Ferguson v Smiths Recruitment (Vic) Pty Ltd and WorkSafe Victoria
[2012] VCC 1022
•27 July 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted |
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-10-05441
| BRYAN JAMES FERGUSON | Plaintiff |
| v | |
| SMITHS RECRUITMENT (VIC) PTY LTD | First Defendant |
| and | |
| WORKSAFE VICTORIA | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE SMITH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 and 10 July 2012 | |
DATE OF JUDGMENT: | 27 July 2012 | |
CASE MAY BE CITED AS: | Ferguson v Smiths Recruitment (Vic) Pty Ltd & WorkSafe Victoria | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1022 | |
REASONS FOR JUDGMENT
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SUBJECT – ACCIDENT COMPENSATION
CATCHWORDS – Serious injury – pain and suffering and pecuniary loss consequences – bilateral arm injuries – whether the consequences of bilateral arm injuries can be aggregated.
LEGISLATION CITED – Accident Compensation Act 1985, s134AB
CASES CITED – Barwon Spinners Pty Ltd v Podolak & Ors [2005] VSCA 33; Lu v Mediterranean Shoes Pty Ltd (2000) 1 VR 511; Karovska v Parker Williams Pty Ltd [2008] VCC 1476; Lakic v GB Galvanizing Service Pty Ltd & Anor (23 November 2001, per Judge Gebhardt); Wright v Mount Edisar Pty Ltd [2006] VCC 410; Koceski v Ajellic Transport Pty Ltd & VWA [2006] VCC 1500; Veljanovska v Aspen-By-Products Pty Ltd & VWA [2007] VCC 1648; Wood v Gathercole Meat Exports Pty Ltd [2008] VCC 220; Raimondo v Hoi Yeung Pty Ltd (t/a Oceanic Food) [2005] VCC 1400; Giuliano v Red Robin Pty Ltd & Anor [2008] VCC 1805; Ristovska v VOA Webco Pty Ltd (No 1) [2010] VCC 0152; De Luca v Pinkey & Transport Accident Commission [2007] VCC 1307
JUDGMENT – Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C Harrison SC with Ms A Malpas | Nowicki Carbone |
| For the Defendants | Ms M Britbart | Lander & Rogers |
HIS HONOUR:
1 Bryan Ferguson alleges that he suffered injuries to his upper limbs during the course of his employment with the first defendant. He seeks the leave of this Court to issue proceedings to recover pain and suffering and pecuniary loss damages in respect of those injuries.
2 His right to do so is governed by the provisions of s134AB of the Accident Compensation Act 1985 (“the Act”). In order to obtain such leave, the Court must be satisfied on the balance of probabilities that the injury suffered by him is a “serious injury”.[1]
[1]Section 134AB(19)(a)
3 The term “serious injury” is defined s134AB(37) of the Act, insofar as is relevant to this application, as “permanent serious impairment or loss of a body function”.
4 The body function relied upon in this application is that of Mr Ferguson’s upper limbs.
5 The term “permanent” is to be interpreted as meaning “likely to persist in the foreseeable future”.[2]
[2]Barwon Spinners Pty Ltd v Podolak & Ors [2005] VSCA 33 at paragraphs [18] to [19]
6 The term “serious” is to be satisfied by reference to the consequences to Mr Ferguson of any impairment or loss of function with respect to pain and suffering and pecuniary loss, when judged by comparison with other cases in the range of possible impairments or losses of a body function.[3]
[3]Section 134AB(38)(b)
7 The impairment or loss of a body function shall not be held to be serious for the purposes of this application, unless the pain and suffering or the pecuniary loss consequences are, when judged by comparison with other cases in the range of possible impairments or losses, fairly described as being more than significant or marked and as being at least very considerable.[4]
[4]Section 134AB(38)(c)
8 The application was originally brought in respect of both part (a) and part (c) of the definition “serious injury” in s134AB(37). During the course of the hearing, Senior Counsel for Mr Ferguson indicated that the matter was restricted to part (a) of that definition.
