Grima v Victorian WorkCover Authority
[2018] VCC 29
•9 February 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE | Revised (Not) Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-17-00393
| DAVID GRIMA | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
JUDGE: | HER HONOUR JUDGE TSALAMANDRIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 and 28 June 2017, 22 January 2018 | |
DATE OF JUDGMENT: | 9 February 2018 | |
CASE MAY BE CITED AS: | Grima v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 29 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the right hip – pain and suffering granted – pecuniary loss – permanency – whether reasonable to refuse total hip replacement
Legislation Cited: Accident Compensation Act 1985
Cases Cited:Fazlic v Milingimbi Community Inc (1982) 38 ALR 424; Petrovski v Naumovska (unreported, 20 May 1999); Naumovski v Turi Enterprises (unreported, 3 June 2002); Merhi v Ford Motor Company [2011] VCC 491; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622.
Case may be cited as: Grima v Victorian WorkCover Authority
Judgment: Application successful
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Mighell QC Mr L Allan | Zaparas Lawyers |
| For the Defendant | Ms A Magee QC Ms C Spitaleri | IDP Lawyers |
HER HONOUR:
Preliminary
1 Mr Grima is a 37-year-old fitter and turner, who injured his right hip when he slipped at work in March 2011. Since that time, Mr Grima has undergone three surgical procedures. However, in circumstances where his condition has not improved and where he continues to experience unrelenting hip pain, Mr Grima has been advised that a total hip replacement is the only further surgical treatment option available to him. Mr Grima said he does not want to undergo this surgery, in part due to his relatively young age, in part because his surgeon cannot guarantee a good result, and in part because each of the previous three surgeries were unsuccessful.
2 His employer, the defendant, accepts that Mr Grima injured his hip in this work accident, and that he has suffered permanent serious pain and suffering consequences as a result. The defendant also accepts that, at the present time, Mr Grima’s hip injury incapacitates him from all suitable employment. However, the defendant submits that, if Mr Grima were to undergo the total hip replacement, it is probable that he would be able to return to suitable employment on a full-time basis, such that he would not then suffer the requisite permanent loss of at least 40 per cent. The defendant contends that it is unreasonable for Mr Grima to decline the hip replacement surgery. In such circumstances, the defendant urged me to find that Mr Grima’s earning capacity is not permanent.
3 Pursuant to the definition of “serious injury” contained in s134AB(37) of the Accident Compensation Act 1985, in order for Mr Grima to be entitled to claim pecuniary loss damages, Mr Grima must satisfy me that, as a consequence of his accepted right hip impairment, he has suffered a loss of earning capacity which is productive of a financial loss of at least 40 per cent, on a permanent basis.[1] As the defendant has accepted that he presently suffers such a loss, the only matter for me to determine is whether that loss will be permanent.
[1]s134AB(38)(e)(i) and (ii) Accident Compensation Act
4 Mr Grima and his orthopaedic surgeon, Mr Brett Jackson, were both called to give evidence and were 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 this judgment.
5 For the reasons which follow, I am satisfied that Mr Grima’s refusal to undergo a total hip replacement is both genuine and reasonable. In such circumstances, I am satisfied that the loss of earning capacity which Mr Grima presently suffers is permanent.
Relevant background material
6 Mr Grima is a 37-year-old man, who left school during Year 11. Thereafter, he undertook an apprenticeship as a fitter and turner. Upon completion, Mr Grima worked predominantly as a fitter and turner, as well as an engraver and in security for short periods of time.
7 In 2010, Mr Grima commenced employment with the defendant as a diesel maintainer, where he worked on locomotives in its West Melbourne yard.
8 On 11 March 2011, Mr Grima suffered his right hip injury when he slipped on some oil which had leaked from a locomotive.
9 Mr Grima attended his general practitioner, Dr Robert Rawet, who initially referred him for physiotherapy treatment. During this time, Mr Grima continued to work, despite ongoing pain in his hip.
10 In October 2011, Mr Grima was referred to the Western Hospital, and subsequently attended the Orthopaedic Outpatients Department on 13 February 2013. He consulted orthopaedic surgeon, Mr Brett Jackson, who recommended that he undergo a right hip arthroscopy. Mr Grima was placed on the public hospital’s waiting list and the surgery was eventually performed on 22 May 2014. During this surgery, Mr Jackson performed a Cam resection and labral debridement. Mr Jackson diagnosed Mr Grima as suffering right hip joint osteoarthritis.
