Goldman v Victorian WorkCover Authority
[2022] VCC 608
•10 May 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-21-03870
| MARC DAVID GOLDMAN | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 April 2022 | |
DATE OF JUDGMENT: | 10 May 2022 | |
CASE MAY BE CITED AS: | Goldman v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 608 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – impairment of the left little finger – disfigurement – pain and suffering only – range
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s335(2)(d)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Lamb v Bayside Flashing and Ventilations Pty Ltd [2014] VCC 2036; Gray v Transport Accident Commission [2013] VCC 966; Peak Engineering & Anor v McKenzie [2014] VSCA 67
Judgment: Leave granted to bring proceedings for damages for pain and suffering.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr E Makowski | Arnold Thomas & Becker |
| For the Defendant | Mr S Martin | Lander & Rogers |
HER HONOUR:
1This is an application for leave to bring proceedings for damages pursuant to s335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) for injury suffered by the plaintiff in the course of his employment with Gig Power Pty Ltd (“the employer”) on 12 February 2017 (“the said date”).
2The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.
3The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s325(1) of the Act. There, “serious injury” is defined relevantly as meaning:
“(a)permanent serious impairment or loss of a body function.”
4The body function relied upon in this case is the left little finger. There was also an application pursuant to clause (b) for permanent disfigurement.
5Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.
6The impairment of the body function must be permanent.
7The plaintiff bears an overall burden of proof upon the balance of probabilities.
8By s325(1)(c) of the Act, the impairment must have consequences in relation to pain and suffering which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “at least very considerable” and “more than significant or marked”.
9Section 325(2)(h) of the Act requires all psychological consequences to be ignored in determining the plaintiff’s application in relation to the physical impairment.
10I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
11I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[1] and Haden Engineering Pty Ltd v McKinnon[2] in reaching my conclusions.
[1] (2005) 14 VR 622
[2](2010) 31 VR 1
12The plaintiff relied upon two affidavits, and he was cross-examined. He also relied on an affidavit sworn by his friend and fellow guitarist, Ron Baden, on 5 April 2022. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
13The main issues in dispute were range and also disentanglement, involving the unrelated condition of rheumatoid arthritis.[3]
[3]Transcript (“T”) 8
The Plaintiff’s evidence
14The plaintiff is presently aged fifty-eight, having been born in April 1964. He is right handed.
15When he was about seventeen, his distal left middle finger was crushed by a slab of concrete. He learnt to adapt well to this injury and was able to enjoy playing the guitar that he had started playing when he was about nine.
16The plaintiff agreed, as Kardinia Health recorded, he had right wrist and elbow pain in the two years leading up to the said date, and Mobic was prescribed in May 2015.[4] Those issues were affecting him for a couple of years, but not impacting on his ability to play the guitar in any way. He would have been taking Mersyndol Forte only for a couple of days in June 2015.[5]
[4]T17
[5]T18
17He agreed he had some right shoulder and neck pain in 2016, and into his right thumb, but that did not impact on his ability to play the guitar. His problem was mainly when he was leaning forward using the computer.
18He agreed that he had substantial shoulder pain in July 2016, impacting on his ability to lift and hold things for a prolonged period of time, but that did not affect his guitar playing, because his guitar was strapped over his shoulder.[6]
[6]T19
19These problems with his shoulder and wrist have dissipated over time, and “are practically not there now”.[7]
[7]T19
20He suffered from diverticulitis and a bowel resection in 2019. He also had some inflammatory arthritis which followed a mosquito bite in Thailand, but did not believe that these were medical conditions related to the consequences claimed in his application.
The incident
21On the said date, the plaintiff was working for the employer as a labourer. He also had a job with First Class Crew.
22That day, when working for the employer on the oval at the MCG, he was adjusting a forklift and the load suddenly dropped on his left little finger (“the finger”), severely crushing it (“the incident”).
23The plaintiff made a WorkCover claim which was accepted.
24He underwent surgery at St Vincent’s Hospital on or about 13 February 2017, performed by Mr Burt. Following surgery, he had reviews in the Plastics Outpatient Clinic, and was to elevate his hand in a sling.
Work
25As at March 2021, when he swore his first affidavit, he was working for Carbon Revolutions, and did his best to cope with the work. He had pain and numbness; however, at work, he was able to deal with the pain and problems because he did not require much use of the finger. Further, he found that if he focused on his work tasks he was distracted from the pain and numbness.
26When he was working, he exercised caution by doing the best he could to protect the finger and often curled it towards his hand, which was unnatural.
27After his initial time off for hand therapy, he had been able to work for the employer and a number of subsequent employers. He had been made redundant for reasons unrelated to his incident injury.[8]
[8]T47
Arthritis
28As of March 2021, his arthritis medication helped with the finger, because back then, the arthritis was stretching into his fingers, but it has since gone.[9]
[9]T20
29Back then, he used to get cramps into his fingers, and it was debilitating, “but that only lasted ..., and that was when [he] was put onto Prednisolone. The medication helped in a timeframe a while ago. [His] palms were the residual part that lasted the most out of the whole time.”[10]
[10]T21
30His inflammatory arthritis is now under control. It does not presently impact on his finger. He has had treatment from Dr Strickland but not been back to her for some time and believes he is discharged from her care.
