Fisher v SPC Operations Ltd
[2012] VCC 1398
•28 September 2012
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted |
AT WANGARATTA
DAMAGES & COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-11-06345
| IAN DAVID JAMES FISHER | Plaintiff |
| v | |
| SPC OPERATIONS LIMITED | Defendant |
---
JUDGE: | HIS HONOUR JUDGE ANDERSON | |
WHERE HELD: | Wangaratta | |
DATE OF HEARING: | 18 September 2012 | |
DATE OF JUDGMENT: | 28 September 2012 | |
CASE MAY BE CITED AS: | Fisher v SPC Operations Ltd | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1398 | |
REASONS FOR JUDGMENT
---
Catchwords: Serious injury – Right arm injury – Two operations – Continued pain and loss of sensation – Pain and suffering consequences – Whether statutory test satisfied – s.134AB Accident Compensation Act 1986.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T. Monti with Mr G. Pierorazio | Nevin Lenne & Gross |
| For the Defendant | Mr W.R. Middleton SC with Ms R. Kaye | Wisewould Mahony Lawyers |
HIS HONOUR:
1 Ian Fisher injured his right forearm in a workplace accident on 6 January 2008 whilst working a second job with the defendant at its Shepparton cannery. He had surgery on his arm on 18 January. It appears that he suffered nerve damage as a consequence of his injury or the surgery which, notwithstanding later surgery, has left him with “sensory loss and a constant stabbing pain” in his arm.
2 Mr Fisher returned to work at his principal job at Valley Pack with some restrictions on the duties he can perform, which he said had been agreed “in consultation with management”. He no longer works a second job and is affected in his social, domestic and recreational activities. He seeks leave to issue a proceeding for pain and suffering damages pursuant to s134AB of the Accident Compensation Act 1986.
3 The issue for determination is whether the consequences to him of the right arm injury satisfy the statutory test for serious injury.
The injury and medical treatment
4 When Mr Fisher reported his injury at work he received treatment soon after from a chiropractor, Mr Brent Clydesdale. Mr Clydesdale reported to Mr Fisher’s general practitioner, Dr John Dyson, that he was concerned that Mr Fisher’s “biceps tendon may undergo complete rupture with further use” and suggested a referral to an orthopaedic surgeon. Mr Dyson referred Mr Fisher to orthopaedic surgeon, Mr David Chew. Mr Chew diagnosed a “ruptured distal biceps tendon” and told Mr Fisher that “repairing this would involve a rather big dissection with possible damage to the brachial artery median nerve and radial nerve”. Mr Chew operated on 19 January 2008 to re-attach the tendon.
5 After a recovery period of two months, Mr Fisher returned to work on light duties. Mr Fisher had “some ongoing problems with the right arm with numbness over the lateral aspect of the forearm and the back of the hand”. In June 2008, Mr Chew referred Mr Fisher to a plastic surgeon, Mr Howard Webster. Mr Chew told Mr Webster that “the main problem now is that I believe he has loss of the lateral cutaneous nerve of forearm”. On 18 November 2008, Dr Webster carried out a surgical procedure in the course of which “the superficial radial nerve was found to be intact and had not been substantially traumatised by the injury or by the subsequent surgery. There was some scarring around the nerve and this was released as a neurolysis”. Mr Fisher was, however, left with “residual neurological symptoms”. Mr Fisher said that the symptoms were “sensory loss and a constant stabbing pain in my arm…I have numbness across the top of my hand, up the forearm, and the numbness runs up above the elbow”.
6 Mr Fisher said that he did not have “much power with my right arm” and that “every day things cause pain, aching and throbbing”. Mr Fisher says that “any clutching or twisting type motion with my right hand increases the pain…If I bump the right forearm I tend to experience excruciating locking type pain”. Mr Fisher has “a prominent Z-shaped scar over the anterior aspect of the elbow” which Mr Fisher says “tends to darken with either the cold weather or when I am tired”. The scar is about 25cm in length. Mr Fisher tends to wear long sleeves to cover the scarring.
