Donald v Ceva Logistics (Australia) Pty Ltd
[2019] VCC 1123
•26 July 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-18-01772
| RYAN ANTHONY DONALD | Plaintiff |
| v | |
| CEVA LOGISTICS (AUSTRALIA) PTY LTD | Defendant |
---
JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 December 2018 | |
DATE OF JUDGMENT: | 26 July 2019 | |
CASE MAY BE CITED AS: | Donald v Ceva Logistics (Australia) Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1123 | |
REASONS FOR JUDGMENT
---
Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to the right wrist – pain and suffering and loss of earning capacity
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Lu v Mediterranean Shoes Pty Ltd (2000) 1 VR 511; Kite v George Patterson Pty Ltd & Victorian WorkCover Authority [2008] VCC 1172; Johnson v Roads Corporation [2017] VCC 400; Lexa v Transport Accident Commission [2019] VSCA 123
Judgment:Leave granted to bring proceedings for loss of earnings and pain and suffering consequences.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Saunders | Maurice Blackburn |
| For the Defendant | Mr J Plunkett | Minter Ellison |
HER HONOUR:
Background
1 In 2009, the plaintiff was employed with the defendant, Ceva Logistics (Australia) Pty Ltd, as a forklift driver and picker and packer. Throughout the course of his employment, his work duties involved picking, packing, loading, unloading and using a forklift. He regularly lifted heavy spare parts. He pushed heavy trolleys and lifted heavy parts from the bottom of crates. On some days he would pick and pack all day. His duties involved the repetitive use of his right wrist.
2 The plaintiff says he suffered injury to his right wrist when working for the defendant throughout the course of his employment, in particular, in 2011, he injured his right wrist when opening a crate with a crowbar and hammer. Due to pain he was unable to work for approximately three weeks. He did not require any contact with a health professional.[1] The plaintiff’s evidence was that after the 2011 incident, his wrist was never quite the same. He often had a ‘twinge’, for example when lifting anything heavy. He returned to work, performing full duties and working overtime.
[1]This was the plaintiff’s evidence, although there was a suggestion that he had consulted a medical practitioner.
3 On 15 January 2013, the plaintiff was using a large industrial stapler when he felt a bad twinge of pain in his right wrist. After using the stapler for a period, he developed sharp pain in his right wrist and forearm, which worsened as the day wore on. He reported the pain to his superior. Later, on the same day, the pain became worse when he was pushing a box of truck parts along a conveyor belt when he felt severe pain in his right wrist
4 In early 2013, after the work incident, the plaintiff was involved in a car accident in which his car was struck at a roundabout. He jarred his right wrist. The pain increased, then settled to the level he experienced following the work incident on 15 January 2013. It was accepted by the defendant that the car accident did not result in any long-term consequences and can be ignored.
5 On 16 January 2013, the plaintiff sought medical treatment for his right wrist at Medibank Health Solutions, where he was managed by Dr James Crompton. He was referred to a physiotherapist, and a psychologist, Mr Ian Stapleton. He attended three surgeons, Mr James Leong, Mr Thomas Robbins and Ms Marie Rostek, all of whom recommended conservative treatment. The plaintiff continued to work with the defendant performing modified duties until September 2013, when he was no longer provided with suitable duties.
6 On 22 January 2013, the plaintiff completed a Worker’s Claim Form and described the injury as “right wrist tendonitis” and recorded “sharp pain in wrist and forearm on right side when using a stapler”.
7 In July 2014, the plaintiff underwent a pain management program at Network Pain Management Program.
8 Between April 2015 and April 2016, the plaintiff was treated by Mr Jason Harvey, an orthopaedic surgeon specialising in the hand, wrist and elbow. He administered a steroid injection into the right wrist, which provided some short-term improvement. The pain persisted, and Mr Harvey performed a right wrist arthroscopy, debridement of ulnar sided synovitis, lunotriquetral ligament debridement, midcarpal joint debridement and right lunotriquetral ligament stabilisation. In November 2015, the K-wire in his right wrist was removed by Mr Harvey. He was referred to a hand therapist and underwent hand therapy until early 2017. He wore a splint on his right wrist.
9 The plaintiff has not returned to work since September 2013.
The application
10 This is a serious injury application brought by the plaintiff for injury suffered by him to the right wrist, involving a lunotriquetral ligament tear with Grade III instability, together with a right central tear of the TFCC (triangular fibrocartilage complex).
11 The plaintiff claims his injury was caused:
(a) throughout the course of his employment, and in particular on three separate instances on two separate days. In 2011, when using a crowbar and hammer to open a crate (“the 2011 incident”) and two incidents on 15 January 2013, being the use of a stapler and pushing of a large box (“the 2013 incident”), being an injury under s82(2C)(c) of the Accident Compensation Act 1985 (“the Act”); and/or
(b) by way of gradual process … due to the nature of employment (that is by reason of its tendencies, incidents or characteristics), and thus an injury pursuant to s83(6) of the Act.
12 Leave is sought for damages in relation to pain and suffering and loss of earning capacity.
13 In order for the plaintiff to be entitled to claim damages, his injury must satisfy the definition of “serious injury” contained in s134AB(37) of the Act). There, “serious injury” is defined as meaning:
“(a) permanent serious impairment of loss of body function.”
14 The loss of body function relied upon is the right arm.
15 The plaintiff relied upon two affidavits affirmed 5 December 2017 and 6 December 2018. I have not summarised the plaintiff’s affidavits or his evidence; however, I will refer to his relevant evidence in my reasoning. In addition, both parties relied on medical reports and other material which was tendered. I have read all the tendered material.
