Habte v Victorian WorkCover Authority
[2014] VCC 558
•29 April 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-05899
| GIRMAY HABTE | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
---
JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 and 10 April 2014 | |
DATE OF JUDGMENT: | 29 April 2014 | |
CASE MAY BE CITED AS: | Habte v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 558 | |
REASONS FOR JUDGMENT
---
Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – bilateral injuries to the elbows – do the injuries constitute compensable injuries – concurrent non-compensable injuries to the shoulder and left knee also resulting in consequences – necessity to disentangle the consequences of the compensable injury from the concurrent non-compensable injuries – film – whether the plaintiff was creditworthy and reliable
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b)
Cases Cited:Darling Island Stevedoring & Lighterage Co Ltd v Hankinson (1967) 117 CLR 19; Peak Engineering & Anor v McKenzie [2014] VSCA 67; Dressing v Porter [2006] VSCA 215
Judgment: The plaintiff’s Originating Motion is dismissed.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R Gorton QC with Ms K Moran | Arnold Thomas & Becker |
| For the Defendant | Mr I Gourlay | Minter Ellison |
HIS HONOUR:
Introduction
1 By Originating Motion filed 28 November 2012, the plaintiff seeks the leave of the Court, pursuant to s134AB(16)(b) of the Accident Compensation Act 1985, to bring a proceeding at common law to recover damages for injuries which he says he suffered between September 2005 and May 2009.
2 The plaintiff's application was opened on the basis that he be given that leave for the pain and suffering consequences and loss of earning capacity consequences said to result from the impairment of the function of his upper limbs. The application, insofar as it related to loss of earning capacity consequences, was abandoned at the end of the plaintiff's cross-examination.
3 Mr Gorton QC appeared with Ms Moran of Counsel for the plaintiff. Mr Gourlay of Counsel appeared for the defendant.
4 The following evidence was adduced at the trial of the proceeding:
·The plaintiff gave evidence and was cross-examined.
·Dr Hagos, general practitioner, gave evidence and was cross-examined.
·The plaintiff tendered his Court Book (“PCB”) pages 13-19; 21-66b, and from the Defendant’s Court Book (“DCB”), pages 43-60: Exhibit A.
·The defendant tendered:
§the plaintiff’s driver instructor certification: Exhibit 1
§film taken of the plaintiff on 31 March 2014: Exhibit 2
§film taken of the plaintiff on 3 April 2013: Exhibit 3
§film taken of the plaintiff on 4 April 2014: Exhibit 4
§film taken of the plaintiff on 6 and 14 May 2013: Exhibit 5
§medical certificate of the plaintiff dated 14 June 2012: Exhibit 6
§a second medical certificate of the plaintiff dated 14 June 2012: Exhibit 7
§Its Court Book pages 3-42: Exhibit 8.
The Plaintiff's background
5 The plaintiff was born in February 1957 in Eritrea. He completed Year 12, before migrating to Saudi Arabia, where he worked for twenty three years as an artist. In 2000, he came to Australia. He applied for residency, which was granted in 2005.
6 The plaintiff is a married man. He has two daughters who are about fifteen and eleven years respectively. His wife is employed as a day-care worker.
The Plaintiffs injury
7 The plaintiff commenced employment with Prima Furniture in September 2005. He worked in a powder coating section. One of the jobs he undertook was the powder coating of MDF[1] panels of varying sizes. He was required to manually handle hundreds of panels each day during an eight-hour shift. He usually undertook some overtime, during which he performed the same manual handling tasks.[2]
[1]Medium Density Fibre Board
[2]PCB 14
8 For some time prior to May 2009 the plaintiff experienced pain in his elbows. The pain increased to the point where he saw Dr Hagos on 8 May 2009.[3]
[3]DCB 43-44. Dr Hagos’ report dated 6 December 2010 has the date of the first consultation as 1 May 2009 which is clearly wrong when compared with his clinical notes
The Plaintiff’s medical treatment
9 On 8 May 2009, the plaintiff told Dr Hagos he was suffering from pain in his wrists and forearms after heavy lifting, pulling and pushing MDF panels. He found flexion deformity in both elbows and tenderness over the medial and lateral epicondyles.
