Duke v Victorian WorkCover Authority
[2021] VCC 1599
•22 October 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-20-01159
| JESSICA EMMA DUKE | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE BROOKES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 January 2021 | |
DATE OF JUDGMENT: | 22 October 2021 | |
CASE MAY BE CITED AS: | Duke v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1599 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the left elbow – pain and suffering only
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s335(2)(d)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Sutton v Laminex Group Pty Ltd (2011) 31 VR 100; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Aburrow v Network Personnel Pty Ltd [2013] VSCA 46; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292; TTB SMS Pty Ltd v Reading [2020] VSCA 203
Judgment: Leave granted to the plaintiff to issue proceedings at common law for pain and suffering damages on account of injuries suffered to the left elbow on or about 22 May 2017.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T P Tobin SC with Ms Z Jing | Arnold Thomas & Becker |
| For the Defendant | Mr R Kumar | IDP Lawyers |
HIS HONOUR:
1This is an application for leave to bring proceedings for damages pursuant to s335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) for injury suffered by the plaintiff in the course of her employment with her employer, KDR Victoria Pty Ltd (“KDR”), on or about 22 May 2017.
2The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only. The plaintiff brings this application pursuant to s325(1)(d) of the Act.
3There, “serious injury” is defined, relevantly, as meaning:
“(a) permanent serious impairment or loss of a body function … .”
4The body function relied upon in this application is the left elbow; alternatively, the left arm.
5Pursuant to s325(2)(c) of the Act, the impairment must have consequences in relation to each of pain and suffering which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being more than “significant” or “marked” and as being “at least very considerable”.
6I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must be also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function.
7Subsection (2)(h) provides that consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
8I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak.[1]
[1](2005) 14 VR 622
9Perhaps the most significant area of dispute between the parties is whether or not the physical injury suffered in the course of a plaintiff’s employment is said to cause consequences which are “serious” in terms of the legislation, colloquially known as a “range case”.
10The plaintiff relied upon two affidavits and gave viva voce evidence. In addition, both parties relied upon medical reports and other material which was tendered in evidence. I have read all the tendered material.
Background
11The plaintiff is aged thirty-four, being born in 1986. She completed Year 12 and while at school, worked part time at a café. After school, she worked for Peter Stevens for about seven years doing retail sales of motorcycle accessories, including three years as a manager. Thereafter, she worked for Zimmer Biomet for about eighteen months, doing warehousing of orthopaedic implants. Subsequently, she worked for Nationwide Towing for about nine months as a truck despatch clerk. In approximately 2009, she completed a certificate regarding the financing for motorcycles, as well as a certificate relating to insurance. Also, in approximately 2014, she completed a warehousing management certificate. At the time of the hearing, she was married with two children.
12In approximately March 2017, she commenced working as a trainee tram driver with KDR and drove trams on three different routes, including routes 48, 109 and 78.
13On 22 May 2017, in the evening, the plaintiff drove her tram to the end of the route 89 line in North Balwyn under the supervision of a trainer. There were toilets located at this venue which were for the employees. To access the toilet, she swore:
“… I had to walk behind a church. It was dark and the lighting was very poor. After coming back from the toilet, I fell on the footpath.”[2]
[2]Exhibit “A”, affidavit sworn 16 October 2019, paragraph 17 at Plaintiff’s Court Book (“PCB”) 7
14In so doing, the plaintiff injured her left elbow.
15When the plaintiff returned to the tram, she reported the fall to her trainer, who then completed driving for the rest of the shift.
16At the completion of the shift, the plaintiff drove herself to the Emergency Department of the Maroondah Hospital and had x-rays, which showed a fracture in her left elbow. She was advised to delay surgery for around three weeks to reduce the risk of infection from the wound in the elbow.
17On 5 June 2017, the plaintiff had an x-ray of her left elbow and thereafter, saw her general practitioner, Dr Bryce Speirs, at Tyner Road Medical Centre.
18In June 2017, the plaintiff was referred to Mr Guan Tay, orthopaedic surgeon, who advised her not to lift loads with her left arm, but that she could eventually return to light desk work.[3]
[3]Exhibit “A”, affidavit sworn on 16 October 2019, paragraph 22 at PCB 7
19On 9 June 2017, the plaintiff had an operation on her elbow performed by Mr Tay and thereafter, had about three months of physiotherapy in Ivanhoe.
20On 20 June 2017, the plaintiff had a further x-ray of her left elbow.
21Approximately seven weeks after surgery, the plaintiff returned to work doing light duties full time, monitoring the network on the road and watching trams and recording timings.[4]
[4]Exhibit “A”, affidavit sworn on 16 October 2019, paragraph 26 at PCB 8
22Thereafter, the plaintiff slowly built up her duties and a few months after surgery she was cleared to return to pre-injury duties. In her first affidavit, she swore:
“… I still find it difficult [to] do certain tasks at work, such as pushing mirrors out on the tram with my left arm, which requires some force. I continued to follow up with Mr Tay.”[5]
[5]Exhibit “A”, affidavit sworn on 16 October 2019, paragraph 27 at PCB 8
23In July, September and October 2017, the plaintiff had further x-rays on her left elbow.
24By February 2018, the plaintiff swore:
“I was still having stiffness in the mornings and discomfort with wet weather.”[6]
[6]Exhibit “A”, affidavit sworn on 16 October 2019, paragraph 29 at PCB 8
25On or about 8 September 2019, the plaintiff suffered a psychological injury in the course of her employment when, at about 4.00am, the tram was stormed by some drunk passengers who were kicking the door in and threw a rock at the windscreen. The plaintiff lodged a WorkCover claim in response to this incident for psychological injury, which was accepted. She had been off work since this date and was being treated by her general practitioner and psychologist.