The issues
16 Counsel for the defendant submitted:
(a) The plaintiff must “disentangle the consequences of the various discrete events that led to his right wrist injury”, which it is said cannot be done on the evidence;
(b) The “lack of medical treatment” and the plaintiff’s “retained ability to undertake onerous caring duties” suggests that the plaintiff does not have a serious injury on pain and suffering grounds; and
(c) The plaintiff does not have a serious injury on loss of earning capacity grounds because:
(i) it would be premature to determine the plaintiff’s “without injury” earning capacity prior to him having made any real attempt to return to the workforce;
(ii) but for the plaintiff’s psychiatric condition secondary to familial troubles, the plaintiff would likely have continued working for the defendant in a supervisory role; and
(iii) the plaintiff’s carer’s allowance is properly characterised as “income from personal exertion” and, when combined with the 15 hours of work he is capable of doing in traffic management, his “with injury” earning capacity exceeds the 60 per cent threshold.
Credit of the Plaintiff
17 The plaintiff was educated up to Year 11 at school, but did not pass the year. He obtained a Certificate III in hairdressing and qualified as a hairdresser. He left the industry due to poor pay. His work has been manual work.
18 There was no issue in relation to the plaintiff’s credit. He answered questions to the best of his ability. He did not elaborate upon his answers. I accept him as a simple man who had limited understanding of the process. He made concessions. He agreed that in May 2013, he had pain in his wrist and was having problems with his employer. The plaintiff’s evidence that was due to the fact that he was being asked to do work with his right wrist which aggravated the right wrist. The plaintiff’s evidence was that he was on trial for promotion for the role of supervisor before the injury. He believed he was taken off the trial because of the wrist injury.
19 The plaintiff was asked what he reported to Dr Crompton about his injury. He said he was fairly positive that he mentioned the pushing of the box. He said it was a long time ago. I accept that given the plaintiff was unable to continue working after the box incident, it is more than likely that he mentioned it to Dr Crompton. He agreed that he does not see his general practitioner anymore because there is nothing more he can do for the plaintiff.
20 I did not detect any exaggeration nor affectation. I accept the plaintiff as a witness of truth.
The medical evidence
Dr James Crompton
21 The plaintiff was treated by Dr Crompton, occupational physician registrar.
22 The plaintiff reported using a hand stapler in his dominant hand and noticing pain in the inner aspect of his right wrist after several repetitions of stapling. He was treated with anti-inflammatory medication, splinting and physiotherapy to minimise symptoms and promote muscle strength.
23 An MRI scan showed a thin longitudinal split in extensor compartment 6 suggestive of a longstanding tear without signs of acute inflammation, but thought to be consistent with the claimed injury, given the MRI scan was obtained in late February 2013, some six weeks after his presentation.
24 The plaintiff returned to work performing modified duties, not manoeuvring or bearing heavy weights greater than 5 kilograms. He underwent physiotherapy and a localised steroid injection. Dr Crompton noted that the plaintiff reported short-lived pain in the same wrist approximately two years earlier related to levering with a crowbar at work. He did not require contact with health professionals.
25 Dr Crompton diagnosed a diffusely inflamed right wrist, likely secondary to his physical manual handling duties. He was satisfied that the plaintiff’s injury was not a feature prior to the reported accident. He said it is likely that a prior manifestation would have been noticed by seniors and co-workers at work. He said the aetiology of the chronic inflammatory condition appears consistent with the nature and tasks of his duties, and the chronology reported within the history is consistent with the onset of a progressive degenerative tendon condition caused by repetitive forcible movements versus loads. He thought the plaintiff had a temporary incapacity for work.
Mr Jason Harvey
26 On 15 October 2015, Mr Jason Harvey, orthopaedic surgeon specialising in the hand, wrist and elbow, on referral from Dr Crompton, examined the plaintiff. Mr Harvey obtained a history of the plaintiff opening a crate with a crowbar and hammer when he experienced pain in the right wrist, and taking three weeks off work for the pain to resolve, which it did. Then, when subsequently using a stapler, he felt pain in the wrist which was exacerbated by pushing a box across rollers when he noted more severe pain in the ulnar side of his wrist. The pain was ulnar-sided, with occasional radiation into the fingers and also proximally. An MRI scan confirmed damage.
27 Mr Harvey administered a steroid injection into the wrist with some improvement with his symptoms in the short term. He recommended and performed a wrist arthroscopy and TFCC debridement. Six weeks post operatively, the plaintiff had the K‑wire removed and an ulnar nerve exploration was performed as he was complaining of irritability of the dorsal branch of the ulnar nerve in the post-operative period. He said the plaintiff had a capacity to perform alternate duties.
28 Mr Harvey accepted the injury was consistent with the stated cause. He said the plaintiff had a capacity to perform alternate duties. He should avoid any heavy lifting or any repetitive lifting. He said he would be able to perform light manual tasks with the potential to perform full activities should his strength improve in the future.
Dr Andrey Butrev
29 In October 2015, the plaintiff started attending Dr Andrey Butrev, general practitioner, who obtained a history from the plaintiff of suffering pain while using a stapler at work and more pain while moving boxes. Dr Butrev said he had the capacity to perform non-physically demanding tasks not involving repetitive movements with his right wrist. In 2018, Dr Butrev said he hoped he would continue to recover from his injury with the support of physiotherapy and hand therapy.
Miss Marie Rostek
30 In January 2014, Miss Rostek, surgeon, examined the plaintiff. She said he had a non-specific injury in 2011, initially by opening a crate with a crowbar for an hour. The pain settled. The pain recurred after using a stapler when he developed a sudden twinge down the ulnar side of his right hand. He reported it to his supervisor, who reassured him and went on to pack boxes. While packing a box onto a conveyor belt with rollers, he pushed the box and developed more severe pain on the right side of the wrist that radiated down to his forearm and along the palmar and dorsal aspects of his hands. The pain had not resolved. She diagnosed a high grade partial thickness tear of the TFCC, which she related to the 2011 and 2013 injuries, both of which involved forceful activities at work.
Dr Robyn Horsley
31 In September 2018, Dr Robyn Horsley, occupational physician, examined the plaintiff at the request of the plaintiff’s solicitor. Dr Horsley said, based on the plaintiff’s history, he needs upgrading of skills.