11 After approximately 10 weeks, Mr Grima returned to work, although he continued to suffer ongoing right hip pain. Mr Jackson arranged for further scans to be taken and then recommended a repeat right hip arthroscopy and assessment of his articular cartilage.
12 On 5 May 2015, Mr Jackson performed a second right hip arthroscopy on Mr Grima, with further Cam resection and labral debridement. Mr Grima had approximately six weeks off work at this time. Following the surgery, Mr Grima said that his hip pain seemed “a little bit better than the first surgery”. However, by 25 August 2015, Mr Grima complained to Mr Jackson that he was again struggling with ongoing pain that was very similar in nature to the pain he had experienced pre-operatively.
13 On 3 September 2015, Mr Grima was given a CT guided steroid injection into his hip, which had no effect on his pain.
14 In January 2016, Mr Grima was referred to pain specialist, Dr Clayton Thomas. He diagnosed Mr Grima as suffering an undifferentiated pain syndrome involving his right hip and groin. Dr Thomas recommended that Mr Grima attend a pain management program, which he undertook for eight weeks at Dorset Rehabilitation. Dr Clayton also recommended that Mr Grima trial Gabapentin and later, Lyrica.
15 In July 2016, Dr Thomas again reviewed Mr Grima. At this time, Mr Grima was on restricted duties working six hours, three days per week. Dr Thomas noted that Mr Grima struggled with his work, and that he felt the medication had not been effective for him. At this time, Dr Thomas was of the opinion that he could not offer any further treatment.
16 In August 2016, Mr Jackson arranged for Mr Grima’s condition to be considered by the Western Health Orthopaedic Unit’s case conference, for the purpose of obtaining a wider opinion from the orthopaedic community. Mr Jackson reported that the overall recommendation from the orthopaedic community was for Mr Grima to continue with conservative management, including a repeat hip steroid injection.
17 In October 2016, Mr Grima’s employment with the defendant was terminated. He has not worked since that time.
18 On 15 November 2016, Mr Grima was given a further CT guided steroid injection into his hip. Mr Grima said that the injection initially reduced his pain from 9/10 to 2/10 but that, over a six day period, his hip pain returned.
19 On 10 January 2017, Mr Jackson performed a further right hip arthroscopy on Mr Grima. This involved labral debridement, chondroplasty, and release of adhesions. Mr Jackson noted Grade III chondromalacia at the superior aspect of the acetabulum and further degeneration of his superior labrum.
20 Mr Grima said that he “felt OK” for a while after this surgery but that, in March 2017, “the pain went back to where it had been before the surgery”. At a review on 8 March 2017, Mr Jackson noted that Mr Grima was limping and mobilising with a single point stick. He recommended that Mr Grima undergo a further steroid injection, but also discussed with Mr Grima the prospect of a total hip replacement.
21 In a letter to Dr Rawet dated 8 March 2017, Mr Jackson stated that, in his opinion, Mr Grima was “progressing towards a right total hip replacement in the near future”.
22 On 23 March 2017, Mr Grima received a CT guided right hip injection. Dr Jackson noted that his pain scores decreased from 9/10 to 5/10 before increasing again over the next 48 to 72 hours. In cross-examination, Mr Jackson said that Mr Grima’s pain scores indicated to him that only about 50 per cent of his pain was coming from the hip itself. He explained that other factors were therefore at play, which may influence the effectiveness of a total hip replacement for Mr Grima, such that “a hip replacement may only improve his pain by less than 50 per cent”.
23 In a letter to Dr Rawet dated 10 May 2017, Mr Jackson stated that he did not believe Mr Grima would get any better “unless he undergoes a right total hip replacement”.
24 In a medical report dated 19 May 2017, Mr Jackson stated that, in his opinion, Mr Grima required a right total hip replacement in order to alleviate some of his pain and to improve his function.
25 This matter first came before me on 27 June 2017, at which time Mr Grima gave evidence that his hip pain was constant, unbearable and sharp. He rated it as 9/10.
26 In his affidavit sworn 27 June 2017, Mr Grima said the following:
“I have had discussions with Mr Jackson about a possible hip replacement. He told me that I would get about 15 years out of that. He said he couldn’t guarantee the pain would go away. I do not want to have this done. I do not have any intention of having this done.
