Giang v VWA
[2023] VCC 1340
•7 August 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-22-05261
| QUAN GIANG | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE GINNANE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 August 2023 | |
DATE OF JUDGMENT: | 7 August 2023 | |
CASE MAY BE CITED AS: | Giang v VWA | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1340 | |
REASONS FOR JUDGMENT
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Subject:Workplace injury
Catchwords: Injury to hand – injury to fingers of right dominant hand
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2014; Accident Compensation Act 1985; Transport Accident Act 1986;
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak [2005] VSCA 33; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; HuntervTransport Accident Commission & Avalanche [2005] VSCA 1; Ingram v Ingram [1996] 2 VR 435; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181; TTB SMS Pty Ltd v Reading [2020] VSCA 203
Judgment: Application refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Saunders | Slater and Gordon |
| For the Defendant | Ms C Kusiak | Minter Ellison |
HIS HONOUR:
1This application seeks the grant of a serious injury certificate pursuant to the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) to enable the commencement of common law proceedings by the plaintiff for damages for pain and suffering. The plaintiff was represented by Mr Saunders of counsel. The defendant was represented by Ms Kusiak of counsel.
2There is no argument that the plaintiff suffered injury to his right hand and fingers at work on 9 May 2019.
3The application was commenced pursuant to paragraphs (a) and (b) of the definition of “serious injury” as that term is defined in s325(1) of the Act. However, at the commencement of the hearing, Mr Saunders abandoned reliance on paragraph (b) and pursued the application on paragraph (a) of the definition.
4The plaintiff’s Particulars of Injury relied on pursuant to Section 325 of the Act relevant to the paragraph (a) is a crush injury to the right hand.
5The scope of the application is comparatively narrow. This is essentially a type of claim sometimes referred to compendiously as a “range” case.
Plaintiff’s evidence
6The plaintiff’s evidence in chief comprised his three affidavits dated 21 July 2022,[1] 11 July 2023[2] and 1 August 2023.[3] In addition, the plaintiff relied on the following medical evidence:
· Report of Mr Felix Behan dated 30 January 2023;[4]
· Report of Ms Leanne Graham dated 1 February 2021;[5]
· Report of Dr Simon Benson dated 21 October 2020;[6]
· Western Health – Discharge Summary dated 13 May 2019;[7] and
· Report of Dr Peter Dixon dated 31 May 2023.[8]
[1] Exhibit P1, Plaintiff’s Court Book (‘PCB’) 7-12.
[2] Exhibit P1, PCB 13-17.
[3] Exhibit P1, PCB 80-83.
[4] Exhibit P2, PCB 19-65.
[5] Exhibit P3, PCB 66-68.
[6] Exhibit P4, PCB 69-70.
[7] Exhibit P5, PCB 75-78.
[8] Exhibit P6, Defendant’s Court Book (‘DCB’) 15-36.
Defendant’s evidence
7The defendant tendered the following material:
· Report of Mr Damon Thomas dated 5 April 2022;[9]
· Sunshine Health Medical Centre (extract) 12 April 2019 – 4 February 2023;[10] and
· Surveillance dated 19 April 2023.[11]
[9] Exhibit D1, DCB 5-14.
[10] Exhibit D2, DCB 37-43.
[11] Exhibit D3.
8I have read and considered the material relied upon by the parties. I have had regard to the oral evidence of the plaintiff and the legal submissions and addresses of counsel. Insofar as the medical material is concerned, I refer only to such parts of the records or reports referred to by the parties and that proved necessary for the resolution of the issues. I note that Ms Kusiak prefaced her closing address by suggesting that the medical evidence was not likely to be the primary measure by which the application would come to be determined. Ms Kusiak’s observation proved correct.
Plaintiff’s evidence
9The plaintiff came to Australia in 1989 having left Vietnam where he completed his secondary schooling. He is married with two adult children. He is aged 64. By all accounts he has been a hard worker who has provided for his family.
10On 9 May 2019, the plaintiff was operating a bell pulling machine as part of his employment with Plascorp Pty Ltd. He was wearing work gloves and when pulling a length of reinforced plastic hose from the machine the glove of his right hand became caught. The crush caused the plaintiff to experience severe, excruciating pain in his right hand and fingers. He was taken to Sunshine Hospital and admitted and underwent two surgeries one at the base of the thumb and across the back of his right hand.
11The operations involved extensive stitches and stapling across the top of the right hand. He required skin grafting to repair damage to the back of his right hand. A graft of skin was taken from the inner side of his right arm just below the elbow with resultant scarring. He was subsequently treated by doctors at the Sunshine Health Medical Clinic. He was referred for physiotherapy to Anthony Hoang. He also had hand therapy treatments at Sunshine Hospital, and later with Leanne Graham, an occupational therapist.
12He returned to his employer on light duties and then graduated to a return of full duties and full time hours by about May 2020 and prior to ceasing employment with Plascorp on 7 April 2021. He left his employment with Plascorp because he “was interested in doing different sort of work.”[12]
[12] Exhibit P1, PCB 10.
13He was next employed full time in the automotive field by Capital Smart. He performed paint preparation including sanding and masking. In January 2022 he commenced with his Liquip, his current employer as a spray painter and prepper, and where there is also a need to use a sanding machine.
Consequences of impairment
14The plaintiff deposed in his first affidavit that his right hand and fingers lack the power and strength they had previously possessed. Although he acknowledges that he can readily grip and handle objects, nonetheless, because the grip of his right hand and fingers is reduced he struggles to make and to sustain a strong grip and he is limited in his ability to lift, to carry, and to handle heavy weights. He said that in struggling to maintain a strong grip he also has difficulty with tasks or activities involving forceful, repetitive, or sustained actions and movements using his right hand. He offered by way of example, the washing and wiping down of upright and horizontal surfaces, the squeezing of a cloth in order to wring out water or trying to undo the lids of jars and bottles.
