Fernando v Victorian WorkCover Authority
[2020] VCC 941
•3 July 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-19-05972
| WELISARAGE FERNANDO | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE TSALAMANDRIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 and 22 June 2020 | |
DATE OF JUDGMENT: | 3 July 2020 | |
CASE MAY BE CITED AS: | Fernando v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 941 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the right finger – disfigurement – pain and suffering – whether consequences “very considerable”
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited:Dwyer v Calco Timber (No 2) [2008] VSCA 260; Humphries & Anor v Poljak [1992] 2 VR 129; Ingram v Ingram [1996] 2 VR 435; Baker v Transport Accident Commission [1997] 1 VR 662; Transport Accident Commission v Garcia [2015] VSCA 225; Richards & Anor v Wylie (2000) 1 VR 79
Judgment: Application unsuccessful.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M Fogarty | Slater & Gordon Lawyers |
| For the Defendant | Ms M Cameron | Russell Kennedy Lawyers |
HER HONOUR:
Preliminary
1 Mr Fernando is a fifty-seven-year-old man who suffered a crushing injury to his right middle finger on 25 October 2017, when a co-worker dropped a pit lid on it. As a result of this incident, Mr Fernando suffered a partial amputation of his right middle finger, which was surgically repaired.
2 In order for Mr Fernando to be entitled to claim common law damages for his pain and suffering, the impairment to his right hand must satisfy paragraph (a) of the definition of “serious injury” contained in s325 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”). In the alternative, Mr Fernando must satisfy me that the disfigurement to his right hand meets the definition of “serious injury” contained in paragraph (b) of the same section of the Act.
3 The defendant accepted that Mr Fernando had suffered a permanent injury in this accident, but disputed that the consequences from his right-hand impairment, or the disfigurement, could be described as “very considerable”.
4 Mr Fernando was called to give evidence and, due to COVID-19 restrictions, he did so via video. However, to enable me to assess his claimed disfigurement, Mr Fernando attended Court the following week. In the presence of both counsel and instructing solicitors, I viewed his right and left hands.
5 In addition to Mr Fernando’s evidence, medical reports and records were also tendered as evidence. I have read these tendered documents, together with the transcript of the proceedings. I shall not refer to all that material in the course of this judgment, but rather to those parts of the evidence and reports which I consider necessary to give context to and explain the conclusions reached in this judgment.
6 For the reasons that follow, I am not satisfied that the consequences to Mr Fernando from his right-hand impairment or the disfigurement satisfy the statutory threshold and therefore I dismiss his application.
Mr Fernando’s life before the work accident
7 Mr Fernando was born in Sri Lanka and is fifty-seven years of age. He is married and has two adult daughters.
8 Mr Fernando was educated in Sri Lanka until the equivalent of Year 12. He then completed a Diploma in Civil Engineering. In 2009, Mr Fernando migrated to Australia.
9 Upon arriving in Australia, Mr Fernando initially lived in Adelaide, where he completed a Diploma in Construction Management and worked as an AutoCAD designer for different companies, before moving to Melbourne in 2012. Since 2012, Mr Fernando had worked as a site manager, site foreman and leading hand in different companies, before commencing employment with the defendant in June 2017.
10 Mr Fernando said that prior to suffering his right hand injury, he led a very active and enjoyable life. Mr Fernando said that he enjoyed playing cricket and badminton with family and friends and lifting weights regularly at the gym.
Mr Fernando’s work accident and his claimed consequences
11 In the work accident, Mr Fernando suffered a transverse amputation of the tip of his right middle finger. Mr Fernando said that a co-worker collected the tip of his middle finger and placed it in a plastic bag with ice. Mr Fernando was taken by ambulance to Sunshine Hospital. Whilst there, Mr Fernando underwent surgery involving the top joint of his middle finger being replanted, as well as a skin graft being taken from his right wrist. He was discharged the following day and was advised to attend the hospital’s outpatient department for post-surgical reviews.
