Finn v Bakers Delight Holdings Ltd
[2014] VCC 1200
•1 August 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | (Un) Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-04150
| GRAEME JOHN FINN | Plaintiff |
| v | |
| BAKERS DELIGHT HOLDINGS LTD | First Defendant |
| and | |
| WORKSAFE VICTORIA | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE BROOKES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 July 2013 | |
DATE OF JUDGMENT: | 1 August 2014 | |
CASE MAY BE CITED AS: | Finn v Bakers Delight Holdings Ltd & Anor | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1200 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – pain and suffering consequences of injury to the left elbow – whether the consequences are “at least very considerable”.
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M J Ruddle | Nowicki Carbone |
| For the Defendants | Mr A W Middleton | Lander & Rogers |
HIS HONOUR:
1 The plaintiff alleges that he injured his left elbow and left shoulder in the course of his employment with the first defendant on 2 August 2009. Whilst carrying buckets into a room at the first defendant’s premises, he slipped on a wet substance and fell heavily on his left side, more particularly on his left shoulder and left elbow. He seeks the leave of this Court to issue proceedings to recover pain and suffering damages in respect of the impairment caused by the injuries to the left shoulder and or left elbow.
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 he has suffered a “serious injury”.[1]
[1]Section 134AB(19)(a)
3 The term “serious injury” is defined in s134AB(37) of the Act, insofar as is relevant to this application, as:
“(a)permanent serious impairment or loss of a body function.”
4 The body function relied upon in this application is that of the plaintiff’s left upper limb.
5 The term “permanent” is to be interpreted as meaning “likely to persist in the foreseeable future”.[2]
[2]Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at paragraphs [18] and [19]
6 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 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.[3]
[3]Section 134AB(38)(b) and (c)
7 The plaintiff submits that the pain and suffering consequences of his injury can fairly be described as being “at least very considerable”. The defendants deny this is so. In addition, the defendants submit the physical injury is “an ill-defined, ill-treated soft tissue injury” and the plaintiff has failed to discharge the onus of proof in that regard. Further, they deny the plaintiff has suffered consequences which can attain the standard of “very considerable”.
Background
8 The plaintiff was born on 9 September 1965 and is aged forty-eight years. He obtained his HSC, worked on the family farm and then, in 2000, took up a position with the ANZ Bank. In the meantime, he completed an Arts course and also worked part time as an artist.
9 In 2004, the plaintiff and his wife went to Germany for four years, where he worked as an artist. In Germany, he was diagnosed with a psychotic injury or disorder and took medication. In 2007, he returned to Australia, whereupon he took up a number of part-time jobs and also worked as an artist. Although still taking medication for his psychotic disorder, this ceased in January 2009.
10 On or about 8 April 2009, the plaintiff commenced employment with the first defendant as an apprentice baker whilst also working part time as an artist. His hours of work were from 2.00am until 10.00am, five days a week.
11 The plaintiff reported the injury on 2 August 2009 and kept working. Thereafter, he was on light duties for a number of weeks and saw his general practitioner at the St Kilda Medical Centre, being one, Dr Rabbidge.
12 In September 2009, the plaintiff was certified unfit for work, put in a WorkCover claim, which was accepted, and thereafter, he received weekly payments of compensation and medical expenses up until 19 June 2010. In addition, he received some physiotherapy treatment from a Ms Mary Kinch until approximately August 2009, which consisted of soft-tissue therapy and ultrasound to the left elbow.
