Grujic v Victorian WorkCover Authority

[2019] VCC 1333

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No.  CI-19-00399

DOBRIVOJ GRUJIC	Plaintiff
v
VICTORIAN WORKCOVER AUTHORITY	Defendant

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JUDGE:	HER HONOUR JUDGE K L BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:	22 and 23 July 2019
DATE OF JUDGMENT:	15 August 2019 (Revised)
CASE MAY BE CITED AS:	Grujic v Victorian WorkCover Authority
MEDIUM NEUTRAL CITATION:	[2019] VCC 1333

REASONS FOR JUDGMENT
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Subject:  ACCIDENT COMPENSATION

Catchwords:             Serious injury – impairment of the left elbow – impairment of left torso – pain and suffering only – range – disentanglement

Legislation Cited:     Workplace Injury Rehabilitation and Compensation Act (2013) (Vic), s335(2)(d

Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Petkovski v Galletti [1994] 1 VR 436; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz (2012) 34 VR 309; Peak Engineering & Anor v McKenzie [2014] VSCA 67; Poholke v Goldacres Trading Pty Ltd & Anor [2016] VSCA 232; Dressing v Porter & Anor [2006] VSCA 215

Judgment:                 Leave granted to bring proceedings for damages for pain and suffering. 

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms A Smietanka	Zaparas Lawyers
For the Defendant	Mr D McWilliams	Russell Kennedy

HER HONOUR:

1 This is an application for leave to bring proceedings pursuant to s335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (“the WIRC Act”) for injuries suffered by the plaintiff in the course of his employment with CAG Wholesalers Pty Ltd (“the employer”) on 4 May 2015 (“the said date”).

2       The body functions relied upon pursuant to clause (a) are the left elbow and left torso.

3       Counsel for the plaintiff indicated the application primarily concerned the left elbow impairment but the application relating the left torso was still on foot.[1]  The application in relation to the left shoulder was abandoned before closing addresses.[2]

[1]Transcript (“T”) 1

[2]T97

4By s325(2)(b) of the WIRC 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, or losses of a body function or disfigurement, as the case may be, fairly described [as at the date of the hearing] as being more than significant or marked, and as being at least very considerable.”

5       Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.

6       The impairment of the body function must be permanent, in the sense that it is likely to continue into the foreseeable future.

7       The plaintiff bears an overall burden of proof upon the balance of probabilities. 

8Subsection s325(2)(h) of the WIRC Act provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.

9       I 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.

10      I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[3] and Grech v Orica Australia Pty Ltd & Anor[4] in reaching my conclusions.

[3](2005) 14 VR 622

[4](2006) 14 VR 602

11      The plaintiff relied upon three affidavits and gave viva voce evidence.  He was cross-examined.  He also relied on an affidavit sworn by his daughter, Sneza Muncan, on 9 July 2019 and his wife, Jelena Grujic, on 19 July 2019.  In addition, both parties relied on medical reports and other material which was tendered in evidence.  I have read all the tendered material.

The Plaintiff’s evidence 

12      The plaintiff is presently aged sixty-one, having been born in December 1957 in the former Yugoslavia.  He is right hand dominant

13      After eight years of primary education, the plaintiff then worked as a welder, having completed technical training for three years in that field. 

14      The plaintiff relocated to Australia in 1978.  Upon his arrival, he worked as a machine operator in a plastic moulding factory for two months before working for Reom Industries for eight months.  He then moved back to Yugoslavia for approximately three years, working as a welder and a repairman on a farm whilst there.

15      The plaintiff came back to Australia in February 1982.  He returned to work at Reom Industries, before working as a forklift driver at Addax Engineering.  Whilst at Reom in 1983, he injured his back and knees.  He continued on light duties until February 1985, when his employment was terminated. He had suffered intermittent back pain since that time. 

The transport accident

16      On 8 August 1985, the plaintiff injured his neck, shoulders, back and knees in a transport accident (“the transport accident”).  Thereafter, he could not go back to work for some time.  He attempted to return to work in 1987 but only lasted about two months, before having to stop, primarily because of headaches and pain. 

17      The plaintiff subsequently had several operations on his right knee and one on his left knee. 

18      The plaintiff’s general practitioner at the time was Dr Balint.  He then saw Dr Buchanan.  Since 1989, the plaintiff has seen Dr Winfield. The plaintiff communicates with him in English and is comfortable in his ability to do so.[5]

[5]T9

19      After the transport accident, the plaintiff started seeing psychiatrist, Dr Lewis.  From about 1990, the plaintiff saw Dr Kaplan, psychiatrist. 

20      The plaintiff brought a compensation claim for his transport accident injuries.  It settled in about 1988 for about $15,000.  He agreed that the transport accident was “significant”, following which he had continued to have problems with his neck.  He had problems with his shoulders at the time of the accident but after physiotherapy –“it came better”.  He also had a lower back problem and a problem with his right knee.[6] 

[6]T15

21      In about 1989, the plaintiff worked with John Perry Lifts for about three months, and then with Repco Brake and Clutch for about six months.  During that time, he was finding it difficult to cope with work as he was having frequent headaches and neck pain, and felt very anxious and irritable.  He then had to stop work and has been in receipt of a disability pension since 1990.[7]

[7]T15

22      The plaintiff was unable to work for the following years.  He suffered depression as a result of marital problems.  His neck, back and right knee pain continued.  He returned to Yugoslavia for about six months in 1991, where he met his current wife, who became pregnant.  He was unable to get her and their child to Australia until October 1992.  These difficulties were very stressful for him.   

23      Between about 1994 and 2010, the plaintiff worked as a part-time cleaner.  While his part-time hours varied during this time, he generally worked about six hours per week.  He initially worked at Philip Morris for about five years, with various different employers, depending on who held the Philip Morris contract. 

24      From about February 2010 until about January 2015, the plaintiff was not employed because of bilateral hand injuries that he sustained while employed with ISS Facility Services Australia Pty Ltd/Phillip Morris between 2007 and 2009 (“the hand injuries”).[8]

[8]T17

25      The plaintiff’s November 2009 claim in relation to the hand injuries was accepted. 

26      In about 2011, the plaintiff underwent a right carpal tunnel release, as well as an ulnar shortening.  He suffered a postsurgical infection which complicated his recovery from that surgery.

27      The plaintiff lodged a serious injury application in relation to the hand injuries and received about $52,000 by way of settlement after the deduction of legal costs.  He also received a sum under his total and permanent disability insurance policy.

28      Since his common law proceedings were finalised and more recently, on 13 October 2017, the plaintiff had a left carpal tunnel decompression as well as decompression of the ulnar nerve of the left elbow performed by Professor Michael Leung. 

29      As at September 2018,[9] this surgery had significantly assisted the plaintiff’s symptoms and he was rarely bothered by pins or needles in his left hand.  At that time, he continued to experience intermittent pain, discomfort and pins and needles in his right hand.  His fingers felt stiff at times and he also experienced weakness in his right hand which made it difficult for him to hold things, and he tended to use plastic plates and cups at home. 

[9]First affidavit

30      Despite the hand injuries, the plaintiff was able to drive his manual car, changing gears with his left hand, and using the force of his left to turn the steering wheel.

31      The plaintiff had been able to go back to work part time with the employer, despite his hand injuries.  He did not believe that those symptoms would then prevent him from undertaking his pre‑injury duties with the employer.  He was then taking an anti-inflammatory, Voltaren, 50-milligram tablets, once a day, which largely managed any symptoms he experienced.

Other health issues

32      In about 1998, the plaintiff was diagnosed with diabetes.  He initially required medication and insulin to manage this condition.  He was not aware of any symptoms when diagnosed with the illness; it was discovered as a result of a routine blood check. 

33      In September 2018, the plaintiff stopped taking insulin for his diabetes and was trialling an implant.  His diabetes did not prevent him from working with the employer.

34      In about 2005, the plaintiff was having ongoing problems with neck pain, which extended into his shoulders and arms.  At that time, he was sent by Dr Victor Gordon, a neurologist, for EMG tests.  The plaintiff understood that these tests did not identify Carpal Tunnel Syndrome. 

35      In about 2008, the plaintiff had some numbness, burning and swelling in his feet.  He was referred to a number of doctors and a podiatrist, who provided him with new shoes, which improved these symptoms. 

36      In about the middle of 2008, because of ongoing pain in his neck, back, knees and feet, Dr Winfield referred the plaintiff to the Caulfield Pain Management Centre.  He underwent some physiotherapy treatment for these condition. 

37      Since about 2007, the plaintiff has been treated on and off for ischaemic heart disease.  He has had stress tests over the years and understands that at his last check-up in January 2017, there was no evidence of myocardial ischaemia.  As of September 2018, he was taking Crestor, Imdur and Lipidil tablets for high cholesterol. 

Work with the employer

38      In about January 2015, the plaintiff wanted to try to return to part-time work.  He began working with the employer on or about 14 January 2015 as a delivery driver.  He worked part time, generally ten hours a week.  He worked two days per week and was paid about $20 per hour ($200 gross per week).  He could have worked more than 10 hours a week if work was available.  He could work up to 15 hours per week before his pension was affected.[10]

[10]Re-examination; T83

39      The plaintiff confirmed after about three or four weeks with the employer, his original duties changed.  Initially, he did driving and checked goods.  Later on, he did a heavier job, actually delivering Asian foodstuffs, taking boxes from the truck using a step bar, putting the goods on the trolley and pushing them to the shop, where he manually unloaded them.[11]  He was regularly required to lift, carry and manoeuvre heavy boxes as the truck he was driving did not have a tailgate.

[11]T13

40      The plaintiff could certainly cope physically and mentally with the initial duties, checking the contents of boxes of various Asian foodstuffs of varying sizes and weights.  He was coping perfectly well with that work before his duties were changed.  He was also coping with the changed duties before the said date.[12]

[12]T14

41      The plaintiff thought that as at May 2015, he was regularly taking an anti-inflammatory once a day to manage his right-handed intermittent stiffness and discomfort, as well as Panamax tablets daily.  He very occasionally took a Panadol Forte tablet. 

The incident

42      At around 7.00pm on the said date, the plaintiff was manually unloading boxes when he fell about 1.2 metres off the side of the truck.  He was carrying a heavy box when he fell (“the incident”).  He suffered injury to his left upper limb and left torso in the incident.

Post-incident work

43      Following the incident, the plaintiff had a number of weeks off work.  The employer then told him he must return to work driving and that he would have a jockey to assist him unloading the truck.  The plaintiff tried to return to work for a day or two, but was in pain and struggling, and was eventually stopped by police because he was driving wearing a sling.  He then had a few more weeks off work.