15In his current job he uses a hand-held spray gun. He deposed that whilst the spray gun itself is light and is operated by using the first/index finger of his right hand to operate the trigger, due to the weakness in his right hand, it tires and the strength required makes prolonged use problematic.
16In his first affidavit the plaintiff deposed that the sensations in all four fingers of his right hand had altered and became much more sensitive. The sensations experienced in the fingers of the right hand “feel strange, abnormal”.[13] The sensations come and go as does their severity and he said it is generally worse in cold weather or in cold conditions, for example, when placing his right hand in cold water.
[13] Exhibit P1, PCB 11.
17Across the back of his right hand where there is a pigment scar, he described an abnormal, tight feeling across the back of the hand. When this area is tight, the fingers of the hand also feel tight. These feelings are generally worse on waking in the morning but tend to ease during the day with use, but not all the time.
18As a result of the changes experienced, the plaintiff said he finds tasks involving the fine use and movement of the affected fingers difficult; for example, when using small hand-held tools, such as a small screwdriver. He described that holding and writing with a pen or pencil, or using chopsticks when eating foods, are more difficult because the strength and the feeling in the fingers has been reduced.
19Although the plaintiff still plays the guitar for enjoyment, gripping the small plectrum and using it to strum when playing is difficult. He said that he is unable to strum and play a guitar without restriction or difficulty and for prolonged periods as he could before the injury and that this is a source of considerable disappointment to him.
20In his second affidavit the plaintiff deposed that he continues to experience changed sensations in the fingers of the right hand which he described as akin to a numbness. He referred to paragraph 20 of his first affidavit and that the difficulties he therein described continue but are now confined to the first three fingers and not the four fingers as was the case. The tips of the three fingers are sensitive, and they are tender.
21He continues to experience difficulty with the three fingers when trying to pick up, to control and to manipulate fine, small objects, such as pins, small nuts, bolts, washes, or to button shirts and he needs to concentrate more greatly on what he is doing.
22He said that he continues to experience episodes of tightness, and a stiffness in the first three fingers of the right hand and although not a constant problem, when encountered, it limits their mobility and movement and restricts his ability to make a strong fist, and to make a good strong grip. He said that he manages with self-hand therapy, by flexing, stretching, and rubbing the fingers to get them mobile. These episodes can occur at night and can be encountered on waking, or when he has not used his right hand to any great extent. They are accompanied by pain that he is able to alleviate by rubbing the palm and the back of the right hand.
The Plaintiff’s Medical Evidence
23Dr Peter Dixon is a Hand, Plastic & Reconstructive Surgeon who provided a report to the defendant dated 31 May 2023. It was tendered on behalf of the plaintiff.[14] He recounted the occurrence of the accident and injury sustained and the plaintiff’s period as an inpatient at Sunshine Hospital undergoing two surgical procedures that included a split skin graft to the skin deficit on the dorsum of the right hand.
[14] Exhibit P6, DCB 15-36.
24Dr Dixon recorded the plaintiff’s recreational pursuits as playing the guitar, spending time at home with his wife, watching movies and reading.
25Dr Dixon listed the plaintiff’s account of his complaints as far as the right hand is concerned to be:
·Sensitivity of the tips of the 1st, 2nd, and 3rd digits. He described a 10% improvement over the past year.
·Reduced capacity to form a grip.
·Weakness of grip.
·Decreased manipulation affects fine skills. Itch in the donor site which occurs regularly twice a day.
·Difficulty holding chopsticks and similar articles.[15]
[15] Exhibit P6, DCB 18.
26Dr Dixon also reported that the plaintiff described some compromise in his capacity as a spray painter or in any task requiring the bilateral use of the hands. He described his right thumb regularly becoming tired and a need to defer to the left hand.
27Dr Dixon thought the plaintiff has regained pre-injury capacity of his right hand based on his capacity to perform complete grip strength and significant grip strength albeit reduced in the right hand.
28Felix Behan is a Clinical Associate Professor of Surgery who provided a report dated 30 January 2023. After addressing the plaintiff’s pre injury history, the circumstances of the accident, the surgeries and the therapy undertaken, he diagnosed a roller crushing injury of the right hand causing a lacerated thenar base along with carpal tunnel compression needing release and a skin loss on the dorsum of the right hand approximately 4cm in size that required a delayed skin graft harvested from the right forearm near the cubital fossa.
29Relevant to the matters called to be decided in this application, his report addressed the following matters.
30First, Professor Behan remarked that the plaintiff recounted painful dysfunction of both hands on waking in the morning and persistence of sensory changes mainly in the right hand that he considered consistent with neural compression and/or neural damage.
31Second, Professor Behan related that the plaintiff described that most dextrous movements are restricted and this extended to:
Difficulty in writing and holding a pen;
Using chopsticks to eat his food;
Holding a toothbrush to clean his teeth.
Lifting Heavy Industrial Weights: Restricted weight bearing ability down to 20kg fully aware that lifting heavy weights on the (R) side is quite an inconvenience. The overview loss of power grip he said is a 40% loss in power grip in the (R) hand.[16]
[16] Exhibit P2, PCB 21-22. Professor Behan based this on the reporting of Ms Graham.
