Horvat v Victorian WorkCover Authority
[2019] VCC 341
•25 March 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-18-02058
| JOSIP HORVAT |
| v |
| VICTORIAN WORKCOVER AUTHORITY |
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JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 March 2019 | |
DATE OF JUDGMENT: | 25 March 2019 | |
CASE MAY BE CITED AS: | Horvat v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 341 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to wrist – disentanglement of consequences from other physical injuries in particular shoulder injuries – pain and suffering only – whether consequences “very considerable”
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited: Bezzina v Phi [2012] VSCA 161
Judgment: Application refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J B Richards QC with Mr A Saunders | Slater and Gordon Ltd Lawyers |
| For the Defendant | Ms R Kaye | MinterEllison |
HIS HONOUR:
Preliminary
1 On 2 February 2012, Mr Horvat suffered an injury to his right wrist in the course of his employment with a company, Rheem Australia Pty Ltd, when he was required to place panels onto hot water systems, hitting them into place using the palm of his hand.
2 Mr Horvat remained at work, on normal duties, until he had another significant workplace accident in July 2012, as a result of which he suffered an injury to his right shoulder and elbow (“the shoulder injury”).
3 As a result of the shoulder injury, he suffered an overuse injury to his left shoulder. He worked on until April 2013, when he was unable to undertake the work any further. His employment was formally terminated in November 2015, and he has not worked since.
The application
4 Initially, the application sought leave in respect of the shoulder injury and, separately, the right wrist. It is clear from the plaintiff’s first affidavit, sworn 23 November 2017, that the shoulder injury, which required extensive treatment, rather dominated the physical picture. In September 2018, that part of the application which related to the shoulder injury was resolved. This application is concerned only with the right wrist.
5 This is a serious injury application. The body function said to be lost or impaired is the right wrist. Leave is sought in respect of pain and suffering only.
6 Ms Kaye, for the defendant, identified two issues in the application:
· It was necessary to disentangle the consequences which flowed from the shoulder injury, with the consequences related to the wrist (“disentanglement”).
· When consideration was given only to the consequences which arose from the wrist injury, they did not meet the “very considerable” statutory test (“range”).
The evidence
7 The plaintiff’s first affidavit is concerned largely with the shoulder injury, and the considerable treatment which that injury required. The plaintiff said he experiences constant pain in the shoulders. He said he also had pain at all times in his wrist, although it was not as severe as the shoulders. In respect of the wrist pain, he said it was sometimes bad, although at other times not as bad. He said: “If I only had the pain in my wrist, I would have kept on working as I did between that period and the date of my fall (when he injured his shoulders).”
8 The consequences Mr Horvat identified in respect of the shoulder injury were described in his first affidavit as:
· Restriction of movement and pain in his shoulders brought his working life to an end.[1]
[1]Plaintiff’s Court Book (“PCB”) 9
· His social life was significantly reduced.[2]
[2]PCB 24
· His ability to work in and enjoy his extensive garden was significantly affected, and his wife did most of the work. He had an extensive garden with vegetables, fruit trees and flowers.[3]
[3]PCB 25
· He had a lifelong love of birds, and kept a range of birds before his shoulder injury. He is no longer able to look after them, and they have been disposed of.[4]
[4]PCB 25
· His sleep is affected and he wakes regularly with pain in the shoulders.[5]
[5]PCB 25
· A range of activities of daily living are affected, including his ability to drive, assist with the housework and household maintenance.[6]
[6]PCB 25-26
· Significantly, he has lost his independence and struggles to dress, including buttoning shirts, putting on socks and tying laces. Showering and grooming are affected.[7]
[7]PCB 26
· His hands have become shaky.[8]
· He is restricted with the activities he can enjoy with his youngest son.[9]
[8]PCB 26
[9]PCB 26
9 In the course of cross-examination, Mr Horvat was asked whether the contents of that first affidavit were true and accurate. He said there were some difficulties with the interpreter who translated that affidavit to him, as she was not able to communicate well in his dialect. When distinct similarities between the consequences said to result from the shoulder injury, and the wrist injury, were pointed out, he said this was because of the difficulties with the interpreter. His daughter, who spoke both Croatian and English, was present at the time and no attempt was made to make any changes to that first affidavit. I am not satisfied the plaintiff’s explanation has any real merit.
10 Mr Horvat swore a further affidavit on 20 March 2019. By that time, that part of the application in respect of his shoulders had resolved. This second affidavit is concerned only with the right wrist injury and its consequences.
11 In the second affidavit, Mr Horvat said he was right hand dominant. In August 2018, he returned to his general practitioner, Dr Lovrich, who arranged nerve conduction studies of his wrist. That practitioner arranged for an injection to the wrist which gave only limited relief.
12 He takes a range of medication, including OxyContin, Endone and Temazepam, although this was not only in respect of his wrist, but also the shoulders. He attempts light exercises to strengthen the wrist.
13 Mr Horvat said the pain in his wrist is constant and at times severe. He has to be careful with any activities involving the wrist. Sometimes he has a loss of feeling or numbness in the right hand. Forceful movements of the wrist or hand, and smaller, more delicate movements cause difficulty. It is hard for him to open taps or bottles. Using a knife to cut food is painful. He has difficulty shaving and brushing his teeth, and his wife has to cut his nails. Dressing is a problem, including doing up buttons. He has difficulty writing, although accepted in cross-examination he did not have to write very often. He has difficulty using an iPad and various tools.[10]
[10]PCB 113-115
14 There is a significant overlap between the consequences in respect of the shoulder injury and those in respect of the wrist. Mr Horvat’s explanation for this in cross-examination was unsatisfactory. At first, he said that there were translation difficulties with the interpreter in respect of the first affidavit. He then said that the claim in respect of the shoulders was resolved, and queried why counsel for the defendant wanted to ask questions about the shoulders. With the resolution of the first claim, he said he was better able to concentrate on the pain and restriction in respect of his right wrist.