Pain and suffering consequences
26In her first affidavit, the plaintiff swore that she continued to see her general practitioner on an as-needs basis, including if she gets flare ups or if her elbow aches badly.[7] She swore that she continued to use heat packs, especially during cold weather, which she found made the pain worse in her elbow.[8]
[7]Exhibit “A”, affidavit sworn on 16 October 2019, paragraph 30 at PCB 8
[8]Exhibit “A”, affidavit sworn on 16 October 2019, paragraph 31 at PCB 8
27The plaintiff also swore:
“I used to enjoy gardening. During certain times of the year I would be doing it every week or two. I now struggle to pull weeds or any movements which require forceful use of my left arm. So I tend not to do much gardening anymore.”[9]
[9]Exhibit “A”, affidavit sworn on 16 October 2019, paragraph 32 at PCB 9
28The plaintiff further swore:
“I have 2 Staffordshire Bull Terriers and used to walk them twice a week. I struggle to walk them now and my husband does it. They are really strong and pull on the lead, which aggravates the pain in my elbow.”[10]
[10]Exhibit “A”, affidavit sworn on 16 October 2019, paragraph 33 at PCB 9
29Further:
“I find shopping can be painful. I try to only lift and move light things with my left arm and load up my other arm with other items.”[11]
[11]Exhibit “A”, affidavit sworn on 16 October 2019, paragraph 34 at PCB 9
30The plaintiff then swore:
“I used to regularly ride my motorbike every weekend. I find holding the clutch with my left arm quite hard. Now the bike generally just gathers dust in my garage.”[12]
[12]Exhibit “A”, affidavit sworn on 16 October 2019, paragraph 35 at PCB 9
31As far as symptoms are concerned, the plaintiff swore:
“I have discomfort using my elbow, which can sometimes result in a sharp aching pain. I find the pain worse early in the morning and late at night. At its worst, the aching can last for hours. When my elbow is stiff in the mornings, I find it hard to put on jumpers.”[13]
[13]Exhibit “A”, affidavit sworn on 16 October 2019, paragraph 37 at PCB 9
32Further:
“The pain affects my sleep. If I sleep on my elbow funny, then it can ache in the morning. When it aches at night, it can take a while to get to sleep or it can disrupt my sleep. I then get tired during the day and take naps during the day, including on my breaks at work.”[14]
[14]Exhibit “A”, affidavit sworn on 16 October 2019, paragraph 38 at PCB 9-10
33Other consequences include:
“I used to be a really active person but I’ve found since my injury that there are exercises I now struggle to do, including push ups, lifting kettle bells or any moves which require me to support by body weight, even if using both arms. I used to enjoy doing things like bootcamps, which are now difficult.”[15]
[15]Exhibit “A”, affidavit sworn on 16 October 2019, paragraph 39 at PCB 10
34In addition, the plaintiff swore:
“I struggle bringing in the washing basket or taking it out. I have to do it in stages now rather than moving a whole load in one go. I struggle cleaning the tanks for my pet turtles. To clean their tank, I have to mix a bucket of water and chemicals and pour it in into the tank. I really struggle with lifting and pouring. When I do cleaning around the house now I try to use my right hand as much as possible, particularly for strenuous things like scrubbing the shower.
I try to avoid leaning my left elbow on things such as on the couch, as this intensifies the aching. ”[16]
[16]Exhibit “A”, affidavit sworn on 16 October 2019, paragraphs 40-41 at PCB 10
35In her second affidavit, dated 22 December 2020,[17] the plaintiff swore that her symptoms and the impact of her injuries on her life remained largely unchanged since swearing her first affidavit.[18]
[17]Exhibit “A”
[18]Exhibit “A”, affidavit sworn on 22 December 2020, paragraph 1 at PCB 17
36The plaintiff further swore that after the September 2019 incident, she was being treated by a psychologist and prescribed Cymbalta, 120 milligrams.
37In around November 2020, the plaintiff started back at work two days a week, doing administrative work around the depot. She was not able to do any work in the head office because of COVID. She further swore “I am hoping to progressively get back to driving trams again full time”.[19]
[19]Exhibit “A”, affidavit sworn on 22 December 2020, paragraph 3 at PCB 18
38With respect to this specific injury, the plaintiff swore:
“With my elbow, I find it aches whenever it rains or when there is a chill in the air. The discomfort, aching and pain in the elbow will vary depending on the season. I t also hurts if I am doing anything strenuous, including taking the bins out.
I take Panadol as needed and continue to try to put heat on the elbow to warm it up. I don’t tend to see the GP anymore because I don’t think there is anything they can do for me to make the elbow symptoms better.
I find it is uncomfortable putting my elbow against a flat surface or on a table.
I find opening jars and chopping up food can be difficult. I have occasional feelings of numbness and tingling in the palm of my hand.”[20]
[20]Exhibit “A”, affidavit sworn on 22 December 2020, paragraphs 4-6 at PCB 18
39In cross-examination, the plaintiff stated the last time she saw Mr Tay was in February 2018 and he told her that probably she would have no restrictions in the future. She stated there was no discussion with Mr Tay regarding a review or whether she should have the plate removed. He recommended that she leave it in and that her general practitioner would deal with any issues. He also told her that if the plate was to be removed she would need a recovery period again of some six weeks. Further, she did not wish to go back to Mr Tay.