32 Dr Horsley obtained a history of the plaintiff injuring his right wrist in 2011. After that, his wrist was never quite the same. He often had a “twinge”, for example when lifting anything heavy. In particular, he remembered having a bad twinge on the morning of 15 January 2013 when using a large industrial stapler. After using it for a period, he developed a sharp pain in his wrist and forearm, which he reported to his manager and which worsened as the day wore on. Later that day, the pain became worse still when he pushed a box of truck parts along a conveyor. He thought looking back that was “the straw that broke the camel’s back”.
33 The plaintiff reported ongoing right wrist disability, is pain free at rest but his wrist is aggravated by forceful activities, prolonged gripping and vibration such as when using the steering wheel of a car, and mowing the lawns for an extended period. When the wrist is jarred he can experience pain for one to one-an-a-half days. For example he jarred his wrist recently when he operated the mower. He said the discomfort level was 8 out of 10 and progressively decreased over one to one-and-a-half days. Generally, when he aggravates the right wrist, the discomfort lasts from 5 minutes up to a few hours, and varies from 4 to 8 out of 10. The plaintiff reported occasional swelling and altered sensation into the fourth and fifth fingers which has occurred since surgery. He has decreased use in the right hand, avoids prolonged gripping and forceful activities involving the right hand. He avoids repetitive pushing, pulling and over reaching. He can only write a few lines. He drops things. He uses his left hand more than the right. He walks his dog with his left hand. He drives an automatic car. He drives using his left hand. He rarely uses his right hand on the wheel.
34 Dr Horsley reported the plaintiff said he experiences neck and right shoulder discomfort on an average of once per week due to the altered biomechanics in his right wrist. He does not know what aggravates the discomfort. It can vary from 3 to 9 out of 10. He uses Advil to cope with the discomfort. It lasts for a couple of hours. It is located in the right trapezius and radiates into the right side of the neck. He sleeps poorly.
35 Dr Horsley said that because of the length of time since the injury and the ongoing nature of the symptoms, she thought it is likely the symptoms will persist. She accepted that the events on 15 January 2013 and his clinical presentation were consistent. She said the 2011 incident may well have caused some initial damage which increased the plaintiff’s vulnerability of the right wrist and further damage in 2013. She said the plaintiff’s work was a significant contributing factor. She imposed restrictions to his right wrist of:
· Avoidance of prolonged gripping involving the right hand
· Avoidance of forceful activities of the right hand
· Avoidance of repetitive pushing and pulling involving the right hand
· Avoidance of using tools with a vibratory component
· Avoidance of any forceful activities involving the right hand
· Avoidance of repetitive fine manipulative tasks involving the right hand
· Avoidance of lifting items greater than 5 to 8 kilograms on the right side, except on an occasional basis
· Avoidance of lifting items up to 5 kilograms on a repetitive basis on the right side.
36 Dr Horsley reported that the plaintiff had undertaken a traffic control ticket in 2015. She reported that the plaintiff had access to a computer at home but uses it infrequently. He is a one finger keyboard operator and uses his smart phone for the internet, email and texting. He rarely uses Facebook. He uses eBay and internet banking. He has basic knowledge of Microsoft Word and little knowledge of Excel and PowerPoint. Dr Horsley said he needs upgrading of skills.
37 Dr Horsley said the injury has a significant impact on a manual worker. He presents with considerable disability. The plaintiff cares for his children who have significant disabilities. They have been accepted under the NDIS. He receives a carer’s pension and is able to work up to 15 hours per week in casual part-time work.
38 Dr Horsley said the plaintiff can work within his restrictions. She said the plaintiff is considering working in the traffic control area, for which he has qualifications, using the bat in his left hand. She said he would likely need assistance to move the bollards, and the work is likely to be appropriate. Dr Horsley said he was fit to return to his goal of working up to 15 hours per week and maintaining his carer’s pension. The injury has a significant impact upon his capacity to care for the physical requirements of his four children given their level of disability. He is fit to work within the restrictions outlined above. She accepted that there is likely to be an acceleration of the degenerative process in his right wrist. She said the plaintiff presents with “considerable” disability.
Ms Katrine Green
39 In November 2018, Ms Katrine Green, vocational expert consultant, reviewed the report of Dr Horsley, together with other documentation, including the plaintiff’s affidavit of 5 December 2017 in relation to the plaintiff’s fitness for the occupation of traffic controller. Ms Green did not interview the plaintiff. Ms Green said, based on the physical restrictions outlined by Dr Horsley, there were certain duties that would be within the plaintiff’s physical restrictions, but not all, such as unloading, loading from vehicles and lifting and carrying of signage and portable bollards exceeding the lifting restrictions provided. She concluded that, based on the full scope of the occupation of road maintenance traffic controller and the physical demands of all the tasks, due to the plaintiff’s right wrist injury, from a physical perspective, the occupation of road maintenance traffic controller is not a suitable employment option for him within the foreseeable future.
Mr Murray Stapleton
40 In May 2013, May 2015 and April 2018, the plaintiff was examined by Mr Murray Stapleton, plastic and hand surgeon, at the request of the defendant’s insurer. Mr Stapleton diagnosed a longitudinal tear in the extensor carpi ulnaris tendon, which was work related. He was aware the plaintiff had similar symptoms in the past from which he recovered. He accepted the plaintiff’s incapacity was work related which was caused by the use of the stapler. It was his opinion that there did not appear to be an occupational aggravation, recurrence, acceleration, exacerbation, or deterioration of a pre-existing condition. He accepted that employment was the contributing factor.
41 In June 2013, Mr Stapleton said, based on his physical condition, the plaintiff could return to work as a warehouser with a splint involving his right wrist. He said it may mean that returning to work as a warehouser gives rise to a problem so far as lifting, pushing and pulling is concerned. He said the plaintiff should not be asked to perform anything that genuinely is beyond his capacity.