I have a number of reasons for not wanting to undergo total hip replacement. I have had three surgical procedures already and each time the expectation and plan has been to try and improve my function. This has not occurred. I’m reluctant to pursue further surgery given what has happened to date. Also nobody can give me guarantees. Secondly, I am very young. Mr Jackson has explained to me that if I have a hip replacement, I may only get 15 years out of it before it needs to be redone again. I am currently only 36 years of age. Also, I have had discussions about the hip replacement with my general practitioner. As a result of these discussions, I have decided against a hip replacement.
Whilst I suppose anything in the future is possible, I do not currently want to have a hip replacement and I do not have any plans to undergo a hip replacement.”
27 In cross-examination on that day, Mr Grima was adamant that he did not intend to undergo the total hip replacement surgery. He reiterated that his decision was based on the fact that he had already undergone three surgical procedures, and that his surgeon would not guarantee the success of this further procedure.
28 The hearing was then adjourned to permit Mr Grima to obtain further evidence as to his potential work capacity, in the event that I accepted the defendant’s submission, that it was unreasonable for him to refuse to undergo the total hip replacement.
29 From 11 August 2017 to 22 December 2017, Mr Grima attended his physiotherapist on an approximate weekly basis. On 15 September 2017, it was noted that Mr Grima’s leg had collapsed going up the steps. On 6 October 2017, it was noted that he was struggling with pain and having trouble driving. However, by 1 December 2017, it was noted that Mr Grima’s hip was feeling okay and that he was walking “a little better”.
30 On 14 October 2017, Mr Grima obtained a Centrelink medical certificate from general practitioner, Dr V Puchooa, whom he consulted in the absence of Dr Rawet. It was noted that this certificate referred to osteoarthritis in his right hip, for which Mr Grima was undergoing physiotherapy and hydrotherapy and that he was “considering total hip replacement”. Mr Grima explained that he obtained these certificates every three months for Centrelink purposes. He denied that he told Dr Puchooa that he was considering total hip replacement surgery.
31 On 26 November 2017, Mr Jackson reviewed Mr Grima. He noted that Mr Grima was improving, in that he was mobilising without any walking aids and had slowly decreased his medication. Mr Jackson also noted that Mr Grima’s depression was improving.
32 In a letter to Dr Rawet dated 26 November 2017, Mr Jackson recommended that Mr Grima continue with nonoperative management, despite the acetabulum wear. Mr Jackson stated that it was “likely that at some stage in the future, Mr Grima will require a total hip replacement should his symptoms progress along with a deterioration of the cartilage wear”.
33 Mr Jackson was cross-examined at length as to when Mr Grima would require a total hip replacement. He explained that a total hip replacement is “not the ideal solution” in circumstances where Mr Grima is only 37 years of age, and that, for this reason he has not advocated for the procedure to be performed at this time.
34 Mr Jackson explained that surgeons do not generally like to perform hip replacement surgery on a patient below the age of 55, due to the increased risk the patient will need subsequent revision surgery, and that, for this reason, most hip replacement procedures are performed on patients between the ages of 70 and 75 years. As such, Mr Jackson said that most people of Mr Grima’s age would not be undergoing such a procedure for another 30 to 35 years, and that his comments to Dr Rawet, that Mr Grima would need a total hip replacement in the “near future”, need to be understood in this context. Mr Jackson explained, “… in the near future, it would be around – within 10 years, not 30 years.”
35 Mr Jackson said that if the osteoarthritis from which Mr Grima suffered was at a Grade IV level, he would “push” for Mr Grima to undergo the total hip replacement surgery now. In circumstances where it is at a Grade III level, however, Mr Jackson explained that it was for Mr Grima to decide when the surgery would be performed, and, given his age, he would not advocate that he undergo the surgery at this point in time.
36 Mr Grima relied upon an updated affidavit on which he was cross-examined. He stated that since June 2017, he had reduced his Panadeine Forte intake from approximately four to two per week. He was also no longer using a walking stick and said that, from a psychological perspective, he was coping better. However, he accepted that his pain continued to be constant, unrelenting and sharp.
37 Mr Grima said that he currently takes two Panadeine Forte and one or two Endone a week. He is now living with his mother and son outside of Ballarat. Mr Grima said that he is in a new relationship, and that he feels he is now getting better psychological support.
Mr Grima’s refusal to undergo a total hip replacement. Is this genuine, and, if so, is it reasonable?
38 I accept Mr Grima as an honest and reliable witness. On the two occasions he gave oral evidence, Mr Grima readily conceded that his hip pain is sharp, constant and unbearable. He also accepted the limitations it places upon his ability to walk and drive a car.
