Green v Victorian WorkCover Authority
[2014] VCC 1453
•5 September 2014
| IN THE COUNTY COURT OF VICTORIA CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-14-02764
| RUSSELL JOHN GREEN | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE JORDAN | |
WHERE HELD: | Warrnambool | |
DATE OF HEARING: | 2 and 3 September 2014 | |
DATE OF JUDGMENT: | 5 September 2014 | |
CASE MAY BE CITED AS: | Green v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1453 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Damages – serious injury – injury to the left index finger – pain and suffering only
Legislation Cited: Accident Compensation Act 1985, s134AB
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr N Bird with Mr I Fehring | Maddens Holdings Pty Ltd |
| For the Defendant | Mr P Elliott QC with Mr J Batten | Thomson Geer |
HIS HONOUR:
1 This application for leave to bring proceedings for the recovery of pain and suffering damages only relies on a paragraph (a) injury to the left index finger.
2 The only issue for determination is whether the admitted compensable injury has led to an impairment of function, the consequences of which are “serious”. They must be fairly described as being “at least very considerable” when judged by a comparison with other cases in the range of impairments. The task for the Court involves elements of “fact, degree and value judgment”.
3 I note the repeal of s134AE of the Accident Compensation Act (“the Act”) and the Second Reading Speech and Explanatory Memorandum that accompanied the repeal. Clear, adequate and proper reasons are required but in this application the medical evidence is of such short compass that it does not need to be referred to in any great detail.
4 The plaintiff is sixty-three years old. He is a manual worker who is a floor layer of carpet and tiles by trade.[1] However, he has not worked in that trade for some fourteen or so years when he was last in Melbourne.[2] He was working at a quarry when his compensable injury occurred. That job had started in 2009. He has suffered pre-existing bilateral Dupuytren’s contracture affecting the skin and subcutaneous tissues of the palms. He demonstrated that bilateral contracture in court and it impacts on several fingers of each hand. It claws the ring and little fingers.[3]
[1]Plaintiff’s Court Book (“PCB”) 9
[2]Transcript (“T”) T41-42
[3]T28
5 On 21 August 2012, a large block of bluestone fell during a loading procedure at the quarry. The block dropped onto the plaintiff’s hand. It crushed his left index finger. He went to a local clinic and then to hospital. An operation was carried out by Mr R Toma, plastic and reconstructive surgeon.
6 There has been little treatment since except for visits to a hand therapist in September and October 2012.[4] A review took place with Mr Toma in March 2013. He offered a second operation to try and improve the index finger but the plaintiff refused. Apart from occasional over-the-counter medication, he has had no other treatment. There is no current treatment. He did not return to the quarry as he was frightened of the bluestone. Thus it was a mental reaction to the injury that led to that decision rather than any physical impairment. He has tried some gardening/handyman work since in a self-employment context. He is presently unemployed and has been for some six months or so.
[4]T33
7 There is a paucity of medical evidence in this case about pain and suffering consequences.
8 The initiating general practitioner, Dr C McPherson, did not report on anything other than his referral of the plaintiff to hospital.[5] No consequences were commented on. The hospital admission notes recorded that the crush injury had resulted in soft-tissue injury only with no significant bony injury.[6] Again, no consequences were recorded, not even pain, which must have been obvious at that stage given the injury.
[5]PCB 39
[6]PCB 40-41
9 Mr R Toma reported very briefly that the plaintiff “… sustained a significant degloving injury to the pulp of his finger” and underwent surgery. His only report said the plaintiff progressed very well after the operation. The surgeon last saw the plaintiff on 14 March 2013 for a review and the patient was recorded as being “happy with the result”. It was noted he was able to fully flex the finger but was mildly limited in the ability to extend the finger. The plaintiff did not wish to proceed with any further intervention. The surgeon noted the plaintiff had made a near full recovery. It was likely a flexion contracture of the index finger would remain but the surgeon did not believe this would impede the ability to work. At that time, the plaintiff was doing gardening work.[7]
[7]PCB 42
10 Apart from the contracture, there was not a single comment by the surgeon about consequences. Pain was not even mentioned.
11 Two general practitioner reports from Dr B Opperman at the local Warrnambool Medical Clinic are very brief. They are really the same in substance.[8] On 12 September 2012, a superficial infection in the wound was recorded with antibiotics being prescribed. The plaintiff had not re-attended the clinic since September 2012. Again, no comment is made about pain or indeed any other consequences of the injury.
[8]PCB 50 and 51
12 Surprisingly, these are the only reports obtained by the plaintiff’s solicitors in the prosecution of this application.