42 In April 2018, Mr Stapleton examined the plaintiff and said that he had become more and more adept at favouring his left hand. He noted when he drives his motorcar he leaves his right hand away from the steering wheel. He diagnosed a degenerative right wrist problem aggravated by the principal event reported in January 2013 when he was getting increased pain because of the requirement to use a right-hand operated stapler. The prognosis is poor. He has reached maximum medical improvement.
43 Mr Stapleton accepted that the plaintiff could no longer perform warehousing activities. He could perform other duties where regular repetitive activities with his right wrist are avoided and in a position which enables him to favour his left hand. He said the plaintiff was a suitable candidate for retraining to another job. Mr Stapleton noted that the right wrist is going to be more vulnerable to injury and he should avoid any activity which causes him unnecessary right wrist discomfort. Mr Stapleton said the work-related condition should be regarded now as permanent.
Analysis
44 I must consider the plaintiff at the current time.
45 It was accepted by all medical witnesses that the plaintiff had suffered a compensable injury. The plaintiff’s evidence was that throughout the course of his employment with the defendant, his work duties involved picking, packing, loading, unloading and using a forklift. He worked some overtime. He regularly lifted heavy spare parts such as brake drums. He pushed heavy trolleys and lifted heavy parts from the bottom of crates. On some days he picked and packed all day. His duties involved the repetitive use of his right wrist.
46 Counsel for the defendant submitted that it is not permissible for the Court to aggregate together the consequences of the heavy repetitive duties the plaintiff undertook throughout the course of his employment, including the 2011 activity and the 2013 activities of using a large industrial stapler and on the same day, pushing a box on a conveyor belt. Counsel for the defendant submitted that the consequences of each individual incident must be disaggregated and then determine whether the consequences of one of the incidents alone gives rise to a serious injury. Counsel for the defendant submitted, on the evidence, such a disaggregation is not possible.
47 In 2011, the plaintiff injured his right wrist when opening a crate with a crowbar and hammer. He suffered pain in his right wrist and was not able to work for approximately three weeks. His evidence was that after 2011, his wrist was not quite the same. He often had a “twinge”, for example when lifting anything heavy; however, the evidence is that the plaintiff returned to pre-injury duties with the defendant, working full time and accepted overtime work. He reported this to the majority of the medical witnesses.
48 Some of the medical witnesses expressed the view that the 2011 incident made his wrist more vulnerable. The plaintiff’s evidence was that he experienced twinges when lifting anything heavy. Dr Crompton and Mr Stapleton were of the view that there were no ongoing consequences. I accept that as at 15 January 2013, the plaintiff performed full-time physical work and accepted overtime work when offered. I take the view that in the absence of radiological evidence and the fact that the plaintiff returned to pre-injury full-time work, there were limited ongoing consequences of a twinge when lifting anything heavy, from the 2011 incident.
49 On 13 January 2013, the plaintiff experienced a twinge in his right wrist while using an industrial stapler. He continued working, and experienced a sharp pain which worsened throughout the day. He reported this to his employer, who reassured him. He went on to pack boxes. While packing a box onto a conveyor belt with rollers, he pushed the box and developed more severe pain in the right wrist that radiated down to his forearm and along the palmar in the dorsal aspect of his hands. He described this as “the straw that broke the camel’s back”. The plaintiff’s evidence was that he has had ongoing persistent consequences since January 2013, which has also led to his inability to return to pre-injury employment.
50 Counsel for the defendant submitted that the plaintiff must disentangle the consequences of the various discrete events which led to his right wrist injury. Counsel for the defendant relied upon the case of Lu v Mediterranean Shoes[2] and submitted that the plaintiff cannot aggregate the consequences of discrete incidents into one serious injury.
[2](2000) 1 VR 511
51 Lu v Mediterranean Shoes[3] was a case concerning the earlier s135A. It was held there that an elbow injury occurring as a result of repetitively removing shoes from moulds over a period of months, could not be aggregated with a shoulder injury later sustained when an object fell one or two feet onto the worker’s right shoulder in an area close to his neck. The worker brought the application for leave in respect of the traumatic injury to the shoulder alone, but sought, by aggregating the impairment so caused to the function of his right upper limb with the separately derived elbow injury, to elevate the resulting impairment of the upper limb to a serious level. Chernov JA, with whom Winneke P agreed, held that the proposed aggregation was impermissible, because the two injuries impaired separate body functions
[3]ibid
52 The present circumstances are distinguishable from the disaggregation of specific incidents as occurred in Lu v Mediterranean Shoes.[4] In this case, the plaintiff’s injury was caused by repeated insults to his right arm on the same day within a short period of time. On 15 January 2013, the plaintiff used an industrial stapler and worked on a conveyor belt. The plaintiff’s employment was the significant contributing factor to his right arm injury and this is confirmed by all the medical witnesses.
[4]ibid
53 I am of the view that the current case is distinguishable from Lu, as in this case, the same body part, being the plaintiff’s right arm, are affected by repeated insults and strains.
54 The Court of Appeal in Lu outlined the following in relation to one body function being impaired. Chernov JA said:
“But no such aggregation is permissible if the non ‘serious injuries’ which impair the one body function have been caused by separate and unrelated incidents.”
55 Further, at paragraph 28, Chernov JA said:
“Thus, the scheme of the legislation prohibits the relevant aggregation of two consecutive workplace injuries (neither of which is a ‘serious injury’) that have arisen from discrete incidents notwithstanding that they impair the one body function.”
56 In Kite v George Patterson Pty Ltd & Victorian WorkCover Authority,[5] Judge Wischusen said:
“… there appears to be no doubt at all that if a worker engaged in a system of work sustains repeated insults or strains to a single body part – the cumulative damage so sustained producing serious injury consequences for the worker – that in an appropriate case leave might be obtained to sue for the ‘aggregated’ result of the repeated insults or strains. … .”