40With respect to her general practitioner, Dr Speirs, she agreed that she did not see him for treatment, as she considered that nothing could be done. She agreed that she saw him for other illnesses, but made no mention of her left elbow.
41The plaintiff also agreed that she had been prescribed Seroquel for approximately six months before the relevant accident and also afterwards. She agreed that the psychological symptoms following the second accident had a greater effect on her sleep than the aches and pains from the relevant accident.
42The plaintiff stated that she had stopped taking the two dogs for a walk because she could not have a lead in each hand because of the left elbow pain. She also found that placing the two leads in her right hand was not adequate, as the dogs were quite strong together. Although she agreed that it was possible to take the dogs for a walk one at a time, she now elected not to take them at all.
43The plaintiff also agreed that she told Dr Owen, for the defendant, that she had two motorcycles and one was for racing. She also agreed that she stated her restrictions were to avoid most extreme movements.
44In re-examination, the plaintiff stated she could still feel the plate under her skin and it was uncomfortable. She said if she placed her elbow on a flat surface she could feel the ridge of the plate which, in turn, was the site of an ache in her joint. She also gave the example of sleeping with a fan at night in hot weather had the effect of causing a chill in her elbow joint. She continued to take Panadol and Nurofen on an as-needs basis.
The Plaintiff’s medical evidence
45The plaintiff tendered in evidence eight reports from the treating orthopaedic surgeon, Mr Guan Tay, dated 9 June 2017, 20 June 2017, 18 July 2017, 5 September 2017, 31 October 2017, 20 February 2018 and 27 May 2018.[21]
[21]Exhibit “C”
46In his operation report dated 9 June 2017, Mr Tay recorded, inter alia:
“A curvy linear incision was centred over the tip of the olecranon, avoiding the abrasion. The fracture was identified and oblique in orientation. The callus was removed. Fracture line was defined. Arthrotomy and washout was performed. The fracture was unstable and difficult to hold reduced. Temporary fixed with a K wire.
…
Definitive fixation: Acumed olecranon plate and screws. Image Intensifier demonstrated good reduction of the ulnar shaft. A 2 mm fracture gap remained at the articular surface. This could not be improved despite attempted compression with central screw. There was full movement of the elbow with no crepitus.
…
Post operative Instructions:
…
Analgesia.
…
The patient is suitable for discharge home tomorrow when comfortable.
For review in outpatients, appointment in ten fourteen days.”[22][22]Exhibit “C”, Operation Report of Mr Guan Tay, dated 9 June 2017 at PCB 25
47And:
“Operative diagnosis: Late presentation left olecranon fracture
Procedure: Debridement of wound
Open reduction internal fixation left olecranon
Arthrotomy and washout.”[23]
[23]Exhibit “C”, Operation Report of Mr Guan Tay, dated 9 June 2017 at PCB 25
48In one of his follow up reports to the general practitioner, dated 20 June 2017, Mr Tay reported:
“… it has been eleven days since Jessica has undergone surgery to her left elbow. She reported a mild pain especially at night and she has had difficulty finding a comfortable position. Jessica has been taking regular Panadol and has completed her course of oral Keflex … .
…
Repeat xrays performed demonstrated no change in alignment. A gap remained at the articular surface but this was unchanged from postoperative radiographs.
I have discussed the findings with Jessica. I have reassured her that the alignment of the fracture remained unchanged and I would anticipate that she would make a good clinical recovery despite the small articular gap. A referral has been made to physiotherapy to commence gentle mobilisation. I have advised Jessica to refrain from loading her arm for a minimum of ten weeks. Should she be comfortable, Jessica can commence light desk duties in approximately two weeks. I have advised Jessica to be guided by the severity of her symptoms.”[24]
[24]Exhibit “C”, report of Mr Guan Tay, dated 20 June 2017 at PCB 27
49At six weeks after surgery, Mr Tay reported:
“… Jessica reported minimal pain but she has noticed a generalised ache with the cold weather. Despite this, she has not required analgesia. Jessica advised that she has been attending physiotherapy twice weekly and has been making good progress. She has noted mild improvement in her range of movement. Jessica advised that she has returned to working full time. She is currently driving a foot control A class tram … .
On examination … She had stiffness in the elbow with flexion from 40 – 130°. Full supination and pronation could be achieved. Normal sensation in the distribution of the ulnar nerve.
Repeat xrays demonstrated no change In fracture alignment. There was evidence of increased callus formation at the fracture site.
… I have advised that it is appropriate for her to recommence driving a hand controlled tram, but she should do this on reduced hours. I have encouraged Jessica to continue with her range of movement exercises and to reduce her smoking if possible.”[25]
[25]Exhibit “C”, report of Mr Guan Tay, dated 18 July 2017 at PCB 28
50In his report dated 5 September 2017, Mr Tay reported:
“… Jessica reported that she has resumed driving all three classes of trams and has been tolerating this well. However, she continues to work shorter shifts at present. She has noted a mild occasional ache in the mornings and this would gradually improve over several minutes. She does not experience mechanical symptoms and does not require analgesia. Jessica continues to have physiotherapy twice weekly but felt that the gains were diminishing. Regrettably, Jessica continues to smoke up to fifteen cigarettes per day.
On examination, her surgical wound has healed well. No tenderness over the subcutaneous plate. Elbow flexion from 20° fixed flexion deformity to full flexion. Full supination and pronation could be achieved … .
