Green v Premier Rigging Pty Ltd
[2017] VCC 519
•9 May 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised (Not) Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-15-04493
| JEREMY GREEN | Plaintiff |
| v | |
| PREMIER RIGGING PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE TSALAMANDRIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 May 2017 | |
DATE OF JUDGMENT: | 9 May 2017 | |
CASE MAY BE CITED AS: | Green v Premier Rigging Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 519 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious Injury – Injury to the right forearm – Chronic pain condition – disentanglement – pain and suffering
Legislation Cited: Accident Compensation Act 1985; Workplace Injury Rehabilitation & Compensation Act 2013; Fair Work Act 2009;
Cases Cited:Peak Engineering & Anor v McKenzie [2014] VSCA 67; Meadows v Lichmore [2013] VSCA 201; Kelso v Tatiara Meat Co Pty Ltd [2007] 17 VR 1; ACN 005 565 926 Pty Ltd v Snibson [2012] VSCA 31; Dwyer v Calco Timber (No 2) [2008] VSCA 260
Judgment: Application successful
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Hill | Slater & Gordon |
| For the Defendant | Mr M Clarke | IDP Lawyers |
HER HONOUR:
Introduction
1 Mr Green is a 38 year old man who claims that, on 6 December 2012, he suffered a lacerating injury to his right forearm whilst removing star pickets from a fence during the course of his employment. His employer, the defendant in this matter, accepts that Mr Green was injured in such circumstances but disputes that his injury is serious.
2 Mr Green claims to have suffered serious consequences as a result of this injury, including the need to give up his occupation as a rigger, and the need for daily painkilling medication, as well as an inability to enjoy recreational activities such as fishing and hunting. In order for Mr Green to be entitled to claim common law damages for his pain and suffering, the impairment of his right upper limb must satisfy paragraph (a) of the definition of “serious injury” contained in s134AB(37) of the Accident Compensation Act 1985.
3 The defendant disputes this claim on the basis that Mr Green suffers an unrelated ulnar nerve injury in his right forearm. In the alternative, it states that those consequences arising from the accepted work injury cannot be described as at least very considerable.
4 Prior to the commencement of the hearing, the defendant exercised its entitlement under s247(1)(b) of the Workplace Injury Rehabilitation & Compensation Act (2013) (“WIRC Act”) to refer medical questions to the Medical Panel for its opinion.
5 The Panel determined that Mr Green suffered laceration to his right forearm for which he required surgery, and that he subsequently developed a chronic pain condition. However, it also determined that Mr Green suffered from residual symptoms in the distribution of the right ulnar nerve, which did not result from and were not materially contributed to by the laceration injury.
6 In determining this case, I am bound to accept the opinion of the Medical Panel, that Mr Green suffered a surgically treated laceration to his right forearm, together with a chronic pain syndrome. In so doing, I must otherwise disregard any consequences attributable to the residual symptoms in his right ulnar nerve. I must then consider whether the consequences attributable to the laceration and chronic pain syndrome can be described as at least “very considerable”.
7 Only Mr Green was called to give evidence and he was cross-examined. Also in evidence were medical reports and other material. I have read these tendered documents, together with the transcript of the proceedings. I shall not refer to all of that material in the course of this Judgment, but rather to those parts of the evidence and reports which I consider necessary to give context to and explain the conclusions reached in my Judgment.
8 For reasons I will explain below, I am satisfied that the pain and suffering consequences to Mr Green can be described as at least “very considerable”.
Procedural background
9 In April 2016, at the defendant’s request, the Medical Panel was asked to determine which of the following claimed injuries resulted from or were materially contributed to by the incident on 6 December 2012:
(a) lacerated right forearm;
(b) penetrating injury to the muscle of the right forearm;
(c) right ulnar neuropathy;
(d) nerve damage to the right arm;
(e) Chronic Compartment Syndrome in the right forearm;
(f) Chronic Pain Disorder.