44      Over the next year, the plaintiff tried to continue to work one day, and at times, two days a week, on and off and inconsistently.  He did so because the employer told him that if he did not work he would not be paid.  He did not lodge a WorkCover claim then because the employer advised him against doing so.  He took medication to manage the pain.

45      By April 2016, the plaintiff found that he was unable to continue work because of the pain and discomfort in his left elbow, left shoulder and left torso area.  He has not worked since.

Post-incident treatment

46      The day after the incident, the plaintiff saw Dr Winfield.  The plaintiff was then experiencing pain in his left elbow, chest, ribs and shoulder.  Dr Winfield arranged an x-ray of the plaintiff’s left elbow,[13] chest and left ribs.  The plaintiff then wore a sling for a number of weeks.  He had a second left elbow x-ray on 25 July 2015.[14]

[13]The results of which showed an undisplaced fracture in the radial head

[14]The results of which showed that the fracture had not changed and remained un-unified

47      On 29 December 2015, the plaintiff was struck by a truck door on the back of his shoulder area.  He had some temporary pain that he managed with ice but he believed that this resolved.  He did not believe that this incident aggravated his left elbow or left shoulder injuries.

48      On 30 January 2016, the plaintiff underwent a follow-up x-ray of his left elbow.  He was advised this confirmed a non-union fracture and that the previous fracture was still visible.

49      The plaintiff was treated at Monash Hospital in April 2016.  He was then advised that he needed arthroscopic surgery for his left elbow and was placed on a waiting list.

50       A further x-ray of the plaintiff’s chest and left ribs was conducted on 2 May 2016, which he was advised showed that the left 8th rib cartilage was displaced, which may have been because of an old injury.  Because of this unusual finding, an ultrasound was recommended. 

51      As the results of an ultrasound of his left chest wall on 16 May 2016 were normal, it was therefore recommended the plaintiff undergo a CT scan of the area, which was conducted on 30 May 2016.[15]

[15]The results showed some mid thoracic intervertebral degeneration and first anterior costochondral degeneration, as well as a soft tissue mass

52      In May 2016, the plaintiff underwent a CT scan of his left elbow.[16]  An x-ray of his left elbow was conducted on or about 25 July 2016.[17]

[16]        The results showed an old united lateral radial head fracture and an associated small step in the articular     surface of the proximal radius

[17]The results showed that the radius remained displaced and that there was no sound bony union demonstrated. 

53      On 19 August 016, the plaintiff had an ultrasound of his left shoulder on referral from Dr Winfield.[18]

[18]The results showed mild to moderate subacromial bursal thickening and mild impingement on abduction and possible bursitis

54      On about 9 November 2016, the plaintiff was involved in an incident at the car park of Parkmore Shopping Centre.  The driver of a car that had reversed into his car started to reverse into him, so he put his hands on his rear window to try and stop him.  As a result, he had had some worsening back pain. 

55      The plaintiff lodged a TAC claim in relation to the 2016 accident.  It was accepted, and he underwent some physiotherapy and hydrotherapy which was of assistance. 

56      The plaintiff’s treating general practitioner referred him to Professor Ek, orthopaedic surgeon, in respect of his left elbow pain. Professor Ek performed arthroscopic and debridement surgery on the plaintiff’s left elbow on 23 November 2016 (“the elbow surgery”).  Degenerative changes were found in the elbow and the radial head following surgery. 

57      The surgery helped reduce the plaintiff’s pain somewhat, but as at September 2018, he continued to experience swelling, stiffness and discomfort in the left elbow.

58      Post-surgery, the plaintiff underwent physiotherapy treatment for his left elbow at Waverley Park Physiotherapy Centre and continued to attend upon Professor Ek for review and follow up.

59      When the plaintiff saw Associate Professor Ek in May 2017, he was continuing to have pain and stiffness in his elbow, in particular on extension.  He advised the plaintiff that it was unlikely that he would ever have complete relief of pain because of the osteoarthritis now in his elbow.  He recommended that the plaintiff should continue to take anti-inflammatories for treatment and have physiotherapy treatment. 

60      The plaintiff was referred by Dr Winfield to a pain management specialist, Dr Neels du Toit, whom he first saw in February 2017.  Dr du Toit suspected the plaintiff had costochondritis or sternal chondritis and that he should consider an ultrasound-guided corticosteroid injection.

61      In June and October 2017, the plaintiff underwent diagnostic ultrasound-guided left chest wall blocks performed by Dr du Toit.  On both occasions, this treatment gave the plaintiff significant short-term relief, but the pain had since returned.

62      A further ultrasound of the plaintiff’s left elbow was conducted in January 2018.[19]  A CT scan of his left elbow was undertaken the same day.[20] 

[19]This showed mild common extensor origin tendinopathy and small posterior elbow joint effusion

[20]This showed a healed but mildly depressed radial head fracture, moderate degeneration and possible bursitis and tendinosis

63      The plaintiff underwent a left subcostal nerve radiofrequency neurotomy in his left chest wall area at Monash Private Hospital performed by Dr Du Toit on 11 January 2018.  Dr Du Toit recommended further left torso branch blocks in March 2018.

64      The plaintiff saw Professor Ek for review on 13 February 2018.  He thought that because of underlying arthritis, the plaintiff was unlikely to have normal left elbow function.  He did not recommend further surgery but suggested a steroid injection.  The injection was subsequently carried out in March 2018 and provided the plaintiff with mild and temporary assistance. 

65      On review in May 2018, Professor Ek thought the plaintiff had significant arthritis in the elbow which should be managed conservatively.

66      On 23 May 2018, the plaintiff underwent a further left elbow ultrasound and x‑ray.  The latter showed degenerative change.  On 31 May 2018, a further CT scan of the left elbow was carried out and on 13 June 2018, the plaintiff had a left elbow MRI scan.

67      Dr Winfield referred the plaintiff to Mr Patrick Byrne, orthopaedic surgeon, for a second opinion.  Following examination on 3 December 2018, Mr Byrne arranged a CT scan of the plaintiff’s elbow.[21]

[21]It showed osteoarthritis present at the humero-ulnar articulation

68      Mr Byrne reviewed the plaintiff on 11 December 2018.  He agreed that the plaintiff did not need a second operation and suggested he should engage with a pain specialist for pain control.

69      The plaintiff was re-referred to Dr Du Toit for his left elbow on 15 February this year.  He has recommended some further injections for both the plaintiff’s left elbow and left torso area.  These investigations have not taken place, as funding has ceased and the plaintiff cannot afford to pay for them himself. 

Current condition/complaints

Spinal

70      As of September 2018,[22] the plaintiff continued to experience some intermittent pain in his right knee, his lower back and neck.  These symptoms did not prevent him from working part time over the years with the employer.  The plaintiff understands a right knee x-ray in September 2018 showed some mild narrowing of the lateral compartment. 

[22]First affidavit

71      The plaintiff’s back is “better now” and he has not had any treatment for it and he feels okay and does not have any pain.[23] 

[23]T91

72      The plaintiff still has a “little problem” with his neck.[24]  He disagreed he had neck pain all the time.  It was now only in cold weather when he felt more pain.  When he was doing pain management at Caulfield Hospital, he did not have neck pain every day.  When he started to do part-time work in 1994, his neck symptoms started to go down – “It went up and down”.  Sometimes he had days with no pain.[25]

[24]T28

[25]T48

73      When told his physiotherapist recorded in June 2014 that the plaintiff reported symptoms in his neck every day of the week, the plaintiff explained he only had pain in the cold weather and he could not otherwise remember how he was then.[26]

[26]T49

74      The plaintiff agreed he had ongoing neck pain and learnt to live with it.  It is “stabilised and calm”.  He has had pain management and been trained to cope with that pain.[27]

[27]T42

75      The plaintiff’s neck is okay.  He has a little bit of stiffness.  He does exercises every morning.[28]  Whilst his answers in this regard were confusing, it seems the plaintiff continues to have physiotherapy for his neck under the yearly Medicare allowance of five visits. 

[28]T90

76      Whilst acknowledging he had problems from three incidents, the plaintiff said  “I just [had] no problem now like before.  After [the] accident is worse … I have this one, ribs, shoulder, you know, neck I have problem, now back is okay [and] my knee is okay now,  I have operation, I not have problem with [my] neck now,   I never seek treatment from doctor for my neck.”[29]

[29]T44

Left elbow

77      As of September 2018, the plaintiff experienced discomfort and stiffness in his left elbow.  Straightening out his arm caused sharper pain.  Moving and using his elbow increased his pain and that the pain was worse at night. 

78      Currently, the plaintiff’s left elbow symptoms are constant.  He feels a constant dull throbbing pain there. This turns into a sharper pain if he tries and lifts it, straightens or uses his arm.  He struggles to lean on a table with his left elbow.  In addition to this constant pain and discomfort, his elbow is often swollen.

79      The plaintiff has “big problems” with his left elbow.  He cannot move his left side and wrist “and these things”.  His left elbow is his main problem.  It is more significant than his left shoulder pain.[30]

[30]T20

80      The plaintiff explained that because he had not had pain management with his left elbow, his problems continued.[31] 

[31]T43

81      When sitting in the witness box, the plaintiff’s elbow was bent at about 90 degrees.  He agreed with pain, he could straighten it.  When he walks, he holds his left arm up and finds that a better position for him.  Sometimes he puts his left arm down.  He has to find a comfortable position.[32]

[32]T38

82      The plaintiff continues to experience daily pain in his left chest area.  If he bends forward or flexes backwards, he feels a stabbing pain in his left chest and torso area.  Deep breathing or coughing and rotating exacerbate his pain and symptoms.  Overhead lifting is also difficult for him.

83      Whilst the 2017 nerve blocks gave the plaintiff some temporary relief from his left rib discomfort, that relief was short lived and his symptoms returned.  Funding has been denied for the further treatment and the plaintiff is unable to pay for it himself.

84      The plaintiff understood Dr Winfield’s handwritten clinical notes had some intermittent references to left chest wall pain in 2004 to 2007, 2010 and 2011 which the plaintiff did not specifically recall.  Any symptoms however did not stop him working part time as a cleaner until 2010 and he was able to work part time for the employer until the incident.  The work with the employer included lifting very heavy boxes of stock.  The plaintiff’s present left torso symptoms would prevent him undertaking his pre-injury duties.   

85      The plaintiff also continues to experience daily pain and discomfort from his left shoulder injury, as well as his anxiety having worsened as a result of his pain and not being able to work part time.

86      The plaintiff continues to experience some intermittent pins and needles in both hands and also some weakness in his right hand.  He has learned to live with these intermittent symptoms and they would not stop him working part time with the employer.