10 Dr Hagos referred the plaintiff to have an ultrasound of each elbow. The ultrasounds were undertaken on 11 May 2009. The radiologist reported that the ultrasounds showed bilateral lateral epicondylitis with a possible tiny 3-millimetre partial tear on the left side.[4]
[4]PCB 21
11 Dr Hagos reviewed the plaintiff on 14 May 2009. By that time he had the results of the ultrasounds. He referred the plaintiff to have an ultrasound-guided cortisone injection in both elbows. The procedure was undertaken on 18 May 2009.[5]
[5]PCB 22
12 The plaintiff continued to see Dr Hagos regularly for treatment for his elbows. He reviewed the plaintiff on 20 and 29 May 2009. It does not appear, from his clinical notes, that the plaintiff gained any significant relief from the cortisone injections. Dr Hagos’ clinical notes were tendered into evidence.[6] Dr Hagos referred the plaintiff to have physiotherapy.
[6]The notes commence with a consultation on 8 May 2009 and run through to the consultation on 6 July 2012. All of Dr Hagos’ clinical notes were in Court and were provided to Dr Hagos to assist him in giving his oral evidence. Neither Mr Gorton nor Mr Gourlay sought to tender his notes beyond 6 July 2012. The notes are at DCB 43-71
13 Dr Hagos provided the plaintiff with certificates of incapacity. The plaintiff was off work for a relatively short period of time, before returning to light duties. It would appear that he was able to cope with those light duties until some time in September 2009, when he suffered an injury to his left knee. He saw Dr Hagos on 25 September 2009 and told him that he was suffering pain in his left knee which was making it difficult for him to walk.[7]
[7]DCB 45-46
14 Dr Hagos referred the plaintiff to Mr Love, orthopaedic surgeon, for treatment for the injuries to his elbows and left knee. The plaintiff saw Mr Love in September 2009. Mr Love referred the plaintiff to Mr Pullen, orthopaedic surgeon, for treatment of his left elbows. Mr Love treated the plaintiff's left knee injury.
15 Mr Love considered that the plaintiff had suffered a tear of his medial meniscus. He performed an arthroscopy on the plaintiff’s left knee on 2 March 2010. He performed a medial and lateral meniscectomy. He reviewed the plaintiff on 11 March 2010, at which time he considered that the plaintiff was making reasonable progress.[8]
[8]PCB 33-34
16 The plaintiff's solicitors referred the plaintiff to see Mr Love on 16 July 2013. The plaintiff told him on that occasion that he was experiencing pain in his left knee which was radiating towards the medial aspect of his left thigh. He referred the plaintiff to have an x-ray. He considered that the plaintiff’s left knee showed evidence of early degenerative changes in the medial aspect of his left knee. He considered that the plaintiff’s prognosis for recovery was poor, and that there was no surgical treatment which he could offer the plaintiff. He noted that the plaintiff's condition might deteriorate over time, but the deterioration would be prolonged and slight.[9]
[9]PCB 36-37
17 I will return to the pain and suffering consequences of the plaintiff’s left knee later in these reasons for the purpose of putting the plaintiff’s claim that his bilateral elbow injuries are serious into context.
18 The plaintiff saw Mr Pullen on 21 October 2009. By the time the plaintiff saw him, he had undergone an x-ray of his elbows and a CT scan.[10] He was referred by Mr Love to undergo those investigations. The plaintiff told Mr Pullen that he had bilateral elbow pain; that it was worse on the right side when compared with the left; that he had developed crepitus in both joints, and that the pain gradually developed over a six-month period, which the plaintiff linked to heavy labouring work.
[10]PCB 23
19 By the time the plaintiff saw Mr Pullen, he had undergone physiotherapy treatment and had been prescribed analgesics and anti-inflammatory medication. Mr Pullen examined the plaintiff and found fixed flexion deformity on both sides of around 30 degrees. He was able to flex both elbows to 130 degrees, and had full forearm rotation. He found obvious crepitus in both elbow joints. He found no evidence of epicondylitis.
20 Mr Pullen considered that the plaintiff was suffering from bilateral elbow arthritis. He considered that the plaintiff was likely to have had some pre-existing arthritis in both elbows, which was exacerbated by his work. He noted that the plaintiff had a good response to the cortisone injections. He suggested that he continue to take medication and to have physiotherapy.[11]
[11]PCB 44-47
21 Dr Hagos referred the plaintiff to have a further ultrasound of his elbows. The first was undertaken on the plaintiff’s right elbow on 19 August 2011. The radiologist considered that it showed a right lateral epicondylitis, with a 3 x 1 millimetre partial tendon tear.[12] The second was undertaken on the plaintiff's left elbow on 22 August 2011. The radiologist considered that it showed chronic left lateral epicondylitis with a 4 x 3 millimetre partial tendon tear.[13]
[12]PCB 41
[13]PCB 42
22 During Dr Hagos’ oral evidence, he said that when the plaintiff attended his clinic, he always complained of pain and difficulty with his elbows when he engaged in activities involving bending, lifting, pushing and carrying. He also said that the plaintiff has stiffness in his elbows, and that activities involving bending, lifting, pushing and carrying would increase the pain the plaintiff experienced.