9 Mr Ferguson submits that the pain and suffering and pecuniary loss consequences of his injuries can fairly be described as being more than significant and at least very considerable. The defendants deny this is so.
10 With regard to loss of earning capacity, leave is not to be granted by the Court on the basis that Mr Ferguson has suffered the loss of earning capacity required by s134AB(38)(b) unless he establishes (in addition to the requirements of s134AB(38)(c)) that, at the date of the hearing of the application, he has suffered a loss of earning capacity of 40 per cent or more. Such loss of earning capacity is to be measured by comparing his gross income from personal exertion:
(i)which he is capable of earning in suitable employment as at the date of the hearing; and
(ii)which he was earning or was capable of earning or would have earned or would have been capable of earning during that part of the period within three years before or after the injury as most fairly reflects his earning capacity had the injury not occurred.[5]
[5]Section 134AB(38)(e) and (f)
11 Mr Ferguson will not establish the loss of earning capacity required by s134AB(38)(b) where he has, or would have after rehabilitation or retraining, and taking into account his capacity for suitable employment after the injury and, where applicable, the reasonableness of his attempts to participate in rehabilitation or retraining, a capacity for employment, including alternative employment, which, if exercised, would result in him earning more than 60 per cent of gross income from personal exertion as determined in accordance with s134(AB)(38)(f) had the injury not occurred.[6]
[6]Section 134AB(38)(g)
12 Mr Ferguson submits that it is permissible for me to consider the consequences of the injuries to both of his upper limbs on an aggregated basis when assessing whether or not he has suffered a “serious injury” as defined. The defendants submit that it is impermissible to aggregate those injuries.
13 The matters in issue and to be determined in this application are:
(a)What injury has Mr Ferguson suffered to his upper limbs?
(b)Can the pain and suffering or loss of earnings consequences of such injury be fairly described as being more than significant or marked and as being at least very considerable?
(c)Has Mr Ferguson suffered a loss of earning capacity of 40 per cent or more when measured in accordance with s134AB(38)(e), (f) and (g) of the Act?
(d)Must the consequences of each of the bilateral injuries be looked at separately or can they be looked at together in determining whether Mr Ferguson has suffered a serious injury?
Background
14 Mr Ferguson is aged forty. He completed Year 12 at school and commenced an arts course at the University of Tasmania. He left the course after two years. He has been employed in a variety of jobs, mainly in the area of sales and office administration work.
15 In approximately 2002, he commenced his own business as a landscape gardener. In October 2007, he commenced work with the first defendant, a labour hire company. He performed work as a casual labourer in the garden maintenance field. He performed such work throughout the City of Melbourne. Although employed by the first defendant, his services were contracted to Serco Pty Ltd, which performed various duties in the City of Melbourne’s parks and gardens.
16 His duties included work with a brush cutter (also described as a Whipper Snipper), mowing of lawns, picking up rubbish, as well as some general landscaping. He describes the work as physically demanding and involving repetitive movements with his arms.
17 In about December 2007 (about two months after he commenced), he experienced pain in his left elbow. He continued to work, hoping that the pain would subside. He states that it became progressively worse. In March 2008, he attended his general practitioner, Dr Ouna, in relation to these problems.
18 At that time, Mr Ferguson described the pain as unbearable and said that it kept him awake at night. He was off work for one day, after which he returned on alternative light duties, which involved some picking up of rubbish and painting. Whilst on those light duties, he says that he predominantly used his right arm to reduce the strain on his left arm and elbow. Shortly after commencing those light duties, he began to experience pain and discomfort in his right elbow. In addition, he experienced pain in both shoulders from that time. He considered that his light duties were exacerbating his pain.
19 In addition, Mr Ferguson alleges that he was bullied, harassed and abused by other employees after that return to work.
20 On about 16 June 2008, Mr Ferguson stated that his pain in his left and right elbows became worse after performing duties preparing and creating folders of documents which required repetitive folding of cardboard. He again attended Dr Ouna and was certified unfit for work for approximately two weeks.