10 Following an examination of Mr Green, the Medical Panel issued a Certificate of Opinion dated 20 October 2016. It stated that Mr Green suffered persistent dysfunction of the right forearm following a laceration, which was surgically treated, together with a chronic pain syndrome, which resulted from and was materially contributed to by the incident on 6 December 2012. The Panel also determined that the residual symptoms in the distribution of Mr Green’s right ulnar nerve were not as a result of and were not materially contributed to by the injury suffered that day.
11 This matter was first listed before me on 6 February 2017, at which time Mr Hill submitted that the Medical Panel’s Certificate of Opinion did not identify with sufficient clarity, those parts of Mr Green’s arm that were affected by the accepted chronic pain syndrome, in circumstances in which the Medical Panel has also accepted that Mr Green suffered some unrelated residual symptoms in the distribution of the right ulnar nerve. Mr Hill submitted that I should seek clarification of the Medical Panel’s Opinion.
12 Mr Clarke opposed the application on the basis that I could sufficiently determine the matter on the medical material before me, such that no clarification was necessary.
13 In looking at the Certificate of Opinion, I was myself unclear as to the nature and extent of the injuries accepted by the Panel. In such circumstances, I considered it appropriate to seek clarification as to the extent to which the accepted chronic pain syndrome affected Mr Green’s right arm.
14 I referred the following questions to the Medical Panel, and received the following answers:
“(1) Does the accepted chronic pain syndrome have a substantial organic basis to it?
Answer: Yes.
(2) What parts of the right upper limb are affected by the accepted chronic pain syndrome, in particular:
(a) does it extend to the plaintiff’s right wrist?
(b) does it extend into the plaintiff’s right hand and, if so, what part(s) of the hand?
Answer: (a) and (b) – The Panel is of the opinion that the plaintiff’s chronic pain syndrome affects his right forearm, right wrist, right hand and the right little and right ring fingers.”
Background
15 Mr Green was born in England and is now 38 years of age. He is married and has three children aged nine years, three years and two years.
16 Mr Green completed Year 10 at Cranbourne Technical School before subsequently undertaking a spray painting apprenticeship. Upon completion, Mr Green obtained full-time employment with Hamelex White, where he worked as a labourer and welder for approximately nine years. During that time, Mr Green obtained a dogman’s ticket and was able to do some crane work. Whilst employed by Hamelex White, Mr Green suffered a right knee injury for which he required an arthroscopy. He said that he did not suffer any ongoing difficulties with his right knee after this time.[1]
[1]Plaintiff’s Court Book (“PCB”) 45
17 Hamelex White then moved its factory to Ballarat and Mr Green was made redundant. He thereafter worked as a spray painter for approximately 18 months.
18 In 2011, Mr Green obtained employment with the defendant as a rigger. He said he “very much enjoyed working in construction”.[2]
[2]PCB 53
19 Whilst not at work, Mr Green said he enjoyed recreational activities such as fishing and hunting. Mr Green said he owned a small boat, and that he had a number of fishing rods and several guns. Mr Green also enjoyed working on his 1964 EH Holden.
20 Mr Green said he had suffered some depression since the early 2000s, and had on occasions taken anti-depressant medication.[3]
[3]PCB 45
21 In October 2012, Mr Green complained to his general practitioner, Dr Cheryl Ong, about bilateral hand numbness. Dr Ong considered this may relate to Carpal Tunnel Syndrome, and referred Mr Green to neurologist, Dr Russell Rollinson.[4] There is no evidence as to whether or not Mr Green consulted Dr Rollinson, or whether any EMG studies were performed prior to him suffering his work injury. Prior to suffering his injury in December 2012, Mr Green was otherwise in good health.
[4]PCB 59
Injury and its consequences to Mr Green
22 On 6 December 2012, during the course of his employment with the defendant, Mr Green was instructed to remove a fence constructed of star pickets. Whilst removing one of the pickets, Mr Green lacerated his right forearm. He was then taken to the Epworth Hospital and subsequently transferred to the Freemasons’ Hospital, where surgery was performed by plastic and reconstructive surgeon, Mr Nigel Mann. As a consequence of this surgery, the plaintiff was left with a scar of approximately 16 centimetres on the inside of his right forearm.[5]
[5]PCB 46
23 In January 2013, Mr Green returned to work on modified duties, thereby restricting the repetitive use of his right arm. However, on 30 May 2013, he was subsequently made redundant.
