Griffiths v Victorian WorkCover Authority

[2023] VCC 1826

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-23-01741

RAYMOND GRIFFITHS	Plaintiff
v
VICTORIAN WORKCOVER AUTHORITY	Defendant

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JUDGE:	HIS HONOUR JUDGE PURCELL
WHERE HELD:	Melbourne
DATE OF HEARING:	10 October 2023
DATE OF JUDGMENT:	10 October 2023 (ex tempore)
CASE MAY BE CITED AS:	GRIFFITHS v VICTORIAN WORKCOVER AUTHORITY
MEDIUM NEUTRAL CITATION:	[2023] VCC 1826

REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION

Catchwords:              Serious Injury Application – injury to the elbow – pain and suffering

Legislation Cited:      Workplace Injury Rehabilitation and Compensation Act 2013

Cases Cited:Sutton v Laminex Group Pty Ltd [2011] VSCA 52; TTB SMS Pty Ltd v Reading [2020] VSCA 90

Judgment:                  Proceeding dismissed

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R W McGarvie KC with Mr P Haddad	Arnold Thomas & Becker
For the Defendant	Mr G Worth	TG Legal + Technology

HIS HONOUR:

1Raymond Griffiths is the plaintiff in this proceeding.  He is a now 59-year-old married man who lives with his wife on a 30-acre hobby farm outside Wallan.  He is the father of now three adult children.  The plaintiff completed Year 11 and attended trade school for several years, before then working firstly as a mechanic and then in the tyre industry.  He has worked in the tyre industry from the early 1990s.

2He most recently was employed by Goodyear & Dunlop Tyres Australia Pty Ltd up until November 2015, when he left that employment and several months later, commenced his own employment at Wallan, where he continues to run a tyre service business.

3Going back a little bit, on 6 January 2015, when he was still working for Goodyear & Dunlop Tyres, at a time when he was the store manager at Kilmore, he had to attend at the Epping store to collect some tyres.  When doing that, he walked down a set of unstable stairs, causing him to fall and land heavily on his left elbow (“the incident”).

4There is no dispute about the happening of the incident and indeed, there is no dispute that because of the incident, the plaintiff suffered an injury to his left elbow.  The medical evidence, such as it is, supports a diagnosis of an injury by way of the aggravation of pre-existing but asymptomatic osteoarthritis of the left elbow.

5Against that backdrop, this is a proceeding brought pursuant to s325(1)(a) of the Workplace Injury Rehabilitation and Compensation Act.  In this proceeding, the plaintiff seeks the leave of the court to commence a proceeding for pain and suffering damages, on the basis that he has suffered a “serious injury”.  Specifically, a serious physical injury by way of a 'permanent serious impairment or loss of a body function', specifically the left elbow/arm.  The legal principles are well‑known and are not in dispute.  In order to establish serious injury, the plaintiff must satisfy the well-known “very considerable” test.

6Returning to things that are not in dispute, there is also no dispute that because of the incident, the plaintiff came to a left elbow arthroscopy to treat that injury, with the orthopaedic surgeon, Mr Richardson. I will say a little bit more about the medicine in a moment.

7As I said before the break, in this proceeding, the parties broadly agree about everything except the result, in the sense that there is no dispute about the incident or injury to the left arm or indeed, that there are some ongoing consequences to Mr Griffiths.  The dispute is a narrow but important one, namely whether those consequences meet the threshold of “very considerable”.

8Finally, by way of introductory matters, I note that the proceeding was conducted in the usual manner.  The plaintiff tendered a Court book that contained medical reports and other documents upon which he relied, including two affidavits sworn by him and one sworn by his wife.

9The defendant tendered video surveillance of the plaintiff obtained on 15 February 2023, 1, 2 and 3 March 2023, and 25 March 2023.  In addition, the plaintiff gave oral evidence.  I have considered all of the tendered evidence together with my notes of the plaintiff's oral evidence, as well as the oral submissions, to which I shall refer to the extent necessary in these reasons. 

10It is convenient to commence then, by looking at the plaintiff's affidavit evidence.  The plaintiff’s first affidavit was sworn on 13 January 2023.  I note in particular his evidence from paragraphs 15 through until 27, where under the heading of “Pain and suffering consequences”, he set out relevant pain and suffering consequences.