12 On 19 November 2017, Mr Fernando attended general practitioner, Dr Dishari Sarkar, at Wyndham Village Medical Centre for dressing changes.
13 On 4 December 2017, Mr Fernando returned to work on light duties, returning to full duties on 15 January 2018. For reasons unrelated to his hand injury, Mr Fernando then resigned employment with the defendant in March 2018.
14 Mr Fernando said that between January and June 2018, he underwent hand therapy.
15 In June 2018, Mr Fernando commenced employment as a site foreman on a project in Werribee, and then later changed to work for a new employer in October 2018. He then worked full time in that role until he was made redundant in September 2019.
16 In October 2019, Mr Fernando attended Dr Sarkar, who suggested to him that he do daily exercises to get more movement in his right middle finger. Mr Fernando said he continues to do these exercises.
17 From November 2019 to February 2020, Mr Fernando was employed as a site civil foreman on a casual basis. Since February 2020, he has been unemployed and in receipt of Job Seeker payments from Centrelink. Mr Fernando said that these regular changes in his employment is a feature of the construction industry and was not related to his hand injury.
18 Mr Fernando said that his hand injury generally does not restrict him at work, and he is able to do his pre-injury duties. However, he said that he cannot perform heavy lifting and he avoids using power tools that cause jarring in his right hand.
19 Mr Fernando said he does not see doctors on a regular basis for his finger because he has been told there is nothing more that can be done for it.
20 Mr Fernando said that he has not experienced an improvement in the sensation and numbness in his finger. He said he experiences numbness in the tip of his finger at the front. He said his finger does not feel like it is part of his hand.
21 Mr Fernando said that there has also been no improvement in the movement of his finger. He said he cannot bend the top joint of his finger and cannot straighten it. He said that he continues to suffer reduced grip strength in his right hand as well as ongoing pain if he knocks his middle finger or grips things for long periods with his right hand. Mr Fernando said that, as a result of the reduced grip strength, he has lost confidence in being able to hold things and has, on occasion, dropped things.
22 Mr Fernando said he continues to feel down at times due to the pain and restrictions caused by his finger injury. He said that he continues to worry about increased pain and restrictions in his middle finger as he gets older. However, Mr Fernando acknowledged that no doctor had advised him that he was at risk of developing arthritis in the future.
23 Mr Fernando says he now finds it difficult to hold a cricket bat and ball and that holding a badminton racquet causes him increased right hand and middle finger pain. He said that he has not returned to playing cricket or badminton as he is concerned that his reduced grip may result in the bat or racquet unexpectantly flying out of his right hand and injuring someone.
24 Mr Fernando said that he no longer attends the gym. He said that in late 2018, he attended the gym and he was told by a person there that unless he was 100 per cent confident in lifting the weights, he should not do so. It was not apparent what the qualifications of this person were, and whether the advice was given in respect of possible damage to the gym floor, possible damage to Mr Fernando’s hand or a concern for both. Mr Fernando accepted that he had not tried alternate exercises which did not involve the use of the grip of his right hand.
25 Mr Fernando said he continues to have difficulty writing with his right hand due to his middle finger injury. Mr Fernando said that he has had to alter the way in which he holds a pen and if he writes for an extended period, it is painful.
26 In his oral evidence, Mr Fernando said that before the accident, he was a gardener and handyman around his home. Mr Fernando said he previously regularly changed his garden to make it look nicer. Mr Fernando said that he had previously taken out big trees, prepared different types of flower beds, and pushed big rocks. Mr Fernando said that since his injury, he is unable to do those things. Instead, Mr Fernando said that he could only do limited gardening now, such as watering of plants, pruning with small scissors and pulling out weeds. Mr Fernando said he always wore gloves whenever he was in the garden. He said the only exception to this would be if he got out of his car and saw a weed that needed to be pulled out. He would do that quickly without a glove.