21 He has not worked since mid-2008.
Treatment
22 Mr Ferguson attended upon Dr Ouna until about October 2008. During that relatively short period, Dr Ouna certified him unfit for work.
23 Dr Ouna referred Mr Ferguson for physiotherapy. Initially he attended Joshua Neeft, and towards the end of 2008, David Pitcher.
24 Dr Ouna administered a cortisone injection to both elbows in May 2008. Further injections were administered to both elbows in July 2008.
25 He was prescribed analgesic medication.
26 In about October 2008, Mr Ferguson ceased to attend upon Dr Ouna after she provided a medical report indicating that his condition might well improve in the future. Rather than being pleased with such a report, he appears to have been disappointed with it and ceased to attend upon her thereafter.
27 From about October 2008, Mr Ferguson attended upon Dr Helen Sutcliffe, an occupational physician, and from early 2009, Dr Charles Castle, also an occupational physician, with whom she was practising. Dr Castle arranged for an MRI scan of Mr Ferguson’s elbows, to which I shall refer later in these reasons. Dr Castle also referred Mr Ferguson to Mr Raymond Crowe, an orthopaedic surgeon, who he saw in May 2009. In June 2009, Dr Castle referred Mr Ferguson to Dr Clayton Thomas, a pain management consultant.
28 In oral evidence, Mr Ferguson agreed that he had ceased seeing the physiotherapist, Mr Pitcher, but could not remember the reason for doing so.
29 He said he currently sees Mr Giovannucci, another physiotherapist, and has been seeing him since about November 2009. However, Mr Giovannucci’s report dated 5 July 2012[7] indicates that he saw him in November 2010 (presumably for treatment) and then next saw him in June 2012 for the purpose of preparing that report. I consider it is more accurate to say that Mr Ferguson ceased treatment with Mr Giovannucci about one-and-a-half years ago. He apparently continues to see Dr Andrianakis regularly up to the present.
[7]Plaintiff’s Court Book (“PCB”) 68a
30 Since February 2011, he has seen another general practitioner, Dr Andrianakis, who apparently works from the same practice as both Dr Sutcliffe and Dr Castle. He was again prescribed analgesic and anti-inflammatory medication.
31 Dr Andrianakis referred Mr Ferguson to a hand specialist, Mr Tim Bennett, in April 2011. Mr Bennett administered a further steroid injection in the left elbow at that time. No improvement was acknowledged, as was the case with earlier cortisone injections.
Diagnosis of Injuries
32 Mr Ferguson has been investigated by way of x‑rays, ultrasound scans, and MRI scans.
33 An x‑ray and ultrasound of both elbows was conducted in October 2008. The radiologist concluded there was evidence of mild common extensor tendonosis bilaterally without findings of tendon tear or underlying bony abnormality.[8]
[8]PCB 39
34 In March 2009, MRI scans were conducted in relation to both elbows. Again, the radiologist concluded that the results were consistent with tendonosis, slightly more in the left elbow than the right, with no evidence of a tear and no other abnormalities.[9]
[9]PCB 41
35 In April 2011, further ultrasounds were conducted of both elbows. The radiologist reported that the appearances were those of bilateral extensor tendon origin tendinopathy with no other abnormal findings.
36 A number of medical practitioners who have examined the plaintiff diagnosed him with bilateral epicondylitis, a condition sometimes referred to as tennis elbow.[10]
[10]Mr Bennett at PCB 47; Dr Sutcliffe at PCB 5 – 83; Mr Kudelka at Defendants’ Court Book (“DCB”) 99; Mr Jones at DCB 106-107
37 However, that diagnosis was not unanimous. Dr Clayton Thomas reported that he was unable to determine the underlying problem but noted that there appeared to be significant emotional turmoil.[11] Dr Thomas was unable to formulate a specific diagnosis.