11At paragraph 15, he described having an aching pain in his left elbow on most days, especially after work and in the evening, or if he was to hold anything with his left hand for too long.  He also described a tingling sensation at times, particularly into the left, little and ring fingers.  In that affidavit the plaintiff described his ongoing employment and some limitations for that. He described limitations for simple daily activity, including personal hygiene, holding a mobile phone, sleep, and gardening. He also described some interference in the personal relationship with his wife, and in no particular order, he also described interference with hobbies, including golf. 

12In a second affidavit sworn more recently on 5 October this year, the plaintiff effectively said that his symptoms had remained much the same.  He did tease out the consequences a little at paragraph 16.  In particular, he said a bit more about fishing, describing how he used to be a keen fisherman and how he feels that it is not just worth it for him anymore because of the potential pain that fishing might cause.

13He also teased out some of the restrictions he has around his farm, describing how his left elbow injury had slowed him down around the farm.  He said before the injury he could easily spend a full weekend on the farm, including tasks such as fencing, trimming the horses’ hooves, and other maintenance work.  He said now he might be able to get a couple of hours in, but then all the strength goes out of his left arm and the ache sets in, and he has to call it off.

14He also said in the more recent affidavit how he continued to run his business.  He said he worked in pain, but it was worth it to be able to keep working, and his own business gave him some freedom both in respect to the hours and duties.  He said, however, there were some things and sometimes when he did not have a choice at work, and he just had to do things regardless of how his elbow was feeling. 

15In addition, the plaintiff tendered and relied upon an affidavit from Susan Griffiths, his wife. She set out her observations of her husband.  She described there her understanding of restrictions that he now has around the farm for activities such as golf, simple activities such as holding a phone with his right hand, interference with some of the things that he enjoyed doing with his children and the like. 

16Mrs Griffiths described her husband as, “the type of person who does not tend to complain about his pain very much and pushes through his difficulties”.

17As I shall come back to in a moment, I must say that seemed to me to be a particularly accurate description, having observed the plaintiff in the witness box and when giving his oral evidence.  I will not dwell on the plaintiff's oral evidence at length but consistent with his affidavits, the thrust of his evidence was broadly that he just gets on with things.  For example, during cross-examination, when talking about his work and how that affects his left arm symptoms, he said, “I just put up with it.  It's there.  I know what to avoid”.  Similarly in re-examination when asked about work he said, “over a period of time, I adjusted to what I can and can't do”.

18Turning next to the video surveillance, firstly, video surveillance must of course be considered both in context and time and in consideration of relevant matters such as whether it has been given to any medical practitioner for comment. Although in this case, that is not particularly relevant, because broadly the video surveillance confirmed what the plaintiff had said in his affidavits.  Namely, that he still works, and he gets on with things as best he can. 

19The video surveillance depicted him working in his tyre business over several days.  As a judge once said to me, perhaps it could be described as remarkable for being unremarkable, and on one view neither proved nor disproved that the plaintiff had a serious arm injury.

20It showed him performing manual work of the type that I would expect to be done in a tyre business, including lifting and carrying tyres and wheels, conversing with customers, inspecting tyres and wheels, and on occasion using a jack or a mechanical device to fit and balance tyres onto wheels.  My impression from the video was that the plaintiff did not do anything that could be described as arduous or heavy.

21I was struck by my observation of the video how at times he did appear to hold his left arm at about a 45‑degree angle from the elbow joint, which to me did suggest that was a man who was holding his arm, in his words, “in a protected position”. But equally, I was also struck by the video how when needed, he appeared to have the full use of the arm.  True it is that perhaps with the exception of the large truck tyre that was lifted on the Saturday morning, most of the video did not demonstrate heavy work.

22But, the video did demonstrate manual work.  And as I said before, it did not appear to demonstrate the plaintiff to avoid using his left arm or to protect it beyond my observation of him holding it at 45 degrees from time to time.  To some extent, the video surveillance highlights the issue in this proceeding.  Namely, that the plaintiff has an ongoing compensable injury, of which he has an awareness. But nevertheless, he is able to use the arm as needed, or perhaps with slight modification such as putting one tyre on the ground to make the task of lifting the heavy truck tyre an easier one. 