23 Dr Hagos also said that the medical explanation for the complaints made by the plaintiff were inflammation of the tendon insertion at the epicondyles, which was affected by movements such as pulling. He was referred to the ultrasounds taken on 18 and 22 August 2011. He confirmed that the ultrasounds showed partial tears of tendons. He added that the presence of a tear would make symptoms in the elbows worse, such as when the plaintiff engaged in activities involving bending or stretching or attempts to lift or push or carry objects. He also added that the inflammation he referred to earlier is one part of the pathology in the plaintiff’s elbows, and the tears are a further part. He did not consider that arthritis was the main cause of the plaintiff’s pain, but it was my impression that he did not entirely discount that as being part of the pathological process causing the pain and disablement complained of by the plaintiff.[14]
[14]Transcript 58-61
24 Dr Hagos referred the plaintiff to have a further ultrasound on his left elbow in 2013. He was not referred to the ultrasound. He said that it was his impression that it showed chronic left lateral epicondylitis.[15] He said that the pain and disablement the plaintiff is experiencing with his elbows could still be related to the work the plaintiff was performing with the defendant.[16] Dr Hagos said that the dysfunction in the plaintiff’s elbows was caused by the inflammation and the tendon ruptures, which he considered would affect the plaintiff’s ability to fully straighten his elbows.[17]
[15]Transcript 59
[16]Transcript 61 and 62
[17]Transcript 62
25 Under cross-examination, Dr Hagos said that the plaintiff complained of having a painful left knee and experienced difficulty walking when the plaintiff consulted him on 25 September 2009. He said that he continued to complain of pain in his left knee both before and subsequent to the surgery performed by Mr Love. He said that the plaintiff continued to see him about problems with his left knee.[18]
[18]Transcript 64-65
26 A number of medical certificates were put to Dr Hagos. The first was a medical certificate dated 14 June 2012 referable to the plaintiff’s elbows. The diagnosis endorsed on the medical certificate was epicondylitis of the right and left elbows, with a small tear of the tendon of the left elbow and a right shoulder rotator cuff condition. It certified that the plaintiff was fit for modified duties from 14 June 2012 to 12 July 2012, working 5 hours per day five days per week, avoiding repetitive work involving both elbows and lifting of more than 3 kilograms.[19]
[19]Exhibit 6
27 Another medical certificate was put to Dr Hagos, also dated 14 June 2012. The medical certificate was referable to the plaintiff’s left knee and right shoulder. The diagnosis endorsed on the medical certificate was a meniscal problem with the left knee and right shoulder rotator cuff muscle injury. It certified that the plaintiff was unfit for any duties from 14 June 2012 to 12 July 2012.[20]
[20]Exhibit 7
28 Dr Hagos said that the plaintiff had also complained of symptoms affecting his wrists. It was put to him that the plaintiff had complained of pain in his wrists when he saw him on 14 June 2012. He agreed. It was then put to him that the pain in the plaintiff’s wrists was part of an ageing process. Whilst Dr Hagos did not discount that proposition entirely, he was unable to confirm the presence of osteoarthritis without having x-rays of the plaintiff’s wrists. He considered that one explanation for the pain in the plaintiff’s wrists was radiation of pain from the plaintiff’s elbows.[21]
[21]Transcript 70-71
29 Under re-examination, Dr Hagos said that when the plaintiff first consulted him, he was complaining of pain in his wrists. He repeated that he considered that the pain in the plaintiff’s wrists was caused by radiation from his elbows.[22]
[22]Transcript 74
The medico-legal assessments
30 The plaintiff was examined by Associate Professor Goldwasser, orthopaedic surgeon, on 24 July 2013. He was provided with all of the ultrasounds and radiology, but not the 2013 ultrasound. On examination, he found mild tenderness over the lateral epicondyles of both elbows, and pain and discomfort on dorsi flexion consistent with lateral epicondylitis of mild intensity. The movements of the plaintiff's elbows were restricted.