[11]PCB 50, 52
38 Dr Blombery opined that most of Mr Ferguson’s symptoms were in the nature of a non-specific pain syndrome or fibromyalgic-type disorder. He did not diagnose Complex Regional Pain Syndrome Type 1. He thought Mr Ferguson had a non-specific pain syndrome or fibromyalgia.[12]
[12]PCB 56-57
39 Dr Lewis considered that Mr Ferguson had symptoms and signs consistent with a Regional Pain Syndrome affecting his shoulders, elbows, forearms and wrists. He thought that the widespread pain and lack of correlation with physical findings supported that diagnosis, rather than one of bilateral lateral extensor tendonosis.
40 The physiotherapist, Mr Giovannucci, considered that Mr Ferguson had sustained an acute repetitive-type injury involving the upper limbs which had become chronic and was causing myogenic pain affecting the muscles of the cervical spine, shoulders and forearms.
41 Mr Raymond Crowe considered that Mr Ferguson had developed an RSI (Repetitive Strain Injury) problem of both arms.
42 It can be seen, therefore, that the medical practitioners are not unanimous in identifying any particular diagnosis.
43 On the balance of probabilities, I find that Mr Ferguson has suffered from bilateral elbow pain caused by mild common extensor tendonosis bilaterally but with no tear or other abnormality.
Prior Low-Back Injury
44 Mr Ferguson conceded that he had had a bad low back since he was a teenager and that he had been diagnosed some years ago with a disc prolapse in his lumbar spine. He conceded that he had had much time off work as a consequence of that low-back injury. He conceded that he had not worked much at all in the years leading up to his commencement with the first defendant as a consequence of low-back pain.
45 The defendants tendered a summary of Mr Ferguson’s sources of income for each of the years ending 30 June 2004 through to 2008.[13]
[13]PCB 183
46 That summary was acknowledged by Mr Ferguson to correctly state his income sources for those years. The summary shows that the plaintiff’s gross income from exertion was as follows:
Year Ended Income 30 June 2004 $3,123 30 June 2005 $2,675 30 June 2006 Nil 30 June 2007 Nil
47 Mr Ferguson did say that in some years when he was in receipt of Centrelink payments, he did some work duties in order to receive unemployment benefits. However, this would not appear to have been the case for the year ending June 2007, for in that year he received no Centrelink payments.
48 The defendants submitted, and I accept, that Mr Ferguson’s evidence and the income figures referred to demonstrate that he had suffered from a significant and debilitating low-back injury in the years leading up to 2007 when he commenced work for the first defendant.
49 Counsel for Mr Ferguson submitted that he had rested his back for the few years up to that time and that, at the time of commencing work for the first defendant, he was fit to work. There was no evidence before the Court that he had been inhibited by his back condition in performing his duties for the first defendant or that he had taken time off work during the relatively short period of his employment as a consequence of back problems. Whether he would have been able to continue performing the sort of duties that formed his job with the first defendant, I am unable to say. It would appear likely, however, that he would have been prone to recurrence of low-back problems and that any job that involved significant bending, lifting or twisting would have almost been bound to have produced additional problems for him.
50 Mr Ferguson does not allege that he injured or aggravated any injury to his low back during the course of his employment with the first defendant.
Consequences of the Bilateral Arm Injuries
51 Mr Ferguson submits that the consequences of his bilateral arm injuries are more than considerable. They consist of the following:
(a)He has been unable to work as a consequence of his injuries;
(b)He suffers from significant ongoing pain in both elbows on a daily basis, with referred pain extending into both forearms and wrists as well as into the neck and shoulder regions. He describes the pain as severe on a daily basis. He is always conscious of it.[14] He continues to take analgesic and anti-inflammatory medication on a daily basis and regularly applies cold packs to his arms in an effort to alleviate pain;
(c)He states that prior to his injuries, he enjoyed playing golf, mountain bike riding, lawn bowls, fishing, camping, painting and sketching. He says that his injuries severely restrict his ability to partake in these activities;
(d)His performance of domestic chores around the home is restricted. Activities such as cooking, vacuuming, washing and hanging out clothes cause him significant difficulty. He can only do them at his own pace;
(e)He continues to experience difficulty sleeping virtually on a nightly basis due to pain associated with his injuries;
(f)He has difficulty driving a motor vehicle for more than short periods of time.