Medico-legal evidence
27 In July 2019, Mr Fernando was examined by plastic and reconstructive surgeon, Mr Damon Thomas. In a report dated 16 July 2019, Mr Thomas diagnosed Mr Fernando as having a crush amputation injury of the right middle finger with partial loss of the terminal segment of the finger with secondary nail deformity, and scarring over the volar aspect of the finger. Mr Thomas noted that Mr Fernando had undergone extensive hand therapy and that there were no plans for any further surgical treatment. He also noted that Mr Fernando was not taking any medication.
28 On examination, Mr Thomas noted scarring on the volar aspect of Mr Fernando’s finger with amputation of the terminal 10 per cent. He observed that the scarring extended from the base of the finger, with a scar that measured 60 millimetres in length down to the distal interphalangeal joint crease. Mr Thomas noted that at the joint crease there was a full-thickness skin graft measuring 25 millimetres by 10 millimetres. He observed the full-thickness skin graft was hyperpigmented and adherent to the underlying flexor sheath. He noted the scars on Mr Fernando’s fingers, including the skin graft, were hypersensitive to touch. Mr Thomas said the remaining scar on the finger was hypopigmented and not adherent, that there was no altered hair growth, but there was altered nail growth with a slight break deformity of the nail. Mr Thomas then commented on the scarring on Mr Fernando’s wrist, observing that there was a separate area of scarring over the volar wrist crease where a full-thickness skin graft donor site had been harvested from. Mr Thomas observed a 50-millimetre longitudinal scar which was hyperpigmented and hypersensitive to touch.
29 In his findings, Mr Thomas noted that Mr Fernando had altered sensation of the entire length of the finger on the radial and ulnar aspects and reduced movement in all the joints. He continued that Mr Fernando, overall, had post-traumatic issues with the right middle finger, with minor shortening but changes in sensation and movement. Mr Thomas concluded this was an ongoing issue and that Mr Fernando continued to suffer from this.
30 Mr Thomas recorded that Mr Fernando said his symptoms included that of reduced movement, reduced strength and altered sensation to the finger and therefore overall function. Mr Thomas noted that Mr Fernando had returned to full-time duties at work, but that Mr Fernando admitted he had reduced capacity primarily due to reduced movement, strength and ability to manipulate fine objects.
31 Mr Thomas also noted that Mr Fernando’s finger restricts him in domestic activities at home. Mr Thomas recorded Mr Fernando’s pre-injury activities as having included badminton, cricket, gym work and board games, but he was now unable to participate in these activities due to his finger.
32 Mr Thomas was of the opinion that Mr Fernando’s prognosis, as at July 2019, was reasonable and that despite the injury, he was fully functional at work, albeit on some slight restrictions.
33 In January 2020, Mr Fernando was examined by hand, plastic and reconstructive surgeon, Mr John Buntine. In a report dated 20 January 2020, Mr Buntine diagnosed Mr Fernando as having a scarred, sensitive and painful mildly stiff and swollen right middle finger which results in restriction of hand function.
34 Mr Buntine was of the opinion that, at the date of his report, Mr Fernando’s physical condition of the right hand should be accepted as having stabilised sufficiently for permanent impairment to be assessed. Additionally, he noted that the only treatment Mr Fernando’s right middle finger was receiving at that time was self-massage, exercise and the occasional taking of a mild analgesic and rarely a strong analgesic.
35 Mr Buntine recorded Mr Fernando’s symptoms as described by him. Mr Fernando told Mr Buntine that the whole length of the palmar aspect of his right middle finger lacked useful sensation. Resulting from this, is that the finger gets injured at times due to loss of protective sensation. Mr Buntine recorded that Mr Fernando’s finger gets in the way and that although he uses it together with other fingers of his right hand, the middle finger contributes minimally to the function of the hand. Mr Fernando told Mr Buntine that he could not completely straighten nor flex his right middle finger which swells more after much use of his right hand.