87      The plaintiff agreed he still had a problem with bilateral carpal tunnel.  After surgery, the symptoms improved and the pressure was relieved.  He is still feeling … just not like before.[33]  Late last year his hands were giving him a little bit of a problem.  He had hand therapy again and saw a specialist, Professor Yeung, plastic surgeon.  The problem was not the same as before.  The right hand is worse than the left where he has “a little bit of a problem”.  He disagreed that the left had was a big problem at the end of last year.[34]

[33]T17

[34]T18

88      When asked about Dr Winfield’s questionnaire in May 2018,[35] the plaintiff agreed he saw Dr Winfield last year because of problems with his carpal tunnel and dropping things.  The problem was not like before.  He just had to learn to live with it.[36]

[35]See paragraph 232 of my Judgment

[36]T20

89      The plaintiff’s had problems dropping little things with his right hand. He had difficulty because he could not feel “little things”.  He could not remember telling Dr Winfield it was difficult to use his arm because of the carpal tunnel.[37]  The problem then was only his right hand, but then he said he had a problem in the left, but it was “different.”  He still used his hands as he had to.  He tries to do things as he could not just sit around.  He denied his carpal tunnel problems would prevent him working; he had worked earlier with the employer with the problem.  If he had not hurt his elbow, he would still be doing the job with the employer.[38] 

[37]T22

[38]T23

90      The plaintiff largely agreed with his history of ongoing right and left hand problems recorded by the Medical Panel on examination on 18 November 2016.[39]

[39]See paragraphs 219-221 of my Judgment

91      The plaintiff agreed he told the Panel in 2016 his left hand problems were getting progressively worse.  He disagreed the problems continue to this day.  It is not the same as before.[40] 

[40]T31

92      The plaintiff agreed still he has numbness and tingling in both hands, the right more than left, “sometimes a little bit”.  He agreed his right hand problems had not got better since 2016.  His left hand felt a little bit better after the surgery in terms of sleeping.[41]

[41]T31

93      The plaintiff disagreed numbness or tingling in his left hand continued.  Sometimes it happens in his right, “not like before to wake [him up]”.  It had stopped.  He then said it woke him “very little sometimes”, if he used his hands more.[42]

[42]T32

94      After the left arm surgery in 2017, the plaintiff’s arm felt better.  Sometimes there is pins and needles in the fingers and he still has right hand symptoms and that has always been worse for him.  He is not having any treatment for carpal tunnel.[43]

[43]T87

Recent treatment

95      As of September 2018, in respect of his physical injuries, the plaintiff took Tramadol capsules (50 milligram), as needed but on average four to five per day.  He took over-the-counter Panadol as needed.  Since his injuries, he had also been prescribed Mirtazapine tablets (30 milligram at night) because of his difficulty sleeping.  He also took Nexium tablets (20 milligram) to manage gastro-oesophageal reflux.

96      Since then, the plaintiff has ceased taking Mirtazapine tablets for the insomnia he was experiencing because of his left rib and torso pain.  He found that this medication made him too tired during the day and he felt like a zombie. 

97      Last year, the plaintiff was seeing Dr Du Toit in respect of his left torso injuries.

98      The plaintiff continues see Dr du Toit primarily for his left torso/rib injuries on average every three or four months.  He remains under the care of Dr Winfield for his injuries and sees him on average a couple of times a month.

99      Because of his left torso and chest injuries, the plaintiff has to take an opiate based painkiller on a daily basis to manage his symptoms which have side effects.

100     The plaintiff currently takes the following medication for his injuries: an anti-inflammatory, Celebrex 200-milligram capsules, one per day; Tramal slow release 50-milligram tablets, one tablet twice a day; and  a second analgesic on bad days, Panamax over-the-counter.

101     The fast release Tramadol the plaintiff used to take caused him to be tired and drowsy. He also suffered from bad constipation for which he required medication.  The slow release side effects are less pronounced, but he does continue to experience constipation and tiredness.

102     When it was suggested he took Tramadol for a number of different problems, the plaintiff stressed he first took Tramadol after the incident.  He takes slow release, one in the morning and one at night.  He takes that medication for his elbow.  “It’s really pain.”  Before the incident, he took Celebrex “to help with other things”.[44] 

[44]T25

103     The plaintiff gave confusing answers about whether Tramadol relieved pain in other areas of his body but said it helped with his left torso pain.  His hand felt the same.  “Maybe” this medication relieves pain in his shoulder.  He uses Celebrex for shoulder swelling.[45]  When he takes Tramal at night, his shoulder feels better.[46] 

[45]T26

[46]T27

104     When told Dr Winfield completed a document in February 2018 setting out the plaintiff took Tramal for his neck and back, the plaintiff agreed he did so because he was already taking Tramal and his doctor told him that would help.[47]

[47]T28

105     The plaintiff ultimately agreed he took Tramadol not only for his left elbow, as his doctor said that would help with the pain in the neck and also the pain in his side and left shoulder.[48]

[48]T29

106     The plaintiff now treats his left elbow swelling with cold packs that he tends to apply for about 20 minutes each day following Professor Ek’s advice.

Work restrictions

107     As of September 2018, the plaintiff deposed that he was unable to return to his pre-injury duties because of his left torso injuries.  He struggled with heavy lifting because of this and also the constant bending and movement.  He would also find it difficult to work with the daily pain.

108     Since about 1989 or 1990, the plaintiff had been able to work full time because of injuries unrelated to the present application; however, for the large part of the next two decades, he had been able to work part time.  He then had about five years off work because of bilateral ulnar and median nerve neuropathy due to work duties that he had previously had to undertake. 

109     However, in January 2015, the plaintiff was able to return to part-time work with the employer for ten hours a week.  At the time he ceased work in 2016 because of his injuries, he had no intention of ceasing work with the employer.  He had been unable to return to pre-injury part-time duties because of his left torso injury, and he did not believe he would be able to return to those duties.

110     The plaintiff recently deposed that because of his chest and left elbow injuries, he had to cease working part time with the employer.  He finds not working difficult emotionally as he really enjoyed being able to work and it gave him a purpose.  He would have liked to continue to work part-time hours. 

111     The plaintiff can only do very little work.  Even if he does a little, afterwards he has pain.[49] 

[49]T70

112     After the incident, the plaintiff tried to get back to work but his boss did not want him.  The plaintiff has not applied for any jobs since he left the employer.[50]  He did not know whether he would be able to do a light job, and did not involve a lot with his hands; 

“… Because you know, if I – all this problem and these things, you know, I think so it's very hard for me to try to work anything.  Because nobody give a job for you to do anything, you know, because you have to use – lift.  What I do job before, lifting and working, I can't do this job any more.  If I no have this problem with this, I still continue driving.  I think still I have this job.  I never stop this job, I still did delivery and these things.”[51]

[50]T71

[51]T71

113     The plaintiff would have been happy not to have had the incident so he could have continued to work for the employer.[52]

[52]T72

114     Before the elbow surgery, the plaintiff tried to work and tried to do his best for nearly a year.  He now would not be able to do his initial job with the employer for 10 hours a week.  He cannot drive and had not tried driving a truck after the incident.  His boss would not give him a job.[53] 

[53]T74

115     When asked about the boom gate job that had been suggested by the vocational expert, the plaintiff did not know what that job involved and had never worked in that area.[54]  When there was further explanation of the type of duties, he repeated his answer.[55]  He would have to see this job.  He did not know if he could do it.  He could try.[56] 

[54]T76

[55]T77

[56]T79

116     The plaintiff explained he had always had “hard jobs” since he had come to Australia but had not had a job like working on a boom gate.  He would be happy to press buttons.  He did not understand computers and data entry.[57]  He agreed he spoke English sufficiently well to understand what was being said in Court.  He tried to do his best without the help of the interpreter.[58]  He was too old at sixty-two to learn new things.[59]

[57]T79

[58]T80

[59]T81

117     When told Mr Love thought he could operate a boom gate, the plaintiff did not know if he would be willing to give it a try.  “No one had given him anything.”  They could not find him any work on the return to work.[60] 

[60]T82

Sleep

118     As of September 2018, the plaintiff found it much more difficult to sleep because of his left torso injuries.  He had had some difficulty sleeping since the transport accident, made worse by his hand injuries. 

119     Prior to sustaining his left torso injury, the plaintiff took one 10-milligram Temazepam tablet at night to assist him with sleep.  He used to sleep on his stomach because doing so stopped him from rolling onto his right arm as often in the middle of the night.  Sleeping on his right side caused him to feel some pain and pins and needles in his right hand, elbow and forearm.

120     The plaintiff was previously able to sleep for three to four hours at a time interrupted.  Since injuring his left torso, his sleep had become much worse.  He now struggled to sleep on his stomach because sleeping face down, aggravated his left torso pain.  He now tried to sleep on his back, but as a consequence, he rolled around in his sleep much easier and often woke up because of pain in either his right arm or chest.  Mirtazapine 30-milligram, an anti-depressant, had been prescribed to help him sleep in addition to the Temazepam he was already taking. 

121     The plaintiff continues to struggle to sleep comfortably at all. 

122     The plaintiff agreed he had had sleeping problems since the transport accident.[61]  He denied his sleep had been the same for a decade and that his elbow injury had made no difference because it became worse after that.[62]  He agreed depression sometimes affected his sleep but not all the time.  He has pain all the time that gives him a problem sleeping.[63]

[61]T44

[62]T49

[63]T48

123     As a consequence of his inability to work part time and the pain he experienced, the plaintiff’s anxiety had worsened. 

Activities

124     The plaintiff used to enjoy gardening which is now difficult and painful because of his left elbow.  He also finds that he struggles to lift heavy things because of his left elbow pain and weakness.

125     When asked what he did during the day, the plaintiff said he went walking and went around the garden looking at things.  He might have to put the bin out if no one else did.  He tries some things.  Working in the garden, sometimes he cuts a little bit of the roses or puts the water on.  He has vegetables in the garden.[64]

[64]T39

126     Dr Winfield had told the plaintiff not to sit around and be depressed.  The plaintiff liked gardening and had a lot of garden before the incident.  Whilst his garden is now smaller, he still likes to do something.  He has five or six tomato plants.  He always goes to the garden but never stays there long.  He could not really say how long he spent there, maybe more than five minutes.[65]  When he is there, he goes slowly and tries everything.[66]

[65]T40

[66]T41

127     The plaintiff’s left elbow and torso injuries have impacted on his ability to play with his grandchildren, who are aged six and seven.  One of his granddaughters lives with him.  Before his incident injury, the plaintiff was able to lift and carry her.  They went to the park daily and he could lift her and hold her while she was climbing the monkey bars or playing on other play equipment.  Being unable to do so now is emotionally difficult for him because she is young and cries as she does not understand why he cannot pick her up.[67]

[67]T52; T90

128     Both the plaintiff’s left chest and elbow injuries impact on his ability to drive for prolonged periods.  He has an automatic car and tends to limit his driving to 15 to 20 minutes at any time because head checking, including parking, exacerbates his left chest pain, and generally holding the steering wheel causes left elbow pain and discomfort.