24 Mr Green underwent physiotherapy treatment with Mr Graeme Tyler. It was noted that whilst he made some initial improvement, upon returning to full-time work in early 2013, Mr Green said he experienced pain and weakness in his right forearm after prolonged use over five minutes.[6]
[6]PCB 60
25 Mr Green also obtained hand therapy from Ms Jane Aarons, who provided him with a hand splint. Mr Green said he uses the hand splint from time-to-time and, in particular, if his hand is tired at the end of the day.
26 In May 2013, Mr Green was reviewed by Mr Mann. He noted that Mr Green suffered from ongoing pain, and pins and needles radiating along the wound. Mr Mann considered that Mr Green’s wound had fully healed and that it had not caused injury to the functional structures of the arm, including the tendons and major nerves.[7] In such circumstances, Mr Mann did not expect Mr Green’s injury to affect his work duties in the future.
[7]PCB 71
27 However, as Mr Green claimed that he was continuing to suffer right hand and wrist problems, he was referred by his general practitioner, Dr Darren Asuncion, to neurologist, Dr Janaka Seneviratne.
28 On 18 September 2013, Mr Green saw Dr Seneviratne for an evaluation of ongoing right arm paresthesias and weakness.[8] Dr Seneviratne noted that a nerve conduction study had demonstrated a “possible” right ulnar neuropathy around Mr Green’s elbow region. Upon examination, Dr Seneviratne noted that Mr Green’s right ulnar sensory amplitude was significantly reduced in comparison to the left side, but that all other sensory results were normal.
[8]PCB 72
29 Dr Seneviratne suspected that Mr Green suffered a mild right ulnar neuropathy, but stated that, unless significant focal lesions were seen on medical imaging, she did not consider further surgery to be of likely assistance to Mr Green.[9]
[9]PCB 73
30 On 19 September 2013, an MRI scan was taken of the plaintiff’s right forearm and wrist. It was reported as demonstrating a normal appearance of the ulnar nerve, without any evidence of extrinsic compression.[10]
[10]PCB107-108
31 Upon further review in October 2013, Dr Seneviratne concluded that Mr Green’s right ulnar neuropathy was likely due to trauma around the wrist, rather than the elbow region. She then recommended that Mr Green consult surgeon, Mr David Hunter-Smith. However, Mr Green said he cannot recall having ever seen Mr Hunter-Smith.
32 In January 2014, Mr Green was referred to neurosurgeon, Mr Damien Tange. Upon examination, Mr Tange said there was no wasting or weakness of Mr Green’s ulnar innervated muscles. In addition, he noted that neither the MRI scan nor the nerve conduction studies showed any compression of Mr Green’s ulnar nerve.[11] In such circumstances, Mr Tange did not recommend exploration of the nerve, as he did not consider it likely to be of benefit. Instead, Mr Tange recommended that Mr Green be referred to a pain specialist.
[11]PCB 83 & 84
33 In February 2015, Mr Green commenced treatment with general practitioner, Dr Weiss, who also specialises in pain management. At this time, Mr Green was taking approximately 30 milligrams of OxyContin each day. He said Dr Weiss has assisted him to cease taking the OxyContin medication, and that he has since been prescribed Physeptone.
34 After an unsuccessful attempt to cease all pain medication in late 2016, Mr Green continues to now take approximately 10 milligrams of Physeptone per day, and has recently been prescribed Panadeine Forte, of which he takes two per day.[12]
[12]PCB 54D
35 In addition, Dr Weiss has recently attempted a course of injections into the scar along Mr Green’s forearm. Mr Green understands the injections will be administered over a period of time, in an attempt to break up the scar tissue and alleviate his pain. Mr Green said he did not obtain any pain relief from the first injection.
36 In August 2015, Mr Green was referred to plastic and reconstructive surgeon, Dr Patricia Terrill, by Dr Andrew Taylor, a general practitioner at Dr Weiss’ clinic. Mr Green said he has not arranged to see Dr Terrill, as he was advised by her receptionist that the first consultation would cost approximately $300-$400, and that he cannot afford such an expense.