31He agreed with the history of his arthritis complaints recorded by Dr Strickland, who saw him from September 2019. He agreed, as a result of those complaints, he would not have been able to play the guitar in September 2019.[11]
[11]T27
32He agreed that he attended Dr Strickland on a “pretty regular” basis until October 2020, with scheduled appointments every six weeks. His activities, including playing the guitar, were affected, although he had not played by that stage for a couple of years because of the finger.[12]
[12]T28
33He agreed that when he first saw Dr Strickland in September 2019, he told her that since returning to Australia, he had noticed increasing swelling and pain of his hands, shoulders, neck, ankles and feet, and was not sleeping well due to pain and stiffness. He felt his joint pains were constant throughout the day. That was accurate at the time.[13] He had already been prescribed Prednisolone by his general practitioner. He was using a Norspan patch at that time every day for pain.
[13]T26
34He saw Dr Strickland a couple of months later, in October 2019, when he continued to have numbness in his hands at times and he had burnt one or two of his fingers on his left hand. He agreed his shoulders had improved but he was continuing to have arthritic pain in his hands, neck and feet.[14]
[14]T27
35He agreed he had had flare ups throughout 2020 and saw Dr Strickland in February, April, June and October that year. He was scheduled to see her every six weeks.
36His arthritic condition did not relate to the consequences set out in his application:[15]
“If I was playing guitar then, yes, they may very well have debilitated my ability to do that; however, the injury itself is the reason why I’m not playing guitar. ... [The rheumatoid arthritis] would’ve temporarily prevented me from playing a guitar.”[16]
[15]T29
[16]T29
37He has been discharged from Dr Strickland,[17] and has not been back to her for over twelve months. If he has a flare-up he will go back to his GP, who prescribes Prednisolone, but he continues to take that only very rarely, and has not taken it in the last four months. His arthritis is manageable when he gets a flare-up. If he takes 10 milligrams of Prednisolone, it usually alleviates the symptoms within two or three hours.[18]
[17]T29
[18]T30
38If he has a flare‑up, it takes about three hours for the flare-up to resolve or go away. His palms are fine now.[19]
[19]T51
39The plaintiff accepted, as Mr Stapleton reported, that if he has a flare-up of rheumatoid arthritis and it affects his fingers and hands, he cannot play the guitar.[20]
[20]T31
Pain and tenderness
40As at March 2021, the plaintiff had pain and tenderness in his finger. There was reduced movement. He understood he was at risk of a thermal injury due to the loss of sensation in his finger due to the injury.
41He was careful to avoid bumping the scar at the outer edge of his fingertip, which was tender.
42He continues with tenderness in the finger and is clumsy because of finger problems and has less dexterity.[21]
[21] Affidavit sworn April 2022
43He does not have reduced movement now. He has had reduced movement with the swelling in his finger, which he agreed could quite possibly be caused by the rheumatoid arthritis – “For the last year or so, it has been quite okay for movement, but it is not the movement that is the problem.”[22]
[22]T42
44He disagreed he was trying to convey reduced movement and loss of dexterity in his affidavits.[23] He was referring to his guitar playing, rather than general activities. The entire statement in his affidavit was all about guitar playing.[24] He disagreed, however, that his finger caused him pretty much no problem with anything except guitar playing. He agreed he did not have problems with dexterity day to day. Also, there were times when he could knock his finger and “it hurts like hell”. There were times he could burn his finger and the same happened. He could cut it without knowing.[25]
[23]T43
[24]T44
[25]T45
45He agreed that his level of movement would be pretty close to what it was before the injury.[26]
[26]T48
46He confirmed he told Dr Lewis he had no restrictions in activities of daily living.[27] While there were no tasks he could not do, he had to be careful when he did them.[28]
[27]T45
[28]T46
47He agreed he did not have pain in his finger at rest, and accepted that his grip power is not affected by virtue of his finger.[29] He has pain when he puts his finger into action.[30] He denied the reality was the finger condition did not cause him too much pain.
[29]T25
[30]T23
48He has neuropathic-type pain and loss of sensation in the injured finger. If he applies pressure to it, the pain increases. If he bumps it, he experiences what can be bad pain. He experiences a coldness and numbness sensation, particularly in the finger, partly, as he understands, due to poor circulation in the area.
49While he had difficulty explaining what neuropathic pain was, he lacked sensation in his finger, and he could burn it and not actually realise. He did not believe he used the expression “neuropathic pain”. He could not be sure.[31]
[31]T24
50If he closes his hand, it feels like there is something missing, like there is a hole in his finger basically, “because even though it looks smooth now, it’s – the fact is that this is all scar”.[32]
[32]T25
Medication
51As at March 2021, he avoided taking painkilling medication, but he took Methotrexate for his rheumatoid arthritis which also assisted with his finger pain.
52He does not like taking pain medication. While he has taken Mobic for elbow pain, it is an anti-inflammatory. He continues to take painkillers. Every now and again, he will take Panadol or something like that. Probably for the two or three weeks after he injured his finger he was on pain medication, then he stopped taking it altogether.[33]
[33]T22
53He agreed that he would have no hesitation taking pain medication if it was prescribed to him, but he does not take it for little things.[34]
[34]T22
54Since he has been discharged from the hand therapist, he has not been prescribed any painkilling medication at all for the finger.[35]
[35]T23
Guitar
55Since he was about nine, he had been a musician, in particular, playing guitar, which he had always loved playing and was his passion. He had played across Victoria as well as across Australia at various gigs and also played in Thailand.