[5][2008] VCC 1172 (“Kite”)
57 Kite was a case relating to repeated knocks to the right knee of the plaintiff arising out of the same defect in the system of work and the same defect in the place of work. His Honour was of the view that leave was sought with respect to one cause of action and, in those circumstances, nothing said in Lu requires that the plaintiff dissect out of the total condition of his knee, the consequences of each knock.
58 I note that although the present case is distinguishable on the nature of the repeated insult from Kite, in that the plaintiff suffered a strain when using the industrial stapler and when pushing the box on the conveyer belt, whereas in Kite, the plaintiff sustained repeated knocks to the right knee, I am of the view that this does not render the reasoning in Kite to not be applicable in the present case, as both insults/strains were caused to the same body part, in a short period of time, being the same day, throughout the course of the plaintiff’s employment performing physical duties using his right arm.
59 The medical evidence supports the conclusion that the plaintiff’s work generally, or at least the 2013 incidents, caused the plaintiff’s injury and impairment. Dr Crompton, the plaintiff’s treating general practitioner, said the plaintiff’s injury, which he described as an “overuse-type condition of his right dominant wrist, initially secondary to a witnessed trauma sustained in the course of his normal duties (looking at his records, he is referring to the stapler incident), but most likely aggravated by the required duties of his role” which he understood could be “repetitive and manual in nature”.
60 The medical evidence also indicates that the plaintiff’s injury was sustained due to insults or strains. Dr Butrev, the plaintiff’s current general practitioner, said the plaintiff’s injury was due to the 2013 “insults” or “strains”. Ms Rostek, treating surgeon, Mr Harvey, operating surgeon and Dr Robyn Horsley, occupational physician, attributed the plaintiff’s injury to both 2011 and 2013 “insults” or “strains”. Mr Stapleton examined the plaintiff for medico-legal purposes and ascribed the injury to a single incident, being the 2013 stapler incident.
61 I accept that the plaintiff suffered injury on 15 January 2013 due to the insults and strain caused by the system of work, namely using the industrial stapler and moving the box on the conveyer belt. This system of work caused repeated insults to the same body part, namely the right arm, on 15 January 2013. Accordingly, I accept that the plaintiff sustained an injury to the right wrist as a result of the system of work as was referred to by his Honour Judge Wischusen in Kite. Judge Wischusen reiterated that position in Johnson v Roads Corporation,[6] where he said:
“In my view, for reasons I gave in Kite v George Patterson Pty Ltd and VWA, where the plaintiff relies upon a series of incidents of strain, relatively close in time, and occurring during an overall period of otherwise heavy work also likely to impose strain on the body part relied upon, and where it is established that the end result of the work and the incidents of strain is a compensable permanent impairment – as here – that it is not necessary, in order to succeed, for the plaintiff to dissect out of an overall period of heavy work, with occasional incidents, particular incidents or periods of work causing injury which, taken alone, have consequences that satisfy the serious injury test.”
[6] [2017] VCC 400
62 I take the view that the two incidents of using the industrial stapler and pushing the box on the conveyer belt were close in time and occurred during employment which consisted of heavy work which is likely to impose strain on the one relied body part, in this case, the right arm.
63 I agree with his Honour Judge Wischusen that the legislation does not require such fine and necessarily theoretical analysis. In this case, as will often be the case in others where a number of insults to the same body part in similar circumstances have occurred close in time, and have occurred before the worker seeks medical attention and diagnosis, the task of analysis of the plaintiff’s condition before and after each incident is quite simply impossible. I am unable to accept that, upon its proper construction, the legislation produces the result that such a difficulty bars a worker from recovering damages at all.
64 I agree with his Honour Judge Wischusen, that the task of analysing the plaintiff’s condition before and after each incident is quite simply impossible, which, in this case, would be the plaintiff’s condition after the incident using the industrial stapler and his condition after pushing the box on the conveyer belt, both which occurred on the same day, close in time.
65 Further, I take into account that the Court of Appeal, in the recent decision of Lexa v Transport Accident Commission,[7] considered the decision of Lu. The Court said:[8]
“While Lu makes it clear that it is permissible in some circumstances to aggregate the effects of injuries to two body parts arising from of a single incident, the impairment must be to one ‘body function’. The majority considered that an effect on movement of an arm resulting from separate injuries to the shoulder and the elbow is not an impairment to one body function.”
[7][2019] VSCA 123
[8](ibid) at paragraph [43]
66 In this case, the plaintiff has sustained an injury to the right wrist causing an impairment to a body function, namely being the right arm.
67 Accordingly, I am of the view that the cause of action the plaintiff seeks leave to bring is a single cause of action and the plaintiff is not required to dissect out the total of his right wrist condition and the consequences of using the stapler and pushing the box.
68 For completeness, I should say that on the balance of probabilities, and taking into account the contemporaneous histories given, especially that the plaintiff reported the pain in his wrist after using the stapler, continued working, and the difficulty and pain he experienced between the use of the stapler and the pushing of the box, I am of the view that the pushing of the box on the conveyer belt on 13 January 2013 resulted in, or materially contributed to, the condition of his right wrist in respect of which the application is made, and if it were necessary, I would have granted him leave to bring proceedings for both heads of damages in respect of that incident alone. In coming to this view, I take into account the plaintiff’s evidence that the pushing of the box was the “straw that broke the camel’s back” and following this incident, he was unable to continue working in his pre-injury employment.