Repeat xrays demonstrated that the alignment of the fracture remained unchanged with Increased callus formation since the last xrays.
I have discussed the findings with Jessica. She is suitable to resume full duties and hours at work. A medical clearance certificate has been issued today. Her work involves essentially light duties and I have advised Jessica to refrain from lifting objects heavier than 6 kg ... .”[26]
[26]Exhibit “C”, report of Mr Guan Tay, dated 5 September 2017 at PCB 29
51In his report dated 31 October 2017, Mr Tay recorded:
“… Jessica reported a persistent mild discomfort and has not required analgesia. She has returned to full duties as a tram driver. Jessica advised that she continues to have physiotherapy weekly and has noted gradual improvement of her movement … .
On examination, her surgical wound has healed well. Mild tenderness over the subcutaneous plate. She had a fixed flexion deformity of 10°, Full elbow flexion, supination and pronation.
Xrays performed demonstrated no change in fracture alignment. There was evidence of increased callus formation. A 2mm articular gap and faint fracture line remained visible in the lateral views.
I have discussed the findings with Jessica and reassured her that there has been progression from her previous xrays. I have advised that it would be best for her to cease smoking as this will delay healing. She is allowed to resume all activities with no restrictions. Jessica should continue with her range of movement exercises but Jessica is aware that she may have a residual chronic fixed flexion deformity. Jessica advised that she does not notice it on a daily basis and was not troubled by it.”[27]
[27]Exhibit “C”, report of Mr Guan Tay, dated 31 October 2017 at PCB 30
52In his last clinical review dated 20 February 2018, Mr Tay recorded:
“Jessica reported a persistent mild ache in the left elbow and she has noted this especially in the mornings, which would improve with movement. She also complained of an ache with cold weather and when it is going to rain. She has not required analgesia and reported no mechanical symptoms. Jessica has been able to perform full duties at work and has been discharged from physiotherapy. Jessica continues to smoke twenty cigarettes per day.
On examination, her surgical wound has healed. Mild hypertrophic scar. She had a full elbow range of movement which was comparable with the right arm. No crepitus with movement. Normal neurovascular examination.
Repeat xrays performed demonstrated that the fracture has united. A small intra-articular gap was identified.
… I would anticipate the generalised ache to gradually improve over time. We have also discussed the option of removing the plate should she experience focal irritation from the underlying subcutaneous plate.
No further appointment has been scheduled at this stage and I have left it open for Jessica to seek a review as required.”[28]
[28]Exhibit “C”, report of Mr Guan Tay, dated 20 February 2018 at PCB 31
53The plaintiff was also examined for medico-legal purposes by Mr Russell Miller, orthopaedic surgeon, who reported on 3 September 2020.[29] Mr Miller took a relevant history of injury and recorded the following symptoms:
“… Left Elbow
She has ache, discomfort and occasional pain in the left elbow. It feels stiff and sore. The symptoms are worse in the colder weather. She has some difficulties with strenuous and repetitive work and particular tasks cause her difficulties such as riding a motorbike, opening jars and chopping up food. She has the occasional feelings of numbness and tingling in the palm of her hand but described no other specific symptomatology.”[30]
[29]Exhibit “D”
[30]Exhibit “D”, report of Mr Russell Miller, dated 3 September 2020 at PCB 36
54In terms of treatment, Mr Miller reported:
“… Ms Duke has used a range of medications, but currently she intermittently uses Panadol. She has had physiotherapy in the past, this is not ongoing. She occasionally uses a compression brace mostly in the colder weather.”[31]
[31]Exhibit “D”, report of Mr Russell Miller, dated 3 September 2020 at PCB 37
55On examination of the elbow, Mr Miller noted:
“… a long broad curved tender postero lateral scar which extended down the posterior aspect of the forearm. There was diffuse tenderness, but no swelling. The range of motion was:
Flexion 10-120°
Pronation 80°Supination 60°.”[32]
[32]Exhibit “D”, report of Mr Russell Miller, dated 3 September 2020 at PCB 38
56As to diagnosis and prognosis, Mr Miller reported:
“The client suffered an injury to the left elbow with a displaced fracture of the olecranon process for which she underwent surgery by Mr Guan Tay on 09/06/2017. I note his operative findings were a late presentation of a left olecranon fracture for which he undertook surgery in the form of wound debridement and open reduction internal fixation. The client has made a satisfactory recovery following that injury. The prognosis is good.”[33]
[33]Exhibit “D”, report of Mr Russell Miller, dated 3 September 2020 at PCB 39
57As to future treatment, Mr Miller reported:
“The client has had appropriate treatment to date. At this stage she is requiring only minimal conservative treatment, it is possible that she may require further treatment to address issues of pain management and rehabilitation.
The client may require further surgery to remove the metal ware from the elbow and revision of the scar.
Risk of developing arthritic disease is low.”[34]
[34]Exhibit “D”, report of Mr Russell Miller, dated 3 September 2020 at PCB 40
58As to capacity for work, Mr Miller stated:
“From the point of view of the left elbow she will have difficulty with work that involves large amounts of repetitive left arm actions and lifting of weights more than 5 kg.
These restrictions are permanent, and work related.
The client should be able to return to work as a tram driver and indeed feels herself capable of doing so.”[35]
[35]Exhibit “D”, report of Mr Russell Miller, dated 3 September 2020 at PCB 40
59As to home and work activities, Mr Miller reported:
“… She has some difficulty with heavier domestic and gardening activities which are now undertaken by her husband. There is currently no paid domestic or gardening help. She will have a reduced capacity for heavy domestic and gardening activities as a result of the left elbow injury.