32Third, Mr Behan reported that the plaintiff has a normal range of movement with the pulps of the digits flexing into the proximal palmar crease. Restriction of movement on waking in the morning that he considered reflected neural symptoms and possible oedema is, however, relieved during the day by ongoing hand activity.
33Fourth, Mr Behan addressed the plaintiff’s circumstances and his capacity for personal care. He noted that the plaintiff is married with two adult children and his wife does all the cooking so there is no issue with cutting and preparing vegetables for eating. However, “from using chopsticks to cleaning his teeth and doing up buttons and other aspects of social necessity. Gardening and cleaning are an inconvenience because of his persistent ongoing pain.”[17]
[17] Exhibit P2, PCB 22.
34Fifth, Professor Behan related that from a work perspective the plaintiff’s use of a spray gun with his right hand results in the development of painful tension on the tight grip and he has to shift to his left hand to hold the spray gun and the “inconvenience of lifting weights mars his smooth manual dexterity.”[18]
[18] Exhibit P2, PCB 22.
35Sixth, Professor Behan observed that the plaintiff can no longer play tennis nor play the guitar.
36Leanne Graham is a Hand Therapist. In a report dated 1 February 2021 she said that she had not seen the plaintiff since August 2019 which was three months post injury and surgery and by which time the plaintiff had achieved range of motion within the norms. She recorded that his gross grip strength in the right hand was weaker than his left hand and considerably weaker than the norms for his age. She would have anticipated improvement over the course of the following 6 to 12 months but given she had not seen the plaintiff since August 2019 she was unable to comment any further on his function or work status capacity.
37Dr Simon Benson was the plaintiff’s general practitioner and in a report to the plaintiff’s solicitors dated 21 October 2020 he recorded that the plaintiff was first seen at the clinic on 7 June 2019 and that he had referred the plaintiff to Ms Leanne Graham in July 2019 with whom the plaintiff undertook a number of sessions and therapy under her guidance.
38Dr Benson diagnosed:
·Crush injury right hand
·Repair thenar muscles right hand
·Released carpal tunnel right hand
·Released guidance canal right hand.[19]
[19] Exhibit P4, PCB 70.
39Dr Benson said that the plaintiff was seen on a monthly basis and that his capacity was assessed monthly from August through to February 2020. Dr Benson said that the plaintiff returned to work starting with 4 hours a week and increasing to full time duties on 13 March 2020 with the plaintiff having been signed off with a full pre-injury capacity from that date.
40Dr Benson said that the plaintiff was not seen again until the 16 October 2020 when he complained of a weakening of his grip and inability to hold a pen for a long period or write for long periods and difficulty using a spoon. The plaintiff told Dr Benson that he felt he had experienced a setback in terms of his rehabilitation and function.
41Dr Benson examined the plaintiff and found that he had good overall range of motion and power although it was slightly reduced in thenar opposition as well as grip strength.
42Dr Benson wrote of a suspicion of there being some element of permanence to the plaintiff’s “mild disability”[20] but whether there had been a setback from March 2020 to October 2020 was difficult for him to say.
[20] Exhibit P4, PCB 70.
43Dr Benson recommended that the plaintiff obtain further specialist advice and he offered to refer him to a private hand surgeon but the plaintiff declined and Dr Benson explained that “we left it that he would consider my recommendation and made no set appointment for follow-up.”[21]
[21] Exhibit P4, PCB 70.
Defendant Medical Evidence
44Mr Damon Thomas is a Plastic and Reconstructive Surgeon who provided a report dated 5 April 2022 prepared for the defendant.[22]
[22] Exhibit D1, DCB 5-14.
45Mr Thomas addressed the plaintiff’s medical history, his clinical examination, and provided his analysis of his findings. He noted that the plaintiff presented with post-traumatic scars on the right hand incorporating a skin graft.
46In Mr Thomas’s opinion, the plaintiff’s prognosis is that his injury should remain relatively stable and he did not anticipate improvement or deterioration. He assessed the plaintiff’s occupation to be affected with reduced function in the right hand, however, noted that he is fully employed as a spray painter.
47As to effects of the injury on the plaintiff’s activities of daily living he recorded limited pushing, pulling, lifting, and carrying and limited reaching with altered hand function.
48Mr Thomas wrote that sensory examination of the thumb, index, middle, ring, and little fingers revealed intact two point discrimination at 6 mm and therefore, normal sensation on objective examination.
49Mr Thomas diagnosed right hand lacerations to the dorsum of the hand first web space resulting in a partial degloving injury with skin loss requiring reconstruction, incorporating a skin graft from the right forearm.
Clinical Records
50There is nothing relevant to the outcome of this application referred to in the clinical records that warrant discussion or on which the parties relied.
The Plaintiff Cross-Examined
51Ms Kusiak directed her cross-examination of the plaintiff towards establishing the proposition that despite his injury he has retained a suite of functional capacities work wise and domestically and that such changes or modulation required to them have not been significant.
52Before examining some of the evidence in greater detail, it is perhaps helpful if I set out in summary form the evidence of retained but diminished capacities and the difficulties in tasks as they were described by plaintiff in the course of cross-examination.
·He can still use a primer painting and a palm sander.[23]
[23]T16, L26-28.
·He can do prepping for 3 to 4 hours a day[24]
[24]T22, L19.
·He can spray paint for 3 to 4 hours a day;[25]
[25]T22, L18
·He can use the spray gun with his index finger over the trigger for 5 to 7 minutes before he swaps hands;[26]
[26]T23, L15-19.
·He can still mask with masking tape[27] and remove the same with his right hand.
[27]T17, L19.
·He can write notes;[28]
[28]T24, L26-29.
·He can stack one brick at a time in the garden with two hands;[29]
[29]T29, L24-27.