56When he was seventeen, he suffered a crush injury to his left middle finger at the mid-distal phalanx which was partly amputated; however, he was able to adapt and continue playing guitar, and this did not cause him difficulties, such that he was able to play at a very high level for many years, as well as writing guitar music.
57Since the incident, he had been unable to play the guitar properly and had been unable to adapt to playing it with only two fingers by virtue of the way in which the chords require his fingers to be placed on the fret board.
58But for the incident, he would have been playing guitar every night for about an hour or two and also writing music. He had a number of guitars at home and the loss of being able to play the guitar properly and write music was devastating to him.
59He lived alone and so, despite working, after work but for the injury he would have certainly been playing his guitar at an advanced level and deriving great joy from this activity. It was a tragedy for him that he was unable to continue with his love of the guitar. He had tried to play, but one of the issues was it was very painful to utilise his injured finger when two strings needed to be crossed at the same time to play chords, including G and A power chords.
60His life is not as enjoyable due to his inability to play the guitar properly, and he would not be where he is now but for the injury in terms of his limitations with guitar playing.
61He feels a sharp burning pain if he puts pressure on that part of the finger, which he would need to use to play the guitar properly. The more pressure he applies, the more pain he has.
62He has tried singing with a band at pubs since the incident, but his singing is not as enjoyable for him compared to playing the guitar.
63But for the incident, he believes that he would be playing guitar with the band regularly. He is not married, does not have children and guitar was a pillar of his life. He had played for decades once he adapted to playing after his middle finger injury.
64He believes that due to his finger injury, he has lost a large part of his enjoyment in the music industry. He has tried to play a guitar since then and each time he has tried, he has become frustrated and upset as his chord playing proficiency and overall guitar skills have been effectively destroyed.
65He has bought a drumkit as he really loves the music industry. He perhaps, somewhat optimistically, thinks he could try and learn the drums, even though he has had no experience and he is not sure how far he will go with playing.
66Pre incident, he played mainly in pub venues and did a couple of outdoor ones.[36]
[36]T33
67Things had slowed down a fair bit in the last ten years before he had the injury, because he was looking after his father. He could remember one at the Thomson Football Club in Geelong in 2016.[37] He would have played two to three gigs in 2015 and 2016.[38]
[37]T36
[38]T49
68Prior to 2017, he did not have a lot of ongoing work, but during the day he would play nearly all the time. Music has been the central pillar of his life. He played in a band with Ron. The last time he performed with the band was New Year’s Eve 2020 when he was only on vocals. Before that, the band he worked for most was Riversnake, about three or four times a year.[39]
[39]T34
69He went to Thailand in 2019 to do one gig. He did not have any ongoing real commitments there.[40]
[40]T33
70He did not feel comfortable singing in front of twenty-year-olds, and he would not feel comfortable playing the guitar at the moment in public venues. That is because of his finger. His age does not affect his ability to play the guitar.[41] His age, though, is “one of the hard facts of the industry”. He expected things would have slowed down anyway, without the injury.[42]
[41]T35
[42]T36
71He has only played very sparingly since the injury, because every time he does try to play, it becomes very apparent quickly that he cannot. Ron had been to his house before and after the injury. He is a teacher, and a better guitarist than the plaintiff, having played lead guitar with bands for forty years. Ron has seen the plaintiff unsuccessfully try to play the guitar after the incident injury.[43]
[43]T40
72The plaintiff has two acoustic guitars at home that he has had since his mid-thirties. They are “like old friends. It is not like [he] is going to throw them away.” He sold his electric guitars the same year the incident happened.[44]
[44]T41
73From 2010, he would have been playing the guitar every day for at least two to four hours at home, but had not done so since the injury:[45]
“… [M]usic in itself has always been a staple part of my life. I’ve been doing it since I was – played in my first band in a pub when I was 15 years old. That was a battle of the bands type of thing. ... I was addicted to that from the moment that I first did it. It’s just been a natural part of my life. ... I’ve used guitars ... as a tool of trade so to speak because I’ve written many, many songs using acoustic guitars, using electric guitars.”
[45]T48
74He is not able to use Prednisolone and then play the guitar. It would not help him, because it does not take the pain away – the pain from the strings attacking his finger. Pressing hard against the scar tissue was like lightning strikes. It is instantaneous pain, about eight out of ten. It would increase with the vibrating of the string. Pain medication would not assist him playing the guitar. He imagined it would take the edge away, but he had never done it. Playing the guitar is very tactile, and you have to be focused. Taking pain medication, if anything, would destroy his focus.[46]
[46]T50
Scarring/disfigurement
75He is shy about the appearance of his finger. He also has scarring on his forearm where he had a skin graft when the surgery was performed. His finger is deformed.
76He believes the scarring on his forearm and finger is ugly. The scar in the forearm area is tender. His finger is deformed and noticeable. His whole hand now looks terrible. The finger is deformed and this compounds the already compromised state of his hand due to his prior amputation.
77He usually hides the finger by curling and tucking it towards his palm.