[14]PCB 14a
52 The defendants submit that the consequences are not such as could be fairly described as being more than marked or significant and as being at least very considerable. They submit:
(a)Mr Ferguson’s work history prior to commencing with the first defendant in October 2007 was poor. I agree that his work record is poor. Whether this is because of his prior back injury or because of a lack of enthusiasm for work, I am unable to say on the evidence before me;
(b)They submit that I should not be satisfied that Mr Ferguson is a person who was likely to have continued working for any significant length of time regardless of any additional injuries to his arms. I agree that Mr Ferguson was unlikely to have worked in manual labour for any length of time, given his history of back pain over many years. The sort of work that he was doing with the first defendant would have inevitably involved bending, lifting and twisting duties. I consider that it is unlikely that he would have held down a manual labouring job for any length of time. He may have been able to cope with clerical or administrative duties;
(c)Although the plaintiff does take analgesic and anti-inflammatory medication, it is not clear whether this is for his low back or for his upper limbs. The defendants submit that it is for Mr Ferguson to distinguish the consequences of his low-back injury and the injury to his arms and I consider that the onus is on Mr Ferguson to separate those injuries.
(d)Mr Ferguson, in cross-examination, conceded that his golf had been seriously restricted by the level of back pain during the years up to the commencement of his employment with the defendant.[15] When his back was bad, he could not play. Likewise, he had previously found swimming and running difficult because of back pain.
(e)With regard to mountain bike riding, the plaintiff had indicated that he rode in the Dandenongs, implying that he rode off-road. In cross-examination, he indicated that he had not ridden off-road, but only on smooth surfaces in the city, such as on cycling paths.[16]
(f)Counsel for the defendants pointed out that a Centrelink medical report from Dr Oude dated 16 November 2012 had described the plaintiff as having low-back pain, limiting his ability to walk, stand or do housework[17] and requiring painkillers, massage and physiotherapy.[18] Counsel for the defendants submitted that activities such as driving and the playing of sport would have inevitably have been curtailed by Mr Ferguson’s prior back injury.
(g)Mr Ferguson’s evidence was that his back injury was such that, on occasions, he collapsed to the ground in pain.[19]
(h)Objective indicators concerning the level of elbow pain suffered by Mr Ferguson were that:
(i)he had declined to attend a pain management clinic notwithstanding that it had been recommended by Mr Crowe in May 2009 and by Dr Thomas in August 2009;
(ii)he had declined surgery notwithstanding that it had been recommended by Mr Bennett; and
(iii)he had in the last couple of years, had virtually no treatment at all.
[15]Transcript (“T”) 38
[16]T 39
[17]DCB 179
[18]DCB 178
[19]T 35; DCB 173
53 In respect of the recommendation for surgery by Mr Bennett, I consider that Mr Ferguson’s election not to proceed down that path was reasonable. The vast majority of medical opinions before the Court do not contain any such suggestion for surgery.
54 However, the recommendations by Dr Thomas and Mr Crowe that Mr Ferguson should attend a pain management clinic fall, in my opinion, into a different category. Mr Ferguson’s evidence was that he declined those suggestions because his physiotherapist, Mr Pitcher, had advised him that such treatment would not be beneficial for him. I found Mr Ferguson’s purported reliance on the physiotherapist’s opinion in preference to that of his treating surgeon and pain specialist to be unconvincing. This was more so when it was revealed that Mr Ferguson had ceased all treatment from Mr Pitcher very shortly after the advice from Mr Crowe and Dr Thomas had been given.
55 I am left with the impression that Mr Ferguson may have symptoms of pain in his elbows. However, it is my opinion that he is poorly motivated to do much about them. I consider that if his pain was as severe as he would have me believe, he would be doing everything possible by way of treatment to reduce his pain or learn how to better cope with it. His rejection of the recommended pain management programs and the absence of any treatment over the last couple of years cause me to conclude that the level of his pain and discomfort is not severe.