The injury
13 The defendants had the plaintiff examined by Dr P D Clark, occupational physician, on 14 January 2010. Upon taking a history of the work injury, Dr Clark noted, on examination, that the plaintiff –
“… demonstrated a normal range of pain-free neck and upper limb movements. There was no deformity or tenderness in either arm and no evidence of neurological abnormality in his upper limbs was detected on testing.”[4]
[4]Exhibit 1, Defendants’ Court Book (“DCB”) page 10
14 Dr Clark further stated:
“… Any soft tissue injury he may have suffered in the incident of claim has resolved.”[5]
[5]Exhibit 1, DCB page 10
15 The plaintiff was then subsequently examined by Mr Peter Battlay, general surgeon, on behalf of the defendants on 14 April 2011. On examination, he noted the following:
“There was normal muscle development and posture in the left shoulder, and full rotation, although abduction and flexion were demonstrated to 90o. Under these circumstances, I did not think that there would be any motion loss in abduction or flexion, given the full range of glenohumeral joint movement. The impingement sign was negative. He complains of suprascapular pain with resisted flexion and abduction, and there was global tenderness over the shoulder, including the AC joint and deltoid muscle, but not the subacromial bursa. There was widespread trigger point type tenderness over the trapezi, forearm extensors and interscapular muscles, characteristic of fibromyalgia syndrome. … .”[6]
[6]Exhibit 3, DCB page 29
16 The diagnosis was one of fibromyalgia but with “no objectively determinable physical impairment”.[7]
[7]Exhibit 3, DCB page 29
17 Thereafter, the defendants had the plaintiff examined by Dr Nigel Wood, rheumatologist, on 20 June 2013. On examination, Dr Wood noted:
“There was no evidence of any abnormal soft tissue swelling or any muscle wasting affecting his left hand, arm or shoulder girdle. There was tenderness affecting virtually all of his left forearm, elbow region and upper arm. I tried to identify the maximum area of tenderness however this was difficult because this varied with repeated testing and often tenderness was present to only very light palpation. I could not detect any consistent severe tenderness over either the lateral or medial epicondyle of the left elbow nor consistently over the left elbow joint or head of the radius at the elbow. There seemed to be linear tenderness in the mid-portion of the extensor forearm muscles and also over the lateral upper arm. Left elbow movements were well preserved but he did describe inconsistent pain with movement. The left shoulder also maintained a very full range of movement but again there was inconsistent pain experienced. Stressing the common extensor and flexor origins of the elbow with resisted wrist and finger extension/flexion, did not produce any elbow pain. Stressing the rotator cuff tender mechanism of the left shoulder also did not produce pain. Neurological examination of the arms was normal. Provocation tests for carpal tunnel syndrome were negative. His cervical spine maintained a full range of movement.”[8]
[8]Exhibit 4, DCB page 33
18 With respect to diagnosis, Dr Wood stated:
“I am unable to ascertain what injury was sustained to his left arm, elbow and shoulder in the incident on 2 August 2009. Whilst he currently describes diffuse arm pain, I cannot identify any ongoing injury or condition that would explain this pain. … .”[9]
[9]Exhibit 4, DCB page 33
19 Finally, he stated:
“I do not think that there is any ongoing physical injury affecting his left arm. Therefore I don’t think there are any injuries that presently restrict his activities either domestically, recreationally or sporting activities or activities of daily living.”[10]
[10]Exhibit 4, DCB page 34
20 On the other hand, the second-named defendant advised the plaintiff on 14 July 2011 that it had accepted that the plaintiff had suffered a permanent impairment to his left upper limb as a result of the fall at work on 2 August 2009 and determined that his permanent and physical impairment had been determined at 6 per cent, which converted to 10.2 per cent impairment benefit rating. This was based on the Opinion of the Medical Panel dated 11 July 2011, which had certified the permanent impairments to the left shoulder and left elbow.[11]
[11]Exhibit G
21 The treating general practitioner, Dr Natasha Rabbidge, referred the plaintiff to Mr Peter Baquie, sports physician, who reported back to her on 18 November 2009. He stated:
“At examination today Graeme had a sound range of elbow motion. However, taking the elbow into full extension with over-pressure produced pain in the posterolateral elbow. There was no effusion. There is tenderness about the lateral elbow of the joint line, the radial head and posterolateral joint region, without there being tenderness at the common extensor origin.
…
Graeme appears to have had significant left elbow trauma, hopefully without bony injury, but probably producing intra-articular haemorrhage and subsequent synovitis and possibly now impingement of the soft tissues in the posterior elbow.”[12]
[12]Exhibit F, Plaintiff’s Court Book (“PCB”) page 66
22 Dr Baquie then saw the plaintiff again on 30 December 2009. He noted:
“At examination today, Graeme had irritability with elbow motion. Elbow extension was similar range to the right in that Graeme was able to take the elbow out to near straight but with pain at end range. Elbow flexion likewise was near full although fingers were 2cm away from the shoulder on the left compared to full touch on the right. Supination pronation was less irritable. Graeme had 3–4 elbow flexion and elbow extension strength. There was no visible effusion. There was tenderness about the posterolateral and posteromedial elbow.”[13]
[13]Exhibit F, PCB page 68
23 Apparently there had been no further plain x-ray or any other investigation and the plaintiff had not accepted any other treatment modality such as injecting the elbow with cortisone. An earlier plain x-ray of the left elbow had revealed no abnormality.[14]
[14]Exhibit C
24 Thereafter, the plaintiff’s treating general practitioner was a Dr Greg Kuriata. He provided reports dated 19 September 2011 and 8 July 2013.[15] In his first report, he noted:
“Full Recovery is unlikely. Mr Finn has ongoing pain at extremes of movement of his elbow. He suffers pain after use of that arm.