7 Mr Fisher stopped working for the defendant in November 2008. He was still on modified duties and “was advised that they had no further suitable work to offer me”. Mr Fisher has continued to perform his day job with Valley Pack “with restrictions on weights he can lift”. After each operation, Mr Fisher had sessions of physiotherapy and there was a recovery period of about a month before he could resume work after the second operation.
8 Mr Webster apparently told Mr Fisher “that there is not much more he could do for me”. Mr Fisher continues to see his general practitioner, Dr Dyson, and relies on “Panadeine tablets from time to time when the pain is severe. Generally speaking, I might take up to half a dozen Panadeine tablets during the week to help deal with the pain. Otherwise I just get on with things”. Mr Fisher said he avoids “taking pain relief medication because I don’t want to get dependent on the stuff. Notwithstanding that, I find it very necessary to take the pain relief medication”.
9 Although not referred to in his affidavits, Mr Fisher said in his oral evidence that he takes Endone from time-to-time when the pain becomes “unbearable”. He takes one or two tablets every couple of weeks, although he does not like to because it makes him constipated. He primarily relies on Panadeine Osteo purchased over-the-counter, which he takes six each day on about four days each week. Mr Fisher said that he had first been prescribed Endone in about November 2008 when he had his earlier operation, and had been taking them for the last three years. They had been prescribed by different doctors at about three separate general practices.
Medical opinions
10 There is no medical report in evidence from Mr Fisher’s general practitioner, Dr Dyson. Reports of Mr Webster were not put into evidence because he was not available to be cross-examined. Nevertheless, his reports were made available to other medico-legal examiners, Mr Brearley and Associate Professor Hart, who have themselves noted details of the surgery performed by Mr Webster in November 2008.
11 Medico-legal reports were obtained as follows:
a. Mr Robin Williams, a consultant orthopaedic surgeon, saw Mr Fisher at the request of the workers compensation insurer on 31 July 2008 but has not re-examined Mr Fisher since that time.
b. Mr Kenneth Brearley, an orthopaedic surgeon, saw Mr Fisher at the request of his solicitors on 10 August 2012. Mr Brearley said that following the repair of the tendon by Mr Chew, Mr Fisher was “left with some neurological symptoms. These do not interfere radically with usefulness of the arm. There is an area of relative sensory loss and numbness over the lateral side of the forearm and the dorsum of the hand and thumb. The changes are in the distribution of the musculo cutaneous nerve. Repair of the superficial radial nerve was carried out by Mr Howard Webster but it was not very successful and he has ongoing discomfort and numbness in the region of the nerve distribution which is over a wide area of the lateral side of the forearm and dorsum of the hand and thumb. There is some weakness of grip as demonstrated with the Jamar dynamometer and he does have some symptoms of reduced strength of the right arm”.
Mr Brearley’s prognosis was that, “There will be no deterioration in the long-term but similarly improvement is also most unlikely. His condition is stabilised. He is able to continue with his present work without difficulty”.
c. Associate Professor John Hart, an emeritus orthopaedic surgeon, saw Mr Fisher at the request of the workers compensation insurer for a permanent impairment evaluation on 27 August 2009 and for a review of his condition on about 1 March 2010. Professor Hart considered that Mr Fisher was “suffering form a repaired avulsed biceps tendon from the radial tuberosity. The worker suffered a neurapraxia to the superficial branch of the radial nerve of the right forearm during the surgical repair of his tendon injury”.
Professor Hart considered that Mr Fisher’s right arm had “a full range of movement” although there was “injury to the radial nerve and scarring”.
Mr Fisher’s credibility
12 Mr Fisher presented as a straightforward witness. The examining doctors all reported positively:
a. Mr Williams said that Mr Fisher’s “manner was direct and he appeared to have made a sensible assessment of his situation”;
b. Mr Brearley described Mr Fisher as “a pleasant outgoing man; giving his history in a positive and direct manner. He gives no sense or exaggeration of his symptoms”;
c. Professor Hart made no comment about these matters.
13 The only matter of note was the absence in his affidavits and histories to examining doctors of him taking the prescription medication Endone. Mr Fisher suggested in his evidence that the medication had been prescribed by doctors at three separate clinics. No claim for the cost of the medication had apparently been made to WorkCover. Mr Fisher produced a foil from his wallet containing three or four tablets which he said were Endone. The box from which the tablets were taken was “at home”.