37 Mr Green said he has been advised by Dr Weiss that his prospects of improvement from surgery are very low and that both Mr Tange and Dr Seneviratne also share this opinion. However, Mr Green said he would be open to seeking advice from a surgeon within the public hospital system, although to date he has not done so.
38 After ceasing employment with the defendant, Mr Green undertook a Certificate 3 course in Occupational Health and Safety. He also obtained employment in a rigging and welding capacity, but said that he left after several months, due to pain in his right hand and arm.
39 Since August 2014, Mr Green has been employed on a full-time basis as a technical sales representative with chemical company, BASF. As part of his employment, Mr Green said that he provides technical sales advice to consumers regarding the use of BASF’s products. He said that whilst physically he is able to cope with this work, it bores him,[13] and he misses the manual work he previously enjoyed doing.
[13]PCB 53
40 Mr Green states that he suffers constant pain in his right forearm which then extends into his wrist and right hand. He said he has two different types of pain; he suffers a constant ache, as well as an intermittent stabbing pain, that can occur between 5-10 times per day. He said it is a sharp, stabbing pain over the scar site. Mr Green said the aching pain is always present, but increases with use, and that he will suffer a significant increase in his pain, after doing an activity for approximately 30 minutes.[14] On such occasions, his ring and little fingers claw up. [15]
[14]T31, L26-28
[15]T31, L27-28
41 Mr Green said he sometimes wakes during the night as a consequence of his pain.
42 The ongoing pain has prevented Mr Green from participating in recreational activities he previously enjoyed. He said he sold his boat, as he could no longer pull up the anchor and was having difficulties reeling in fish due to the pain in his right arm.
43 Mr Green said he no longer goes hunting, as he has difficulties loading and unloading his firearm. He was also concerned about the safety of using his firearm in the event that he experienced a sharp, stabbing pain.[16]
[16]PCB 54D
44 Mr Green said he can still do some maintenance on his car, but that he requires the assistance of his friends for tasks such as servicing and changing parts.[17]
[17]PCB 54C
45 In addition to the impact his injuries have had upon his recreational activities, Mr Green said that he is also restricted in his ability to perform domestic duties around the home. He said it is now difficult for him to play with his children, or to help with tasks such as cooking and peeling vegetables.
Medico-legal evidence
46 Mr Green relied upon two medico-legal experts; plastic and hand surgeon, Mr Murray Stapleton, and pain management specialist, Dr Clayton Thomas.
47 Mr Stapleton provided three medical reports in support of Mr Green’s claim. In his first report dated 12 January 2016, Mr Stapleton stated that, in his opinion, Mr Green suffered from ulnar nerve neuropathy as a consequence of the laceration of his right forearm, in the work incident in December 2012.
48 Prior to his second report of 12 December 2016, Mr Stapleton was advised of the initial Medical Panel Opinion, with which he then subsequently disagreed. Prior to his third report of 18 January 2017, however, Mr Stapleton was advised that Mr Green was unable to rely on any injury to the ulnar nerve. As a result, he focused on the scarring to Mr Green’s right forearm, which he felt could cause problems with scar contractures, and which he felt would get worse as time went on.
49 In circumstances in which Mr Stapleton was firmly of the opinion that Mr Green’s problems related to an ulnar nerve injury, and in which I am bound to accept the Medical Panel’s Certificate of Opinion, I gain no assistance from his report.
50 Dr Thomas provided two medical reports in support of Mr Green’s claim. In his first report dated 15 December 2016, Dr Thomas made reference to Mr Green suffering “some subtle signs”, which suggested that Mr Green’s ulnar nerve was involved. Dr Thomas also noted that Mr Green’s dysfunction when performing repetitive activities tended to “imply” a nerve-related issue.[18] However, Dr Thomas noted that the ulnar nerve tended to run more medially in the forearm than where the laceration was. My reading of this report was that, whilst Dr Thomas considered damage to the ulnar nerve a possibility, he considered the persistent dysfunction in Mr Green’s right forearm to be more significantly related to the laceration surgically treated, and a chronic pain syndrome.