As mentioned above, Mr Finn’s injury has been assessed as permanent.”[16]
[15]Exhibit H
[16]Exhibit H, PCB page 72
25 In his second report, Dr Kuriata noted that the proffered injections to the elbow were not undertaken and throughout the post-injury period, the plaintiff had complained of lateral elbow pain –
“… with varying degrees of tenderness about bony and soft tissue structures with pain at end of range of movement”.[17]
[17]Exhibit H, PCB page 73
26 Examination had revealed –
“… widespread tenderness over his Left Elbow bony landmarks and distal forearm extensor muscles. Left Shoulder examination also revealed widespread bony landmark and soft tissue tenderness. Range of Movement of both joints revealed essentially full range of movement with pain at extremes. These findings were essentially unchanged throughout 2011 and 2012.
During 2012 my understanding was that Mr Finn was receiving massage from his wife but no other formal treatments.”[18]
[18]Exhibit H, PCB pages 73-74
27 Finally, Dr Kuriata stated:
“I believe Mr Finn has an upper limb pain syndrome as a result of his fall at work.”[19]
[19]Exhibit H, PCB page 74
28 Thereafter, the plaintiff’s solicitors referred the plaintiff to Mr Duy M Thai, orthopaedic surgeon, for a medico-legal opinion. He was seen on 20 June 2013. On this occasion, he considered the plaintiff had a positive impingement sign in the left shoulder and tenderness about the left elbow. There was however a full range of motion of the left elbow. He considered that clinically, the plaintiff had:
“… left shoulder subacromial impingement and bursitis. … the left elbow has clinical signs of lateral epicondylitis with possible tendinopathy of the common extensor origin. … .”[20]
[20]Exhibit J, PCB page 77
29 However, he noted further, that the plaintiff’s condition had been –
“… under investigated and undertreated sufficiently (sic).”[21]
[21]Exhibit J, PCB page 78
30 Mr Thai recommended an ultrasound of the left shoulder and elbow to look for any muscle or tendon tears and he would also like to see a plain x-ray of the left shoulder. Apparently none of these investigations have been performed. Mr Thai also suggested –
“… selective diagnostic injections of corticosteroid to the subacromial space, long head biceps tendon and acromioclavicular joint on separate occasions to see how much each contributed to his symptoms. If he achieved some symptom relief from the injections, then this may indicate possible surgical treatment options.”[22]
[22]Exhibit J, PCB page 77
31 However, these diagnostic injections have apparently not been performed.
32 The state of the medical evidence with respect to identity of the injury or injuries suffered by the plaintiff leaves much to be desired. The plaintiff has the onus of proof in this regard and I have reservations as to whether he has discharged same with respect to the physical injuries claimed. On the basis that the Medical Panel has provided an opinion that there is an ongoing permanent impairment of the left upper limb with respect to the left shoulder and the left elbow, it would seem appropriate to consider the consequences to the plaintiff on the basis that that opinion should stand.
Consequences of injury
33 In his first affidavit sworn 27 March 2012, the plaintiff stated that he attended his general practitioner at the St Kilda Medical Group approximately two weeks after his injury and thereafter, continued to attend approximately once per month. He stated he took over-the-counter Panadol “as required”.[23]
[23]Exhibit A, PCB page 23
34 The plaintiff further stated that, from about September 2009, he was certified unfit for work and thereafter, continued working as an artist “and made some money from that”. He had also undertaken casual tractor driving work from time to time.[24] Further, he found it more difficult to groom and dress himself but found he could drive a car but that “prolonged driving exacerbates the pain in my left elbow and left shoulder”.[25] Further, he stated that the pain “wakes me up on some nights, particularly if I turn onto my left side.”[26] Additionally, he stated that he does not play golf as regularly as he used to, because of aggravation to pain in his left shoulder and left elbow.[27] Also, he stated that he swims from time to time but this exacerbates his symptoms in the left elbow and left shoulder.[28] He also does as much work on his 40-acre farm as he can but there are limitations in what he can do.[29]
[24]Exhibit A, PCB page 23
[25]Exhibit A, PCB page 24, paragraphs 37 and 38
[26]Exhibit A, PCB page 24, paragraph 39
[27]Exhibit A, PCB page 24, paragraph 40
[28]Exhibit A, PCB page 25, paragraph 42
[29]Exhibit A, PCB page 25, paragraph 43
35 In cross-examination, the plaintiff stated:
(a) He had been told that the x-ray of his elbow was normal;[30]
[30]Transcript (“T”) 10, L3
(b) He had not taken Panadeine Forte for the last three years;[31]
[31]T10, L19
(c) He had stopped undergoing physiotherapy in August 2009, because there was no improvement;[32]
[32]T10, L27
(d) He had never been referred to an orthopaedic surgeon for treatment;[33]
[33]T12, L24
(e) He and his wife had purchased a 40-hectare farm in 2010;[34]
[34]T14, L13