14 I consider that notwithstanding the inconsistencies in the evidence on this matter, I should accept Mr Fisher’s evidence generally and in relation to the issue of his medication.
Effect of Mr Fisher’s activities of daily living
15 Mr Fisher’s principal employment has, for 24 years, been at the Valley Pack cool store where he has worked as a forklift driver and doing some office work. He worked with the defendant at its cannery as a night job mainly during the fruit picking season. Mr Fisher no longer works a second job and is restricted in the weights he can lift and other functions he can perform at Valley Pack. Mr Fisher has sought further work in addition to his principal job without success to date. He said, “I am prepared to have a go at something”.
16 Mr Fisher’s symptoms in his right arm affect his activities of daily living. He says, “I try to get on with things but the pain is always there. I am reminded of it all day every day”. He said in evidence, “Some days I wish I didn’t have an arm”. The effect of his injuries on his daily activities was confirmed in an affidavit by Mr Fisher’s partner, Catherine Suzanne McIntyre. The affected activities include:
a. Mr Fisher is right hand dominant and has difficulty with “clutching or twisting type motion” or the use of force with that hand. This affects activities such as opening a door, using a screwdriver or hammer, opening bottles or jars and washing or drying dishes. Writing for lengthy periods causes cramps and pain in his forearm. He has difficulty lifting heavy objects;
b. Mr Fisher can no longer play cricket, a sport he previously pursued competitively both indoors and outdoors. He no longer has the power to bowl or throw. He can no longer play tennis which he also used to play competitively. These activities used to give him “a good deal of satisfaction”;
c. driving long distances is difficult as “having my right arm outstretched for prolonged periods of time aggravates the pain”;
d. domestic chores are more difficult including starting the mower or whipper snipper (which his wife now does for him) and painting. Mr Fisher’s arm becomes painful after about five minutes of performing these tasks;
e. sleep is affected by aching in his arm. If he rolls over onto his right side, he wakes up;
f. interaction with his two young children is affected by the pain caused if he bumps his arm;
g. cold weather causes the symptoms to flare-up. The right arm is painful and the scar goes black;
h. the lack of feeling in the right forearm makes him vulnerable to the possibility of burning himself.
Conclusions
17 Defendant’s counsel, Ms Kaye, submitted that Mr Fisher had been cleared to return to unrestricted duties with his primary employer after his operations. In addition, he had sought further work in a second job and was still able to perform many household tasks in a modified way. Mr Fisher had attended only infrequently upon his general practitioner.
18 Mr Fisher has had two operations, each requiring a period of recovery. He has been left with neurological symptoms – “sensory loss and constant stabbing pain” – which affects the range of functions he can perform with his dominant right hand and arm. He describes his ongoing pain at times as “excruciating”. He controls the pain with regular over-the-counter medication and occasional use of the prescription pain medication Endone.
19 Mr Fisher tries to limit his intake of medication. He tries to get on with his life. He and his partner have a mortgage. He works at his primary job with some restrictions with the heavier work and tasks. The fact that he seeks further work is an indication of the financial pressures upon him as well as his positive attitude to life. His domestic and sporting activities have been affected. He has given up cricket and tennis which had been important pursuits. He must be careful playing with his young children.
20 Mr Fisher’s life has changed considerably as a result of his injury. He was aged 45 when he was injured. He has lived with the effect of the injury for almost five years. There is nothing more that can medically be done for him. He should not be penalised for the stoicism that he displays in the face of continued pain and other symptoms following his injury and the resulting surgery.
21 In the circumstances, I consider that the consequence to Mr Fisher of the impairment to the body function of his right arm might fairly be described as “very considerable”.
Order
22 Accordingly, Mr Fisher will have leave to bring a proceeding limited to pain and suffering damages in respect of his right arm injury suffered in the workplace accident on 6 January 2008.
- - -
Certificate
I certify that these 7 pages are a true copy of the reasons for decision of His Honour Judge Anderson delivered on 28 September 2012.
Dated: 28 September 2012
Caroline Dawes
Associate to His Honour Judge Anderson
0
0
0