129     Even though the plaintiff had a light rigid truck licence, he did not drive any heavy vehicles when working with the employer.[68]

[68]T34

130     The plaintiff can drive to appointments.  Sometimes he has to as he has no one else to drive him.  He can drive up to an hour if he needed to, but then he would have a lot of pain, sharp pain in the left elbow, and going up to the shoulder, because he could not lift that arm much and could not lift it straight.  If he bent it, he had pain in his ribs.  He cannot turn his body because of the pain in his side.[69]

[69]T35

131     The plaintiff described driving bent forward, close to the wheel, with his hands facing upwards.  After he drives, he has pain for a couple of days.  He is absolutely sure he drove in that protected fashion.[70]

[70]T37

132     The plaintiff’s left elbow and torso injuries also impact on his ability to take care of his personal hygiene.  Twisting to wash his back causes left torso discomfort, and washing his hair causes left elbow discomfort and pain.  He continues to do these tasks but is frustrated they trigger increased pain.

Surveillance

133     Before surveillance film was shown, the plaintiff agreed he could go shopping.  He is able to use his left hand to hold a trolley.  He uses a trolley for heavier items.  He can hold a shopping basket in the crook of his bent left arm.[71] 

[71]T51

134     In the first film, the plaintiff was shown on 23 May 2017 walking into an appointment with an insurance doctor.  He agreed he walked with his left arm down by his side.  Sometimes he put his hand there to make him more relaxed.  When he came out from the appointment and crossed the road, he had his arm bent.  He tried to find the better position with the pain.  He agreed later in the film he was shown walking down the street with his wife, holding a paper in his left hand.  He had pain when he was doing so.[72]  His arm always hurts when walking.[73] 

[72]T56

[73]T57

135     On 17 November 2018, the plaintiff was shown between 12.38pm and 1.02pm carrying out tasks in his garden.  The view of the plaintiff below about shoulder level was obscured by the fence at his premises. 

136     The plaintiff explained, when bending in the garden it hurt his chest.  When he is bending he also had pain from the shoulder going down into his arm but it is mainly chest pain which restricts him in the garden.  The garden matter he was shown throwing was very light.  He was “not crippled”.  He tied the tomatoes slowly and he was doing very little with them.[74] 

[74]T58

137     In the third film taken on 12 December 2018, the plaintiff agreed he walked with his left arm by his side.  At one point, he gestured with his left hand when talking to a person at traffic lights.  He straightened out his left arm, raising it above shoulder height.  He agreed he was able to raise his left hand at the level of his shoulder.  Sometimes he has pain after doing so.  He then denied his arm was straight.  He could not straighten it.  If he tried, he felt strain and pain in his elbow.[75] 

[75]T62

138     The plaintiff explained the examination with Dr Lange was a very short one.  The plaintiff denied that when not being directly examined, he moved his arms, including the left, freely.  He later complained to Dr Winfield that Dr Lange had written a five-page report, having only seen him for a few minutes.[76]

[76]T65

139     The plaintiff was asked about his presentation on examination to Dr Dickinson earlier this year with his left arm bent.  The plaintiff denied he was trying to keep his arm in that position to impress on the doctor his arm was really sore.  Sometimes he puts it down if it is stiff.  Changing the position of his arm makes him feel better.[77]

[77]T66

140     Surveillance film on 2 July 2019 showed the plaintiff driving and then shopping.  At the supermarket, he stood for a while with a shopping basket tucked in the crook of his left arm and his wife put various items in the basket.[78] 

[78]T66

141     The plaintiff was also shown picking up some fruit at the fruit shop.  He was using his left hand “for help” to put it in the bag.  After doing so, he had pain.  He is not a cripple, he tries to do everything and tries to help himself.  After shopping, he gets a little bit of neck pain.  His right hand pain is more than the pain in his left.  The pain in the right is always there and he has “tingling needle”.[79]

[79]T68

142     The plaintiff was also filmed attending hydrotherapy at the Dandenong pool.  He has hydrotherapy to help him “for everything”.[80]  Sometimes he gets help from others and sometimes he just does hydrotherapy by himself.[81]

[80]T69

[81]T70

Lay evidence  

143     The plaintiff’s daughter, Sneza Muncan, swore an affidavit of 9 July 2019.  She lives with her parents and her daughter and sees the plaintiff daily.

144     Ms Muncan confirmed the contents of the plaintiff’s affidavits, including his difficulties playing with her daughter.

145     The plaintiff’s wife, Gelena, swore an affidavit on 19 July 2019. 

146     Mrs Grujic had read the plaintiff’s affidavits and agreed with the contents thereof in terms of his complaints of pain and symptoms.  She elaborated on the difficulties the plaintiff had playing with his granddaughter and driving and his problems with sleep due to his left elbow and ribs.  Furthermore, the plaintiff had said he was happy being able to get back to work with the employer and enjoyed being able to work again, but had to stop because of his incident injuries.

Treaters

147     The plaintiff’s general practitioner, Dr Winfield, has provided a number of reports, and his clinical notes are available.

148     In his most recent report of 21 March 2019, Dr Winfield confirmed the plaintiff continues to have significant discomfort in his left elbow and left chest wall and noted the results of recent investigations carried out in relation thereto.

149     Dr Winfield had referred the plaintiff to Mr Patrick Byrne in November 2018 for a second opinion about the left elbow and Mr Byrne recommended the plaintiff be referred to a pain control specialist.  Accordingly, the plaintiff saw Dr Du Toit on 15 February 2019, following which he advised that the plaintiff was suffering “elbow pain due to a combination of radiocapitellar osteoarthritis and tennis elbow”.

150     Dr Du Toit had suggested repeating radiofrequency denervation would be the best option in relation to the left chest wall and with the elbow, intraarticular corticosteroid injection in combination with sclerosing injections targeting common extensor tendon would help.

151     Dr Winfield noted the insurer had not approved the chest wall denervation and he was uncertain whether the elbow treatment had been approved.

152     In an earlier report of 16 April 2018, Dr Winfield confirmed, despite treatment, the plaintiff had persisting symptoms to the left elbow and chest wall, which he considered were now permanent, and would result in an ongoing disability.  In his opinion, these injuries, as well as other medical issues, prevented the plaintiff from being able to return to any form of manual duties.

Specialist treatment

153     On 23 November 2016, Professor Ek performed a left elbow arthroscopy and debridement of synovitis and left elbow debridement of posterior osteophyte.  The operative diagnosis was left elbow degenerative arthritis posterior impingement and synovitis.

154     When seen in May 2017, Dr Richard Jamieson, on behalf of Professor Ek, reviewed the plaintiff, who presented with some pain and stiffness in his left elbow.  On examination, the plaintiff had a very functional range of 5 to 135 degrees, with normal pro-supination range.  The plaintiff then complained of anterior pain in full extension.

155     Dr Jamieson and Professor Ek had counselled the plaintiff.  He was unlikely to have complete relief of pain in his elbow due to the underlying osteoarthritis, which was noted at the time of surgery.  Unfortunately, there were no other surgical interventions at that stage that would be suitable, and they suggested the plaintiff use regular non anti-inflammatories, as tolerated, and they were happy for him to continue with gentle physiotherapy and massage.  At that stage, they had discharged him from their care.

156     The plaintiff was then seen by Dr Michael Perret, upper limb fellow, and Professor Ek, on 8 May 2018.

157     The plaintiff had returned, following injection of corticosteroid and local anaesthetic into his left elbow joint.  This was performed for persistent radial-sided pain following arthroscopy, which demonstrated a severely arthritic joint.  The injection helped the plaintiff for a few days.  Dr Perret thought this was consistent with the pathology arising from within the joint.

158     On examination that day, the plaintiff moved his elbow relatively freely from 10 to 135 degrees, with full pronation and supination.  He had some ongoing radial-sided pain and mild tenderness around the joint line laterally.

159     They explained to the plaintiff, at that stage, there was nothing more that could be done surgically for his elbow.  They were aware he had significant arthritis in that joint; however, it was in his interests that this be managed conservatively for now.

160     A number of reports were provided by the plaintiff’s pain physician, Dr Du Toit. 

161     When he reported to Dr Winfield in February 2017, Dr du Toit noted the plaintiff was mostly troubled with left and, to a lesser degree, right anterior chest wall pain.

162     At that stage, Dr Du Toit thought the most likely cause for that was costochondritis or sternal chondritis, which may be treated with an ultrasound-guided corticosteroid injection.  This injection was carried out on 15 June 2017.

163     On 18 October 2017, there was a further ultrasound-guided left chest wall injection, and on 11 January 2018, there was left subcostal nerve radiofrequency neurotomy at left seventh, eighth and ninth costochondral cartilage.

164     In his detailed report of May 2018, Dr Du Toit advised the main reason for referral was in regards to the chest pain following the incident.

165     Dr Du Toit noted, in the incident, the plaintiff fell and landed directly onto his left shoulder, elbow and left chest wall, and it was his opinion that the plaintiff’s current pain presentation was still a direct result of the injuries described.

166     At that stage, Dr Du Toit thought the plaintiff had no current capacity for pre-injury employment, as well as suitable alternative duties, with no current capacity to lift, push, or pull any load.

167     Dr Du Toit considered the plaintiff would benefit from further RFN treatment to treat chest wall pain and recommended he considered repeat radiofrequency denervation.  He thought the plaintiff had already exhausted other conservative treatment measures, including physiotherapy, with no long-term benefit.

168     Dr Du Toit noted the plaintiff also had ongoing left elbow pain with a fixed flexion deformity of the left elbow, which was restricting his ability to straighten the arm and perform any lifting or carrying any loads.

169     In his May 2018 report, Dr Du Toit noted the plaintiff had pre-existing lower back and neck pain, as a result of which he had no current capacity for full-time work, and while doing some part-time duties, he fell and injured his chest wall and left elbow.

170     In those circumstances, Dr Du Toit confirmed the plaintiff had no capacity for pre-injury employment or suitable alternate duties.  In his view, the plaintiff’s standing tolerance was reduced to ten to fifteen minutes due to ongoing back and neck pain, and walking tolerance was up to thirty minutes, when he started to experience back and neck pain. 

171     Dr Du Toit thought the plaintiff had no current capacity to bend, lift, push or pull, and had a capacity to drive for short periods less than thirty minutes. He considered the neck and chest were the main barriers for the plaintiff returning to suitable employment.

172     On what appears to be the last review in February 2019, Dr Du Toit noted the plaintiff reported a recurrence in anterior chest wall pain, now just over twelve months since the RFDN.  On that date, the plaintiff also consulted him in regards to his left elbow pain.