23Turning then to a discussion of the medical evidence, it is refreshingly brief.  It commences with a series of items of correspondence from Associate Professor Martin Richardson, the plaintiff's treating orthopaedic surgeon. They commence at a letter written to Dr Maan Bashour at the Kilmore Medical Centre on 12 May 2015.[1]  In that letter, Associate Professor Richardson noted he had attended the plaintiff on 11 May 2015.  At that attendance, he had the benefit of X-rays and ultrasound scans which demonstrated degenerative change in the elbow joint.

[1] Plaintiff’s Court Book 24 (“PCB”).

24Mr Richardson then opined that an arthroscopic debridement of the elbow would be required.  Next, Professor Richardson wrote to Dr Bashour on 25 May 2015.[2]     He then said that MRI and CT scans showed moderate osteoarthritis, consistent with the stiffness in the elbow at that stage.

[2]PCB 25.

25He opined that surgery was an option and recommended an arthroscopic clean-up of the elbow, but he also said:

“however, we explained to Ray that this would be a temporising measure which would hopefully give good relief for up to 10 years, but eventually an elbow replacement may be required if the symptoms worsen to a degree that is unacceptable for Ray.”[3]

[3]        Ibid.

26Next, Associate Professor Richardson wrote again to Dr Bashour on 16 June 2015 after the arthroscopic surgery had been performed on 11 June.  He noted that osteophytes in the elbow had been removed during the surgery and that, “the articular surfaces were relatively well preserved”.[4]  He then reported for a final time to Dr Bashour on 30 June 2015.[5]

[4]        PCB 26.

[5]PCB 27.

27He noted that on review the day before, “the plaintiff had an excellent range of movement, lacking 5‑10 degrees off full extension/full flexion with good supination/pronation”.  He noted that at surgery, osteoarthritic osteophytes were debrided to improve the range of movement, but he had warned Ray may need a further arthroscopic debridement at some stage down the track; however, this probably will not be for at least another five years.  At that point he did not make any further follow-up appointment.

28Next, there are items of correspondence from the Kilmore Medical Centre in early 2015,[6] but they do not really add anything to the current discussion.  There is also a letter from the Wallan Medical and Specialist Centre from Dr Golam Mamun to Mr Duy Thai dated 28 July 2020.  Apparently, Mr Thai is an orthopaedic surgeon to whom Dr Mamun referred the plaintiff in July 2020 after the plaintiff had a flare up in his elbow systems.

[6]PCB 28-29.

29It transpired during the plaintiff's oral evidence that he did not pursue the referral to Mr Thai and that he has not seen any treating medical practitioner or health practitioner since that date for his elbow symptoms.  He did have some physiotherapy shortly before and after the surgery but has not had any such treatment since then.

30That is the extent of the material from treating practitioners. 

31Really, the only useful material is that from Associate Professor Richardson which suggests there was a relatively good result from the arthroscopic surgery such that the plaintiff had not needed to return to see him or any other surgeon.

32Next, there is a medicolegal impairment benefit assessment from Associate Professor Goldwasser of 16 December 2022.[7]  There are some limitations with the usefulness of that opinion in the context of it being provided for an impairment assessment, however, I note under the heading of “Current Symptoms”, Professor Goldwasser had a history that the elbow is not as strong as it used to be, and the plaintiff now limited his lifting to under 30 kilograms where previously he could lift more than 50 kilograms with both arms.

[7]PCB 41.

33Professor Goldwasser noted that the plaintiff was generally not taking any medications, but he did notice that the elbow could disturb his sleep and sometimes difficulty getting a comfortable position.  He described an awareness that the range of movement in the elbow was restricted both in straightening and bending.[8]

[8]PCB 44.

34Next, Professor Goldwasser under the heading of “Lifestyle” noted that the plaintiff was able to do activities of daily living, including feeding and dressing himself, but noticed some difficulty cutting his toenails.  He said when looking after his property, such as doing duties such as fencing, he noticed that the left arm tired more easily, and previously where he could work virtually all day, now after two hours he needed to have a break.  He felt that his work rate had slowed down because of the elbow.