Loss of earnings
69 I shall now consider whether the plaintiff meets the test of loss of earnings.
70 The plaintiff makes a claim for loss of earning capacity.
71 The plaintiff has a specific burden to establish:
(a) that at the date of hearing, he had a loss of earning capacity of 40 per cent or more, measured (subject to certain irrelevant exceptions) as set out in paragraph (f) of s134AB(38) of the Act;
(b) that after the date of hearing, he will continue permanently to have a loss of earning capacity which will be productive of a financial loss of 40 per cent or more; and
(c) this requires a comparison of what the plaintiff is capable of earning with the injury (the “with injury” earnings), and what he was capable of earning had the injury not occurred (the “without injury” earnings);
(d) that even with rehabilitation and retraining, he will still sustain a loss of 40 per cent or more;
(e) if the plaintiff satisfies the test laid down by the Act in relation to loss of earning capacity, then he is at large to make a claim for damages; that is, both pain and suffering and loss of earning capacity;
(f) consequently, the Court must consider the impairment of body function suffered by the particular plaintiff, but the test also requires an objective comparison between the impairment suffered by the plaintiff and the range of possible impairments;
(g) Counsel for the defendant agreed that the plaintiff’s “without injury” earnings can be assessed at $59,192.87 as per the report of Ms Mandy Morgan of Flexi Personnel, 60 per cent of which is $35,515 or $683 per week;
(h) the current medical evidence in relation to work was expressed by Dr Horsley and Mr Stapleton. Dr Horsley imposed the following restrictions in relation to his right wrist:
· Avoidance of prolonged gripping involving the right hand
· Avoidance of forceful activities of the right hand
· Avoidance of repetitive pushing and pulling involving the right hand
· Avoidance of using tools with a vibratory component
· Avoidance of any forceful activities involving the right hand
· Avoidance of repetitive fine manipulative tasks involving the right hand
· Avoidance of lifting items greater than 5 to 8 kilograms on the right side, except on an occasional basis
· Avoidance of lifting items up to 5 kilograms on a repetitive basis on the right side.
72 Mr Stapleton was of the view that the plaintiff has a work capacity in a position which favours his left hand. He does not identify what such a role would be. He expressed the view that the plaintiff was a suitable candidate for retraining to another job, but does not identify what such a job would be. I take the view that it is impractical to find a role in which a manual worker favours his or her non-dominant hand. Accordingly, Mr Stapleton’s report is of limited value in considering the plaintiff’s capacity for work.
Recovre Report
73 In May 2018, Recovre interviewed the plaintiff and reviewed the medical reports supplied by the defendant’s solicitors.
74 In summary, Recovre said the consensus amongst the medical opinions reviewed was that the plaintiff has a capacity to perform suitable employment. Where capacity for employment was supported, it was within a set of physical restrictions which are as follows:
· avoid repetitive use of the right arm and hand
· avoid manual handling in excess of 5 kilograms
· stretch the right arm as required.
75 The report concluded that the following roles were suitable employment:
· Forklift driver (with re-training)
· Rental salesperson
· Operations Clerk (Production Clerk)
· Warehouse Administrator and Despatch Clerk.
76 I shall now consider each of the jobs identified by Recovre and whether they constitute suitable employment for this plaintiff.
Forklift driver
77 The role of forklift driver was considered suitable in the future upon completion of a short forklift driver training course. I note that the plaintiff has not been offered any retraining as a forklift driver.
78 The role requires the worker to constantly operate forklifts within the despatch areas and, on some occasions, within the productions areas. The forklift drivers load palletised goods into trucks. The forklift controls require right hand operation for the operation of the lifting control levers.
79 The report outlined that the role was considered suitable in the future upon the plaintiff completing a short course.
80 The plaintiff’s evidence was that he had performed this role with his employer after the injury, using his left hand. When he used his right hand, the vibrations aggravated his condition. When his employer saw the plaintiff driving with his left hand, he was taken off the role.
81 The role of forklift driver is not suitable employment for this plaintiff, as he would be required to use his left hand, his non-dominant hand, in circumstances where his former employer considered it unsafe. Accordingly, as the role requires the plaintiff to perform duties which require bilateral hand use, I do not consider it to be suitable employment for the plaintiff.
Rental sales person
82 The role of rental salesperson identified is in a national vehicle rental business, and does not require any specific qualifications. The primary requirements of the role related to:
· Basic computer skills including email management and simple data entry
· Customer service
· Being presentable; and
· Good communication skills.
83 The role involves completing data entry tasks associated with rental bookings, as well as monitoring email traffic and attending to internet-based rental enquiries. On occasions workers are required to drive to other locations to collect or drop off rental vehicles.
84 The primary requirements relate to customer service, and the worker is required to be presentable and have good communication skills.
85 The report outlined that as the plaintiff had experience working as a hairdresser, it was considered he would possess the customer service skills, as well as the strong communication skills, required for this role.
86 The plaintiff’s evidence was that driving is difficult and he avoids city driving where possible, as he finds manoeuvring a car difficult, especially when parking. He said that even navigating a roundabout is difficult.
87 Based on his presentation in Court, I formed the view that the plaintiff has poor communication skills. Given the plaintiff’s physical restrictions, restrictions in relation to driving, limited computer skills and his poor communication skills which I observed in Court, I consider the role unsuitable for this plaintiff.
Operations clerk
88 The role of operations clerk (production clerk) in the Dandenong South area was considered. This role involves the operation of a computer workstation with dual screen monitors. The role is primarily responsible for undertaking general office administration, entering production data into computers and attending meetings. The computer programs typically used are Outlook and Microsoft Office (Word mostly), Excel, Nav (customer database and stock management system).
Warehouse administrator/pallet controller
89 The role was based at a warehouse in Mulgrave and requires a range of tasks associated with receiving, pick/packing, truck loading and despatching. The role is primarily computer based, with some requirement for telephone use. The computer workstations have triple screen monitors.
Despatch clerk in a manufacturing plant
90 This role outlines that computer-based tasks occupy 90 per cent of the workday with single screen workstations.
91 The Recovre report outlined that the roles of operations clerk and warehouse administrator and despatch clerk are frequently entry-level roles that do not require specific qualifications. The roles require basic computer skills, and aptitude to learn on the job, and some understanding or previous experience in in a warehousing environment. It is not in dispute that the plaintiff has experience in a warehousing environment.