56 Counsel for the defendants described the findings of the x‑rays, ultrasounds and MRI scans to be minor, and I accept that submission.
57 Further, there are a number of medical opinions identifying non-organic issues likely to be contributing to Mr Ferguson’s perception of pain.
(a) Dr Thomas was of the view that there was significant emotional turmoil when he saw him in August 2009. [20]
[20]PCB 50, 53
(b) Dr Lewis referred to his observation of pain behaviours. He considered that there were signs consistent with a Regional Pain Syndrome but commented that the psychological aspects of his condition had been minimally addressed and managed. He considered that his condition fits within the diagnosis of chronic pain, which had not received appropriate bio-psycho-social pain management treatment.[21] I consider that Dr Lewis is there expressing the view that there is a very significant non-organic contribution to Mr Ferguson’s symptoms.
(c) Mr Kudelka was of the view in October 1999 that Mr Ferguson suffered from mild discomfort in both forearms and which might possibly be associated with a mild anxiety condition.[22]
[21]PCB 62, 64
[22]DCB 101
Capacity for Employment
58 Dr Andrianakis considers that Mr Ferguson has no capacity for employment.[23]
[23]PCB 46
59 When Mr Bennett last saw Mr Ferguson in July 2011, he considered that alternative employment was possible, provided there was no heavy lifting, gripping or turning actions required.[24]
[24]PCB 48
60 Dr Thomas expressed the view that, notwithstanding that he was unable to reach a diagnosis of injury, Mr Ferguson was in no fit shape to consider return to work options, although he has not seen Mr Ferguson since August 2009, nearly three years ago.
61 In May 2011, Mr Blombery considered that Mr Ferguson would not be able to do his previous job in landscape gardening or any heavy physical work at all. Further, he accepted Mr Ferguson’s history that he had severe symptoms even when trying to do light duties such as filing or clerical work. Accordingly, he thought that he was totally and permanently incapacitated for employment.[25]
[25]PCB 57
62 In February 2011, Dr Lewis considered that he was not capable of his pre-injury full-time employment or part-time employment for which he has education and training;[26] however, he noted that he had received no appropriate bio-psychosocial pain management treatment.
[26]PCB 63
63 In July 2012, the current treating physiotherapist, Mr Giovannucci, considered that Mr Ferguson would be suited to employment which did not require upper limb repetitive movements, repetitive lifting, pushing or pulling activities.[27]
[27]PCB 68d
64 Mr Crowe, in May 2009, considered that attendance at a pain management clinic would be the best way of rehabilitating Mr Ferguson and to get him back to a stage where he could try to re-enter the workforce.[28]
[28]PCB 73
65 Dr Miller was of the view, in November 2008, that Mr Ferguson was capable of working but with restrictions relating to lifting, highly repetitive dexterous or forceful use of hands and the avoidance of prolonged firm gripping with the hands.[29]
[29]DCB 105-105A
66 Mr Jones, in June and November 2008, was of the view that Mr Ferguson was fit to perform work of a lighter nature which did not involve repeated lifting and gripping.[30]
[30]DCB 111
67 Mr Ferguson is a man with some education. It would seem he completed about two-thirds of a Bachelor of Arts Degree at university. There is no evidence to the effect that, intellectually, he could not be retrained for a number of different clerical or administrative positions.
68 In the period of approximately four years since August 2008, Mr Ferguson has made no attempt to seek employment or attempted to perform any work duties of any nature. I consider that this indicates a significant lack of motivation on Mr Ferguson’s part to find suitable work.
69 Whilst I have noted the views of Dr Andrianakis and Dr Blombery, it is for Mr Ferguson to satisfy the Court that, after rehabilitation or retraining, he will not have the capacity to earn more than 60 per cent of gross income determined in accordance with s134AB(38)(f) of the Act. I am not satisfied that he has discharged that onus. I find that his failure to participate in rehabilitation in the form of a pain management program was not reasonable.