35Professor Goldwasser recorded the plaintiff now played golf much less than previously.  On clinical examination, he noticed some weakness of the muscles related to the ulnar nerve, grip strength reduced on the left compared to the right, but in the context where a reliable reading was not possible.

36He opined that the plaintiff had suffered a soft tissue injury to his left elbow consistent with the incident and had resulted in restriction of elbow movement, muscle weakness, some sensory loss consistent with the distribution of the ulnar nerve.  He said the plaintiff had residual weakness and some sensory change.  While there had been fluctuations from time to time, it had remained much the same for a long period.  He then provided an impairment assessment.

37The final and more recent orthopaedic opinion is that from Mr Ash Chehata who is an orthopaedic upper limb surgeon.  In a report dated 12 June 2023 to the plaintiff's solicitors,[9] Mr Chehata reviewed documentation provided to him, obtained a history of the incident and of the plaintiff's current function.

[9]PCB 35.

38Under the heading of “Current Function”, he noted the plaintiff had been able to wean himself off all medications but had ongoing major restrictions with regard to the left elbow.  He noted the plaintiff was able to do all his duties, but it is the strength or any jolting of the left arm that caused the greatest number of problems for him.  He noted the plaintiff could no longer fish or golf in the normal manner.  He observed the plaintiff was still living on his farm and drank one to two drinks of alcohol per night which, in his words, “is almost self‑medicating”.[10]

[10]        PCB 37.

39Mr Chehata then conducted a clinical examination and recorded fixed flexion of 30 degrees to 90 degrees with the arc very clear, and it is a bony deformity.  He said the plaintiff had some very minor reduced sensation in the distribution of the ulnar nerve, but no motor weakness, and some very mild wasting of the forearm in the left compared to the right.  Although I note that the plaintiff is righthanded.

40Mr Chehata then diagnosed the aggravation of constitutional arthritis in the left elbow. 

41He said the fall had aggravated a pre-existing asymptomatic arthritic elbow, and the plaintiff had remained restricted with loss of power and irritability.  He noted the referral to Associate Professor Richardson.  He noted the plaintiff had been able to return back to work and had run his own tyre store for the last eight years.

42He said:

“The effect has been on his overall unlimited strength and unrestricted use of the left elbow, as well as the obvious loss of extension and flexion, which has affected his ability to play golf and go fishing.”

and that,

“At this stage, no further treatment is likely to be required.  It would be very unusual for him at this stage to require an elbow replacement, and I would certainly be very wary for advocating for this.”[11]

[11]        PCB 38-39.

43Mr Chehata then described the situation overall as stable and unlikely to change.[12]  That is the extent of the medical evidence.  It tends to the conclusion that the plaintiff has some restriction of strength, some restriction of extension and flexion in the left arm and forearm, and some restriction in the use of the arm.

[12]PCB 39.

44Before turning then to consider the consequences in light of medical evidence, I wish to say a brief word about credit.  As has been said many times in these types of proceedings, in assessing the seriousness of an injury, credit is a relevant consideration. 

45The plaintiff struck me as a decent, hardworking man.  As may have become clear, during one or two interactions with him, I have some familiarity and indeed, friendships with people who own tyre businesses and I have some knowledge of the work that is involved. I am not applying that in an expert sense or taking into account, beyond the evidence in this proceeding, but I must say the plaintiff struck me as the type of fellow I have met at tyre stores – that is, a no-nonsense, hardworking, stoic person.  Indeed, I think to some extent, you need to be to survive in working in the tyre industry, in what is fairly physical work and some might think, repetitive, dirty and boring but nevertheless, that is the career path the plaintiff has chosen.

46As I said before, to some extent the video does not add things one way or the other but equally, it does show him to be, in my view, fully engaged in his tyre business, particularly on the Saturday morning, when the co-worker had let him down by not turning up.  Indeed, some aspects of that video surveillance, to me, does tend to a conclusion that the work he was seen performing on that morning would be at least as heavy as casting a fishing rod or swinging a golf club.

47Turning, then, to the parties' contentions, in brief but appropriate closing submissions, at the risk of probably not doing them justice, the defendant said, in effect, that the plaintiff's condition was simply not “serious”.  The defendant's counsel referred to the medical evidence, the affidavit and oral evidence in support of that contention.