92 The evidence is that the plaintiff is a one finger keyboard operator who has a basic knowledge of Microsoft Word and little knowledge of Excel and PowerPoint. Dr Horsley imposed restrictions, including that the plaintiff avoid using his right hand in fine and manipulative movements. Dr Horsley was aware of the plaintiff’s limited knowledge and experience in computer skills. While she said that he would need to upgrade his skills, she did not indicate what training would be appropriate for the plaintiff.
93 Given the restrictions imposed by Dr Horsley, including that the plaintiff avoid using his right hand in fine manipulative movements, and the plaintiff’s limited experience and limited skills in using a computer, I am of the view that a computer-based role such as operations clerk, warehouse administrator and despatch clerk, would not be suitable for the plaintiff. Further, I note that the report stated that in the role of operations clerk, the worker would need to undertake administrative duties which require bilateral hand use.
94 All of the roles identified by Recovre are not suitable for the plaintiff when considering the restrictions imposed by Dr Horsley. All of the roles required basic computer skills, an aptitude to learn on the job and some understanding or previous experience in a warehousing environment. The roles of operations clerk (production clerk), warehouse administrator/pallet controller and despatch clerk were primarily computer based, operating on multiple screens, and requiring bilateral hand use. I consider these roles would involve repetitive fine manipulation tasks involving the right hand, which was one of the many restrictions imposed on the plaintiff by Dr Horsley.
95 Further, counsel for the plaintiff submitted that the roles identified by Recovre did not constitute suitable employment, either because the plaintiff could not withstand the rigours of such work on a regular or reliable basis or he is not suited to such work by reason of his education, skills and experience.
96 When regard is had to the plaintiff’s physical restrictions, I accept that the jobs identified by the defendant in the Recovre report do not constitute “suitable employment”, either because the plaintiff could not withstand the rigours of such work on a regular and reliable basis or he is not suited to such work by reason of his education, skills and experience.
97 In considering the positions, I also take into account the plaintiff’s lack of transferable skills by reason of his limited education and experience. I also take into account the plaintiff’s complaints of pain and disability supported by Dr Horsley, who considered the plaintiff fit for, at best, up to 15 hours per week of light manual work. She concluded that “the plaintiff presented with considerable disability”. Mr Stapleton observed the “plaintiff’s right wrist is going to be more vulnerable to injury and he should avoid any activity which causes him … discomfort”.
98 Counsel for the plaintiff submitted that at best, the plaintiff is fit to perform light manual work up to say 15 hours per week, say in traffic control (albeit that he might not be able to perform the heavy aspects of such a job). The evidence was that the plaintiff expressed this to Dr Horsley. Dr Horsley said the plaintiff would not be able to lift the bollards, but with restrictions he could work 15 hours per week within the role. Ms Katrine Green, vocational expert, said, based on the plaintiff’s physical restrictions outlined by Dr Horsley, there were certain duties that would be within the plaintiff’s physical capacity, but not all, such as unloading, loading from vehicles and lifting and carrying of signage and portable bollards exceeding the lifting restrictions provided. Ms Green concluded that based on the full scope of the occupation of road maintenance traffic controller and the physical demands of all tasks, due to the plaintiff’s right wrist injury, from a physical perspective, the occupation of road maintenance traffic controller is not a suitable option for him within the foreseeable future.
99 I take the view that as the plaintiff cannot meet the inherent requirements of the role due to his physical restrictions, the role of traffic controller would not be suitable employment.
100 Counsel for the defendant submitted that it would be premature to determine the plaintiff’s “without injury” earning capacity prior to him having made any real attempt to return to the workforce. I note that the plaintiff has undertaken a number of vocational certificates subsequent to his injury which all relate to manual work. The plaintiff’s evidence was that he has looked for work and has not been able to find suitable employment. While both Dr Horsley and Mr Stapleton said the plaintiff was suited for retraining, they did not offer any suggestions as to suitable retraining.
101 Further, the defendant submitted that but for the plaintiff’s psychiatric condition secondary to familial trouble, the plaintiff would likely have continued working for the defendant in a supervisory role. It was not put to the plaintiff that he would be fit to perform the supervisory role now. In addition, there was no evidence as to the nature of the duties. Further, there is no evidence that the defendant would offer the plaintiff such a role. The plaintiff’s evidence was that the defendant “took the promotion … [away from] the plaintiff as they felt that … [he] couldn’t do the duties [subsequent to his injury”].
102 Furthermore, counsel for the plaintiff informed the Court that this application is brought under paragraph (a) of s134AB(37). I have already found that given the physical restrictions imposed by Dr Horsley, this means that the plaintiff does not have capacity to return to suitable employment. In making this finding, I have not taken into account any secondary psychiatric condition. In fact no material relating to the plaintiff’s psychiatric condition was tendered in evidence. Accordingly, I am not required to consider any secondary psychiatric injury affecting the plaintiff’s capacity for suitable employment. In fact the mental component is required to be excluded by s134AB(38)(h) of the Act.
103 Given the plaintiff’s injury has persisted since 2013, and the medical evidence, I am satisfied that the plaintiff’s impairment is permanent and he is effectively out of the workforce for any suitable employment as a result of the impairment to the right arm and the consequences flowing from that. I am satisfied that it is fair to describe the consequences of the plaintiff’s loss of earning capacity as being “more than significant or marked” and properly described as ”very considerable” when judged by comparison with other cases in the range.
Income from personal exertion
104 Counsel for the defendant submitted that the plaintiff’s carer’s allowance is properly characterised as “income from personal exertion” and when combined with the 15 hours of work he is capable of undertaking in traffic management, his “with injury” earning capacity exceeds the 60 per cent threshold. While I do not have to consider this submission because I have concluded the 15 hours in traffic management is not suitable employment, for completeness, I will briefly set out my reasons why I do not accept this submission.