173     On that occasion, the plaintiff’s main concern was in regards to constant lateral elbow pain, but also medial elbow pain and posterior pain, especially on extension.  He had weakness in the left arm and elbow.

174     On examination, there was pain on resisted wrist extension, suggesting common extensor tendinopathy, that is, tennis elbow.  The plaintiff had restriction in range of movement and signs of posterior impairment.  Supination and pronation range was reduced.

175     Dr Du Toit noted a CT report suggesting radiocapitellar osteoarthritis with posterior joint osteophytes.  He noted an ultrasound of the elbow suggesting common extensor tendinopathy with intrasubstance tearing.  Thus, in his opinion, the plaintiff’s elbow pain was due to a combination of these conditions, and he suggested further injections would help elbow symptoms, and the RFDN would be the best option given the plaintiff’s good response in terms of his chest wall.

176     Dr Betty Ho, cardiologist, wrote to Dr Winfield in June 2018, advising of the complaints the plaintiff made on review on 31 May 2018.  She noted chest wall pain following a work-related incident, when he fell from a truck several years ago.  She reassured the plaintiff his cardiac status was stable and that his chest pain was not cardiac related.

Investigations

·5 May 2015, left elbow x-ray, chest and left ribs

·25 July 2015, x-ray left elbow

·30 January 2016, x-ray left elbow follow up

·2 May 2016, x-ray chest and left ribs

·16 May 2016, ultrasound left chest wall

·30 May 2016, CT scan left elbow

·30 May 2016, chest, contrast enhanced

·5 October 2017, ultrasound left elbow

·9 January 2018, CT scan left elbow

·21 May 2018, left elbow x-ray and ultrasound

·31 May 2018, CT scan left elbow

·13 June 2018, MRI scan left elbow.

Medico-legal evidence

177     The plaintiff was examined by Mr Bruce Love, orthopaedic surgeon, on 30 April 2019 with the assistance of an interpreter.

178     The plaintiff then complained of pain in the region of the left elbow, with swelling in the forearm and arm above the elbow.  He also complained of symptoms in the region of the left shoulder but, in particular, complained of pain on the chest wall and particularly the anterior chest.

179     On examination, there was significant left shoulder restriction.  The left elbow had ten degrees fixed flexion and would only flex to one hundred degrees, compared to one hundred and twenty on the uninjured right side.  There was generalised tenderness over the lateral aspect of the left elbow.

180     There was tenderness anterior to the chest and, on compression of the chest wall, pain was produced.  There was some minor paraspinal tenderness in the upper thoracic spine.

181     Mr Love noted that it was now four years since the plaintiff suffered an injury and he was developing features of a chronic pain syndrome.  He did not think there was any potential for alternative treatments for the elbow or shoulder symptoms.  In terms of the chest pain, he considered the plaintiff might be appropriately assessed by a chest physician, where further radiology may assist in defining the causation of chest wall symptoms.

182     Mr Love considered the plaintiff had a healed fracture of the head of the radius and had been left with residual dysfunction of a mild degree, and had some mild signs of rotator cuff tendonitis of the left shoulder.  Of greater concern was the chest wall condition, about which he believed a further opinion should be sought.

183     Mr Love thought it reasonable to accept that all the symptoms the plaintiff described were as a consequence of the incident and remained a significant factor to his condition.

184     Mr Love was very pessimistic about the prognosis of recovery given the four years of ongoing problems.  He did not believe the plaintiff was typically at risk of degenerative change, in that the current symptoms appeared to be principally of a soft tissue nature.

185     Mr Love concluded the injuries the plaintiff had experienced significantly affected his capacity to push, pull or lift, or any of those activities in a repetitive manner, and he could not work in overhead tasks or carry objects.  He thought these incapacities were of a moderate severity.

186     When Mr Love discussed the suggested occupations of performance monitor, shuttle bus driver, assembler or boom gate attendant, the plaintiff was adamant none of the tasks would be within his capacity.

187     In a supplementary report, Mr Love commented that the restrictions noted upon examination of the left shoulder and elbow would suggest that a shuttle bus driver was not within the plaintiff’s capacity, nor work as an assembler.  The boom gate attendant would be within his capacity where minimal physical demands were required.

188     Dr David Kennedy, sports physician, examined the plaintiff on 14 May 2019. 

189     The plaintiff then complained of pain around the outer left elbow of a constant level of about six out of ten, swelling on the inside of the left elbow with pain, and pain radiating up the arm into the shoulder joint.  The pain level around the left shoulder blade could be six out of ten, some pain down into the left forearm and wrist, restricted movements of the left elbow and shoulder and severe pain around the anterior chest wall on the left which could travel around to the mid back region, particularly when twisting or turning, and worse with deep breathing, when it would go up to seven out of ten.

190     The plaintiff was restricted in driving a car for more than ten to fifteen minutes, as he could only do so with one hand.

191     On examination of the left elbow, there was quite marked tenderness over the radiohumeral joint and the range of motion at the elbow joint was from 20 degrees of reduced extension to 115 degrees of flexion with pain at the extremes of these movements.  There was a full range of movement at pronation and supination at the proximal radioulnar joint with some pain against resistance.  There was some tenderness also over the olecranon process. 

192     There was some pain and restriction of movement of the left shoulder.  There was tenderness over the sternum on the left side and over the seventh to ninth osteocartilaginous joints.

193     Dr Kennedy thought that the plaintiff had sustained work-related injuries to the left side of his chest, upper extremity and elbow.  He thought the plaintiff was at increased risk of post-traumatic osteoarthritic changes in the left elbow joint, with the likelihood of long-term deterioration occurring, particularly in the left elbow joint and, to a lesser extent, in the seventh, eighth and ninth costochondral joints.

194     As a result of his incident injuries, Dr Kennedy thought the plaintiff had significant physical restrictions in relation to the use of his left arm and shoulder joint, and difficulty with repetitive and heavy activities with his upper limb. 

195     Noting the suggested jobs, Dr Kennedy doubted the plaintiff would have the ability to work ten hours a week on a consistent, reliable and sustainable basis for the foreseeable future.

196     In a supplementary report, Dr Kennedy confirmed he thought the work restrictions applied in respect of each of the chest wall and the left upper limb injuries, involving the elbow and shoulder. 

The Defendant’s medical evidence

Pre-incident

197     It was reported following a cervical spine MRI scan on 28 March 1996, that there was C6-7 posterior and posterolateral disc protrusion with impingement on both C7 nerve roots.

198     There was an MRI scan of the lumbar spine of 7 April 2004, after which it was reported there was lateral shallow disc protrusion at L3-4 touching the left L3 nerve root without significant compromise or displacement.

199     Mr King, orthopaedic surgeon, wrote to Dr Winfield in July 2005 stating the plaintiff had been a patient of his for about fifteen years, initially having suffered injury to the lower part of the back and now suffered from pain on and off.  An MRI scan revealed he had suffered a disc lesion of the lumbar spine.  He noted the plaintiff also suffered from severe foraminal stenosis at C6-7, a condition which gave him concern and pain.

200     Mr Khan, orthopaedic surgeon, wrote to Dr Winfield in October 2007, in which he detailed, two months earlier, the plaintiff’s onset of hand pain. 

201     In a letter from Dr Pun, rheumatologist, to Dr Engler of 28 August 2009, Dr Pun noted the plaintiff had three prolapsed discs in his neck. The plaintiff’s predominant complaint at that time was suggestive of Carpal Tunnel Syndrome and plantar fasciitis. 

202     There was a nerve conduction study in August 2009, which demonstrated prolonged median motor latency bilaterally.  There was electrophysiological evidence of bilateral moderate median neuropathies at the wrists, worse on the right, compatible with a clinical diagnosis of bilateral Carpal Tunnel Syndrome.

203     There was an abnormal nerve conduction study undertaken in December 2011, when the plaintiff was referred, with the clinical notes noting diabetic for many years, median ulnar nerve problem left hand.  There was evidence of a generalised neuropathy affecting the left upper extremity.  There was evidence of moderate compression of motor and sensory fibres of the median nerve in the carpal tunnel on the left side.

204     Professor Michael Leung, plastic surgeon, wrote to Dr Winfield on 9 January 2012, noting a recent nerve conduction study and advising there was diabetic neuropathy in the upper left limb; however, he believed it still worthwhile doing a left median nerve compression at the wrist and a decompression of the ulnar nerve in the left elbow.

205     There was an abnormal nerve conduction study of the right side on 30 April 2012.  There were changes to suggest a mild generalised neuropathy affecting the right upper extremity and there was evidence of moderate compression of motor and sensory fibres of the median nerve in the carpal of the right hand.  There had been a slight deterioration of the median nerve abnormality since the 2010 study.

206     There was a further normal nerve conduction study of both hands on 6 March 2013.

207     In a letter from the plaintiff’s physiotherapist, Cameron McCormack, to the general practitioner in June 2014, Mr McCormack advised the plaintiff told him he got symptoms – neck pain, headaches and stiffness – every day of the week.  His sleep was frequently disturbed because of both his neck pain and headaches, and there was no significant variation in symptoms throughout the day. 

Post incident

Investigations

208     Following an ultrasound of the left shoulder on 19 August 2016, there was found to be mild to moderate subacromial bursal thickening and mild impingement on abduction [indistinct] bursitis in the appropriate clinical setting.

209     There was an MRI scan of the cervical spine of 4 November 2016.  It was reported the C5-6 disc was degenerative and was leading to mild spinal canal narrowing and mild lateral neuroforaminal canal narrowing with both exiting C6 nerve roots contacting disc.  The C6-7 disc was degenerative, leading to moderate spinal canal narrowing, slightly flattening the anterior spinal cord.  There was severe bilateral neuroforaminal canal narrowing with both exiting C6 nerve roots contacting disc.

210     Findings post x-ray of the lumbosacral spine on 10 January 2017 included minor retrolisthesis at L3-4 and anterior subluxation at L4-5, with degenerative facet arthropathy identified at L4-5 and, to a lesser extent, L5-S1.

211     A CT scan of the cervical spine was undertaken on 27 February 2017.  It was reported there was marked degenerative disc disease at C6-7, with moderate right-sided neural foraminal stenosis and mild to moderate canal stenosis at that level.

212     Imaging of the right knee was performed in December 2017.  It was reported there was chronic appearing tears at the posterior horn insertion of the lateral meniscus and the posterior horn and body of the medial meniscus.  There was full thickness cartilage fissuring within the lateral compartment and less significant cartilage abnormality in the patellofemoral and medial compartments.

213     Professor Leung thanked the general practitioner on 15 March 2015 for referring the plaintiff, who was complaining of worsening nerve function in both hands.   He noted he had Type 1 Diabetes.  He thought the plaintiff was a difficult patient to assess and it was very difficult to tell if the deterioration of the nerve function was due to recompression or due to his diabetic neuropathy.