31 Associate Professor Goldwasser considered that the appearances on the ultrasounds of lateral epicondylitis in both elbows, and the plaintiff’s experience of obtaining temporary relief from cortisone injections, were consistent with lateral epicondylitis. He diagnosed an aggravation of pre-existing degenerative changes in both elbows. He did not consider that the plaintiff was fit for his pre-injury work, but was fit for light work not requiring frequent or vigorous use of his elbows. He considered that there would be a natural tendency for the degenerative changes to progress. He was asked to comment about the plaintiff’s left knee and right shoulder, but said very little except to record that the plaintiff had suffered those medical conditions as well.[23]
[23]PCB 48-55, and in particular at PCB 52-55
32 Dr Horsley, occupational physician, examined the plaintiff on 11 December 2013. She was provided with a number of medical reports and ultrasounds and radiology, but not the 2013 ultrasound. On examination, she neither found discomfort on palpation of the bilateral lateral epicondyles, nor on palpation of the bilateral medial epicondyles. She found crepitus on rotation of the elbows, and a reduction in the range of motion with a fixed flexion deformity of 30 degrees on the right, and 25 degrees on the left.
33 Dr Horsley considered that the bilateral lateral epicondylitis had resolved clinically. She considered that the persisting discomfort in his elbows was related to degenerative changes, and in that respect she considered that the plaintiff had aggravated the pre-existing degenerative condition in his elbows. She considered that the plaintiff needed to avoid repetitive overreaching; repetitive pushing and pulling; lifting greater than 10 to 12 kilograms on occasional basis; repetitive lifting of items up to 8 to 10 kilograms on a repetitive basis; using vibratory equipment; prolonged static gripping with his hands; repetitive flexion and extension of the elbows, and repetitive pronation and supination of the hands. She considered that the plaintiff would need to work in an office-based environment.[24]
[24]PCB 56-62, and in particular at PCB 59-62
34 Dr Horsley referred to the plaintiff’s functional tolerances, and in that respect, referred to his lack of tolerance to sitting, static standing, dynamic standing and walking. She considered that lack of tolerance was caused by his left knee condition; however, she made no further comment regarding the extent of the lack of tolerance to those functional tolerances by the left knee.[25]
[25]PCB 61
35 Mr Gourlay tendered all of the reports of the medical practitioners who have examined the plaintiff; however, he principally referred me to the opinion of Mr Jones, orthopaedic surgeon. His reference to the reports of the other medical practitioners was fleeting. On my reading of those reports, it would appear that there is acceptance that the plaintiff suffered a medical condition to his elbows which resulted from his work with the defendant:
· Dr Brown, occupational physician, examined the plaintiff on 28 July 2009 and was content with the diagnosis of bilateral epicondylitis;[26]
[26]DCB 42
· Dr Rowe, occupational physician, examined the plaintiff on 3 May 2010, and diagnosed that the plaintiff was suffering from osteoarthritis in both elbows; and [27]
· Mr Battlay, general surgeon, examined the plaintiff on 17 February 2012, and diagnosed that the plaintiff was suffering from degenerative changes in both elbows, unrelated to his work, but considered that he had suffered from lateral humeral epicondylitis which had resolved.[28]
[27]DCB 34
[28]DCB 27-28 and 21
36 Dr Poppenbeek, occupational physician, examined the plaintiff on 21 October 2009. His attention was specifically directed to the plaintiff’s left knee injury. He considered that the plaintiff had suffered a medial meniscal tear. He examined him prior to the surgery performed by Mr Love. He noted that prior to the plaintiff suffering the injury to his left knee, that the plaintiff was working 5 hours per day, five days per week on restricted duties, and was subsequently put off work two weeks prior to his examination due to problems with his left knee.[29]
[29]DCB 35-39
37 Dr Rowe also noted that the plaintiff was on modified duties prior to the injury to his left knee. He did not consider that the plaintiff was fit to return to his pre-injury work. He referred to the fact that the plaintiff had a painful and swollen knee, and on that basis, was not fit to return to work. He then referred to the plaintiff being theoretically fit for sedentary work, but not work where he had to lift more than 5 kilograms or stand for more than 10 to 15 minutes. The limitation on standing appears to be related to the left knee injury.[30]
[30]DCB 33
38 Mr Battlay referred to the plaintiff’s right shoulder and left knee conditions. He said he could see no connection between the occurrence of the plaintiff’s right shoulder and left knee condition with his work. He said little about the disabling aspects of the plaintiff’s right shoulder and left knee condition.[31]
[31]DCB 27-28