…
Ms Duke states that she previously enjoyed motorbike riding, taking her dogs for a walk. She has not been able to resume these activities. She will have some reduction in her capacity for pre-injury, leisure and recreational activities as a result of the left elbow injury. ”[36]
[36]Exhibit “D”, report of Mr Russell Miller, dated 3 September 2020 at PCB 41
The Defendant’s medical evidence
60The defendant tendered a medical report of Dr Graeme Doig, general orthopaedic and trauma surgeon, dated 16 October 2018.[37] Dr Doig took a relevant history and noted that the most recent x-rays of 12 February 2018:
“… confirmed a healed fracture of the olecranon process with implants still in-vivo. There was no post-traumatic osteoarthritis at the joint at this stage evidence on imaging.”[38]
[37]Exhibit 1
[38]Exhibit 1, Report of Dr Graeme Doig, dated 16 October 2018 at Defendant’s Court Book (“DCB”) 54
61Dr Doig noted the plaintiff was not taking any medication and was not requiring analgesics. Her favourite pastime was gardening and she was able to drive an automatic vehicle. He also noted that the plaintiff “avoids heavy lifting with the left arm”.[39] On examination, inter alia:
“Ms Duke had 20 degrees of fixed flexion deformity to 140 degrees of flexion, with full pronation and supination through the forearm … .”[40]
[39]Exhibit 1, Report of Dr Graeme Doig, dated 16 October 2018 at DCB 55
[40]Exhibit 1, Report of Dr Graeme Doig, dated 16 October 2018 at DCB 55
62The diagnosis was of:
“… a displaced fracture of the olecranon process at the non-dominant left elbow, requiring operative fixation. The worker continues to suffer from discomfort with use at the elbow, with permanent scarring.
…
The prognosis is reasonably good in that the worker has returned to pre-injury duties. She will have a less than 5 kgs lifting, pushing and pulling restriction with respect to the left arm and no more than 15 kgs with both arms.”[41]
[41]Exhibit 1, Report of Dr Graeme Doig, dated 16 October 2018 at DCB 56
63The defendant also tendered in evidence a Certificate of Opinion and Reasons for Opinion of a Medical Panel, dated 27 February 2019.[42] The examination was conducted jointly by Dr Laurie Warfe and Associate Professor Bruce Love. The history of injury taken directly from the plaintiff was as follows:
“When returning from the toilet to resume her training duties, she tripped on an uneven surface in the footpath and fell heavily onto her left forearm and elbow. Although she did not feel pain immediately, she noticed that the elbow was deformed and she instinctively knew that it was badly injured. There was also a severe abrasion over the point of the elbow at the site of impact. The pain developed 30 to 40 minutes after the injury and became very severe … .”[43]
[42]Exhibit 2
[43]Exhibit 2, Medical Panel Reasons for Opinion, dated 20 February 2019 at DCB 61
64As to present symptoms, the Panel reported:
“Ms Duke has intermittent pain in the region of the left elbow at and around the site of the operation. The pain is a dull aching pain which gets worse with activity involving use of the left upper limb. The pain is localised around the site of the surgery but occasionally has sharp shooting pains radiating down the ulnar aspect of the left forearm.
The pain is worse in cold weather and is often worse after a busy day at work involving repetitive use of the left arm. The elbow is tender at night and disturbs her when rolling over onto it when trying to sleep.
Ms Duke also has pain when resting the arm on a hard surface, when lifting objects with the left arm greater than 10 kg or with repetitive use of the left-hand. Also, she often has a feeling of weakness in the left arm and has an intermittent tremor of the left-hand when doing fine manipulative tasks or when holding objects in the left hand.
…
She is unable to fully extend the elbow and any attempt to do so causes increased pain.”[44]
[44]Exhibit 2, Medical Panel Reasons for Opinion, dated 20 February 2019 at DCB 62
65As to her present function, the Panel notes:
“Ms Duke is able to perform all duties of her occupation of tram driver. The work involves use of the left hand and arm operating a drive lever and which requires her to partially extend the left elbow. She is also required to open and close tram cabin doors and operate switching levers which she manages to do using her right hand whenever possible and has adapted her work activity to favour her left arm.
She also has some trouble doing day-to-day tasks at home such as wheeling out two rubbish bins at a time or walking her two dogs together. She now uses the right hand for these tasks and performs them one at a time. She is also unable to participate in her previous recreational activity of motorcycle riding as she finds it difficult to operate the clutch with her left hand.”[45]
[45]Exhibit 2, Medical Panel Reasons for Opinion, dated 20 February 2019 at DCB 63
66As to present and proposed treatment, the Panel recited:
“Ms Duke does not take pain medication or anti-inflammatory medication and prefers to manage the symptoms as best she can without taking tablets. She occasionally applies local heat and does light exercises in the spa particularly after a busy day at work. She also does a limited home exercise program to maintain movement and flexibility.