13 Effectively no treatment at all has occurred through the plaintiff’s local doctors for about two years. He has had one review with Mr Toma and that was eighteen months ago.
14 The absence of treatment is not consistent with any serious ongoing problems by way of pain or other consequences.
15 The only other medical report in evidence is dated 1 November 2013 from Mr T Gale, general and trauma surgeon. On that day, he did an AMA permanent percentage assessment for the insurer. There is just no up-to-date medical material to assist in the task of assessing consequences now, in September 2014.
16 Mr Gale reported last year on ongoing symptoms and reduced range of movement of the index finger with inability to fully extend it.[9] There was also some sensory anaesthesia and a dysaesthesia with the restricted finger range of joint motion as well as some shortening.[10]
[9]PCB 56
[10]PCB 57-58
17 Mr Gale made only one very general comment about consequences. It was that the symptoms would permanently “… compromise his future social, recreational and employment capabilities, especially as he is left-hand dominant”.[11] This is incorrect. Twice the surgeon recorded that error. The evidence is that the plaintiff is not left-hand dominant. He described himself as ambidextrous. He can use tools in either his right or left hand.[12] His major interests of playing the guitar and playing pool are both done right handed. The surgeon relied on this incorrect history of left hand dominance as he clearly stated “because he is left hand dominant” this led to compromise to some degree.[13]
[11]PCB 57
[12]T20
[13]PCB 57
18 The medical evidence does not support a finding of permanent “serious” consequences of the finger injury. To be unable to fully extend the finger could fairly be said to be a consequence of some significance but, in my view, the onus of proving very considerable consequences has not been discharged.
19 The case was put on the basis of consequences that included loss of his trade as a carpet and tile floor layer. In fact he had not chosen to work at this for many years before the injury. No medical evidence supports his alleged incapacity to effectively follow this trade. That trade is just not commented on by any doctor.
20 Similarly, with his major hobby of playing pool, no doctor deals with it at all. In fact the plaintiff is still playing pool. He played at a hotel, albeit not as well as he would have liked, as recently as “three or four days ago”.[14] He was cross-examined about holding the cue differently due to the finger injury and he said he had never even tried putting the cue in a different position.[15] He said, in regard to playing pool with a different hand posture, “I’ll have a go one day”.[16] This is inconsistent with a man suffering an alleged loss of enjoyment of his favourite sport that could be said to be “very considerable”.
[14]T32
[15]T31
[16]T32
21 Guitar playing was also relied on as a recreation adversely impacted. No medical evidence addressed this issue. The plaintiff could try a slider to help him keep playing but he had really not even tried playing that way.
22 Fishing was said to be another consequence by way of lost enjoyment of life. His interest is in bait fishing, not fly fishing. He is able to cast. I do not accept he is seriously impeded from fishing if he really wished to follow that interest. Evidence about fishing really reduced to the need for some assistance attending to tackle but he chooses not to get that assistance.[17]
[17]T35-36
23 In cross-examination, it emerged that the plaintiff has become depressed. He candidly admitted that due to his depression he does not try certain things.[18]
[18]T39-40
24 The impairment to be considered serious must be organically based. If a mental reaction causes the plaintiff to not follow these interests or not to even try and accommodate different positions in order to pursue them, then that reaction cannot be taken into account.[19] I have no evidence to assist in disentangling his mental reaction from the organic injury. The clear impression from the plaintiff’s oral evidence was that frustration and depression played a real part in his not pursuing certain activities. The plaintiff bears the onus of establishing the organically caused impairment is productive of very considerable consequences that are permanent. He has not discharged that onus and the Court cannot just guess at it.
[19]Section 134AB(38)(h)
25 There was a body of lay evidence from the plaintiff’s partner and from two friends about the impact on his activities.[20] This evidence is uncontested. It speaks of his pool, guitar playing, problems with his hand and finger functions generally, as well as pain. The evidence only goes so far. It is not supported by adequate medical evidence of permanent disabilities or limitations such as to make a case relying on pain and suffering consequences.
[20]PCB 26-34
26 It remains to be said that pain was referred to in the plaintiff’s affidavit and oral evidence. It is also alluded to by these lay witnesses. The lack of treatment and the absence of medical opinion about the levels of pain in the reports point to pain not reaching the level where it could fairly be described to be a very considerable consequence of itself. In some cases constant pain can be said to reach that level but such a conclusion is not supported by the evidence overall in this application.
27 Finally, it should be said the plaintiff was a forthright witness. He presented as an unsophisticated man who did not exaggerate his condition. However, looking at the evidence overall, the application did not have proof of very considerable permanent consequences of the organic finger impairment.
28 For the reasons mentioned, the application must be dismissed.
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