39 Mr Jones examined the plaintiff on 26 August 2010, 2 March 2011 and 25 February 2014. On the first occasion Mr Jones examined the plaintiff, it would appear that he accepted that the plaintiff had suffered bilateral problems with his elbows that were work-related. He considered that the plaintiff was suffering from arthritic changes in both elbows. He said that the underlying cause was constitutional rather than being work-related, and as time passed, the work input would diminish.[32]
[32]PCB 15-17
40 Mr Jones was asked by the insurer for the defendant to consider the work relationship between the conditions of the plaintiff’s elbows and left knee. In two letters dated 18 and 28 September 2010, he categorically stated that neither of those conditions was work-related, and that both were constitutional.[33]
[33]PCB 14 and 15
41 On the next occasion on which Mr Jones examined the plaintiff on 2 March 2011, his opinion did not change from the opinion he previously expressed. He considered that the plaintiff was unable to resume employment at that stage, and added that modified light duties might be possible, but that lifting and excessive use of the plaintiff’s arms would not be tolerated. He restated his opinion that the conditions affecting the plaintiff’s elbows and left knee were arthritic.[34]
[34]PCB 8-11
42 On the last occasion Mr Jones examined the plaintiff on 25 February 2014, he was provided with a number of medical reports, ultrasounds and an x-ray. His opinion on causation did not change. He considered that the plaintiff was continuing to experience arthritic symptoms chiefly in both elbows and his left knee. He considered that the symptoms experienced by the plaintiff were typical of osteoarthritis. He considered that the plaintiff had overstated the degree of his disability, but he did not explain what constituted that overstatement. He considered that the stiffness and pain that the plaintiff was experiencing in his elbows would prevent normal use of his arms and were worthy of a lifting restriction of 10 kilograms.[35]
[35]DCB 5-6
43 Mr Jones referred to the plaintiff’s left knee injury in each of the reports he composed. In his last report, he considered that the plaintiff was suffering from arthritic change in his left knee, which would slowly progress. He did not consider the left knee to be incapacitating for work, although, he said the left knee would cause the plaintiff difficulty in standing and walking for long periods of time.[36]
[36]DCB 6-7
The Plaintiff’s evidence
44 It would appear that following the occurrence of the injuries to the plaintiff’s elbows that he was off work for a relatively short period of time before returning to modified duties. It would appear from the histories recorded by Dr Poppenbeek and Dr Rowe that the plaintiff was certified as fit for modified duties, working 5 hours per day, five days per week. There was no evidence to suggest that he was having any particular difficulty performing that work until the occurrence of the injury to his left knee, which saw him seek treatment from Dr Hagos on 25 September 2009. The plaintiff then stopped work.
45 The plaintiff was referred to Mr Love, who provided the plaintiff with the treatment I have summarised above, which included an arthroscopy. In addition to the concurrent condition of the plaintiff’s left knee, the plaintiff also suffered a further concurrent condition of pain in his right shoulder. There is very little in the evidence regarding the plaintiff’s right shoulder, except in the plaintiff’s first affidavit, where he referred to that pain commencing in 2010. He had an injection into his right shoulder, which gave him some relief. He said that he has limited movement in his right shoulder.[37] The plaintiff swore an updated affidavit on 21 January 2014. He made no reference to his left knee or right shoulder in that affidavit.
[37]PCB 15
46 I find it difficult to reach any conclusion regarding the condition of the plaintiff’s shoulder, but it is clear from the medical evidence that his left knee continues to trouble him, and the extent of that is referred to in the opinions of some of the medical practitioners who examined the plaintiff for the defendant; for example, Mr Jones. In the plaintiff’s first affidavit, he said that he has pain in his left knee. His capacity to walk is restricted, in that he cannot walk for too long, and he cannot run.[38]
[38]PCB 15
47 The pain and suffering consequences which the plaintiff attributes to his elbows this essentially as follows:
· Pain in both elbows, with more pain in the right elbow. The pain is present every day. Some days he is in less pain than on others.
· An inability to straighten his arms fully. The plaintiff demonstrated that from the witness box during cross-examination. Whilst I am not able to determine the degree of his inability to fully extend his elbows, it appeared to me that there was a discernible loss of flexion.
· An inability to lift any significant weights.
· Movement of the elbows can increase pain.
· His ability to drive a car is restricted.
· He attends a sauna and a spa nearly every day for relief from the pain in his elbows. The warmth allows him to relax, presumably because it reduces the pain in his elbows. He does so on the advice of his physiotherapist.
· His ability to sleep is affected by the pain in his elbows. He wakes three or four times a week in pain and is unable to return to sleep. He is now prescribed Dothep to help him get a restful night’s sleep.