70 Looking at all the evidence, I am not satisfied that Mr Ferguson has established that the pain and suffering consequences of his injury are such that they could be described as more than marked or significant and as at least being very significant. I accept that he has and still is suffering from some symptoms of discomfort arising from his bilateral epicondylitis. However, I do not consider that he has established that those symptoms are anything other than mild to moderate and would not be fairly considered to be more than considerable. I make that assessment when assessing the injuries to his right and left arms together.
71 Likewise, I am not satisfied that Mr Ferguson has established that he is permanently incapacitated from a return to the workforce. I accept that he would be ill-advised to return to a manual labouring position involving duties which would include regular lifting. However, in any event, I do not consider that such employment would be suitable for him on account of his long-term severe low-back injury. I do not consider that he has discharged the onus of establishing that he would, after rehabilitation or retraining, not have a capacity for full-time or part-time work in a clerical or administrative field.
72 Senior Counsel for the plaintiff conceded that if the plaintiff returned to part-time work, he was unlikely to establish that he had suffered a 40 per cent loss of earning capacity when assessed in accordance with s134AB(38)(e), (f) and (g).
73 Further, counsel for the defendants submitted to me that it was not open to Mr Ferguson to rely on the aggravated effects of the injuries or consequences of injuries to his left arm and right arm. She submitted that those injuries would have to be assessed separately in order to determine whether either of them amounted to a “serious injury” within the meaning of the Act.[31]
[31]Lu v Mediterranean Shoes Pty Ltd (2000) 1 VR 511
74 Senior Counsel for the plaintiff submitted that they could be aggravated, and referred to a number of decisions of this Court in which the consequences of bilateral injuries had been determined, effectively on an aggregated basis.[32]
[32]Karovska v Parker Williams Pty Ltd [2008] VCC 1476; Lakic v GB Galvanizing Service Pty Ltd & Anor (23 November 2001, per Judge Gebhardt); Wright v Mount Edisar Pty Ltd [2006] VCC 410. See also Koceski v Ajellic Transport Pty Ltd & VWA [2006] VCC 1500; Veljanovska v Aspen-By-Products Pty Ltd & VWA [2007] VCC 1648; Wood v Gathercole Meat Exports Pty Ltd [2008] VCC 220; Raimondo v Hoi Yeung Pty Ltd (t/a Oceanic Food) [2005] VCC 1400; Giuliano v Red Robin Pty Ltd & Anor [2008] VCC 1805; Ristovska v VOA Webco Pty Ltd (No 1) [2010] VCC 0152; De Luca v Pinkey & Transport Accident Commission [2007] VCC 1307
75 In this case, Mr Ferguson alleged that he suffered symptoms of pain in his left elbow from about December 2007. At that point, there was no report of any injury or symptoms to his right arm. He later, after March 2008, was placed on light office duties. His evidence was that, after that time, he developed symptoms in his right arm.
76 I consider that, in those circumstances, the causes of action available to Mr Ferguson in respect of the injuries to his left and right arms would be separate and distinct. There is no evidence, as I understand his case, of injury to his right arm as a consequence of the duties performed by him between October 2007 and March 2008. The duties performed by him after that date were quite different to those performed by him beforehand. The injuries did not arise out of the same relevant incident (or same period of employment) in the sense discussed by Chernov JA at paragraph [26] in Lu v Mediterranean Shoes Pty Ltd.[33]
[33]supra
77 Accordingly, I consider that in the circumstances of this case, it would not be possible for the Court to aggregate the consequences of the injuries of both Mr Ferguson’s left arm and his right arm in order to determine whether those consequences satisfied the more than considerable threshold.
78 In any event, if I am later found to be incorrect concerning that aspect of aggregation, even if those consequences are able to be looked at on an aggregated basis, for the reasons set out earlier, I am not satisfied that Mr Ferguson has established that he has suffered a serious injury.
Conclusion
79 Accordingly, the application will be dismissed.
80 I shall hear the parties in respect of costs.
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