…
Ms Duke was told by her treating orthopaedic specialist that she did not require to have the internal metal fixation removed as any attempt to do so may produce side effects and complications and is unlikely to improve the function of the elbow. She does not currently see an orthopaedic specialist in relation to the elbow and is not contemplating any treatment, surgical or otherwise, in the foreseeable future.”[46]
[46]Exhibit 2, Medical Panel Reasons for Opinion, dated 20 February 2019 at DCB 63
67On examination of the left elbow, the Panel noted:
“… a wide, mobile, vascular 11 cm surgical scar over the left elbow centred over the olecranon process consistent with the history of surgery. The scar was tender to palpation and produced an unpleasant sensation of dysaesthesia which made Ms Duke recoil from the examination. There was mild tenderness over the ulnar nerve at the elbow. Range of movement of the left elbow was measured with a goniometer and was found to have fixed flexion of 25° and flexed to 140°. There was a full range of pronation and supination of the left forearm. Muscle power around the left elbow joint was mildly reduced due to pain … .”[47]
[47]Exhibit 2, Medical Panel Reasons for Opinion, dated 20 February 2019 at DCB 64
68The Panel had cause to compare their findings with that of Dr Doig above. The Panel noted:
“At the time of its assessment, the Panel found 25° of fixed flexion deformity of the left elbow and surgical scarring was causing Ms Duke significant distress, the associated impairment being greater than Dr Doig’s impairment assessment. Whilst acknowledging that clinical assessments may vary from time to time according to her presentation at the time of assessment, based on the experience and expertise of the Panel in disorders of the elbow, and for the above stated reasons, the Panel disagreed with Dr Doig’s assessment.”[48]
[48]Exhibit 2, Medical Panel Reasons for Opinion, dated 20 February 2019 at DCB 66
69Finally, the defendant had the plaintiff examined by consultant orthopaedic surgeon, Dr John Owen, who reported on 15 December 2020.[49] His assessment was conducted via video conference, with the plaintiff located at her home and Dr Owen was “located in Otago”.[50]
[49]Exhibit 3, report of Dr John Owen, dated 15 December 2020
[50]Exhibit 3, report of Dr John Owen, dated 15 December 2020 at DCB 69
70Dr Owen took a relevant history and recorded the current complaints as follows:
“The left elbow continues to worry her. She finds she cannot really extend the arm comfortably and carrying heavy things also cause a problem. The elbow aches – and she has weather ache. That is, when the weather changes she notices aching in the elbow.
…
Her only medication is the occasional Panadol or heat pack when the arm would ache, especially after she overdoes things, and when overdoing things is the only time that she notices night pain.
…
Domestically there are some tasks that she struggles with because of the elbow. For example, she has a hobby of keeping turtles and has to clean the tank which is apparently quite heavy work. She can hang her washing, and does shopping, with some discomfort.
Her hobby is riding a motorbike and the maintenance of the arm in one position. Riding the bike has caused her some concern and she has avoided some of the more extreme motorcycle activities. She owns two motorcycles, one of which is a racing machine.
In terms of further management of the arm she does not do any physiotherapy now.”[51]
[51]Exhibit 3, report of Dr John Owen, dated 15 December 2020 at DCB 71
71As to clinical examination and on viewing via video conference, Dr Owen estimated the loss of extension was around 15 degrees and supination and pronation, he considered, were full.[52]
[52]Exhibit 3, report of Dr John Owen, dated 15 December 2020 at DCB 72
72Mr Owen viewed an x-ray of 12 February 2018 and considered “[t]here were no signs of any arthritis in the elbow or any other mal-alignment”.[53] However, he recorded:
“It is worth noting that in the operation report Mr Tay identifies a problem with the fracture being unstable, difficult to reduce, and indeed a 2 mm fracture gap remained at the articular surface.”[54]
[53]Exhibit 3, report of Dr John Owen, dated 15 December 2020 at DCB 72
[54]Exhibit 3, report of Dr John Owen, dated 15 December 2020 at DCB 72
73As to prognosis and any further treatment, Mr Owen noted:
“The prognosis should be good. The only question mark here is the residual articular gap which at 2 mm is significant. Any disruption of the articular surface increases the potential for posttraumatic arthritis … Overall although this claimant has been exposed to the risk of posttraumatic arthritis, I think the risk of developing it is quite low, and therefore one would accept that her prognosis should be good. I do not expect her to accept any form of treatment.
It has been shown that removal of the internal fixation may improve the aching in the operative site. It usually improves the irritation. This plate and screws are immediately under the surface of the skin and therefore are a source of irritation in resting the elbow on a hard surface. The claimant understands that removing the plate would be a drama and would increase the scarring. In fact my opinion is that removing the plate is a relatively simple day case procedure and it is an opportunity to revise the original scar. So I would be a lot less negative about her requiring the metal to be removed. She would have to have probably 10 days or so off work but it is certainly not a major procedure and it may help her.”[55]
[55]Exhibit 3, report of Dr John Owen, dated 15 December 2020 at DCB 74
Pain and suffering consequences – principles
74As has been set out on a number of occasions, but particular in the Court of Appeal decision of Sutton v Laminex Group Pty Ltd[56] at paragraph 46:
“The pain and suffering consequences of a compensable injury extend beyond the physical experience of pain to include the debilitating effect on a person’s life.”
[56] [2011] VSCA 52
75The Court of Appeal recited with approval the dicta of President Maxwell in Haden Engineering Pty Ltd v McKinnon,[57] where his Honour recorded:[58]
[57] (2010) 31 VR 1
[58] (ibid) paragraphs [9] to [11]
“‘[T]he ‘pain and suffering consequence’ of an injury encompasses both the plaintiff’s experience of pain as such and the disabling effect of the pain on the plaintiff’s physical capabilities (including capacity for work) and enjoyment of life. …
The experience of pain
As to the experience of pain as such, the Court must assess the intensity of the pain which the plaintiff experiences. For this purpose, pain intensity is often classified on the scale ‘mild/moderate/severe’. Unless the pain is constant, the Court will need also to assess the frequency and duration of the pain episodes.