· He continues to attend Dr Hagos. He is prescribed medication for pain relief. He uses Tramadol (an opioid analgesic), Mobic and Meloxicam Sandoz for pain relief. Mobic and Meloxicam Sandoz are the same drug. He said he takes one tablet of Mobic (non-steroidal anti-inflammatory) each day. He takes Tramadol two or three times a week or whenever he feels more pain. He rubs Voltaren (an anti-inflammatory) cream into his elbows from time to time.[39]
[39]Transcript 14-15
· He has difficulty in his domestic life. In particular, he referred to his inability to work and the deterioration in his relationship with his wife, which led to his separation from her, although they are living under the one roof. In describing the difficulties in his domestic life, he commenced a paragraph of his first affidavit with the expression “All of these problems”. In the preceding four paragraphs, he referred to his elbows, left knee and right shoulder. It would appear that he intended to attribute the cause for his domestic difficulties to those three conditions.[40]
[40]PCB 15
· He avoids gardening, and in particular, planting vegetables, because that activity worsens the pain in his elbows.
· He no longer plays tennis with his daughter. He used to play twice a week.
48 Under cross-examination, it became clear that some of the pain and suffering consequences which the plaintiff attributes to his elbows are also attributable to his shoulder and left knee. The plaintiff conceded as much in his first affidavit when he said that the difficulties in his domestic life are contributed to by all of his injuries. He conceded that he would not be able to play tennis with his daughter because of his left knee injury; however, it must be remembered that he suffered the injuries to his elbows before he suffered the injury to his left knee, so his ability to play tennis was lost to him by reason of the injury to his elbows, but no doubt, if he had recovered from the injuries to his elbows, he would not have been able to return to tennis because of his left knee condition.
49 The plaintiff also takes the medication to treat the pain he experiences in his shoulder and left knee. He conceded as much, but there is no evidence to point to when he resorts to the use of medication for his elbows as opposed to his shoulder and his left knee. My impression is that the medication was initially prescribed to treat his elbows, and subsequently, when he suffered the conditions affecting the shoulder and left knee, the same medication became useful to treat both of those conditions. My impression, however, is that the medication is principally used by the plaintiff to treat the pain he experiences in his elbows.
50 I think it is reasonably clear from my summary of the medical evidence that there are two conditions which disable the plaintiff. One is the injuries to his elbows, and the other is the injury to his left knee. It occurs to me that if the plaintiff had not suffered the injury to his left knee, then there is some likelihood that he would have continued working on the modified duties he was performing 5 hours per day, five days per week. The fact that he was working those hours points to it being within the range of his capacity to tolerate work with injured elbows. The medical certificate dated 14 June 2012 appears to confirm that it was Dr Hagos’ opinion that the plaintiff was fit for modified duties 5 hours per day, five days per week. The inference is that but for the injury to the left knee, the plaintiff was fit for those modified duties.[41]
[41]Exhibit 6
51 The further context in which the plaintiff’s pain and suffering consequences relevant to his elbows must be seen, is in the films taken of the plaintiff. Mr Gourlay cross-examined the plaintiff that he should have, but did not, inform Mr Jones that he was in fact working as a driving instructor. He did refer to it in his second affidavit. He said that he had completed a driving instructor’s course, but was fearful of teaching because of the risk of having to grab the steering wheel, which would be difficult because of the nature and extent of the injuries to his elbows.[42] Despite that, Mr Gourlay was critical of the plaintiff’s failure to disclose the acquisition of that qualification in the detail demonstrated on the films shown to the plaintiff.
[42]PCB 19
The films
52 The first film that was shown was taken on 31 March 2014. In summary, it showed:
· 9:34am – the plaintiff was seen in a red Toyota Corolla. He reversed the car into a car park, and later drove the car out of the car park.
· 9:57am – the plaintiff was at the boot of the car. There was a young woman nearby. The young woman got into the driver’s side of the car, and the plaintiff entered the front passenger side of the car.
53 The next film was taken on 3 April 2014. In summary, it showed:
· 9:37am – the plaintiff was walking along a street. He entered the red Toyota Corolla.
· From 10:17am – the plaintiff was walking along a street.
· 10:39am – the plaintiff cleaned the windows of the red Toyota Corolla using his right hand and did so for some minutes.
· 10:42am – the plaintiff manually removed some mats from the red Toyota Corolla and hit them on the roadway to clean them.
· 10:48am – a female entered the driver seat of the red Toyota Corolla, and the plaintiff entered the front passenger seat. The car was driven off.
· 12:39pm – a female was sitting in the driver seat while the plaintiff stood outside gesticulating with both arms as he spoke to her. The movements of his arms appeared to be free and unrestricted.
· 12:42pm – the plaintiff entered the front passenger seat. The car was driven off.
· 12:49pm – the female and the plaintiff were in the red Toyota Corolla at a licensing centre. The plaintiff removed an ‘L’ plate from the car.
54 The next film was taken on 4 April 2014. In summary, it showed:
· 9:03am – the plaintiff entered the red Toyota Corolla and reversed it.