78When the plaintiff showed the finger in the witness box, it was apparent an amount of pulp had gone from the corner of the finger,[47] and it was a little bit shorter than the other little finger. That part of the pulp on the left inner side of his finger was the part of his finger he used when he was playing, and “that was all scar tissue, and it hurt”.[48]
[47]T9
[48]T10
79The plaintiff demonstrated playing the guitar, curling his hand as if to press on the strings. He had adapted his way of playing because of the amputation of his middle finger, but he could still do chords. However, now, because of the overextension of his finger, “it pulls”.[49]
[49]T11
80Previously, he had laid the pulp of his finger across the two strings to compensate for the lack of the middle finger, and now he cannot do that, because if he contacts the strings with that part of his finger, “it’s instantly repulsive. It hurts.” He has to put pressure on it to play the note to get volume. Also, the steel strings are very thin, and when they are pressed and vibrating, “it’s insufferable”, the vibration going through the scar tissue.[50]
[50]T12
81He has bad circulation in the cold. Blood does not flow to the top end of his finger, and it will actually turn white, as is the case with his other injured finger. He has to swing his arm around in a circle in the morning just to get the blood down to it, as he did with his other finger.[51]
[51]T11
82He has full movement of his hands and full dexterity. When he had arthritis it affected him in the palms of his hands.[52]
[52]T12
83He always tucked in his finger. It was a protective measure,[53] and that was how he held his finger when he was working.
[53]T13
84The donor site scar was above a treble clef tattoo on his left arm.[54]
[54]T13
85The scarring on his finger was basically from where the pulp had disappeared and the skin graft was effectively there, along the side and down the middle, right through the middle of his finger. The finger had “sort of, like, a bump” on it where there was the scarring, which was the most sensitive area.[55]
[55]T14
86He agreed he clenched his two little fingers because he was worried about it getting knocked, as that was very painful. It was not a pleasant thing to look at, he admitted, but the main reason was to protect the finger, because if he knocked it it was painful, it hurt all the time.[56]
[56]T15
87It depended upon what angle his hand was looked at, that the disfigurement to his previously injured middle finger was more readily observable than his little finger injury. He disagreed he was more likely to be concerned about the appearance of his previously injured finger than the current one. It was to a different degree. The first one was an amputation, but in this one he was able to retain the bone, because it did not go down as far as the bone. He would not say it is any less of a disfigurement, because it is completely misshapen.[57]
[57]T16
88It depends on the angle, when looking at his hands from a distance, as to what disfigurement can be seen on the finger.[58]
[58]T16
Other injuries
89He had a back injury at Gig Power in February 2020 for which he put in a WorkCover claim which was accepted, and he was prescribed medication. After physiotherapy and things for a few weeks, it came good again,[59] and it does not continue to cause restriction at present.[60]
[59]T28
[60]T29
90He had a feeling of stiffness and a cramping sensation in his palms at the end of last year, working with both hands at work, bolting things together. Doing that activity made it so debilitating he could hardly move his hands. He was transferred to a different position to see if that was going to alleviate the situation, but it was not, and it became unworkable. He stopped work in December last year, and after he had finished work, his hands had time to calm down, and it had been fine ever since.[61]
[61]T32
Lay evidence
91The plaintiff’s friend, Ronald Baden, swore an affidavit on 5 April 2022. He has known the plaintiff since about the 1990s. He is aware that the plaintiff suffered an injury to his finger in about 2017.
92They are musical friends and have been in a number of bands over the years. He is a guitarist, mainly playing the electric guitar. He is also a guitar teacher and considers himself to be a good guitar player. It is something that he enjoys, and he and the plaintiff share this common interest in music and playing the guitar.
93When he and the plaintiff played in the band together, from time to time, the plaintiff was often the lead singer. From time to time, they practised Australian rock and roll covers on the guitar or they just played the guitar casually together. The plaintiff often played the acoustic guitar.
94From his observations and interactions with the plaintiff, the plaintiff had a passion for music and playing the guitar. While they played together prior to the incident, the plaintiff was a very competent guitar player and played well and had a good sense of timing. He could have easily done an acoustic set. He would always have an acoustic guitar in his house and would often be up for a bash on the guitar together.
95Post injury, he has seen the plaintiff play the guitar on occasions. From his observations, the plaintiff has struggled to play all the chords clearly and has clearly lost dexterity in his finger to hit the right chords and land his fingers in time.
96Since the injury to his finger, the plaintiff can no longer play the guitar well, which appears to be very upsetting for him as he had a passion for playing it.
The Plaintiff’s medical evidence
Treaters
97On 13 February 2017, the plaintiff underwent a debridement of the finger, graft, left arm donor site, left little finger undertaken by Mr Burt at St Vincent’s Melbourne following a crush injury to the finger which had been caught in a machine at work.
98On review in the Geelong Hand Therapy Unit on 20 February 2017, it was noted the plaintiff was setting up for the Guns N’ Roses concert, unloading from a truck, and had his finger crushed by steel, directly impacting down on the tip. It took a significant chunk out of the pulp, with no bony involvement.
99Following the surgery, there was a review by a hand therapist a week later and splint and dressings applied.
100The plaintiff reported he had not had too much pain but was significantly anxious regarding recovery and playing guitar. He had the left MF tip amputated thirty years ago and “no therapy 4x surgeries to try and fully remove nail, endured hypersensitivity for 8 years and couldn’t play guitar properly – doesn’t want left LF to turn out same”.
101The plaintiff reported he had not been using his left hand much and did not want to knock the LF. He had not been sleeping, and reported he was too anxious about sensitivity and getting back to playing guitar.