(f) There are approximately 141 sheep on the farm and he has completed a wool classing course since his injury;[35]
[35]T14, L24-30
(g) He had not performed a triathlon since 2007, because he had prioritised his sport towards golf;[36]
[36]T16, L14
(h) He had performed wool classing jobs recently for five shearing sheds, classing three to four days on each occasion, and was able to work without problems;[37]
[37]T17, L23-28
(i) He would play golf one to two times per month and currently plays off a handicap of 13;[38]
(j) He drives for about an hour to Port Fairy in order to play golf, which takes approximately four-and-a-half hours.[39]
[38]T18, L15-20
[39]T19, L4-8
36 In his second affidavit sworn 27 June 2013, the plaintiff stated he usually experienced pain –
“… when I use my left arm repeatedly or forcefully, when I lift heavier items with my left arm, and when I lift my left arm above shoulder level”. … .[40]
[40]Exhibit A, PCB page 26
37 He further stated that his left shoulder and left elbow injuries –
“… make it very difficult for me to perform unrestricted manual work.”[41]
[41]Exhibit A, PCB page 27
38 Further, in contrast to his cross-examination, he stated:
“… I continue to take over-the-counter Panadol daily and to apply Voltaren cream to my left shoulder and left elbow.”[42]
[42]Exhibit A, PCB page 28
39 Dr Baquie noted, on 30 December 2009:
“He is able to manage about the house and home doing most of the low key necessary duties to maintain the house. However he is restricted from increasing activity above and beyond this.”[43]
[43]Exhibit F, PCB page 68
40 In the medical notes from the St Kilda Medical Group it is noted, on 17 September 2009:
“Sleep is now disturbed and he feels increasing levels of anxiety and agitation.”[44]
[44]Exhibit 5
41 However, there is no subsequent reference to disturbance of sleep being caused by left arm pain.
42 Further, on 15 February 2010, it is recorded:
“… has been away on farm for a few weeks done some work lifting bricks, building vegetable garden) says that his elbow was unable to stand this.”[45]
[45]Exhibit 5
43 Further, on 9 July 2012, there is a note:
“[N]ot able to pay golf as easily as before.”[46]
[46]Exhibit 5
Conclusions
44 Although there is a claim that pain in the elbow would frequently interfere with his sleep, there is little or no corroboration for this claim in the clinical notes.
45 Further, it is clear that the plaintiff is able to engage in a full range of farm work and recreational activities such as golf, although I accept that there is evidence that he suffers pain as a consequence. However, I am unable to find that the plaintiff has discharged the onus of proof with respect to the frequency and level of pain in the left elbow and or left shoulder necessitating recourse to constant analgesic relief.[47]
[47]See Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1 at paragraphs [9] – [17]
46 I would accept that the injury to the left elbow in particular probably precludes the plaintiff from heavier repetitive labouring-type work; however, he is still able to engage in a wide range of farming and wool classing activities, together with his chosen recreation.
47 Ultimately the test in this matter is whether the plaintiff has established that the pain and suffering consequences of his injury, when judged by a comparison with other cases in the range of possible impairments or losses of a body function may fairly be described as being “more than significant or marked” and as being “at least very considerable”.
48 This test involves a value judgment in which matters of fact and degree and of impression are operative.[48] Further, the emphasis in s134AB(38)(c) of the Act is upon seeing where the facts of this particular case fit in the broad spectrum of cases, remembering that includes cases which do not end up in litigation – “… because, it may be supposed, the consequences are glaringly apparent one way or another. The spectrum is not established simply by fastening upon a case or two in which the applicant has failed.”[49]
[48]See Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181 at paragraph [41]
[49]Stijepic (ibid) at paragraph [42]
49 In this matter, I am prepared to accept that the plaintiff suffers ongoing pain in his left elbow and perhaps his left shoulder from time to time which has probably affected his ability to fully participate in farming and other sporting activities. I also accept, in the foreseeable future, continuing of painful symptoms and of consequences inhibiting upon his enjoyment of life.
50 Nonetheless, the plaintiff’s evidence in this matter probably discloses pain and suffering consequences which could be described as significant and marked; however, on balance, I am not persuaded that these consequences can fairly be described “as being more than significant or marked, and at least as being very considerable”.
51 Further, in reaching this conclusion, I take into account “the significance of what has been lost, which bears upon the seriousness of consequences, may be informed, to an extent, by what he has retained”.[50]
[50]See Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 at paragraph [27]
52 Accordingly, the application will be dismissed.
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