214     Dr Tony Kostos, rheumatologist, examined the plaintiff for medico-legal purposes in November 2015.  While finding the carpal tunnel was not work related, he noted that syndrome and other neuropathies are a complication of diabetes, and the best longitudinal studies available have not established a link between work processes and the syndrome. 

215     Dr Kostos noted it was also clear the plaintiff had a number of health issues and noted that he was depressed and suicidal and, in those circumstances, Dr Kostos thought there was not any possibility at all he would return to work in the future.

216     Dr Ho, consultant cardiologist, wrote to Dr Engler in September 2016.  Among the list of complaints, she noted the plaintiff had ischemic heart disease dating back to 2007.  There was atypical chest pain, particularly in the setting of emotional stress.

217     The plaintiff was examined by a Medical Panel on 18 November 2016 for the purposes of his bilateral carpal tunnel complaint. 

218     The plaintiff said the symptoms of numbness and tingling in both hands had never resolved since 2009.  He had persistent numbness and tingling in both hands which continued to wake him at night, associated with clumsiness, particularly in the right.  He said his right was now worse in cold weather and subject to stiffness in the mornings.  He had noticed no change in his right hand symptoms in the last two years.

219     The plaintiff told the Panel he had surgery on his right arm in September 2011.  Following surgery, his symptoms improved for a short time but had recurred rapidly.  He developed wound infections and did not proceed with surgery to the left upper extremity.

220     The plaintiff advised that progressively his left hand had become worse and now he had persistent numbness and weakness and could not hold items properly due to increased clumsiness.  He described the numbness as being worse in the thumb, index and middle fingers of both hands, and also involving the little finger.  He then woke once or twice a night due to the numbness.

221     Mr Drnda, consultant neurosurgeon, wrote to Dr Winfield in April 2017.  He noted the plaintiff suffered from chronic neck pain, pain in the left shoulder, some pins and needles and numbness in all fingers of both hands, more on the left side.

222     Mr Drnda suggested the plaintiff have the left ulnar nerve root decompressed in the elbow, which may help a little bit; however, most of his problem is related to diabetic polyneuropathy, and he told the plaintiff he should not expect a spectacular result from this.  Certainly, he would be very reluctant to offer him an anterior cervical discectomy and fusion, as he does not appear to have signs of radiculopathy.

223     Professor Leung wrote to Dr Winfield in April 2018, having reviewed the plaintiff on 28 March 2018.  He noted the numbness in the left hand was improved, but the plaintiff still complained of some scar tenderness in the right carpal tunnel decompression scar. 

224     Dr Pun, rheumatologist, wrote to Dr Winfield in April 2018, following review of the plaintiff.  She noted his right knee continued to be symptomatic and she had forwarded a referral to the orthopaedic clinic at Monash. 

225     On testing at Melbourne Neurology in September 2018, there was electrophysiological evidence of bilateral median neuropathies at the wrist, moderate to severe on the left, moderate on the right, comparable with the clinical diagnosis of bilateral carpal tunnel.  There was electrophysiological evidence of ongoing mild ulnar neuropathies localised to elbow regions bilaterally.  Clinical correlation was recommended.

226     Dr Winfield provided a handwritten summary setting out the plaintiff’s attendances for left chest wall complaints on 29 September 2004, 8 December 2005, 1 July 2006, 2 August 2007, 22 November 2010, 7 January 2011 and improvement on January and April 2011.

227     Dr Winfield reported to Allianz in October 2016, listing the plaintiff’s attendances relating to his bilateral carpal tunnel complaints from September 2009.  On the last reported attendance on 6 October 2016, the plaintiff was still complaining of numbness in the medial three-and-a-half fingers, “both hands painful, wakes him at night”.

228     Dr Winfield provided a summary of the plaintiff’s attendances from 10 November 2016 to 1 June 2018 relating to his 2016 transport accident. On that last date, there was a note of continuing mid back pain “applies Voltaren gel 12 hourly ... Must do exercises.”

229     Dr Winfield completed a general practitioner management plan in February 2018 in which he set out that the plaintiff was being prescribed Tramadol, Voltaren and Celebrex for neck and back pains.

230     Dr Winfield also noted nerve conduction studies carried out on 23 May 2017 demonstrated mild slowing of the left ulnar motor velocity across the elbow segment, without evidence of a conduction block.  Left median sensory latency was prolonged.  There was electrophysiological evidence of a mild left ulnar neuropathy, localisable to the elbow region.

231     In the May 2018 questionnaire completed by Dr Winfield, he described the plaintiff’s condition as bilateral Carpal Tunnel Syndrome and ulnar nerve neuropathy and noted the specialist referral.  He noted post-operative, modest improvement re pain –“still dropping objects”.

232     Dr Winfield set out that the plaintiff was then taking Celebrex, Panadol and Tramadol for the work-related injury condition.  There was persistent soreness over the carpal tunnel operation site.

233     In terms of ongoing management, Dr Winfield noted the right side is “better manageable.  Resistant pain numbness in the left hand.”  He thought the plaintiff had reached a state of maximum improvement, noting the plaintiff was taking self-management exercise and occasional hydrotherapy.

234     In terms of a return to work, Dr Winfield noted “it was difficult to use arms and also had injuries involving neck, back, chest wall, left elbow”.

Medico-legal evidence 

235     Mr Michael Shannon, orthopaedic surgeon, first examined the plaintiff in September 2016. 

236     The plaintiff told him of the incident, in which he had pain in his chest, left elbow and left shoulder.  He also told Mr Shannon of his difficulties at work, ceasing in April and being on the waiting list for elbow surgery.

237     Mr Shannon thought the fall would appear to have resulted in chest injuries and possibly a rib fracture. The plaintiff had a fracture of the elbow which was initially undisplaced over the first couple of months, but subsequently united with slight displacement and irregularity of the articular surface. 

238     On examination, the plaintiff had a near full range of movement in the elbow and had been put on a waiting list in the public hospital for arthroscopic surgery, which Mr Shannon was not convinced he would benefit from.  The plaintiff was then awaiting an opinion from Professor Ek.

239     Mr Shannon thought the plaintiff had a united intraarticular fracture of the head of the left radius and also probably unrelated subacromial bursitis of the left shoulder.  The fracture was caused by the fall.  He had an immediate capacity for light work with restrictions.

240     On review in March 2017, the plaintiff said the operation had helped his pain, although he still got swelling in the elbow, and he iced it.  He was particularly concerned about his ribs.

241     On examination, the plaintiff had a very slight fixed flexion deformity, with a good range of flexion and rotation in the left elbow.  There was widespread tenderness in the chest area.  Mr Shannon thought the rib fracture appeared to be quite separate from the costochondral junction, as described by the pain specialist.  He thought that condition was usually not related to trauma, noting, also, the plaintiff described pain, not only in the sternum, but on both sides of the chest wall. 

242     In regard to the elbow, the plaintiff apparently had some degenerative change, which had been debrided with some improvement. 

243     At that stage, Mr Shannon would not advise resumption of work involving strenuous repetitive use of the left arm or heavy lifting.  He thought the plaintiff unlikely to resume these duties, particularly as he had developed otherwise spread symptoms which did not appear to be work related.  He considered the plaintiff had a capacity for work which did not involve strenuous repetitive use of his left arm or heavy lifting.

244     In a supplementary report, Mr Shannon explained the degenerative change in the plaintiff’s elbow, identified by his treating surgeon in arthroscopy, would be regarded as post-traumatic arthritis secondary to the elbow fracture.

245     Dr Lange, occupational physician, examined the plaintiff in March 2018.

246     The plaintiff advised, following elbow surgery, his condition deteriorated and rated pain at 5 to 6 out of 10, exacerbated by movements in general.  He still complained of pain over the upper lateral chest.

247     On examination, there was slight tenderness on palpation over the costochondral joints on the left.  There was mild tenderness over the left elbow.  The plaintiff was not able to fully extend it the last 20 degrees and could flex to 140 degrees, whereas on the right his range of movement was 0 to 160 degrees.

248     Dr Lange thought the plaintiff was very pain focused, and that appeared to be the case from his past history, having been put on a disability pension at thirty-three.

249     Dr Lange considered the plaintiff fit to return to his pre-injury duties and hours, with the capacity to drive a truck, lift boxes and perform normal duties for ten hours a week at a new workplace with an alternative employer.

250     Dr Lange stated he had this view, having treated numerous patients who had sustained radial head fractures, even with a small step in the radial head, and other patients with previously fractured ribs, all of them had been able to return to their normal duties.  He was quite surprised the plaintiff continued to complain of ongoing symptoms in his left elbow and chest, two-and-a-half years after the injury, noting, unfortunately, the plaintiff is very pain focused.

251     Dr Lange examined the four jobs specified and thought the plaintiff had the capacity to perform all of the identified jobs, and had a capacity to perform his normal duties.  He considered the main barrier in regard to returning to work was motivation.

252     Dr Ian Dickinson, orthopaedic surgeon, examined the plaintiff in May 2019. 

253     The plaintiff advised his symptoms had continued unchanged. He had pain on the inner and outer side of the elbow. He had swelling at the inner side and often used an icepack. He had pain over his left ribs.

254     On examination, the plaintiff’s left arm was held stiffly, flexed and internally rotated at the elbow.  He had restrictions of flexion and abduction of his left shoulder.  There was a mild loss of flexion and extension in the left elbow. 

255     Dr Dickinson thought the plaintiff presented with “an ongoing affectation of pain behaviour with holding his arm in an internally rotated position and his elbow flexed.  He does have evidence from the arthroscopic review and radiology at that time of degenerative change in the left elbow and the minor fracture.  These do not cause his current presentation.”

256     Dr Dickinson thought the plaintiff had no evidence of any incapacity to drive as a deliveryman for ten hours a week, and could do that, or other suitable employment.  He thought the prognosis was guarded, noting the plaintiff had evidence of abnormal pain behaviour and the fact he had been disabled for many years.  This had been aided by ongoing perceptions of pain.  He considered the plaintiff’s injury minor in nature and the ongoing perceptions of pain mitigate against a good outcome.  From an orthopaedic view, he thought the plaintiff had an injury, from which he should recover well.

Vocational evidence 

257     Healthe Work provided a transferable skills analysis following an assessment on 11 April 2017.  At that stage, it was noted the plaintiff did not have a current capacity and the organisation recommended that any retraining services not proceed at that stage.

258     That organisation then carried out a 130-week vocational assessment in November 2017, when the following jobs were suggested: 

·Option 1, performance monitor – public transport and traffic movement fields

·        Option 2 – shuttle bus driver – social club education retirement villages

·        Option 3, assembler light bench work components

·        Option 4, boom gate recycle and landfill attendant.

