he was too young to retire and so, because he needed the money, he simply had to work.[43] This applied to his job at Qantas and then also to his jobs at VCRETE and Construct. As I have set out, I accept Mr Dimasi as a witness of truth. While it is true there have been no ongoing regimes of physiotherapy, manipulation, doctors consultations or prescription pain medication, Mr Dimasi gave evidence about the reason for persisting with his work, which I accept. It is to be remembered he was a man in his very early fifties at the time of the incident and had every reason to continue to work. He obviously has a strong work ethic, as he gave evidence in cross examination of regularly working overtime because he needed the money. I consider he is the typical stoical Plaintiff. He has soldiered on with his ankle after an "incompletely successful” surgery.[44] He has ongoing organic problems and is noted to have significant dysfunction[45] and reduced range of motion.[46] Despite these matters, he has pressed on with work.
[42] PCB 19, at paragraph [18]; PCB 20, at paragraph [24]; PCB 23, at paragraph [3]; T56, L3-10
[43] PCB 20, at paragraph [24]
[44]DCB 20
[45]PCB 71
[46]DCB 46
21It is undoubtedly true that while impairment consequences are concerned with what has been lost, that assessment may be informed, to an extent, by what is retained.[47] Here, the Defendant notes that Mr Dimasi remains working full time, often with overtime, in a moderately physical job, standing on his feet all day and deposes to no limitations with household tasks, socialising, impact on his sleep or home maintenance tasks. However, while it is true that he has retained these capacities, Mr Dimasi points to the limitations he now has, that is he is no longer able to play golf and run.[48] He also pointed to difficulties participating in swimming activities with his grandchildren or going on fun runs with his family.[49] These latter two matters are only of minor importance in the overall assessment, I find. Rather, the focus was on his loss of golf and his ability to run. I have set out above that I broadly accept Mr Dimasi’s evidence as to his inability to no longer play golf or run as he used to. I find these are now social and recreational pastimes which have been lost to him. Mr Gullaci confirms these matters in his affidavit.
[47]Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260, per Ashley JA at paragraph [27]
[48] PCB 25, at paragraph [10]; PCB 24, at paragraph [9]
[49] PCB 25, at paragraph [12]; T25,L7
22I find that these matters must be added to his reduced capacity for work. It is true he worked for a substantial period of time with Qantas as a baggage handler after his injury. Various medical opinions now state that he would be unable to perform such a task. The Defendant submitted that the past work with Qantas was a good guide to the that fact he would be able to return to such a job. Mr Dimasi’s evidence is that he would not be able to. Overall, I accept the current medical opinions of Mr Kossmann and Dr Journeaux, that Mr Dimasi could not return to his old job as a Qantas baggage handler because of the physical demands this would place on his left ankle. The imaging clearly shows that his condition had not improved and he now has osteoarthritis in the joint. All the doctors accept that an arthroscopy is of some use and perhaps an arthrodesis might be necessary within the next two to five years. The doctors vary as to whether arthrodesis is a likely outcome of not. Ultimately, I do not have to decide on this issue, because it is clear that all the doctors record that his current physical position is different to that experienced in 2012, after his surgery.[50] The situation now is one which is worse than it was in 2012. The extent to which it will deteriorate is a matter debated before me. Mr Dimasi puts that he is likely to go onto arthrodesis within a short period of time and that should be a consideration for the Court.[51] The Defendant firstly stated that it should not be accepted that arthrodesis is likely, given Dr Beischer’s opinion[52] and, secondly, as the assessment had to be made today, the condition was as it was. As I have set out, I do not need to settle this debate. I consider, as of today, it is clear Mr Dimasi’s condition is one which, firstly, is worse than it was in 2012 and, secondly, the worsened state has impairment consequences which, by themselves, satisfy the test of being considered a serious injury.
[50] PCB 36, Dr Beischer report dated 17 January 2022; PCB 72, Associate Professor Bruce Love report
dated 20 October 2021; PCB 63, Mr Kossman dated 2 February 2022
[51] T73, L22-25
[52] T84, L17-20; PCB 36
23Turning back to the issue of work capacity, I find he could not return to work at Qantas and that that speaks of the significance of the injury that he currently has.
24It was suggested that he could work full time, 45 to 70 hours per week, in a reasonably unrestricted manner. Video surveillance was shown of Mr Dimasi working in a manner which visibly did not look restrictive. I do not consider the surveillance showed anything other than what has been disclosed by the affidavit materials or the medical reporting. Mr Dimasi did concede, however, he was able to set up signs and this required a longer period than he had deposed to but, by itself, this is not of great moment. It was also suggested that the surveillance showed him limping. If there was such a limp, I was not able to perceive it. I note that some of the doctors, as well as Mr Dimasi, indicated that he walks with a limp. If such was the case, and he was limping on the surveillance, I do not consider that impacted on his ability to work in any way. For clarity I have not considered that Mr Dimasi walks with a limp to be an impairment consequence which weighs in my assessment.
25To summarise my findings, relating to Mr Dimasi:
(a) He has sustained a significant injury to the left ankle resulting in substantial time off work;
(b) He has remained in full-time employment;
(c) He does not require any prescription painkilling medication for his problems;
(d) He is still engaged in the vast majority of social activities in which he was engaged prior to the accident, save for golf and running;
(e) He is able to attend to handyman duties at home;
(f) He continues to work in a job which requires standing for long periods of time and occasionally involves walking over uneven ground; and
(g) He intends to keep working until retirement age.
26Turning, then, to the findings in support of a determination of serious injury, I find the following matters:
(a) Mr Dimasi experiences constant pain of varying intensity. It is with him when he wakes up in the morning and worsens with activity involving the use of his left leg. He is aware of the pain at all times;
(b) He regularly takes pain medication to alleviate his pain;
(c) During the work day, he looks for opportunities to rest and take the weight off his feet by being seated at breaks;
(d) He is unable to work in his old position of being a baggage handler, which involves physical work on and off tugs and dealing with inclines while carrying weights;
(e) He is unable to return to golf or running as he used to do; and
(f) He is a stoical person who has worked full time while enduring pain and dysfunction in his left ankle.
27I find that he was a straightforward witness who did not seek to shape the evidence in a way favourable to his case.
28These are assessments requiring judgement as to fact and degree. Having measured this case against the range of other possible cases, I find that Mr Dimasi satisfies the test of having a serious injury.
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