Medico-legal evidence
Mr Murray Stapleton, plastic and hand surgeon
102The plaintiff was examined by Mr Stapleton in in February 2022. The plaintiff then advised he had no pain in his left hand at rest but there was a 2‑centimetre scar on the ulnar side of the fingertip which was particularly tender. He avoided any pressure on that scar and was careful not to bump it. His grip power was not affected, and he had no sensory loss of the pulp of the left finger.
103His problem now, so far as guitar playing is concerned, is that there are certain chord structures which he cannot achieve because of the finger problem, such as constructing a G Major chord.
104Rock music has been the plaintiff’s life and he feels the skill required to play a guitar is beyond him, not only because of his injury but because of his age, and he has bought himself a drumkit, hoping he will be able to return in some way to the music industry as a drummer.
105There was an earlier crush injury involving the left middle fingertip, the slight loss of length of that digit.
106The plaintiff suffered from periodic rheumatoid arthritis which affected his fingers and wrists. When asked, he accepted that if he has a flare-up of arthritis, both hands are a problem, but most of every day he has no flare-ups, and the only problems he has are from the incident and his little finger. He takes periodic Prednisolone when he has rheumatoid flare-ups.
107The plaintiff is single and lives alone, and his hobby remains music.
108Mr Stapleton thought the plaintiff was a well-presented clear historian, and did not believe he exaggerated any of his symptoms.
109There was a 15 by 8-millimetre full-thickness graft on the tip of the finger, but the plaintiff had significant tissue loss on the ulnar side of the pulp. He had some loss of flexion and extension of the distal interphalangeal and metacarpophalangeal joints, with the measurements of distal interphalangeal joint being 30 to 70 degrees, and metacarpophalangeal joint, 20 to 100 degrees. The proximal interphalangeal joint appeared normal.
110The diagnosis was a crushing injury involving the plaintiff’s fingertip, to which work was a significant contributing factor.
111Sensitivity and nerve damage resulted in tenderness. In general, because of his finger problems, the plaintiff is more clumsy and less dexterous. His activities of daily living, being a guitar player, have been profoundly affected because of his injury, and his social, domestic and recreational activities of course are also affected.
112The injury has prevented the plaintiff from performing as a guitarist at a high level. That will be the permanent situation. His condition has reached maximum medical improvement.
Dr Daniel Lewis, rheumatologist
113Dr Lewis saw the plaintiff in February 2022 via Zoom. He was provided with all of Dr Strickland’s reports.
114After noting the incident history, Dr Lewis mentioned that in June 2019, while holidaying in Thailand, the plaintiff developed an episode of vomiting and diarrhoea and developed a widespread skin rash. It was presumed he had a mosquito-borne illness, and he fully recovered. However, when he landed in Australia, he began to experience pain in both ankles and wrists, and was commenced on Prednisolone and referred to rheumatologist, Dr Gemma Strickland, whom he first saw in September 2019. Her differential diagnosis at that stage was post-viral inflammatory arthritis or early seronegative rheumatoid arthritis.
115The plaintiff was commenced on Methotrexate, which he took until mid-June 2020, but it made him feel sick, and his symptoms had largely subsided. Intermittently, he had had what he called “attacks”, when he would experience some pain in his wrists, but there was no swelling. He usually treated himself by taking Prednisolone for a few days, and the symptoms would subside completely.
116He continued to work until he was retrenched in March 2020 due to the pandemic, but he was re‑employed in May 2021, continuing to do a very physical job.
117Towards the end of 2021, he began to experience stiffness and a cramping sensation in the palm of his hands and fingers which he attributed to repetitive tightening and undoing of bolts. These were different to his arthritis symptoms, which he no longer had.
118He was retrenched in December 2021, as the employer could not find appropriate work. Since that time, the hand symptoms had resolved, and he had not had a recurrence of any symptoms of arthritis.
119His only current problem was numbness to touch on the lateral border of the left fifth terminal digit. Any pressure on the scar or digit caused intense burning-type pain. There was no joint swelling and no movement-induced pain.
120He described no restriction in activities of daily living or any other functional disability, his only limitation being the inability to press his fifth digit onto a guitar string. He had normal movement and dexterity of all fingers, and there were no activities of daily living he could not do.
121Dr Lewis thought the history was consistent with a resolved post-viral polyarthritis, and there was no longer any evidence for inflammatory arthritis in the plaintiff’s fingers, hands or wrists. He had chronic post-traumatic neuropathic pain and loss of sensation of the terminal digit of the left fifth finger following the crush injury.
122Dr Lewis measured the skin graft on the left forearm at about 4 centimetres. There was full wrist and hand movement. The plaintiff demonstrated normal dexterity, and there was no movement-induced pain. There appeared to be sensory loss to self-palpation extending from the lateral border of the finger to the level of the proximal interphalangeal joint. Dr Lewis noted the Medical Panel recorded equal grip strength.
123Dr Lewis identified no disease activity, and the plaintiff’s history indicated no disease activity since 2020. He thought the previous condition of post-viral polyarthritis had resolved. At the height of this illness, the plaintiff’s wrists and ankles were affected, but not his fingers, and had it not been for the incident injury, he would have had the capacity to continue playing the guitar. He had no symptoms or signs of inflammatory arthritis or restriction of movement as a consequence of the arthritis.