·He can weed, trim and prune in the garden;[30]
[30]T30, L10-14.
·He can use secateurs for half an hour;[31]
[31]T30, L22-24.
·He can wash the car using a hose with trigger nozzle;[32]
[32]T34, L28-29.
·He can hold the hose moving his hand from side to side and up and down;[33]
[33]T35, L6-7.
·He can hold a brush in a closed grip;[34]
[34]T35, L10-11.
·He can wipe his car with a brush, without force;[35]
[35]T35, L31-T36, L1.
·He can wipe down the whole car using two hands;[36]
[36]T36, L12-19.
·He can carry two shopping bags of less than 2 kilos weight;[37]
[37]T37, L14 and L17.
·He can apply lip balm with his right hand;[38]
[38]T38, L19-L21.
·He can manipulate tweezers;[39]
[39]T39, L4-5.
·He can dress himself;[40]
·He can use chopsticks;[41]
·He will play guitar once a week;[42]
·It is difficult to wash clothes in the hand wash;[43]
·It is difficult to squeeze out a cloth;[44]
·It is difficult to wash and wipe down surfaces when cleaning the bathroom;[45]
·He can grip something by making a fist, but lifting something of about 5 kgs is very hard;[46]
·He thinks he has lost 60% or more of strength in his hand;[47]
·It is hard to grip a pole;[48]
·It is hard to grip anything, even something weighing 2-400grams.[49]
[40]T45, L5-6
[41]T45, L23-24.
[42]T45, L28-30.
[43]T25, L19.
[44]T25, L21-22
[45]T25, L23-27.
[46]T27, L20-26.
[47]T31, L25.
[48]T32, L20-21.
[49]T32, L24.
53The plaintiff accepted that when he returned to work he was able to perform his pre injury duties and he was able to carry them out as he had before his injury, including making reinforced composite hose and performing the whole process that entailed holding plastic and rolling it onto a tube, using wire to roll around it then inserting the hose into a pulling machine[50] and then pulling it out of the machine. He said if he had needed to hold a device weighing around 7- 8kg he would do so with both hands.
[50]T14, L7-13
54In his present employment he is still able to still use a primer for painting and a palm sander.[51] He can still mask with masking tape[52] and remove the same with his right hand.
[51]T16, L26-28.
[52]T17, L19.
55The plaintiff agreed that he can grip something making a fist, but lifting something of about 5 kgs is very hard;[53]
[53]T27, L20-26.
56He said that some parts he works on require sanding because of rust and he makes use of a Scotch-Brite (scourer) which he manages to manipulate but with some difficulty. Where manual dexterity and fine work on a part is required he does so with his dominant right hand but after 10 minutes or so will change to his left hand.
57The plaintiff said that he continues performing overtime which he estimated at about 10 plus hours per week.
58The plaintiff said that the allocation of duties to time in a typical shift might entail spray painting and prepping for about 3-4 hours and painting for 3-4 hours although on some days he will just paint with prepping having been attended to the day prior.
59The plaintiff thought that the spray gun to which is attached a paint can has a combined weight of about 1.5 kg. In its use he deploys his right hand and a closed grip. He said he can attend to the task of spray-painting and maintain the grip position with his right hand for about 5-7 minutes after which he will switch to his left hand for about 10 minutes and then revert to his right hand. He said this swapping back and forth was a method peculiar to him and he was unaware of other workers swapping between hands.
60As far as writing is concerned, the plaintiff explained that as part of his work, he is only required to enter in writing some basic details at the end of the day and which he is able to manage. H gave no other evidence of recourse to writing being affected.
61The plaintiff accepted that he is able to wash his work overalls.
62He said he will wash his car perhaps once a month and the frequency has not much changed since the accident.
63Ms Kusiak placed some store in video surveillance obtained of the plaintiff from 19 April 2023. The surveillance depicted the plaintiff washing his car in his driveway by the use of a hose to which was attached a spray gun nozzle that he held in a closed grip of his right affected hand. He is observed holding the handle of a bristle type brush that he also at times held with a closed grip with right index finger extended along the arm of the brush, with the other fingers of his right hand in an apparent closed grip. He is seen applying the brush in a variety of movements across and over and up and down the panels of the car. The plaintiff denied the suggestion by Ms Kusiak that he was applying forceful movements of the brush to the panels of the vehicle.
64The surveillance also depicted the plaintiff grocery shopping, and retrieving perhaps money with his right hand from his right trouser pocket and then carrying two bags in his right hand with the openings slipped over the third, fourth and fifth fingers and which weight the plaintiff guessed as less than 2 kilos.[54] If carrying heavier bags, he said will carry them in his left hand.[55]
[54]T37, L16-17.
[55]T38, L13-16.
65The plaintiff said that he is able to make a fist but has problems when trying to maintain a strong grip with the three affected fingers only. He said he cannot balance or maintain the weight, for example, of a brick from the garden on only the three affected fingers of his right hand, as opposed to resting it on the whole hand.
66He can manipulate secateurs in his right hand for a half hour or so when gardening.
67He said he can encounter difficulty wiping surfaces with a cloth, and cleaning upright and horizontal surfaces but that he does what is required of him.
68The plaintiff was asked how he arrived at his estimates of loss of strength in his right hand that he deposed to in this third affidavit. He explained that he based the estimate on a comparison to his hand strength before the injury. He stated that “I know my ability of the hand, the finger. They are normally very strong.”[56]
[56]T31, L23-24.
69The plaintiff accepted that the stiffness in the three fingers comes and goes.