36 Mr Buntine recorded that Mr Fernando was more troubled by pain in his right middle finger when working in warm conditions and more troubled by impairment of sensation of the finger when exposed to cold conditions. He continued that the circumferential scar around Mr Fernando’s right middle finger was tender, as was the long oblique scar on the palmar aspect of the finger. However, the fine transverse donor site scar of his right wrist was only minimally tender.
37 Mr Buntine noted the measured circumferences of Mr Fernando’s forearms at 20 centimetres proximal to the flexor crease of the wrists was the same but the grip with Mr Fernando’s right hand measured 25 kilograms, 23 kilograms and 18 kilograms compared with 40 kilograms, 42 kilograms and 42 kilograms with the left hand. Mr Buntine was of the opinion that these measurements were consistent with some weakness of grip in the right hand and with inhibition of use of the right hand by pain affecting the middle finger.
38 Mr Buntine recorded Mr Fernando as saying that because of impaired sensation, stiffness and discomfort caused by using his right hand, he had difficulty demonstrating how to do manual tasks to less skilled workers which considerably limited the quality of the instructions he could give as a supervisor. Mr Buntine said that Mr Fernando was significantly limited in his ability to push, pull or lift with his right hand, especially with respect to repetitive activities. Mr Buntine stated that fine manipulative tasks with Mr Fernando’s right hand were considerably affected, as was manual dexterity, and it was Mr Buntine’s opinion that these difficulties and limitations would be permanent.
39 Mr Buntine noted that Mr Fernando said he could not play cricket, badminton, nor a sliding disc indoor game enjoyed by his family. Mr Fernando also told Mr Buntine that he had been a keen gardener, but now had difficulty undertaking tasks in the garden, as well as attempting to undertake handyman tasks at home.
40 It was Mr Buntine’s opinion, at the time of his report, that Mr Fernando was able to continue his pre-injury duties as a site foreman, but his ability to write was significantly affected because Mr Fernando was holding a pen using only his index finger and thumb rather than the middle, index finger and thumb, and that his ability to use a computer was also significantly affected by the abnormality of the middle finger. Mr Buntine was of the opinion that these effects would be permanent.
41 Mr Buntine briefly noted that he did not believe there was any increased risk of Mr Fernando developing arthritis or any other long-term deterioration affecting his right hand. He was also of the opinion that there was no significant likelihood of the requirement for further treatment of the right middle finger.
Mr Fernando’s credibility
42 I have reservations as to Mr Fernando’s credibility in respect of his evidence regarding what he can and cannot do, as a consequence of his right-hand injury. In the initial part of cross-examination, Mr Fernando conveyed a picture of a person who was greatly restricted in the activities he could do in his garden. However, the defendant tendered video surveillance which showed Mr Fernando doing a great deal of gardening on two different days, in October and November 2019. Such activities included weeding without gloves, cutting down a very large shrub with pruning shears, moving what appeared to be a large and heavy rock, and forcefully squashing green waste into a gardening bin. Throughout the footage, Mr Fernando used both his hands to perform the gardening tasks. At no time was there any apparent pain or restriction of movement in the use of Mr Fernando’s right hand. I considered such footage to be inconsistent with Mr Fernando’s previous evidence, when he said that he was very limited in what he could do in the garden, and specifically only used small garden scissors and could not move rocks.
43 There was also video footage of Mr Fernando putting on a face mask and tying it at the back of his head, using both hands. The dexterity in his fingers to perform this fine motor task appeared unrestricted.