The Medical Panel
124The Medical Panel, in March 2020, allowed a 5 per cent whole person impairment, made up of 3 per cent scarring and 2 per cent in terms of sensory loss of the finger.
125The plaintiff told the Panel his finger became painful, particularly in cold weather. The graft site was well healed and did not cause any discomfort or require any treatment.
126He also told the Panel he had retrained after the amputation of his left distal middle finger to use only three fingers. He was now also unable to use his little finger to play the guitar, which had severely restricted his capacity to play with only two fingers. Prior to the injury, he was playing professionally in twenty to thirty gigs a year, including touring to Thailand. He had returned to performing at gigs, singing but not playing.
Investigations
127Following an x‑ray of 12 February 2017 of the left hand, no fracture was identified. There was a soft tissue defect identified on the dorsum of the distal phalanx of the finger.
Mr John Anstee, plastic and reconstructive surgeon
128Mr Anstee examined the plaintiff on behalf of the insurer in May 2018.
129On examination, he found the plaintiff to be a pleasant, cooperative man who did not seem to be exaggerating. On the ulnar side of the distal phalanx of the finger, there was a full-thickness skin graft measuring 15 by 8 millimetres. The range of movement of the finger was reduced, and the pulp of the finger was functionally insensate. The skin graft donor site measured 55 by 20 millimetres.
130Mr Anstee diagnosed a crush injury to the tip of the finger relevant to the alleged injury. He thought the plaintiff had significant deformity and scarring on the finger and left forearm. Sensory loss would make many activities of daily living more difficult, and his finger was more liable to thermal injury as it was distally functionally insensate. He must take care to avoid thermal injury.
131The injury was described as loss of ulnar digital pulp of the finger which had been dealt with by full-thickness skin graft. Scar revision was not an option, and the plaintiff did not require further treatment.
132Mr Anstee noted the scarring and deformity interfered with most of the plaintiff’s left-hand functions, in particular his guitar playing, and this is on a permanent basis.
133He allowed an AMA assessment in terms of sensory loss and abnormal motion in the finger, together with scarring, giving a combined whole person impairment of 5 per cent.
The Defendant’s medical evidence
Plaintiff’s treaters
Dr Gemma Strickland, rheumatologist
134The defendant relied upon a number of reports from the plaintiff’s treating rheumatologist, the first of which was dated 9 September 2019.
135At that time, the plaintiff was referred to her by Dr Alexander Sossin regarding his inflammatory arthritis which began when he was on holiday in Thailand.
136On the first examination, Dr Strickland found synovitis of several small joints of the hands. There was tenderness of the left wrist, both shoulders, and reduced range of movement of the neck.
137She thought the plaintiff had widespread polyarticular inflammatory arthritis. The differentials were a post infectious inflammatory arthritis versus early seronegative rheumatoid arthritis. She suggested management with Prednisolone.
138The plaintiff returned for review in October 2019. He reported ongoing pain of the hands, neck and feet, and his shoulders had improved to a degree. He had some numbness in the hands at times and had recently spilt hot oil on his hands and sustained a burn of two fingers. He reported some numbness of the right hand and when he moved his right shoulder.
139On examination, he had mild swelling and tenderness of the right third PIP joint and left fourth and fifth PIP joints and there was some irritability of the right shoulder and mild tenderness of the ankles.
140She planned recommending adding in Methotrexate and continuing Prednisolone.
141On review in December that year, the plaintiff had been able to reduce his Prednisolone. She thought it sounded as though a lot of his inflammatory arthritis symptoms had actually improved but he still had a number of other odd symptoms. She suggested a reduction in his medication, with continuing Methotrexate.
142The plaintiff returned for review in February 2020, with his Prednisolone reduced to 10 milligrams daily. He had returned to work and injured his back after doing some lifting. His inflammatory markers had normalised.
143In April 2020, Dr Strickland did a phone review with the plaintiff when they discussed his medication regime. Having stopped his Prednisolone and Methotrexate for a month, he had had a recurrence of discomfort of the small joints of the hands and wrists, and she recommended Methotrexate be taken again.
144There was a further appointment in June 2020, the plaintiff having earlier contacted her by phone on 17 April 2020 as his hand pain had flared up. She thought it difficult to assess over the phone whether his hand pain was actually inflammatory or mechanical.
145Dr Strickland saw the plaintiff for review in October 2020, he having not attended the previous two appointments scheduled. On full joint examination, he had tenderness of the left wrist and both ankles but no synovial swelling. She arranged to see him again in three months. She noted that the diagnosis of inflammatory arthritis had always been a bit under question, given he did not have any joint swelling.
146In her most recent report to Professor Gill in January 2021 following review, the plaintiff’s main area of concern was his right shoulder using a computer mouse.
147Dr Strickland planned a review in three to four months.
Overview
148There is no dispute the plaintiff suffered a compensable injury on the said date from a crush injury to the finger, requiring debridement with a skin graft from his left forearm.
149The plaintiff’s claim was accepted, and he received a payment for impairment benefits encompassing both scarring and loss of sensation the finger.