The evidentiary basis of the pain assessment will ordinarily comprise the following:
(a) what the plaintiff says about the pain (both in court and to doctors);
(b) what the plaintiff does about the pain (eg medication, rest, seeking medical treatment);
(c)what the doctors say about the extent and intensity of the plaintiff’s pain; and
(d)what the objective evidence shows about the disabling effect of the pain.’
Relevantly to the issues on this appeal, Maxwell P pointed out that the first evidentiary basis will turn on an assessment of a plaintiff’s credit. He said:[59]
[59] (Ibid) paragraph [12] (footnotes omitted)
‘As to (a), the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility. The Court will make its own assessment of the plaintiff’s credibility if he/she gives evidence, and will also take into account views expressed by examining doctors about the reliability of the plaintiff’s accounts of pain.’
An assessment of the fourth evidentiary basis must be tempered by an understanding of the effect of stoicism. Approving what was said in Dwyer v Calco Timbers Pty Ltd (No 2) by Nettle JA, Maxwell P observed:[60]
[60] (Ibid) paragraph [13] (footnotes omitted)
‘As to (d), the cases recognise that some plaintiffs may be more ‘stoical’ than others. This means that such a plaintiff is, to an unusual degree, prepared to endure pain in order to maintain a desired level of function. The injury suffered by the ‘stoical’ plaintiff is not to be viewed as any the less serious merely because he/she manages to remain more active than might have been expected given the level of pain. In such a case, the ‘objective’ evidence of the disabling effect may be of less significance than usual.’
To identify the disabling effect of pain requires an understanding both of a plaintiff’s pre-injury and post-injury employment and activities, although this does not amount to a simple comparison. As Maxwell P explained:[61]
[61] (Ibid) paragraphs [14]-[15] (footnotes omitted)
‘The disabling effect of pain
As to the disabling effect of the pain, it is necessary to identify the extent to which the pain limits the plaintiff’s physical functioning, and interferes with the plaintiff’s enjoyment of life. As this Court (per Ashley JA) said in Dwyer (No 2): ‘ … [I]mpairment is concerned with what has been lost. But the significance of what has been lost … may be informed, to an extent, by what is retained.’
As to capacity for work, it is necessary to identify whether and to what extent the plaintiff is prevented by the pain from performing the duties of his/her previous employment. The fact that the plaintiff has been able to return to full-time employment does not preclude an affirmative finding of serious injury. It is simply one of the matters to be taken into account. What matters in this regard is to the extent to which ‘an area of work which [the plaintiff] enjoyed has been closed off to [him or her].’
Assessing loss of enjoyment of life, in a broad sense, requires an understanding of the effect of the impairment upon numerous aspects of a plaintiff’s daily life and activities. In this respect, Maxwell P said:[62]
[62] (Ibid) paragraph [16] (footnote omitted)
‘Capacity for work aside, assessing the extent to which the pain interferes with the ordinary activities of life will typically involve consideration of its effect on the plaintiff’s:
·sleep;
·mobility;
·cognitive functioning (whether directly because of the pain or indirectly because of the effects of pain-relieving medication);
·capacity for self-care and self-management;
·performance of household and family duties;
·recreational activities;
·social activities;
·sexual life; and
·enjoyment of life.
Whether and to what extent the matters listed are relevant to the court’s task in a particular case will, naturally, depend on the circumstances of the case.’”
Counsels’ submissions
76Defence counsel queried whether the plaintiff had mitigated her loss by electing not to have the plate removed from her elbow where there was medical advice that this may improve her position. Counsel also referred to the Court of Appeal decision of Haden Engineering Pty Ltd v McKinnon,[63] where it was submitted that the template for the disabling effect of pain had not been achieved. First, it was submitted the pain complained of could not be said to be of severe intensity and could be described as mild. At best, counsel submitted there was aching and discomfort, but not to a great extent. Counsel also emphasised the frequency as being “intermittent dull aching pain” as per the Medical Panel opinion.
[63]Supra
77Counsel also submitted that it was difficult to assess the frequency and duration of the pain episodes, such that per the reasoning of the Court of Appeal in Aburrow v Network Personnel Pty Ltd and WorkSafe Victoria,[64] and, in particular, from paragraphs 12 and following, the plaintiff should fail. Counsel submitted:
“In that case the plaintiff was noted to have pain which was variable, requiring only occasional pain relief of low to moderate intensity, and nondescript painkillers were sufficient for the purpose. The Court of Appeal contrasted the situation to the factual situation in Haden Engineering. That type of description, in my submission, fits quite neatly in respect of the plaintiff’s case, but that description would be apposite.”[65]
[64][2013] VSCA 46
[65]T30, L24-31
78In relation to treatment, and in assessing the plaintiff as at the date of the hearing, the highest that it could be put is that the plaintiff took occasional Panadol. Counsel submitted that the treatment regime did not meet the template set out by her Honour, Dodds-Streeton JA, in Kelso v Tatiara Meat Co Pty Ltd.[66] In particular, endurance of permanent daily pain could be considered a very considerable consequence, but was absent, it was submitted in the present case.
[66](2007) 17 VR 592
79It was further submitted that the general practitioner’s clinical notes, which spanned 18 November 2016 to the middle of 2020, showed an absence of recourse to treatment from her general practitioner.[67] Further, counsel submitted:
“… We don’t make any criticism about her credibility, but in my submission perhaps it’s apparent from the nature of the objections taken in re-examination – the affidavits here really provide Your Honour with very little information on which Your Honour could assess whether the plaintiff satisfies the pain and suffering threshold.