70The plaintiff said pain can be present if he awakens in the middle of the night or on waking of a morning but that the pain dissipates when moving.
71The plaintiff said that he last saw his GP for his right hand perhaps a year ago.
72The plaintiff agreed that he was not in receipt of medication for his right hand.
73The plaintiff said he commenced use of Deep Heat 6 or 7 months ago. When asked why he had not mentioned its use in his previous affidavit he explained that he had not been asked about it as part of the affidavit’s preparation.
Re-Examination
74In re-examination the plaintiff elaborated on the use of a palm sander. When working at Capital Smart or Liquip the plaintiff said he will change from using his right hand to his left hand because he feels tired or in order to avoid further injury on his right hand. He estimated he would change hands after every 10 or 15 minutes.[57]
[57] T47, L9-14.
75The plaintiff elaborated that when de-greasing he finds the task difficult because there can be some corners of part where he has to use only two fingers and that he does not have the strength to rub it down and in particular it is his thumb and first finger of his right hand that are not strong enough. The plaintiff said that when de-greasing he would swap his hand every 10 to 15 minutes due to his hand becoming “ too tired…after it will become the hand will be like the – most – most sleep or something like this”.[58]
[58] T48, L 5-7.
76With his current job at Liquip,[59] and the task of spray painting, the plaintiff estimated that he changes from the use of his right hand every 5 to 7 minutes.[60] The plaintiff said that although he uses both hands when spray-painting, he will use his right hand predominantly if there is “some very fine area”.[61] He uses his left hand not all the time but for “sometimes more than 10 minutes”[62] and he uses his left hand more because of not being able to hold the can for too long, due to its weight. He said in his viva voce evidence that it makes “my head feel, ah, tired, Yeah, stress and when I experience that symptom I always do the left hand. Most of the time I do left-hand. If somewhere I cannot risk my left hand I do right hand, yeah.”[63]
[59] Exhibit P1, PCB 10.
[60] T48, L12.
[61] T48, L17.
[62] T48, L19-20.
[63] T48, L24-28.
77When re-examined about the surveillance and the washing of his vehicle, the plaintiff said that he used his left hand to scrub the car with the brush, because it is easier to use his left hand. However, any area that he cannot use his left hand, he will use the right hand and he added that he uses both hands to wash his car because “I feel tired on left hand, ah, right hand (indistinct words) so to make the correct, ah, wiping. I try to do with two hands, but if one - one hand, my right hand is not strong enough to hold, ah, to hold the brush, then I have to use two hands.”[64]
[64] T49, L14-18.
78The plaintiff was re-examined on his use of Deep Heat to massage his hands. The plaintiff explained he used it more in the winter and when he wakes up early in the morning. He will use it in the middle of the night to feel comfortable while sleeping. When asked why he started using Deep Heat the plaintiff explained that his wife had told him to use it to help with his muscle problems.
Defendant’s Submissions paragraph (a)
79Ms Kusiak’s overarching submission was that when regard is had to the plaintiff’s functional capacities and effects across a range of indica that he possessed prior to the injury that the extent of loss of reduction in the same does not satisfy the test for the grant of a serious injury certificate.
80Ms Kusiak noted that the plaintiff’s pain was not great and was not a chronic attendant feature of the injury. Moreover, the plaintiff was not receiving treatment or medication. Counsel relied on the plaintiff’s account of a capacity for self-care. Ms Kusiak acknowledged that he experienced some inconvenience with fiddly matters such as retrieving coins or doing up buttons of a shirt. Ms Kusiak recognised that the plaintiff had lost the ability to participate in recreational tennis and that his ability to play guitar at his discretion for as long as he liked has been lost and he is now able to play less frequently, and when he does so, it is for reduced periods of time.
81Ms Kusiak submitted that it is relevant that the plaintiff remains fully employed and still performs overtime and has not been financially disadvantaged by the injury. Moreover, he is employed in a job of his choice and not one foisted on him by necessity in order to accommodate restrictions caused by his injury.
82Ms Kusiak addressed the measurements taken by Dr Dixon, which considered the plaintiff’s pinch grip, that being, the grip between the thumb and the forefinger. The right hand held 10kg and the left hand held 15kg.[65]
[65] Exhibit P6, DCB 19.
83Ms Kusiak submitted that if 10 kg on the right hand is roughly 60 per cent reduction in strength based on a measure of 15 kg on the left hand that absent an explanation by Dr Dixon of the method of determination of Jamar Dynamometer grip kilograms, I should be hesitant to speculate that the measurements translate to a 60 per cent loss of grip strength as the plaintiff asserted in his third affidavit.
84Ms Kusiak also observed that under the pinch grip table Dr Dixon reported that, “The appended images demonstrate full grip of the 2nd to the 5th digits of the right hand and full motion of the right thumb.”[66] Further Dr Dixon reported that the “Examination confirms the progress as documented in the extracts. I consider that Mr Giang has regained pre-injury capacity of his right hand. This opinion is based on the capacity to perform complete grip strength and significant grip strength albeit reduced in the right hand.”[67]
[66] Exhibit P6, DCB 19.
[67] Exhibit P6, DCB 20.
85Ms Kusiak made submissions regarding the report of Ms Leanne Graham noting that that Ms Graham reported of the range of motion that “These two measurement tables demonstrate good gains in Range of motion over the five-week period. His final measurements were close to the norms, and he was able to close a complete fist.”[68]
[68] Exhibit P3, PCB 67.