Credit
150Counsel for the defendant submitted the plaintiff’s evidence was in some respects unsatisfactory in terms of pain, dexterity and movement, being inconsistent with his affidavit, and that the Court should have reservations accepting the whole of his evidence.[62] Further, it was submitted he had overstated the extent to which he performed at gigs prior to the said date.[63]
[62]T52
[63] T57
151However, as I indicated during the hearing, in my view, there were no real issues as to the plaintiff’s credit, with counsel then advising he was not urging the Court to treat this as a credit case.[64]
[64]T56
152I considered the plaintiff largely played down the level of difficulty he has had with the use of his finger. I found him to be somewhat of a stoic, who did not exaggerate or embellish his symptoms and problems. He was prepared to freely concede that he had no pain at rest, and that problems with his left finger mainly related to guitar playing, rather than other activities of daily living.
153As Nettle JA commented in Dwyer v CalcoTimbers Pty Ltd (No 2),[65] he suspected:
“… but for the way the appellant has been prepared to put up with his pain and suffering and get on with his business as best he can, the respondent may well have not disputed his claim … But it would be unfortunate and in my view wrongheaded if in future such an applicant were treated less favourably than another who, being of less strength of character, simply resigned himself to his injury.”
[65] [2008] VSCA 260 at paragraph [4]
Treatment
154Following surgery, the plaintiff underwent hand therapy for three months. In the early days, he required strong painkilling medication. No further treatment has been undertaken since that time and the plaintiff no longer takes painkillers.
155This is not a case where lack of treatment is of any relevance, as no further treatment has been suggested or is appropriate. Further, it cannot be said the lack of medication means there is no issue with pain as the plaintiff conceded, at rest there is no pain.[66]
[66]T60
156It is not a situation where he can take two Panadol and start playing his guitar at a high level.[67] There is no point taking painkilling medication to play the guitar because it would take the edge off his playing, in effect masking the pain, and he really would not be able to play properly anyway if affected by strong medication.
[67]T61
Other consequences
157Counsel for the defendant conceded, obviously the crush-like injury would have been traumatic at the time but there had been a good recovery, and “the real battleground is about the guitar”.[68]
[68]T52
158While the plaintiff does not experience pain when his finger is a rest, he has to be careful not to bump it and avoids putting pressure on it, as those circumstances do result in pain, at times, intense.[69]
[69] T58
159He has to be careful of his left finger at all times, and tends to curl it so it is not protruding, and he knocks it, which causes extreme pain.
160The finger is tender on the outer side of the left fingertip, as Mr Stapleton described.[70]
[70]T60
161Significantly, there is also an accompanying lack of sensation in the tip of his finger, which gives difficulty in appreciating heat and risk of thermal injury. As Mr Anstee concluded, sensory loss will make any activities of daily living difficult, and the finger more liable to threat of thermal injury, as the pulp is functionally insensate.
162On examination, Mr Stapleton found restriction of finger movement,[71] although the plaintiff acknowledges that restricted movement is no longer an issue.
[71] Mr Stapleton after his examination of the plaintiff on 1 February 2022
Activities
163The main consequence relied upon by the plaintiff was the inability to enjoy his hobby and passion of guitar playing. In particular, he cannot make certain chords, and, as a result, has stopped playing his guitar.
164As counsel for the plaintiff submitted, the plaintiff is a man with an already established vulnerability, losing his middle finger. He has adapted well, but cannot adapt any further.[72]
[72]T61
165The importance to the plaintiff of guitar playing was confirmed by his hand therapist very early on after the injury, as was his desire to return to playing as he did pre injury.[73]
[73] Geelong Hand Therapy Initial Assessment report dated 27 February 2017
166Counsel for the defendant submitted the plaintiff was overstating the level to which he had performed prior to the said date.[74] Ultimately, while it was conceded the inability to play the guitar at home was a consequence and might not necessarily be regarded as trivial, it was submitted it does not rise to the level of more than significant or marked.[75]
[74]T56
[75] T58
167I reject this submission. The plaintiff is an unmarried man with no children and seems to have only one major hobby – guitar playing which he has enjoyed since he was nine.[76] While he has other interests in music, this has always been his focus. He may still be able to sing but he would prefer to be playing his guitar.
[76] T58
168It was apparent when the plaintiff demonstrated his playing style in the witness box, corroborated by Ron’s affidavit, that it is just not possible to apply the pressure with the finger required to hold the strings down on the fret to play properly. Trying to do so causes extreme pain and is not a situation which can be remedied by simply taking painkillers.[77]
[77]T58
169While the plaintiff may not have been a full-time musician pre injury, I accept that even in his later years, he was still playing on occasion in a band at hotels, but, more importantly, until this injury, he practised guitar for many hours a night at home, also using the guitar to write music.
170Although the plaintiff is obviously still able to sing, and is contemplating learning the drums, it was the guitar that was his focus his whole life. Since the incident injury, he has sold his electric guitar, and keeps two acoustic guitars at home, which are a sort of memento, but he is unable to play them.
171The plaintiff’s love of guitar playing was corroborated by his friend, Ron, a man whom the plaintiff described as a better guitarist than himself, who confirmed he had seen the plaintiff’s difficulties playing since the incident.
172The loss of this “pillar of his life” as a result of his finger injury is devastating for the plaintiff and is, in itself, a serious consequence, as counsel for the plaintiff submitted.[78]
[78] T59; Lamb v Bayside Flashing and Ventilations Pty Ltd [2014] VCC 2036; Gray v Transport Accident Commission [2013] VCC 966
Work
173Until being retrenched late last year, the plaintiff has continued to work since the incident. He freely concedes his finger injury has not interfered with his work, save that he has to curl in his finger when working so he does not knock it.