· 9:38am – the plaintiff was at a petrol station. He washed the front windshield using a squeegee attached to handle using his right hand and arm. He lifted the windscreen wipers with his left hand while operating the squeegee with his right hand.
· 10:37am – the plaintiff used a cloth to wipe down the windscreen, bonnet and the side of the red Toyota Corolla with his right hand. He appeared to do so for a few minutes.
55 Further films were then shown out of chronological order. They were taken on 6 and 14 May 2013. On 6 May 2013, the plaintiff was first seen at 12:24pm and then at about 1:54pm. He appeared to have driven his own car. He was seen walking with a rolled up poster under one arm. On 14 May 2013, the plaintiff was first seen at about 3:09pm and was last seen at about 3:53pm, basically only driving his car.
56 Mr Gourlay cross-examined the plaintiff after each of the films were shown. The plaintiff conceded that he was the male person shown in the films. He conceded that he undertook each of the activities shown in the films. He said that the student shown in the film taken on 3 April 2014 was not his student. He merely took her for her licence test on that day. He conceded that the movements he undertook with his arms when cleaning the windows and gesticulating are movements he can perform. Likewise, he conceded that the use of the squeegee is something he is able to perform.
57 Under cross-examination, the plaintiff said that he did give instructions to students who are learning to drive. He said that he did not take new students. He only took students who had achieved some level of competence. He used his friend’s car, that is, the red Toyota Corolla. His friend is a licensed driving instructor. He said he has given lessons once or twice a week; however, under further cross-examination, the plaintiff conceded that the films taken on 31 March and 3 and 4 April 2014 were taken in the same week, and showed him giving driving lessons on three separate occasions in the same week.
Conclusions
58 The first issue which I must determine is whether the plaintiff suffered a compensable injury to his elbows, and, if so, whether he continues to suffer a compensable injury.
59 This case is yet another example of a significant disparity between diagnoses of medical practitioners in the same, or similar, medical discipline. A comparison between the opinions of Mr Pullen, Associate Professor Goldwasser and Mr Jones demonstrates that disparity. It is a disparity which I now need to reconcile on reports, and on the reports and oral evidence of Dr Hagos.
60 Whilst Mr Battlay is a general surgeon and not an orthopaedic surgeon, his opinion, however, is not to be discounted. He shares the same opinion as Mr Jones. As for the other medical practitioners, there appears to be less division. Dr Brown, Dr Rowe and Dr Horsley appear to accept that the plaintiff suffered a compensable injury to his elbows. Dr Hagos appears to be in no doubt that the ultrasounds, including the ultrasound taken in 2013, demonstrate pathology consistent with bilateral epicondylitis. It would appear that the persistent complaints of pain made by the plaintiff to him are consistent with the pathology showed on the ultrasounds. Associate Professor Goldwasser also appears to have been influenced by what was demonstrated on the ultrasounds in arriving at his opinion.
61 Mr Gorton submitted that the plaintiff relied upon the collection of diagnoses of the pathological process said to be the cause of the compensable injury. He submitted that when determining that the plaintiff is presently suffering a compensable injury, it was permissible for me to find that the plaintiff had suffered one, or the other, or both of bilateral epicondylitis, and an aggravation of osteoarthritic changes in his elbows.
62 Cases such as this are difficult because the trial judge is faced with weighing up competing medical evidence based upon medical reports. The conclusion I have reached is that I prefer the evidence of Dr Hagos. It would appear that he was influenced by the history he was given by the plaintiff, the plaintiff’s clinical presentation and the ultrasounds. His opinion is confirmed by Associate Professor Goldwasser.
63 I am less impressed by the opinions of Mr Battlay and Mr Jones. Mr Battlay was very dismissive of any notion that the plaintiff’s injuries to his elbows and left knee had any connection with the plaintiff’s work. He did not explain how he came to that opinion, which I think is something an expert witness is expected to do. Similarly, Mr Jones appears to have accepted that there was some work influence resulting in a compensable injury to the plaintiff’s elbows, but changed his opinion without explaining his reasoning behind the change of opinion. I was referred to Darling Island Stevedoring & Lighterage Co Ltd v Hankinson by Mr Gorton.[43] Essentially, I understood the submission to be that if the pre-existing osteoarthritic disease in the plaintiff’s elbows has been aggravated, then how can the aggravation be abstracted as a causative entity from the disease process in its aggravated state? As a matter of logic, and I hope commonsense, I think there is merit in that, because it goes to the very heart of my rejection of the opinions of Mr Battlay and Mr Jones. I think there is a need for them to reason why an aggravation which produces symptoms in a previously asymptomatic body part has ceased, when the symptoms continue consistently with what they were like before the aggravation is said to have ceased.