[18]PCB 100
51 Dr Thomas considered the chronic pain syndrome precluded Mr Green from performing repeated activities involving the right forearm, by virtue of the swelling, increased pain and weakness such activities would cause. In such circumstances, he considered Mr Green was restricted to employment that did not require him to be working “on the tools” for anything more than a short period.[19]
[19]PCB 101
52 In his second report dated 19 January 2017, Dr Thomas confirmed his previous opinion that Mr Green was still suffering from a persistent stabbing pain, an aching pain, intermittent numbness, and pins and needles involving his two little fingers. Dr Thomas stated that as a result of the ongoing dysfunction, Mr Green was restricted in relation to social, recreational and domestic activities.
53 Dr Thomas made no mention of Mr Green’s ulnar nerve in this report. However, I consider this omission to be consistent with the reservations he expressed in his first report. Further, Dr Thomas had been provided with the Medical Panel’s Certificate of Opinion, which essentially affirmed his earlier opinion that Mr Green was suffering from a chronic pain syndrome. As Dr Thomas’ opinion is consistent with that of the Medical Panel, I am assisted by his medical reports
54 The defendant relied upon three medical reports obtained from hand surgeon, Mr John Anstee. In his first report dated 11 July 2013, Mr Anstee recommended nerve conduction studies be performed to ensure Mr Green did not suffer any ulnar nerve entrapment.
55 In his second report dated 1 August 2013, Mr Anstee reviewed the nerve conduction study test results and was of the opinion Mr Green’s right ulnar nerve lesion was not related to his forearm injury, given the area of his scar. Instead, he considered it was likely to be related to cubital tunnel compression at the right elbow.[20]
[20]Defendant’s Court Book (“DCB”) 12
56 In his final report dated 14 October 215, Mr Anstee confirmed his previous opinion that the ulnar nerve changes were unrelated to the wound to his right forearm. He considered such ulnar nerve problems may have been pre-existing, given Mr Green’s attendance upon his general practitioner just prior to the workplace accident.
57 In circumstances in which I am bound to follow the Medical Panel’s Certificate of Opinion, Mr Anstee’s opinion on the cause of the ulnar nerve injury is irrelevant to me. I am assisted, however, by Mr Anstee’s examination of Mr Green, in which he accepts that Mr Green suffers some ulnar nerve neuropathy in and around his right elbow.[21]
[21]DCB 19
Disentanglement of the consequences
58 Notwithstanding the findings in the Further Certificate of Opinion, that the accepted chronic pain syndrome affected Mr Green’s right forearm, right wrist, right hand and the right little and right ring fingers, the defendant submitted that I must distinguish the consequences arising from the accepted injuries, from the unrelated residual symptoms in the distribution of the right ulnar nerve.
59 The need for disentanglement was considered by the Court of Appeal in Peak Engineering v McKenzie.[22] That case involved a plaintiff who, subsequent to suffering a left hand injury at work, also developed an unrelated left knee injury. The plaintiff then suffered numerous restrictions, some of which were attributable to both injuries. In considering the plaintiff’s serious injury application in respect of his hand injury, the Court of Appeal stated that the court should assess those consequences referrable to the compensable injury, whilst excluding the others. The onus is on the plaintiff to disentangle such consequences.
[22]Peak Engineering & Anor v McKenzie [2014] VSCA 67
60 Such a disentangling process is commonly undertaken when a plaintiff suffers unrelated injuries, which developed either before, or subsequent to the injury, which is the subject of the claim. It frequently involves an unrelated injury which affects a different body function, notwithstanding there are consequences common to both injuries.
61 This case appears somewhat unique in that the unrelated condition affects the same body part, and occurred at the time of, or very soon after the subject incident. Neither counsel referred me to any cases with a similar set of circumstances.
62 Instead, Mr Clarke referred me to the Court of Appeal decision in Meadows v Lichmore,[23] in which it was stated that, the availability of medical evidence will largely determine whether or not the necessary disentanglement process can be undertaken.[24] Although Meadows related to the disentanglement of organic from non-organic consequences, Mr Clarke submitted that such a guiding principle was of equal relevance to this case.