105 First, I note the defendant’s counsel did not advance any authority in support of the position advanced.
106 Second, s134AB(38) of the Act provides that:
“income from personal exertion has the same meaning as in section 6 (2) of the Transport Accident Act 1986.”
107 Section 6(2) of the Transport Accident Act 1986 defines “income from personal exertion” as meaning, inter alia:
“(a) the amount that is the income of that person consisting of earnings, salaries, wages, commissions, fees, bonuses, pensions, retiring allowances and retiring gratuities, allowances and gratuities received in the capacity of employee or in relation to any services rendered; and
(b)the proceeds of any business carried on by that person either alone or in partnership with any other person; and
(c)any amount received as bounty or subsidy in carrying on a business; and
(d)the income from any property where that income forms part of the emoluments of any office or employment of profit held by that person; and
(e)any profit arising from the sale by that person of any property acquired by the person for the purpose of profit-making by sale or from the carrying on or carrying out of any profit-making undertaking or scheme—
but does not include—
(f)interest, unless that person’s principal business consists of the lending of money, or unless the interest is received in respect of a debt due to that person for goods supplied or services rendered by the person in the course of the person’s business; or
(g)rents or dividends; or
(h)any employer superannuation contribution.”
108 The traditional meaning of s6(2) is defining income from personal exertion which is expressed to mean monies received:
(a) in the capacity of an employee (which connotes the traditional master servant) or any services rendered, for example to an independent contractor whether a deemed employee or not;
(b) Self-employed persons;
(c) Landlord;
(d) A business of acquiring property for resale.
109 I note that s6(2)(f), (g) and (h) are not relevant.
110 Under s6(2), no social security benefits paid fall within the definition of “personal exertion” within the Act. Therefore, s6 of the Transport Accident Act does not account for any payment of social security benefit such as a carer’s allowance. It cannot be considered as income from personal exertion. I reject the defendant’s submission on this point.
Pain and suffering
111 In view of my finding that the plaintiff has satisfied the test for economic loss, it is not strictly necessary for me to consider the pain and suffering consequences; however, out of an abundance of caution, I am satisfied that the plaintiff has satisfied the test for pain and suffering consequences.
112 I take into account the level of pain the plaintiff suffers, the plaintiff’s evidence was that on average the pain which he suffers he assesses to be 3 to 4 out of 10. On occasion he said it can be 7 to 8 out of 10, which happens two to three times per week. His condition is made worse by lifting anything heavy and by repetitive use of his right hand. The plaintiff said he does not consult doctors often, as he has been told that there is nothing further they can offer him. He takes over-the-counter medication of Advil daily, for the pain. I accept daily pain is a consequence which I can take into account. The fact that the plaintiff’s pain can be at a level of 8 out of 10, two to three times per week, is made worse by lifting, and by repetitive use of his right hand leads me to the conclusion that pain is a consequence I would assess at the high end of the range. Whilst I accept that the plaintiff’s medication is limited to over-the-counter medication, I note that he takes medication daily. I assess this is a consequence which I assess at the middle end of the range.
113 The plaintiff’s sleep is affected. He wakes most nights in pain at least once and as a result, he generally wakes feeling as though he has not had a good night’s sleep, and often feels tied during the day. I take the view that disrupted sleep is a consequence I can take into account, which I assess at the middle end of the range.
114 The plaintiff’s evidence is that he has difficulty mowing the lawns and performing other activities in the garden. He uses his left hand where possible. I take the view that difficulty in performing household activities is a consequence I can take into account, which I assess in the middle of the range.
115 The plaintiff’s evidence is that his right hand injury hampers his ability to care for his children who have significant disabilities and require a lot of help, especially the twins. His evidence is that he manages but it can be a struggle. I consider this is a consequence which I can take into account. I consider this at the high end of the scale. To manage young children who require significant assistance without the use of one’s dominant hand is at the high end of the scale.
116 I accept that the plaintiff can no longer participate in his hobbies of motorbike riding and fishing. The plaintiff’s evidence was that he sold his motorbike as he was not using it because to do so hurt his wrist too much. The plaintiff’s evidence was that he used to fish off the pier about once a week which he found very relaxing. The flicking motion of casting aggravates his wrist pain. He rarely goes fishing these days and has not done so for the past twelve months. The loss of his hobbies is a consequence I take into account, which I assess at the high end of the scale.
117 I accept that the inability to work in pre-injury employment or manual employment is a consequence at the high end of the scale. I also take into account that the only work the plaintiff has performed has been manual work which is now no longer available to him because of his right arm injury. I accept that the plaintiff’s inability to return to work represents a significant loss to this plaintiff, both with respect to his enjoyment of life and his self esteem. I take into account the plaintiff’s relatively young age and the fact that he has reached the optimum of medical improvement. Given the injury has persisted for six years, I accept the consequences are permanent, which is in accordance with the medical evidence.
118 I am satisfied that the plaintiff was involved in a work accident which, to this plaintiff, resulted in him experiencing symptoms of a physical nature. The consequences of his right arm injury alone have impacted upon his life as he knew it before the work accident. He has suffered for six years and the medical evidence is that the injury is permanent. The evidence is that he can no longer engage in his pre-injury employment.
119 For the foregoing reasons, I am satisfied that the plaintiff has established that the consequences to him of his impairment can be reasonably described as being “serious”. In my experience, the consequences to the plaintiff measure up well against other serious injury applications where plaintiffs have been successful. In considering the consequences, I have not treated each consequence as equal, but, rather, attributed appropriate weight to each consequence in light of the evidence.
120 I accept that the right arm injury has consequences to the plaintiff that, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of hearing, as being “at least very considerable” and certainly “more than significant or marked”. In making this assessment, I have looked at the consequences of the right arm injury alone.
121 Taking into account the above consequences, I consider the plaintiff suffers the test for pain and suffering consequences.
122 Accordingly, I grant the plaintiff leave to bring proceedings for loss of earnings and pain and suffering consequences.
123 I will hear the parties on costs.
- - -
0
3
0