86Ms Kusiak pointed out that under Muscle Strength, Ms Graham reported that the plaintiff “assessed on a Jamar Dynamometer he recorded Right 12.0 kg and Left 22.0 kg. The norms* for his age are right 40.8 kg and left 34.9 kg.”[69] Ms Kusiak submitted that if the norms that Ms Graham refers to for the age, on the right hand are 40.8 kilos and, on the left hand 34.9 kilos, then the plaintiff presented with a discrepancy on both the right and the left hands relative to his age.
[69] Exhibit P3, PCB 67.
87Ms Kusiak referred to Ms Graham’s reporting that she would have expected to see some continued improvement but she had not subsequently seen the plaintiff and was unable to comment any further.
88In regard to Professor Behan's report, Ms Kusiak noted the plaintiff was seen via Zoom and a personal examination was not able to be conducted or measurements taken and accordingly, Professor Behan reverted to the measurements of Ms Graham which are significantly out of date.[70]
[70] T54, L24-25. Exhibit P2, PCB 26.
89Ms Kusiak submitted that the decision in Dwyer v Calco Timbers (No 2)[71] is relevant as it looks to what a plaintiff has lost by way of impairment, compared to what he has retained and she contended that the plaintiff retains considerable function of his right hand as evidenced by his return to work, initially in his pre-injury duties and in his subsequent employment.
[71] [2008] VSCA 260.
90In sum total the defendant’s submission is that on the available evidence, despite the plaintiff’s injury not being trivial, and it being permanent, it is not “serious”, with the implication that it would be erroneous for the Court to consider it “at least very considerable” and “more than merely significant or marked.”
Plaintiff’s submissions paragraph (a)
91Mr Saunders urged me to regard the plaintiff as a witness of truth. He further submitted that if I accepted the plaintiff’s evidence of the functional diminutions he identified and that have been reported on by those who have examined him, then I should be satisfied that their manifestation in their effects on the plaintiff’s work and in his domestic activities together with the occasion of some pain and the diminished ability to pursue his recreational interests is a loss that should be assessed as sufficient to warrant the grant of a serious injury certificate pursuant to paragraph (a).
Relevant legal principles
92There are a number of settled legal principles that inform the question of a grant of leave in serious injury applications. I need to only address them briefly. The Court must not give leave unless it is satisfied, on the balance of probabilities, that the “injury” is a “serious injury” within the meaning of the definition of “serious injury.”[72] In order to establish serious injury, the plaintiff must prove, on the balance of probabilities, that:
the injury” suffered by him arose out of or due to the nature of his employment with the employer on or after 1 July 2014;[73]
[72] Section 335(5)(a) of the WIRCA.
[73] Section 5(1) of the WIRCA.
the injury” and resulting impairment must be “permanent” – that is, permanent in the sense that it is “likely to last for the foreseeable future;”[74]
the “consequences” of the impairment in relation to “pain and suffering” must be “serious” – that is, the impairment or loss of body function “when judged by comparison with other cases in the range of possible impairments … may be fairly described as being more than significant or marked, and as being at least very considerable.[75]
[74] Barwon Spinners Pty Ltd & OrsvPodolak [2005] VSCA 33, [33].
[75] Section 325(2)(b) and (c) of the WIRCA.
93The requirement to satisfy the elements mentioned above is sometimes referred to as the “narrative test”.
94Furthermore, in assessing the “consequences” of the injury, the Court is required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury.
95In addition, in determining the application:
the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purposes of paragraph (c) of the definition of “serious injury” and not otherwise;[76]
the Court must assess whether “the injury” is a “serious injury” as at the time the application is heard;[77]
the Court must give reasons that disclose the pathway of reasoning in dealing with the evidence and issues raised by the application.[78]
In assessing the seriousness of the claimed impairment consequences, the Court is required to consider both the effects of the impairment and those aspects of the body function that remain unaffected.[79]
The question of whether an injury satisfies the narrative test is largely one of impression or value judgment.[80]
[76] Section 325(2)(h) of the WIRCA.
[77] Section 325(2)(j) of the WIRCA.
[78]See generally HuntervTransport Accident Commission & Avalanche [2005] VSCA 1, [23]-[26].
[79] Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 181.
[80]See Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592, 628; see also Sabo v George Weston Foods [2009] VSCA 242, [67].
96The “consequences” to the plaintiff of any impairment or loss of body function in relation to paragraph (a) or disfigurement in relation to paragraph (b) of the definition of serious injury must be “serious”. This is expressed in s325(2) and, in particular, paragraphs (b) and (c), which state:
(b) the terms serious and severe are to be satisfied by reference to the consequences to the worker of any impairment or loss of a body function, disfigurement, … as the case may be, with respect to—
(i) pain and suffering; or
(ii) loss of earning capacity—
when judged by comparison with other cases in the range of possible impairments or losses of a body function, disfigurements, … respectively;
(c) an impairment or loss of a body function or a disfigurement shall not be held to be serious for the purposes of section 335(2) unless -
(i) the pain and suffering consequence …
is, when judged by comparison with other cases, in the range of possible impairments or losses of a body function, or disfigurements, as the case may be, fairly described as being more than significant or marked, and as being at least very considerable;[81]
[81] Section 325(2)(b) and (c) of the WIRCA
Analysis and Findings paragraph (a)
97It is not the case that any part of my decision making has required me to assess the plaintiff’s credibility as a result of criticism levelled at it. No attack was levelled at the plaintiff’s credit by the defendant. Indeed, I found the plaintiff to be frank, direct, and obviously a hard-working man. Ms Kusiak did direct some questions at the plaintiff that perhaps were intended to call into question his reliability based on two matters that appeared in the plaintiff’s third and late filed affidavit regarding grip strength and the use of Deep Heat.