48The plaintiff, on the other hand by his counsel, pointed out firstly that credit was not in issue and urged the court to accept that the plaintiff was a stoic.  His counsel urged the Court to accept that he has ongoing pain, particularly after physical activity, that he self-medicates with a couple of drinks of an evening and has had to modify his lifestyle, both at work and on the farm, together with giving up or substantially limiting his involvement in his pleasurable interest of golf and fishing, which when combined with other issues, including the interference with the intimate side of his marriage, did produce a “very considerable” consequence.

49At this juncture, I wish to observe that some injuries are clearly serious and some are clearly not.  In that spectrum, there are some injuries, impairment and consequences that fall somewhere in the middle and in my view, the proceeding before the Court is such a scenario.  I am conscious that I am required to consider the whole range of impairments and impairment consequences and not just those that come before the courts, in a consideration as to whether the plaintiff has established a “very considerable” consequence.[13]

[13]TTB SMS Pty Ltd v Reading [2020] VSCA 90.

50Turning then to a consideration as to whether the plaintiff has established a serious injury.  First, I accept that it is also relevant and a requirement, to consider not only what has been lost but what is retained.  Here, the plaintiff has retained an ability to work in his tyre business, which again, at the risk of repetition, does involve some physical, repetitive-type manual work.

51He also retains an ability to engage in ordinary day-to-day activity, such as driving, tending to the animals on the farm to some extent and engaging in activities around his property.  Indeed, the fact that he is still active on his hobby was illustrated by the video, where he was seen in a fleeting grab of video to be at a stockfeed business, to collect a bale of hay on his way home from work.

52It is notable in my view, that the plaintiff does not receive any treatment and does not take any medication for his left elbow condition.  While I accept that the plaintiff is a stoic and I am mindful that a stoic should not be treated any differently to someone who more readily gives in to their injury,[14] by the same token, in this proceeding, there is really no medical evidence to suggest that the plaintiff in fact needs any medication.  At its highest, Associate Professor Richardson thought that the plaintiff might require a further arthroscopy, after he had the benefit of performing an arthroscopy.  In that sense, it appears that he backed away from his earlier comment about the possibility of elbow replacement.

[14]See, for example, Sutton v Laminex Group Pty Ltd [2011] VSCA 52 at paragraph [83].

53The fact is that the plaintiff's symptoms have broadly remained stable, save for perhaps a flareup in 2018, and again in 2020, and there is no suggestion that there is any long-term deterioration which will see him need to return to a surgeon for arthroscopy or any other form of treatment.

54The most recent and most comprehensive medical opinion is that from the upper limb specialist, Mr Chehata.  I accept his opinion, that there is unlikely to be any need for any ongoing treatment.  I accept that the plaintiff has some need to protect his arm; I accept that he has an ache which can become more painful with heavier activity.  I accept that he has had to modify how he does some things around his workplace and farm.

55I accept that he has limited his involvement in golf and fishing, although the reasons for that are a little obtuse and that evidence needs to be seen in the context of two things.  Firstly, the plaintiff on any view, is busy in his own business and secondly, each of those interests, whilst pleasurable to him, were not at a level sometimes seen in these cases, of what I might describe as a great passion.  The plaintiff seemed to enjoy a hit of golf just as much as he seemed to enjoy casting a line but not at a level where it was a great love and a loss in that context.

56Ultimately, in the exercise of a value judgment and a consideration of the whole of the evidence, whilst the plaintiff's symptoms are not trivial, they might fairly be described as more than marked.  In my view, they do not meet the threshold of, “very considerable”.

57For the reasons expressed, whilst I accept that the plaintiff has an ongoing injury and impairment consequences, on a consideration of the whole of the evidence, in the context of video surveillance and what is retained, I am simply not satisfied that the plaintiff has demonstrated a “very considerable” pain and suffering consequence.

58Finally and gain, at the risk of repetition, in expressing that consideration it in no way should be seen to be critical of Mr Griffiths.  I suspect he is someone whose company I would enjoy outside of a court room and is a solid, hardworking man.

59Unfortunately for him, in the context of this proceeding, the injury is simply not “serious” but on the other hand, fortunately for him, in the context of being able to work and remain active, the injury is simply not “serious”. 

60I will otherwise hear from the parties as to the consequential orders.

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