Option 4 – boom gate – recycle and landfill attendant

259     The report set out the plaintiff is trainable to learn all facets of this customer and front gate role.  Many quarries, landfill or rubbish sites provide a role that combines customer contact, general security, cash handling and operating a boom gate.  It is a job description that will allow him to undertake frequent postural changes and with no expected lifting.

260     Responsibilities of the role:

·        meeting and greeting incoming vehicles, in particular trucks to weigh loads in accordance with State regulations

·        may take samples of freight (grains, et cetera) for testing

·        operate a boom gate for entering and exiting vehicles

·        basic data input – record weight and freight information via a centralised computer system

·        customer service

·        cash handling – EFTPOS – register operation.

261     The assessor attended a worksite assessment for this role and the following was observed:

·        upper limbs: intermittent use of upper limbs to handle passes, record information, cash register operation and operate boom gate.  These functions are undertaken intermittently as vehicles arrive.  No lifting expected;

·        lower limbs: able to sit at a window to interact with the general public so he can be seated if necessary;

·        standing: able to alternate posture at any time with the ability to intermittently walk along the ground top check haulage and interact with drivers – general public.

262     The job title of weighbridge operator was identified, with potential employers located with close proximity to the plaintiff’s residence, being the City of Greater Geelong, Knox City Council and KS Environmental.  Casual rates were noted.

263     The skills required for this role were to enjoy practical and manual activities, able to follow precise instructions, able to work as part of a team, able to cope with the physical demands of the job, good eyesight, good hand/eye coordination, and able to work without supervision.  There was no minimum education requirement and the physical demands of the role were sedentary.

264     Surveillance was undertaken on a number of days and five videos tendered.[82]

[82]See appendix 1

Findings

Impairment left elbow

265     I propose to first consider this impairment as although the left torso impairment was mentioned in some detail in the plaintiff’s first affidavit,[83] his viva voce evidence was that his left elbow is his main problem.  Counsel for the plaintiff’s submissions were in similar terms.[84]

[83]T99; T106 

[84]T150

266     It is accepted that the plaintiff suffered a compensable injury to his left elbow.  His claim in relation to that injury and also injury to the left torso was ultimately accepted, and statutory benefits were paid until May 2018.

267     There is no dispute as to the diagnosis of the left elbow condition with the plaintiff having suffered an undisplaced fracture of the left radial head of the ulnar joint of the left elbow,[85] ultimately undergoing surgery in November 2016 for problems relating to that injury.

[85]X-ray dated 5 May 2015

268     Whilst the fracture has united, the plaintiff suffers post-traumatic arthritis secondary to the fracture.[86] His treating orthopaedic surgeon, Professor Ek, considers this arthritis is “significant” and there is now a severely arthritic joint present in the left elbow.

[86]As Mr Shannon opined

269     Dr Dickinson is the only practitioner who considers the plaintiff is suffering from abnormal illness behaviour, providing little support for that diagnosis save for noting global loss of power in the left arm whilst also finding a mild loss of flexion and extension of the elbow.[87]

[87]T52

Credit

270     As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[88]

“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”

[88](2010) 31 VR 1 at paragraph [12]

271     Counsel for the defendant submitted the plaintiff was pain focused, minimised his other disabilities and gave self-serving answers.  His relatively free level of movement on the film was inconsistent with his presentation to doctors – holding his left arm stiffly flexed[89] and at another examination, he was able to move freely when not under observation compared to restricted movement on formal examination.[90]

[89]Examination with Dr Dickinson

[90]Examination with Dr Lange

272     In response, counsel for the plaintiff submitted that the plaintiff was an honest witness who was prepared to make concessions against his own interest. Further, prior to being shown the surveillance film, he was open about his level of activity, and there was nothing in the film contrary thereto.[91]  It was also submitted the plaintiff did not minimise his other health issues, clearly referring to them in his affidavits.[92]

[91]T132

[92]T133

273     While the plaintiff was somewhat pain focused, I found him to be a reasonably credible witness, who clearly has had a new, ongoing problem with his left elbow since the incident.  Whilst at times he appeared to move his elbow relatively freely on the film, the plaintiff was not shown engaging in any particularly strenuous activity using his left arm.

The issues

274     Obviously a major issue in this case is whether the consequences of any left elbow impairment are “serious” given the range of health problems the plaintiff was already experiencing as at the said date – in particular, bilateral carpal tunnel and also spinal complaints dating back to the 1985 transport accident, for which he had been in receipt of a disability support pension since 1990.

275     In this case, where there are a number of pre-existing conditions, I must consider what the evidence discloses as to the prior condition of the plaintiff and determine whether any additional impairment, relating to the left elbow, resulting from the incident is serious and permanent.

276     In Petkovski v Galletti,[93] the Full Court of the Victorian Supreme Court accepted the proposition that –

“A comparison must be made of the condition of the applicant immediately before the accident with his condition thereafter and an assessment made of the extent of that additional impairment and if that additional impairment was not serious so it was said then leave must be refused.  … .”

[93][1994] 1 VR 436 – cited with approval in AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz [2012] VSCA 60;

277     I am therefore required to consider as at the date of hearing, what, if any, consequences relate to the compensable left elbow injury and whether they are “serious”.

278 In submissions, counsel for the defendant summarised in detail the medical evidence and investigations relied upon in support of the submission that, as at the incident date, the plaintiff had a number of significant health issues. In short, it was submitted there was clear pathology in the plaintiff’s neck and back before the incident,[94] and bilateral carpal tunnel was a significant issue for him.[95]  

[94]T108

[95]T111

279     The most recent document relied upon in terms of the plaintiff’s spinal problems was correspondence from his physiotherapist, Cameron McCormack, in June 2014 in which he noted the plaintiff told him he had symptoms – neck pain, headaches and stiffness – every day of the week, resulting in sleep disturbance. 

280     Whilst there may have been spinal pathology, counsel for the plaintiff submitted the plaintiff had described neck pain only in cold weather and he had deposed to intermittent low back, neck and right knee pain.

281     Further, before the incident, the plaintiff had no problems driving and his sleeping difficulties only involved some problems sleeping on his right side.[96]

[96]T6; T144

282     Whilst the plaintiff had a problem with his hands, he was not taking medication for left wrist symptoms pre incident but was taking an anti-inflammatory and Panamax, as well as occasional Panadeine Forte for his right hand.[97]

[97]T5

283     It was not disputed that immediately before the incident, the plaintiff had a reduced work capacity as a result of his transport accident spinal injuries. He experienced further difficulties as a result of the hand injuries, being off work from 2010 to 2015 in relation thereto.

284     The plaintiff had, however, in January 2015, been able to return to work with the employer after five years out of the workforce.  After three or four weeks of lighter work in that job, his duties changed and he was able to cope with heavier physical work involving driving and unloading stock at customers’ premises, sometimes lifting items weighing up to 40 kilograms.

285     I accept that the plaintiff’s hand injuries and spinal condition did not prevent him carrying out these duties for at least ten hours per week and more hours if they were available.

286     However, the plaintiff was unable to continue to carry out these duties after the incident.  He battled on in pain for the next year in an effort to keep his job but could not cope and ultimately submitted a WorkCover claim, and has not worked since.  

Pain

287     Maxwell P said in Haden Engineering Pty Ltd v McKinnon:

“The evidentiary basis of the pain assessment will ordinarily comprise the following:

(a)  what the plaintiff says about the pain (both in court and to doctors);

… .”[98]

[98](supra) at paragraph [11]

288     Following the incident, the plaintiff has experienced the additional problem of left elbow pain. This is different in nature to any carpal tunnel symptoms of tingling and numbness in the hand and grip weakness.[99]  He describes his elbow as his number one problem.[100]

[99]T135

[100]T147

289     The plaintiff has a constant dull throbbing pain in his left elbow. The pain becomes sharper if he tries to lift and straighten out his arm or elbow.  His elbow is swollen daily.

290     The plaintiff’s treating doctors – Dr Winfield, Professor Ek and Dr Du Toit – confirm the plaintiff’s persisting left elbow complaints despite treatment.

291     Whilst at times during his viva voce evidence the plaintiff somewhat exaggerated his level of elbow pain and restriction, I accept that he continues to have genuine left elbow problems, requiring ongoing significant painkilling medication and the need for further injections.

Treatment

292     The plaintiff has undergone a range of treatment for his left elbow.  Initially, he was under the care of his general practitioner, who arranged investigations and treated him conservatively, providing a sling. Further investigations were undertaken and the plaintiff was then put on a waiting list for elbow surgery which ultimately took place in November 2016.

293     Treating surgeon, Professor Ek, then recommended the plaintiff take anti-inflammatories and have physiotherapy treatment.  There was a latter referral back to Professor Ek in May 2018 following an injection of anaesthetic and corticosteroid into the plaintiff’s left elbow.

294     There has also been a recent referral to orthopaedic surgeon, Mr Byrne, for a second opinion. He suggested conservative treatment for the plaintiff’s left elbow, including seeing a pain specialist.

295     Whilst the plaintiff was referred in 2017 to pain management specialist, Dr Du Toit, for both his left elbow and torso problem, on the most recent visit earlier this year, Dr Du Toit noted the plaintiff’s main concern was then his left elbow. He recommended intra articular corticosteroid injection, in combination with injections targeting the common extensor tendon, to help the plaintiff’s elbow symptoms

296     Whilst taking Celebrex for his left shoulder, and Panamax for his hand issues, the plaintiff was first prescribed opiate-based Tramadol after the incident for his left elbow pain.[101]  He presently takes Tramal daily for this condition and it also assists with a variety of other complaints, as he finally conceded.[102]

[101]T24

[102]T26-T27, confirmed by Dr Winfield

Restriction of movement

297     The plaintiff complains of significant restriction in his ability to move, and in particular, straighten his left elbow.  Whilst at times, his evidence in this regard was somewhat inconsistent with the level of movement shown on the film, I accept that he has ongoing difficulties with flexion and extension, as a number of examiners have confirmed.

298     As counsel for the plaintiff submitted, the plaintiff has presented relatively consistently in clinical examination, with no significant difference in findings.[103] Whilst Dr Dickinson did not provide precise details of his examination, he concluded that there was a mild loss of extension and flexion of left elbow.[104]

[103]T132

[104]T154

Activities

299     The plaintiff also claims that as result of his left elbow pain, sleep, gardening, driving and his ability to play with his grandchildren has been affected.

300     Although the plaintiff clearly had difficulty with some of these activities pre incident, I accept that, to some extent, those difficulties have increased because of his additional left elbow pain.