Non compensable condition
174The other issue in this application is the role, if any, played by the arthritic condition the plaintiff developed in 2019. Counsel for the defendant submitted “obviously there is a disentanglement issue if the Court finds the condition is continuing to contribute”.[79]
[79]T55
175In Peak Engineering & Anor v McKenzie,[80] Maxwell P described the difficulty faced when a separate injury is also producing pain and suffering consequences for the claimant, as well as the relevant injury.
[80] [2014] VSCA 67
176In such circumstances:
“The Court must decide whether the consequences of the original injury are ‘more than significant or marked, and ... at least very considerable’. For that purpose, it is necessary — so far as the evidence permits — to identify the consequences properly referable to the original injury, and to exclude the consequences referable to the subsequent injury.”[81]
[81] (ibid) at paragraph [2]
177The President found that the judge was:
(a) bound to identify, and exclude, the continuing consequences for the plaintiff of the compensable injury; and
(b) when the consequences properly referable to the relevant injury were identified, identified them as “serious”.[82]
[82] (ibid) at paragraph [8]
178Counsel for the defendant submitted the plaintiff has tried to play down the rheumatoid arthritis, continued to take a reduced level of Prednisolone, and, while he does not have a further specialist appointment for this condition, he continues to see his general practitioner in relation thereto.[83]
[83]T53
179Further, there is no report available from the plaintiff’s general practitioner or Dr Strickland as to the exact current condition of the rheumatoid arthritis.[84] While Dr Lewis thought the rheumatoid arthritis had resolved, it is clear the plaintiff is continuing to take Prednisolone.[85]
[84]T53
[85]T53
180It was submitted that the plaintiff’s affidavit evidence in March 2021 was inconsistent with Dr Lewis saying that condition had resolved.[86] It was submitted that the complaints recorded by Dr Strickland over 2020 to 2021 were a bit more significant than the plaintiff’s current description of his flare-ups.[87]
[86]T54
[87]T54
181The defendant did not have a report from a medico-legal rheumatologist, relying solely on reports from the treating rheumatologist, Dr Strickland.
182I accept the plaintiff’s evidence that his arthritic condition diagnosed after 2019 plays very little ongoing role in his inability to play the guitar.
183The plaintiff conceded that his fingers were involved in earlier arthritic episodes but of more recent times, with the infrequent flare-ups, it is more his palms.
184Recent medico-legal examiner, Dr Lewis, rheumatologist, is the only expert on this condition in this case. Having been provided with all the reports from the plaintiff’s treating rheumatologist, Dr Strickland, he concluded that the arthritic condition had resolved and there was no longer any evidence for inflammatory arthritis in the plaintiff’s fingers, hands or wrists. He diagnosed chronic post-traumatic neuropathic pain and loss of sensation of the terminal digit of the left fifth finger following the crush injury.
185I accept the situation is one of flare-ups every couple of months which only go for a few hours and would not interfere with the plaintiff’s ability to play the guitar if his finger was uninjured. The plaintiff has had no need to see Dr Strickland since January 2021.
186I accept in those circumstances the arthritic condition plays little role in the plaintiff’s current presentation and does not affect his guitar playing to any relevant degree.
187The plaintiff does, however, have a finger that is permanently impaired, with the pulp a site of tenderness and numbness, which, since the incident, has affected his ability to play the guitar to the level he previously enjoyed.
188Taking into account all the evidence, including the need to be constantly careful when using the finger because of pain when knocking it, its insensate pulp and the impact and interference with his guitar playing, I am satisfied the consequences of his left finger impairment are more than significant or marked.
189As there has been no improvement in the condition of the finger in over five years, the impairment in relation thereto is permanent.
190Accordingly, I grant leave to the plaintiff to bring proceedings for damages for pain and suffering in relation to the finger.
191In those circumstances, I do not have to determine the application for disfigurement pursuant to ss(b).
192In any event, I am not satisfied, having viewed the finger and the scarring at the donor site, any disfigurement in relation thereto is “serious”.
193Counsel for the plaintiff conceded in this application, this was a difficult threshold to reach, although the opinion of Mr Anstee, plastic surgeon, was relied upon, who thought the finger was very deformed and had measured the skin graft scar at 15 by 8 millimetres.[88]
[88] T52
194Counsel for the defendant submitted the application for disfigurement pursuant to ss(b) must fail, as the scarring to the finger was not overly obvious or prominent, and not overly observable from a distance. It was not plainly large or plainly unsightly. Further, it was submitted the previous finger injury was much more discernible and, to some extent, prominent, since it is an amputation.[89]
[89]T52
195Whilst there is noticeable disfigurement of the finger and the scarring on the donor site, I do not accept it is a serious disfigurement.
196In my view, the scarring on the plaintiff’s finger and the donor site, while visible, was not particularly ugly or obvious or discoloured.
197The donor scar on his forearm is neat, light in colour and not raised.
198While the plaintiff is not happy with the appearance of his finger, it is not something that has caused him a great deal of concern. He curls his finger in to protect it, rather than hide it from public view.
199In all these circumstances, I am not satisfied that the surgical scarring and the appearance of the pulp of the finger and associated scarring, constitute a serious disfigurement.
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