[43](1967) 117 CLR 19
64 Therefore, I find that the plaintiff suffered both lateral epicondylitis and an aggravation of pre-existing osteoarthritic disease in his elbows.
65 In Peak Engineering & Anor v McKenzie,[44] Maxwell P observed that where two different injuries are concurrently producing pain and suffering consequences for the applicant, it will ordinarily be necessary to make findings about all of the pain and suffering consequences which are operative at the date of the trial, and that this is an essential pre-condition to the task of deciding which of the pain and suffering consequences are attributable to which injury.[45]
[44][2014] VSCA 67
[45]at [24], but compare that to the observation made by Ashley JA in Dressing v Porter [2006] VSCA 215 at [47]
66 On my reading of Peak Engineering and the process of reasoning undertaken by Maxwell P, I must determine the issue of whether the plaintiff’s pain and suffering consequences are at least very considerable by putting those consequences into context by having regard to the pain and suffering consequences of concurrent conditions. In the plaintiff’s case, those are his shoulder and left knee.
67 The conclusions I have reached by following the same process of reasoning is as follows:
· The plaintiff has pain produced by both the injuries to his elbows and his left knee. However, they affect him differently. What I think is clear, is that manual operations which may increase the pain in the plaintiff’s elbows, but does not increase the pain in his left knee. Standing and walking will increase the pain in the plaintiff’ left knee, but not in his elbows. However, both contribute to the pain he experiences in an overall sense.
· The plaintiff might still be working in modified duties but for the occurrence of the left knee injury. The real cause of his present incapacity appears to be his left knee injury; however, both contribute to his incapacity for his pre-injury work.
· The plaintiff uses medication principally for the pain he experiences in his elbows, but it is clear that he also takes it, when necessary, to treat the pain in his shoulder and left knee. The inference is that he might well be taking less of that medication if he had not suffered the injuries to his shoulder and left knee.
· The plaintiff’s activities of a social, recreational and domestic nature have been affected by the injury to his elbows; however, by his own admission, they are also affected by his left knee; for example, his domestic activities are interfered with by his shoulder and left knee.
68 In Peak Engineering, Maxwell P referred to the need for disentangling in these circumstances. The disentangling, in my view, is part of the onus borne by the plaintiff. What I am left with is that the plaintiff has pain in his elbows. He is unable to perform his pre-injury work, but is able to undertake the modified work which he was performing before the onset of the left knee injury. He requires medication for pain relief. His sleep is interrupted by pain. His social, recreational and domestic life are also interfered with by the disabling effect of the injury to his elbows.
69 However, what I have referred to in paragraph 67 above demonstrates, that, when the pain and suffering consequences to the left elbow are put into context by having regard to the pain and suffering consequences of the shoulder, but more particularly the left knee, it can be seen that a proportion of the pain and suffering consequences contended for by the plaintiff are attributable to those conditions.
70 The films raise an issue of the plaintiff’s creditworthiness and reliability. He could have, and indeed, should have informed Mr Jones that he was working. It was certainly relevant for Mr Jones to know that in forming an opinion as to the plaintiff's capacity for work. His failure to do so does affect his credit. His evidence that he only takes students once or twice a week is contradicted seriously by the films, which show that he did so three times in one week. Furthermore, his use of the red Toyota Corolla suggests that it is available to him to provide lessons to students for a fair portion of the days on which he was filmed. It suggests that he is occupied in work more often than he was prepared to admit to. The fact that the plaintiff was able to use a cloth and a squeegee to clean the car, and was able to clean the mats and gesticulate to the female student, demonstrate a reasonable level of tolerance in the use of his arms.
71 I do not accept that the plaintiff is an entirely creditworthy and reliable witness. Whilst I accept that he has suffered injuries which impair the function of his elbows resulting in some fixed deformity, I am not satisfied that the pain and suffering consequences are as serious as he says they are. The films suggest he is reasonably active and has the full and unrestricted use of his arms when using the squeegee and cloth, cleaning the mats of the car and gesticulating when speaking to the female client.
72 When I balance up the context in which the plaintiff’s elbows impair his overall functioning, against the impairment caused by the injury to his shoulder and left knee, and additionally, what I have seen on the films, I am satisfied that the plaintiff has suffered injury to his elbows which do interfere with his overall functioning, but not to the extent that his pain and suffering consequences can be described as being “very considerable”. I think at best they are moderate, and for those reasons I dismiss the plaintiff’s application.
---
0
4
0