And it’s much more important, in my submission, in what I would describe as being a marginal or borderline case, to have proper evidence on which to act – particularly in circumstances where the onus is on the plaintiff, and the court must be affirmatively satisfied that the plaintiff has suffered a serious injury. And ultimately it’s a matter for Your Honour, but the affidavits are particularly lacking, in my submission, in respect to sleep consequences and the involvement of the psychological condition, albeit that that was then clarified to some extent in cross-examination and re-examination.
And also from the affidavits Your Honour might have the impression that the plaintiff does no motorcycle riding, whereas she acknowledges that she has with Mr Owen; that there is a return and that the types of extreme activities which she might no longer be able to do, are those which had ceased some 18 months or more before the subject injury.”[68]
[67]Exhibit 4
[68]T31, L2-27
80Counsel also referred to the often recited judgment of Chernov JA in Sumbul v Melbourne All Toya Wreckers Pty Ltd,[69] to the effect that where a worker is able to return to alternative employment, that unless there was some other evidence to show he experienced pain, or that he otherwise significantly suffered physically from the injury, it would ordinarily be difficult to conclude that the pain and suffering consequences of it as being “at least very considerable”. Also, counsel acknowledged that those comments were clarified to some extent in Sutton v Laminex Group Pty Ltd,[70] but that ultimately the state of the evidence was against a conclusion in the plaintiff’s favour.
[69][2006] VSCA 292 at paragraph [24]
[70](supra) at paragraph [78]
81Counsel also submitted that although the plaintiff suffers some pain and discomfort in her everyday activities, there was nothing which truly stopped her from undertaking any tasks that she would ordinarily want to.
82As far as arthritis was concerned, it was submitted that the prospects of developing same are “very low”, but in any event, there was no evidence as to what consequence the development of that arthritis may have for the plaintiff.
83Counsel finally referred to a recent Court of Appeal case of TTB SMS Pty Ltd v Reading,[71] to the effect that in assessing the present impairment, one must look at all other types of physical impairments that may be suffered, including impairment of the brain, the spine, et cetera.
[71][2020] VSCA 203
84In reply, Senior Counsel for the plaintiff submitted that at the time of the injury, the plaintiff was thirty and had no physical restrictions prior to this injury. He submitted that as a consequence of the injury, she had a permanent restriction in the movement of her arm, a restriction in weight bearing, a constant problem in relation to a whole range of activities and a risk of osteoarthritis developing in the future. He submitted this evidence was unchallenged.
85Senior Counsel submitted that the plaintiff was a person of “good credit and not in any way challenged as to her credit”.[72]
[72]T38, L15-16
86It was submitted that the fixed deformity of some 25 degrees, as measured by goniometer by the Medical Panel, the 2-millimetre gap in the articular surface which was considered significant by Mr Owen, and the presence of the foreign plate in the elbow, were all consistent with the ongoing ache and discomfort suffered in the arm and the loss of function in terms of that arm not being capable of lifting weights beyond 5 kilograms.
87Senior Counsel also submitted that not only did defence counsel not attack the credit of the plaintiff, but did not challenge the stiffness of the elbow in the mornings, the problems of pain in the elbow affecting her sleep and her restrictions in a whole range of activities, as set out in paragraph 39 of her affidavit.
88It was further submitted that all doctors accepted that the plaintiff could not straighten her arm and had a fixed flexion impairment which led to the plaintiff suffering from “a range of consequences, and obviously weightbearing in that and the like is of significance”,[73] who, at the age of thirty years and thereafter, “will have less than five kilograms lifting, pushing and pulling restrictions, and with respect to the left arm, and no more than 15 kilograms with both arms”.[74]
[73]T41, L28-30
[74]T 42, L2-5
89Finally, it was submitted that not only was there a risk of osteoarthritis, there was absolutely no evidence that the situation would improve or that she would recover from the fixed deformity, or the range of difficulties that she currently encounters. It was submitted that this could last for another fifty to sixty years for a young woman. Counsel submitted that the Medical Panel’s findings of a “dull aching pain which gets worse with activity”[75] is something she must endure for the rest of her life, or, alternatively, avoid activity with the left arm which, in turn, is a significant impairment in itself.
[75]Exhibit 2, Medical Panel Reasons for Opinion, dated 20 February 2019 at DCB 64
Conclusions
90I accept, for the reasons as set out in a carefully constructed submission by defence counsel, that the templates as set out in Haden Engineering[76] and Kelso[77] are not easily made out in the present case. I also accept defence counsel’s submission that this a borderline case.
74 Having seen the plaintiff in the witness box, I consider that her credit is intact and, if anything, she tended to underplay her difficulties. I consider that her response to the paucity of treatment comes under the heading of “stoical”. I accept she does not wish to go back to Mr Tay as she considered that removal of the plate would involve her in further pain and suffering consequences as to recovery from the procedure. I note, also, that no medical practitioner opines that it was unreasonable not to have the plate removed.
75 Taking into account the plaintiff’s experience of pain and disabilities and her honest presentation, it is my opinion that the pain and suffering consequences to which the physical compensable injury materially contributes are “very considerable” and “more than ‘significant’ or ‘marked’”. I consider that her injury to the left elbow/left arm has met the threshold test for leave to bring proceedings for damages under s134AB(16)(b) of the Act.
[76]Supra
[77]Supra
91I will hear the parties as to consequential orders.
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