[23][2013] VSCA 201
[24]Ibid at [29]
63 In support of his submission, Mr Clarke then focused upon the numerous medical reports which detailed the nature and extent of Mr Green’s right ulnar nerve injury. In particular, Mr Clarke relied upon the medical reports of Dr Seneviratne, Dr Taylor and Mr Tange, together with the medico-legal opinions of Mr Stapleton and Dr Thomas.
64 In response, Mr Hill submitted that Mr Green clearly identified the nature and extent of the pain he suffers from the laceration and chronic pain syndrome, and the impact this has upon his activities, in both his affidavits and his oral evidence. Mr Hill acknowledged the need to disregard the consequences attributable to the ulnar nerve injury, and submitted that, this was a relatively straightforward task in light of the Medical Panel’s clarification as to what parts of Mr Green’s arm were affected by the chronic pain syndrome.
65 Having considered the medical evidence and, in particular, the lack of any objective evidence of injury to Mr Green’s ulnar nerve, I consider the residual symptoms in his ulnar nerve to be relatively modest. I note that none of the doctors refer to any significant wasting or weakness.
66 I am satisfied that, as a consequence of the persistent dysfunction of Mr Green’s forearm involving the laceration, its scarring, and the chronic pain syndrome which affects his right forearm, right wrist, right hand and the right little and right ring fingers, that Mr Green suffers the following consequences:
(i) The pain in his arm is increased with activity, thereby restricting the work duties Mr Green can perform. In particular, I note that Mr Tyler observed an increase in pain upon his return to work, and that Dr Thomas considered his pain condition restricted the work duties he could perform. As a consequence, I am satisfied that Mr Green is unable to work in physical trades, including as a rigger, welder or spray painter. I accept Mr Green’s evidence that he enjoyed such work and that he is now bored in his current role as a sales person.
As was recognised by the Court of Appeal in Kelso v Tatiara Meat Co Pty Ltd,[25] the loss of a chosen occupation is a relevant pain and suffering consequence.
[25][2007] 17 VR 1
(ii) Mr Green has taken pain medication on a daily basis since the accident. He currently takes Physeptone and Panadeine Forte. As was also recognised by the Court of Appeal in Kelso:
“The endurance of permanent daily pain requiring frequent medication must, according to ordinary human experience, raise a real prospect of very considerable consequences”.[26]
[26]Ibid [199]
I was satisfied that, following his conversations with several doctors, Mr Green considers there is little benefit to be gained from further surgery. The WorkCover authority no longer pays for his medical expenses and he no longer has private health insurance. In such circumstances, I accept his explanation as to why he did not consult the surgeon to whom he was referred by Dr Taylor. I do not consider this failure to reflect upon the veracity of his complaints of pain.
(iii) Mr Green is no longer able to enjoy recreational activities such as fishing and hunting. Notwithstanding he is the father of three young children who no doubt require his attention, I accept these are recreational activities he would otherwise have enjoyed from time-to-time.
(iv) Mr Green is also restricted in the activities he can engage in with his young children. I accept that he has difficulty playing with and holding his youngest son, and that he also has difficulty playing beach cricket and football. As a relatively young father, I accept these restrictions currently affect the relationship Mr Green has with his children, and that they will continue to do so into the future.
67 In assessing Mr Green’s claim, I must look not only at what he has lost, but also at what he has retained.[27] He is still able to work full-time. He can drive his car. He still does some domestic activities, and some basic maintenance on his vintage car. However, I accept his evidence that he has modified such activities to minimise aggravation to the pain in his right forearm.
[27]Dwyer v Calco Timber (No 2) [2008] VSCA 260
68 I am satisfied that when looking at the consequences collectively, they can readily be described as more than significant or marked, and at least very considerable.
Conclusion
69 For the reasons detailed above, I am satisfied that Mr Green should be granted a serious injury certificate to enable him to commence common law proceedings for pain and suffering damages.
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