44 In addition, the defendant showed video of Mr Fernando at the shops on several occasions, over several days. Mr Fernando once again used his right hand without any apparent restriction. He held the shopping trolley, with his right hand gripping the handle, without any obvious hesitation, or with his right middle finger being raised. In April 2020, Mr Fernando was also seen carrying two bags of grocery items, including a shopping bag which he accepted contained a 5-kilogram bag of rice. Mr Fernando explained that he carried the bags with the tip of his index finger, and slung over his shoulder, so that the weight was not taken through his right middle finger. This was not apparent from the footage. Given Mr Fernando had said on several occasions he could not carry things weighing more than 5 kilograms in his right hand, I was not satisfied by Mr Fernando’s explanation for this. If I accept his evidence that he avoids lifting more than 5 kilograms in that hand, I would have expected Mr Fernando to have carried such shopping bags in his non injured hand.
45 In addition to my concerns as to the footage being inconsistent with the level of restriction Mr Fernando claims to arise from his right-hand injury, I also considered Mr Fernando to be uncooperative and evasive in his oral evidence. He initially denied ever gardening without gloves, despite footage having been already shown to him prior to the denial of him doing gardening without them. His refusal to accept this required the video surveillance to be re-shown, and it was only then that Mr Fernando accepted that he was not wearing gloves. However, he then gave a detailed explanation as to the types of weeds he was pulling out on this occasion and why it was a relatively light task. This evidence was inconsistent with his earlier evidence that he used gloves 99 per cent of the time, and that the only exception to this was when he pulled up in his car and saw a weed that needed removing.
46 A further example of what I considered to be Mr Fernando’s evasiveness in answering questions, was after seeing video surveillance of Mr Fernando at a Bunnings store, when it was put to him that he had carried a large box with his right hand. Mr Fernando denied that he had could carry a large box and said that he had not purchased anything. It was then necessary to play back the footage, and only then did Mr Fernando accept what was apparent on the video – he had indeed purchased and carried a large box from Bunnings. Mr Fernando then gave evidence that the contents of the box were very light and would have been less than 5 kilograms. I considered his evidence on this to further reflect on his general unreliability as a witness.
Is Mr Fernando’s right hand impairment serious?
47 Mr Fernando has the onus of satisfying me that, on balance, the consequences to him from his right-hand impairment can be fairly described as “at least very considerable”.
48 My reservations as to Mr Fernando’s evidence in respect of what he claims to be restricted in doing, bears upon my assessment as to his claimed consequences.
49 As I observed on the video surveillance, Mr Fernando is still relatively active. Although he claimed he was restricted in his gardening duties, on video, he used his right hand with a degree of vigour, and without any apparent restriction.
50 Mr Fernando has been able to continue in his work as a site supervisor. Although he is not currently employed, this is not related to his injury. Mr Fernando complained that when he is working as a supervisor, he has difficulty demonstrating the use of power tools to other workers, as he fears he will lose grip of the tool, which may be dangerous. Even if I accept this is a restriction that affects him at times, I consider this a relatively modest consequence and one that has not prevented him working as a supervisor.
51 I accept that Mr Fernando has adjusted the way he holds a pen due to his finger injury, but note that he still is able to write. Even if I accept his evidence that prolonged writing causes him pain, he did not claim that this interfered with his work and nor did he assert that this was something that occurred with any great frequency.
52 Away from his working life, Mr Fernando claims that he is no longer able to go to the gym. However, I note that this was based upon a single conversation with a person at the gym over eighteen months ago. There is no medical evidence to support a claim that Mr Fernando’s finger injury prevents him going to the gym. Even accepting his right-hand injury may limit him in the use of free weights, I consider there is likely to be a number of exercises that Mr Fernando could otherwise do at that gym.
53 Mr Fernando also claimed that he could no longer play cricket or badminton as he was concerned that his finger injury prevents him holding the handle securely and that the bat or racquet may unexpectantly fly from his hand and injure someone nearby. Mr Fernando did not allege this had ever occurred, but that it was something he feared. I note that that there is no medical support for Mr Fernando’s finger injury preventing him securely holding such sporting equipment. Mr Thomas and Mr Buntine simply noted that Mr Fernando no longer participated in these recreational activities. Neither offered an opinion as to whether there was a medical basis for this. I have therefore given little weight to this claimed consequence.