39 I consider that Mr Grima gave several credible reasons as to why he does not intend to have the total hip replacement – his age, there being no guarantee of a favourable outcome, and there having been no improvement following his three previous surgical procedures.
40 I also accept Mr Grima’s evidence that he is now ambulating without a walking stick, that he has marginally reduced his medication, and that he is coping better mentally. I also accept that he now has better support systems in place. I consider these positive developments will help him to manage his condition, despite suffering constant and very significant hip pain.
41 I am satisfied that Mr Grima genuinely does not intend to undergo the total hip replacement, both now, and through the foreseeable future.
42 The next matter for me to consider is whether such a refusal is reasonable. In a serious injury application, the onus is on Mr Grima to satisfy me of this.[2]
[2]s134AB(38)(e)(i)
43 In the decision of Fazlic v Milingimbi Community Inc,[3] the High Court considered a plaintiff’s refusal to undergo recommended back surgery and whether it should disentitle the plaintiff to future workers’ compensation payments. Mr Fazlic said he had a fear of operations in general, and in particular, fear of a major operation on his back. Mr Fazlic said that his surgeon had recommended the surgery and told him it was “a relatively major operation which carried some risk but the chances were that improvement could be expected from it.”[4]
[3](1982) 38 ALR 424
[4]Ibid at 425
44 The High Court held that the assessment of the reasonableness or otherwise of a refusal of surgical treatment must depend upon the patient’s state of knowledge at the relevant time.[5] Unless there are exceptional circumstances, a court need not be concerned by medical opinions of which the plaintiff was unaware at this time. Therefore, the assessment should be based upon the medical advice given to the patient at the time, in order to determine whether, in all the circumstances known to and affecting the patient, the refusal is unreasonable. In the circumstances of that case, the High Court was not satisfied Mr Fazlic’s refusal was unreasonable.
[5]Ibid at 428
45 Mr Jackson explained in detail the reasons for which he considered it reasonable for Mr Grima to delay undergoing the total hip replacement at this time. I accept that Mr Grima’s youth is the dominant reason for the delay, together with Mr Grima obtaining pain relief of only 50 per cent following a recent cortisone injection.
46 In closing submissions, Ms Magee submitted that Mr Jackson had altered his opinion as to when Mr Grima should undergo hip replacement surgery, and suggested that when he gave evidence, Mr Jackson adopted the role of an advocate in terms of his position. I do not accept this submission. I consider Mr Jackson gave fulsome and convincing evidence, which adequately explained the reasons for which he considers it reasonbale for Mr Grima, at the age of 37, to delay undergoing the total hip replacement surgery at this time. I also accept his explanation, that in referring to Mr Grima needing to undergo this procedure in the “near future”, Mr Jackson meant in the next 10 years, and that he would not ordinarily expect to perform such surgery on a patient of this age. At the present time, as indicated in his most recent letter to Dr Rawet, Mr Jackson recommends conservative treatment of Mr Grima.
47 Mr Grima also said that his decision to refuse the total hip replacement had, in part, been based upon discussions he had with his general practitioner. I have no evidence as to the nature of such advice.
48 In support of the reasonableness of Mr Grima’s decision, Mr Mighell tendered a medical opinion from orthopaedic surgeon, Mr Bruce Love, dated 18 February 2015. At the time of that report, Mr Grima was 34 years of age, and Mr Love stated that, although a total hip replacement was the only other alternative surgical option, at his age, “such a procedure is unwise unless there is absolutely no alternative and the symptoms are extreme”.
49 There is no evidence before me as to whether or not Mr Grima was aware of this opinion prior to swearing his affidavit, and whether or not it played any part in Mr Grima’s resolve not to have the hip replacement surgery.
50 Medical reports were also tendered from orthopaedic surgeons, Mr Siva Chandrasekaran and Mr Thomas Kossmann. Mr Grima’s solicitors arranged for him to be examined by Mr Chandrasekaran in July 2017. In his report dated 11 July 2017, Mr Chandrasekaran stated that Mr Grima “may eventually” require a total hip replacement, but noted that the timing of the surgery would most likely relate to both his pain and functional profile.
51 Mr Grima’s solicitors arranged for him to be examined by Mr Thomas Kossmann in October 2017. In his report dated 10 October 2017, Mr Kossmann stated that Mr Grima has to undergo a total hip replacement and that it is inevitable such a procedure will be performed in the “not so distant future”.