301     Pre-incident, the plaintiff did not complain of problems driving.  I accept he now has difficulty driving longer distances, having to hold the wheel with his left hand.  Work involving such driving would now be unsuitable for him; however, whilst he described significant issues even driving short distances, this was not apparent on the limited surveillance film shown.[105]

[105]T124

302     Having already had difficulties sleeping on his right side pre incident, the plaintiff’s sleeping is further limited by left elbow pain,[106] requiring for a time post incident, further medication to help him sleep.

[106]T144

303     I accept that as a result of his left elbow pain, the plaintiff is now limited in his ability to play in an unrestricted manner with his six-year-old granddaughter who lives with him and his wife.

304     I accept gardening which the plaintiff previously enjoyed is also somewhat more limited because of elbow pain, as he explained.  He is, however, able to spend at least half-an-hour in the garden tending to his tomato plants – a bit longer than he was prepared to accept before being shown the somewhat limited surveillance film.[107]

[107]T147

305     The evidence of lay witnesses corroborating the plaintiff’s evidence in relation to these matters was unchallenged.

Work

306     Clearly, the plaintiff was significantly restricted in his ability to work prior to the incident as a result of his transport accident spinal injuries and later bilateral carpal tunnel condition.

307     Despite these conditions, the plaintiff did obtain part-time work with a number of employers in a range of jobs until 2010, next working in January 2015 when he started with the employer.

308     Whilst in receipt of a disability pension since 1990, the plaintiff agreed he was allowed to work a maximum of fifteen hours per week.  He maintained that had fifteen hours’ work per week been available with the employer, he would have worked those hours; however, he was working ten hours a week at the time of the incident as only ten hours were available. 

309     I accept that after an initial period of relatively light duties, the plaintiff undertook heavier lifting duties, moving foodstuffs weighing up to 30 or 40 kilograms whilst working for the employer.  Any spinal or hand problems did not interfere with his ability to do this work at that time.

310     Following the incident, the plaintiff attempted to return to work with the employer but he was unable to perform a full range of these duties and worked intermittently in pain in the period June 2015 to April 2016.[108]

[108]T85

311     I accept the plaintiff was motivated to return to work and did limited duties for a year before being unable to continue and ultimately submitting a WorkCover claim.  His employment was then terminated.  He has not looked for work since.

312     The plaintiff explained if not for his elbow, he would still be working/able to work with the employer in his job which involved “carting big things”.[109]

[109]T23 - T24

313     I do not accept that the plaintiff is able to return to pre-injury duties as Dr Lange and Dr Dickinson opined.  Their view in this regard was based on a lack of understanding as to the nature of the plaintiff’s pre-injury duties which involved lifting up to 40 kilograms.[110]

[110]T153

314     I accept that the plaintiff’s elbow condition would cause him problems at work with lifting and prolonged driving, as was the case on his return to work post incident.[111]  I am satisfied that, as a result of the additional injury to the left elbow, the plaintiff’s limited work capacity is even more restricted.[112]  However, in my view, he still has the capacity to do very light work for a few hours per week.[113]

[111]T143; T85

[112]Poholke v Goldacres Trading Pty Ltd & Anor [2016] VSCA 232

[113]T101; T108

315     Whilst Dr Winfield considers that the plaintiff is totally incapacitated, he formed this view based on the plaintiff suffering a number of health issues.  Mr Love thought the plaintiff still had a capacity to work as a boom gate operator, assuming that job had minimal physical demands, and the plaintiff’s pain specialist, Dr Du Toit, considered the plaintiff has a restricted capacity for employment.

316     As the plaintiff deposed, he really enjoyed working and it gave him a sense of purpose and structure to his week.[114] His ability to obtain work is now further restricted by his elbow injury – a relevant pain and suffering consequence.[115]

[114]T142

[115]see Maxwell P in Haden Engineering Pty Ltd v McKinnon (supra) at paragraph [69]

Other conditions as at the date of hearing

317     In Peak Engineering & Anor v McKenzie,[116] 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.

[116][2014] VSCA 67

318     In 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.”[117]

[117](supra) at paragraph [1]

319     The President found that the judge was:

(a)   bound to identify, and exclude, the continuing consequences for the plaintiff of the non-compensable injury; and

(b)   when the consequences properly referable to the relevant injury were identified, identified them as “serious”.[118]

[118](supra) at paragraph [2]

320     Accordingly, Peak requires, in considering the seriousness of the compensable left elbow injury, other relevant existing conditions need to be considered, and the Court needs to be satisfied that the consequences relating to the left elbow injury alone were “serious”.

321     Counsel for the defendant submitted the plaintiff has a number of other health issues which continue to trouble him and interfere with his enjoyment of life. These include, in particular, ongoing spinal complaints, hand issues, left shoulder and right knee problems.

322     Whilst there is clearly spinal pathology shown on a number of investigations, there is, however, limited evidence of ongoing neck problems following Mr McCormack’s 2014 report. The plaintiff still has a “little problem” with his neck.[119]  He continues to have neck stiffness, particularly in the cold weather.  He conceded the Tramadol assists in this regard; however, the only specific treatment for his neck is currently the five physiotherapy visits under Medicare and also hydrotherapy.  His attendance at pain management helped him learn to live with this problem.[120]

[119]T28

[120]T42

323     Significantly, Mr Love and Dr Lange, have recently examined the plaintiff’s neck and found no sign of restriction.[121] Dr Dickinson found some movements of the neck were mildly restricted but not painful.

[121]T134

324     Having had a worsening of his back pain following the 2016 transport accident, the plaintiff describes his back is better now.[122]  In his report of June 2018, Dr Winfield noted Voltaren had been prescribed for the plaintiff’s back. He made no mention of Tramal, which he noted was being prescribed for neck and back pains in a management plan in February 2018.

[122]T28

325     As counsel for the plaintiff submitted, the surveillance film did not show the plaintiff exhibiting any spinal problems.

326     In terms of the plaintiff’s carpal tunnel condition, following surgery in October 2017, it appears when the plaintiff last saw Dr Leung in April 2018 numbness in the left hand had improved.  No further appointment was made.

327     Whilst Dr Winfield noted the plaintiff’s problems dropping things in his May 2018 questionnaire, the plaintiff explained his difficulty in this regard was dropping small things in his right hand, not his left.

328     The plaintiff is no longer woken by left hand discomfort.[123]  He conceded he still has some pins and needles in the left hand but there is no associated grip weakness.  This is a different complaint to the plaintiff’s left elbow pain and associated restrictions.

[123]T32; T135

329     The elbow problems related to arthritis continue, and that has nothing to do with any nerve issue or carpal tunnel problems.[124]  Further, the symptoms relating to the left elbow and osteoarthritis are completely different to any diabetic symptoms noted by the plaintiff’s treaters.[125]

[124]T121

[125]T135

330     There is little detail in relation to the plaintiff’s right knee complaint.  Imaging was undertaken in December 2017 and Dr Pun reported in February 2018 that there was mild swelling and discomfort on movements, diagnosing “mechanics” in the knee. It is unclear whether the plaintiff attended a referral to the Orthopaedic Clinic at Monash in April 2018.   

331     The plaintiff at various times post incident has complained of left shoulder pain and has been told he suffers from bursitis, an ultrasound having been carried out in August 2016.[126]

[126]T26

332     Whilst there was an initially an application in relation to the left shoulder, this was abandoned at the completion of evidence.[127] The plaintiff‘s left elbow is a more significant problem than his shoulder.[128] He takes Celebrex for his left shoulder and Tramadol “maybe” helps with it.[129]  There does not appear to be any further treatment specifically related to the left shoulder.

[127]T97

[128]T20

[129]T26

333     Taking into account all of the evidence, despite the range of other complaints, I am satisfied that the consequences of the plaintiff’s left elbow condition alone are “serious”.  Significantly, it is a new constant pain, requiring ongoing treatment and the prescription of opiate-based medication for the first time.  It is also a condition which I accept has further restricted the plaintiff’s already limited work capacity.[130]

[130]Poholke v Goldacres Trading Pty Ltd & Anor (supra)

334     There having been no significant improvement despite extensive treatment, I am satisfied that impairment is permanent. 

335     Accordingly, I grant leave to the plaintiff to bring proceedings for damages for pain and suffering in relation to the incident.

336     Having made the finding that the plaintiff’s left elbow condition meets the statutory threshold, I am not required to consider the application in relation to his left torso.[131]  However, clearly the plaintiff has ongoing problems in relation thereto – describing problems driving and gardening[132] and undergoing a number of procedures in the past for this condition, with further treatment suggested.  The fact that this condition may have also satisfied the statutory test is beside the point, as more than one condition can satisfy that test.[133]

[131]See Ashley JA in Dressing v Porter & Anor [2006] VSCA 215 at paragraph [47]

[132]T99

[133]Supra

- - -

Appendix 1

Surveillance Summary

23 May 2017

10.24am – 10.28am – Plaintiff shown parking car before getting out of the vehicle and walking into doctor’s clinic with left arm by his side.

11.01am – 11.05am – Plaintiff walks out of clinic with both arms bent across body at approximately 90 degrees with right hand supporting his left.  Returns to car.

11.35am – 11.42am – Plaintiff shown walking along street with left arm by his side before entering the Westall Medical Clinic.  Leaves clinic and walks back down street. 

1.09pm – Walking out of McDonald’s carrying food in left arm.  Opens car door, gets in front seat and drives off using both hands on steering wheel.

25 May 2017

10.25am – Plaintiff out the front of his house.  Places a plastic bag in the bin using his left arm.

7 November 2018

12.38pm – 1.02pm – Plaintiff filmed gardening.  Camera view largely obstructed by fence but does not appear to be doing any heavy lifting.  Uses both arms throughout the duration.

12.47pm – Carries plant in left hand.

8 November 2018

12.21pm – 12.54pm– Walking down street. 

12 December 2018

9.07am – Plaintiff filmed boarding the train. 

9.41am – 9.46am – Disembarks train. Walks through shopping centre and along street carrying plastic bag in right hand.

9.46am – Plaintiff uses his left arm raised to approximately shoulder height to point when stopped at traffic lights.

28 June 2019

1.02pm – Plaintiff driving car using both hands.

2 July 2019

2.18pm – Plaintiff gets out of car in supermarket car park.

2.31pm – Plaintiff uses both hands to pick tomatoes at the fruit shop.

2.33pm – 2.35pm – Picks up basket with left hand and bags with right.  Walks around supermarket with shopping basket and bag hung over left arm.  Picks shopping items with his right hand.

2.55pm – 3.04pm – Plaintiff back in supermarket.  Basket hung over left arm.  Places 1‑litre bottle of milk into basket and self-checks out groceries using both arms.

8 July 2019

12.54pm – Plaintiff shown putting/throwing rubbish in bin out the front of house.

1.10pm – Walks down street with bag hung over left forearm.  Places bag in car and drives off.