54 I accept that Mr Fernando suffers some hypersensitivity in his finger, and experiences “bad” pain if he knocks his finger, trims his fingernail or if he grips something for too long with his right hand. I also accept that Mr Fernando has a reduced grip strength in his right hand. Whilst acknowledging these consequences, I consider them relatively modest.
55 Mr Fernando does not complain that his right-hand pain is constant. He does not take pain medication. Mr Fernando’s sleep has not been interfered with.
56 Mr Thomas and Mr Buntine did not recommend that Mr Fernando required further treatment.
57 In assessing Mr Fernando’s claim, I have also drawn a comparison between what he has lost and what he has retained.[1] As was noted by Ashley J in Dwyer v Calco Timber (No 2):
“… the significance of what has been lost, which bears upon the seriousness of consequences, may be informed, to an extent, by what is retained.”[2]
[1]Dwyer v Calco Timber (No 2) [2008] VSCA 260
[2](Ibid) at paragraph [27]
58 Even if I accept all of Mr Fernando’s claimed consequences, without any reservation as to his reliability as a witness, I consider that he has retained much and lost only a little. In determining this application, I must make a comparison to other cases in the range of possible impairments. Having done so, for the reasons stated, I am not satisfied that the consequences to Mr Fernando’s right hand impairment can be fairly described as “at least very considerable”.
Is Mr Fernando’s disfigurement “serious”?
59 The defendant also disputed that Mr Fernando’s scarring and disfigurement to his finger and wrist is “serious”.
60 In assessing whether the disfigurement and scarring satisfies the statutory threshold, I must, in accordance with the principles enunciated in Humphries & Anor v Poljak,[3] be satisfied that the consequences to Mr Fernando can be described as “at least very considerable”.
[3][1992] 2 VR 129
61 As was noted by Callaway JA in Ingram v Ingram,[4] a claim under sub-paragraph (b) should not be assessed in isolation, and the disfigurement must bear comparison with such injuries as a serious long-term physical impairment, a severe psychiatric condition or the loss of an unborn child.
[4][1996] 2 VR 435
62 In Baker v Transport Accident Commission,[5] the Court of Appeal stated that in assessing such a claim, regard should be had to the number of scars, their location, size and the degree of obviousness.[6]
[5](Ibid) at 438
[6][1997] 1 VR 662
63 In Transport Accident Commission v Garcia,[7] the Court of Appeal approved the relevance of Humphries, and the earlier authorities of Ingram and Baker. It also stated that, consistent with the decision in Richards & Anor v Wylie,[8] the court can have regard to a plaintiff’s mental response to the scarring.[9]
[7][2015] VSCA 225
[8](2000) 1 VR 79
[9]Transport Accident Commission v Garcia [2015] VSCA 225 at paragraph [27]
64 This case was heard as remote eTrial via Zoom. However, to enable an in-person inspection of Mr Fernando’s scars, a face-to-face Court appearance was subsequently arranged.
65 There is discolouration on the outer tip of Mr Fernando’s middle finger, in that it appears to be a dark line, where his finger was surgically re-attached. I could not easily observe any discoloration on the outside of his finger. I consider the discolouration on his finger to be unusual, but not particularly ugly or unsightly.
66 There is a very slight scar on Mr Fernando’s wrist, where the graft was taken from. It is thin and runs across the front of the wrist and to the inner side. It can barely be noticed, even with a close inspection.
67 The slight shortening of Mr Fernando’s finger is also not especially notable.
68 Mr Fernando’s ability to close his fist, with his middle finger prodding out a little, is also a subtle deformity and not obvious or unsightly.
69 I note that Mr Fernando did not depose to any embarrassment or distress from this scarring and disfigurement.
70 In view of the above, I am not satisfied that the disfigurement can even be fairly described as “significant or marked”, and is far from being described as “at least very considerable”. I therefore dismiss Mr Fernando’s application under this sub-section.
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