98As to the grip strength at paragraph 6 of his third affidavit, the plaintiff deposed that: “The worst of my problems is a loss of strength in my first three fingers (my thumb index and middle fingers). I would estimate that I have lost, say 60% of my strength; they are much weaker now.”[82]
[82] Exhibit P1, PCB 81.
99A second limb of the defendant’s cross-examination was directed to the belated reference by the plaintiff to the use of Deep Heat and why it had not been referred to in, for example, his second affidavit sworn on 11 July 2023.
100Perhaps, I should also mention the defendant having briefly adverted to the plaintiff not willing to concede that his use of the bristle brush when cleaning his car and observed on surveillance footage involved forceful movements.
101Regarding the plaintiff’s opinion expressed in his third affidavit about grip strength, it is not expert opinion evidence. To the extent his calculations might be thought to be underscored by the reporting by Professor Behan and by Ms Graham, then the probative value of their findings are of greater historical as opposed to current value, but irrespective of their accuracy in evaluating a measurement of strength, it is less the measurement of strength as opposed to the consequences of the loss of the same to the plaintiff that is pertinent to the outcome of the application.
102As far as an omission in the plaintiff’s affidavit to the use of Deep Heat, the plaintiff said he had not been asked about it by his solicitors in the preparation of his affidavits. That explanation might seem peculiar given the regular matters deposed to in affidavit of this type. It is possible of course that what might have been asked of the plaintiff by his lawyers did not cover topical applications as opposed to the use of medicines and so account for its earlier omission. Ultimately, however, it is of no moment because the plaintiff’s recourse to use of ointment is not a fact that of itself or in conjunction with the entirety of the evidence has made a difference to the outcome of the application.
103Although I have formed an impression that the surveillance depicts the plaintiff applying the brush to the vehicle with the use of his right hand in more than a light application of force, it is not possible to determine the strength of force at play. The plaintiff by not conceding the point put to him by counsel does not mean he was attempting to dissemble. I do not find that he was.
104There are other matters as regards the plaintiff’s evidence that warrant brief mention. The plaintiff attended the hearing with the assistance of an interpreter. Mr Saunders advised the Court that the plaintiff had a facility with English and that the interpreter was present and sworn as a “belt and braces” protection as it were. The plaintiff’s command of spoken English was somewhat less than counsel might had been led to expect, and there were occasions when the interpreter assisted, and indeed in one tranche of the cross-exanimation by counsel, I suggested it better if the plaintiff answered through the interpreter. It remained, however, to some degree a combination of evidence in English and evidence via the interpreter. I mention this because although I am satisfied that the plaintiff did his best to address Ms Kusiak and Mr Saunders, the nuances and subtleties often enough associated with one’s native tongue was lacking and I have made some allowance for this in my consideration of the plaintiff’s evidence overall and where there has been criticism of it. Nonetheless, the plaintiff’s evidence was clear enough in its exposition of the effects from his injury upon which he relies.
105As to the probative value of the surveillance, in my judgement, it has to be understood as comprising footage on a single day and for a limited time. However, the worth of it lies in it depicting the plaintiff on that day at those times behaving in a manner consistent with the other evidence I have heard which is, that although somewhat reduced in the free and unencumbered use of the three fingers of the right hand, he has not lost the ability to use the right hand and the fingers of the same for tasks including the washing of his car and undertaking some shopping in which I observed him seemingly reaching into his pocket with his right hand and carrying a plastic bag with some items inside and as it appeared to me at one point held over affected fingers although I accept the contents did not appear to be of much weight.
106In Haden Engineering Pty Ltd v McKinnon,[83] Maxwell P set out various principles to which recourse is invariably had in serious injury applications in an effort to assist in evaluating the “pain and suffering consequences” in a given set of circumstances. In particular, at paragraphs [14]-[15] under the heading “The disabling effect of pain”, the learned President said:
As to the disabling effect of the pain, it is necessary to identify the extent to which the pain limits the plaintiff’s physical functioning, and interferes with the plaintiff’s enjoyment of life. As this court (per Ashley JA) said in Dwyer (No 2): ‘… [I]mpairment is concerned with what has been lost. But the significance of what has been lost … may be informed, to an extent, by what is retained.’[84]
As to capacity for work, it is necessary to identify whether and to what extent the plaintiff is prevented by the pain from performing the duties of his/her previous employment. The fact that the plaintiff has been able to return to full-time employment does not preclude an affirmative finding of serious injury. It is simply one of the matters to be taken into account.[85] What matters in this regard is the extent to which ‘an area of work which [the plaintiff] enjoyed has been closed off to [him or her].[86]
[83] (2010) 31 VR 1 (‘Haden’).
[84] Reference was made to Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260, [27].
[85] Reference was made to Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181, [47].
[86]Reference was again made to Dwyer v Calco Timbers Pty Ltd(No 2) [2008] VSCA 260, [25].
107Additionally, in Haden, Maxwell P, identified a non-exhaustive and non-prescriptive list of ordinary activities which may be affected by a “very considerable” injury and they included:
·sleep;
·mobility;
·cognitive functioning (whether directly because of the pain or indirectly because of the effects of pain-relieving medication);
·capacity for self-care and self-management;
·performance of household and family duties;
·recreational activities;
·social activities;
·sexual life; and
·enjoyment of life.[87]
[87] Haden (2010) 31 VR 1, 5-6.
108In addressing Haden, and the indicia therein discussed, the plaintiff does not rely on most of those identified in it, including mobility, cognitive functioning, capacity for self-care and self-management or interference with intimacy.