52 The opinions of Mr Chandrasekaran and Mr Thomas Kossmann were obtained after Mr Grima had made his decision not to have the total hip replacement. Therefore, their opinions are irrelevant to my assessment of whether Mr Grima’s decision was reasonable.
53 Although Mr Grima had previously consented to undergo three hip arthroscopies and several cortisone injections, I consider joint replacement surgery to be at a different level. I understand the concern he has regarding this surgery and, considering his relatively young age, I do not consider it unreasonable for him to have no intention of undergoing a total right hip replacement.
54 In closing submissions, the defendant referred me to cases of this Court, where judges had considered a plaintiff’s refusal to undergo recommended surgery. In Petrovski v Naumovska,[6] the plaintiff had a childhood fear of anaesthetics and therefore refused to have surgery that involved pinning a fracture in his ankle. His Honour Judge Holt held that it was unreasonable for a mature, intelligent and well-educated person not to have done something positive to conquer such fears.
[6]Unreported decision dated 20 May 1994
55 In Naumovski v Turi Enterprises Pty Ltd,[7] the plaintiff suffered bilateral carpal tunnel syndrome, but refused to undergo carpal tunnel release surgery. Her Honour Judge Cohen had reservations as to the plaintiff’s evidence on this issue and did not accept that the plaintiff had a genuine fear that her condition could worsen.
[7]Unreported decision dated 3 June 2002
56 In Merhi v Ford Motor Company,[8] the plaintiff refused to undergo a knee arthroscopy as he was annoyed and bitter that the defendant would not pay for the procedure. Her Honour Judge Bourke noted that the plaintiff could have gone on the public health system’s waiting list, and considered his refusal on this basis to be unreasonable.
[8][2011] VCC 491
57 I consider the circumstances in each of these cases to be distinguishable from those of Mr Grima, due to the nature and significance of joint replacement surgery and his multitude of valid reasons for not wanting to undergo such a procedure.
Is Mr Grima’s impairment permanent?
58 Under s134AB, Mr Grima has the burden of satisfying me that his impairment is permanent.
59 The requirement that an impairment be "permanent" was introduced into the ACA by the Accident Compensation (Common Law and Benefits) Bill 2000. When introducing the new test, the Minister said:
“The definition of serious injury contains a new concept in respect of the qualifying period for a consequence of an impairment or loss of a body function, disfigurement or mental or behavioural disturbance or disorder to be found to be serious. Previously, it was a time period which satisfied the requirement of being long term. In Humphries v. Poljak, the majority of the full court did not express a view on the meaning of the phrase 'long-term'.
It said 'long-term' was not an expression likely to give rise to difficulty. The absence of guidance as to the meaning of long-term has, however, given rise to ambiguity in applications and this has been compounded by the medical and legal professions having a different approach to the meaning to be given to the term. The expression 'long-term' has been removed from the new test and the word 'permanent' has been inserted by way of substitution. This is intended to reflect the view of government that a serious consequence is one which is permanent, meaning indefinitely for the foreseeable future (Parliamentary Debates, Legislative Assembly, Accident Compensation (Common Law and Benefits) Bill 2000, Mr Bob Cameron, 1002).”
60 The meaning of permanence was first considered by the Court of Appeal in Barwon Spinners v Podolak[9]. There it was stated that an impairment will be permanent if it will probably persist and there will be no significant improvement over time. Further, an injury will be considered permanent if it will persist through the foreseeable future and not merely into the foreseeable future. [10]
[9](2005) 14 VR 622, [19]; [2005] VSCA 33
[10] Ibid at 18 and 19
61 I accept the defendant’s submission that Mr Grima did not say he will never have a total hip replacement. I do not consider it necessary for him to be that emphatic. It could be said that nothing in life is definite. In satisfying me he suffers a permanent impairment, it is not necessary for Mr Grima to say he will never, ever, have the total hip replacement.
62 I am satisfied that Mr Grima does not intend to have the hip replacement surgery, now, or through the foreseeable future, and, in accordance with Mr Jackson’s’ advice, I am satisfied that Mr Grima proposes to continue with conservative treatment only. In such circumstances, I am therefore satisfied that Mr Grima’s right hip impairment is permanent.
Conclusion
63 In circumstances where the defendant accepts that Mr Grima’s current hip impairment results in a total loss of earning capacity, it follows, therefore, that in finding his impairment is permanent, he satisfies the statutory threshold. I therefore grant Mr Grima leave to commence common law proceedings for both pain and suffering and loss of earning capacity damages.
64 I shall make the consequent orders.
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