109When assessing what has been lost and what has been retained, the plaintiff has fortunately retained a great deal. He is able to work full time. He is engaged in his current employment from desire and not by dint of the circumstances caused by his injury. Indeed in his affidavit dated 21 July 2022 he deposed that he chose to leave his employer to whom he had returned to full time pre injury duties because he wanted to pursue other interests.[88] I am conscious of course that a return to employment need not exclude a finding of seriousness. In this instance it is but one of a number of reasons that has led to my finding.
[88] Exhibit P1, PCB 10.
110I accept the plaintiff’s evidence that in executing duties with a spray gun and in the use of a sander and the use of a scouring brush to clean small pieces of machinery that he cannot maintain the use of his dominant right hand for greater than perhaps 15 minutes at a time before tiredness and lack of strength requires him to swap the gun or sander to his left hand for a time before reverting to the right hand use. However, there is no evidence that the need to do so has impeded his ability to complete his work or diminished the quality of it and nor was the evidence that the sustained use of the right hand in such a manner at work or the use of such equipment causes him pain.
111I find that the plaintiff is independent in his activities of daily living.
112The plaintiff has no apparent need for the receipt of treatment or therapy and neither does he take prescribed or nonprescribed medication but he has some recourse to a topical cream that provides some benefit.
113I accept that the plaintiff experiences pain by way of altered sensation and that the same seems to occur in cold weather or by contact with cold water but I am also satisfied that the pain is moderate and not long lasting and not chronic and can be dissipated by him flexing and the rubbing and use of the affected fingers. Pain does not impede his work or any domestic or recreational activity or impede his personal care.
114The evidence concerning sleep is mixed in that the plaintiff said that sometimes he could wake in the night and experience pain or have pain when he awakens of a day. The evidence can be seen from the plaintiff’s second affidavit in which he deposed that, “I have similar problems with my right hand. Again, they are not constant problems, they come and go. When they occur, the right hand becomes stiff. They can occur at night when asleep, or when I have not used my right hand very much. At these times, the right hand is painful, and I take the pain away by rubbing the palm and the back of the right hand.”[89] Furthermore, in re-examination, the following exchange occurred:
You talk about similar problems with your right hand. And again you say they're constant, they come and go. You talk about, 'The right hand becomes stiff. Occurs at night when asleep or when I have not used my right hand very much. At these times, the right hand is painful.' I just want to clarify, when does the right hand become painful?---Ah, normally, ah, in the middle of the night when I get - when I wake up or in - when I wake up, ah, wake up in the morning. Yeah. Yeah, it feel a little bit pain and because the - the - the immobilise, yes, ah, yeah. Immobilisation of the - the hand. Yeah, because when I sleep, I hardly to move. Yeah, and I feel a little bit painful and - and stiffness and - - -
And once you get the hand moving, that takes the pain away?---Yes. Yes, takes the pain away.And is that only time or times you have pain in your hand?---Ah, no. Ah, only - only time when I - when I sleep and wake up in the morning, yeah, but when I work I don't feel painful. No pain.[90]
[89] Exhibit P1, PCB 15.
[90] T42, L12-30.
115Overall, although I find that there can be occasions when the plaintiff wakes in the night or in the morning and when he does so he is conscious of the presence of pain, I am not satisfied that this is a regular or frequent feature of his life and, moreover, when such occurs, the pain is able to be readily abated. I am not satisfied that the impairment consequences from the injury equate to and include the plaintiff suffering from sleep deprivation or sleep disturbance of note.
116I accept that the diminution in strength and grip is not trivial and I accept that the injury impacts, for example, the deft use of chopsticks and that in attending to fine or “fiddly” tasks, some of which, such as buttoning and unbuttoning a shirt, he is likely confronted with on a daily or very regular basis. This is no doubt annoying and frustrating for him and is adversely different to his functional ability prior to the injury.
117I have assessed the impact on the plaintiff’s recreational activities caused by the crush injury as moderate, and in making this finding, and in assessing the seriousness of the claimed impairment consequences, I have considered both the effects of the impairment and those aspects of the affected body function which remain unaffected. I accept that the plaintiff has lost the unimpeded capacity to play the guitar whenever he might choose to do so because of the reduced strength and I also accept that he can no longer pursue recreational tennis. I have had regard to the plaintiff having engaged in limited recreational pursuits prior to his injury and I have considered that the loss of one, and reduction in the other, may sound more to the plaintiff by way of loss than to a person who has lost one or two but retained other pre injury recreational or sporting or cultural pursuits and interests.
Conclusion
118After an examination and consideration of all the evidence and when comparing the consequences of the plaintiff’s injury, to the range of possible consequences, and comparing what has been lost with what has been retained, on balance, I am not satisfied that the consequences for the plaintiff are more than significant or marked or at least very considerable.
119In having arrived at my conclusion, in addition to Haden, I also had regard to the following passage from the Court of Appeal in TTB SMS Pty Ltd v Reading[91] that I regard as apt:
Whilst these impairments are certainly not trivial, in our view, they cannot be fairly described as ‘at least very considerable.’ The evaluation required of the trial judge, and this Court, involves a comparison of the worker’s impairment not just with other impairments of the hand, but also with other types of physical impairment that may be suffered, including impairment of the brain, the spine and large joints such as the knee and shoulder. Those other physical impairments may involve constant pain, significant medical treatment and medication. They may involve sleep deprivation, or an inability or reduced ability to socialise or work.[92]
[91] [2020] VSCA 203.
[92] Ibid [31].
120For the reasons expressed, I am not satisfied that the plaintiff has satisfied the claim under paragraph (a). The application is refused.
121I will hear the parties on the question of costs.
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