15 The plaintiff’s general practitioner, Dr Lovrich, provided a number of reports, which largely focused upon the right and left shoulders. According to a report of 14 July 2017,[11] Dr Lovrich said:
“I feel that as a consequence of the physical injury and impairment in Mr Horvat's right upper limb, he is likely to be precluded or restricted in relation to employment or activities involving: bending, lifting, twisting or stooping, pushing, pulling or lifting, repetitive pushing, pulling or lifting, repetitive and/or prolonged use of the right upper limb, overhead activities, prolonged sitting walking or standing, using steps or ladders, fine and manipulative use of the right upper limb and reduced manual dexterity.”[12]
[11]PCB 64
[12]PCB 64
16 Dr Lovrich said further, that as a result of the injury to the right upper limb, Mr Horvat had no capacity for suitable employment, and it was likely he would be restricted or precluded in relation to social, domestic and recreational activities.
17 Dr Lovrich was requested to report in respect of the right wrist injury in September 2018.[13] He said Mr Horvat had suffered a soft-tissue injury to the right wrist. He treated it with simple analgesics and anti-inflammatory medication, but he said the pain persisted. He went on:
“He began to experience increased right wrist pain in early 2018 and on the 23/04/18 I referred him for an xray of his right wrist (copy enclosed). This showed mild periarticular osteopenia and small osteophytes at the first carpometacarpal joint and STT joint, in keeping with osteoarthritis. I then referred him for an MRI scan of both wrists … .
The MRI showed: Near symmetrical changes of degenerative perforation and tearing of the central triangular fibrocartilage complex (TFCC) with partial tearing of the radioulnar, ulnar lunate and ulnotriquetral ligaments. There was also mild tendinosis of the right Extensor Carpi Ulnaris (ECU) tendon. There were moderate degenerative changes of the distal radioulnar joints bilaterally associated with lowgrade synovitis and mild degenerative changes of the wrist, involving the scaphoid-trapezium articulation and right second carpometacarpal joint. There was also a small ganglion arising from the right trapeziod [scil trapezoid] -trapezium articulation.”[14]
[13]PCB 69
[14]PCB 69-70
18 Dr Lovrich described the right wrist injury as an aggravation of degenerative changes, and injury to ligaments, tendinosis and synovitis. He said:
“I feel that as a consequence of the physical injury and impairment of Mr Horvat’s right wrist injury, he is likely to be precluded or restricted in relation to employment or activities involving: lifting, twisting, pushing, pulling, repetitive pushing, pulling or lifting, repetitive and/or prolonged use of the right wrist, overhead activities, using steps and ladders, fine and manipulative use of the right wrist and reduced manual dexterity. I feel that Mr Horvat is quite severely incapacitated as a result of his right wrist injury and I feel that this incapacity will continue for the foreseeable future.
- He does not have the capacity to perform his pre-injury duties as a consequence of the physical injury and impairment of his right wrist injury and I consider this incapacity to be permanent.
- He does not have the capacity to perform suitable employment …
- I feel that as a consequence of the physical injury and impairment of his right wrist injury, Mr Horvat is likely to be precluded or restricted in relation to social, domestic and/or recreational activities and I feel that such incapacity will continue into the foreseeable future.”[15]
[15]PCB 70
19 Of note is that doctor’s description of the consequences to the plaintiff of the right wrist injury and his assessment of those consequences, are very similar with the consequences he described in respect of the shoulder injury. His description of the work incapacity is likewise very similar.
20 Mr Horvat’s solicitors arranged for him to be examined and assessed by Mr Stephen Doig, orthopaedic surgeon, in October 2018. In respect of the early investigations of the wrist in 2012, Mr Doig said they indicated some degenerative changes which were described as minimal. There was a ganglion in the radial aspect of the wrist. Mr Doig received a history of constant ongoing pain in the wrist. In respect of the MRI scan of August 2018, Mr Doig said it indicated mild degenerative changes in the wrist, a degenerative tear of the TFCC and partial thickness tears of the volar and dorsal radioulnar ligaments. He said there were other ligaments disrupted, and some tendinosis of the ECU tendon.
21 Mr Doig assessed Mr Horvath as suffering an aggravation of pre-existing asymptomatic osteoarthritis in the right wrist. He said:
“It is not obvious as to where the pain is coming from in his wrist and it is not obvious as to why there should be such a marked restriction in range of movement. … .”[16]
[16]PCB 109
22 Mr Doig suggested there be an anaesthetic injection into the wrist. He noted the plaintiff as significantly impaired by his right wrist injury and his manual dexterity compromised. He said, as a result of the right wrist injury alone, he did not have the capacity to perform his pre-injury work. He said Mr Horvat’s social, domestic and recreational activities were compromised. He could not return to gardening, keeping his birds or undertake home maintenance. He noted it was possible the wrist may deteriorate. He said a pain management program would be of benefit.
23 In a further report of February 2019, Mr Doig noted there had been an injection of local anaesthetic and steroid in the area of the median nerve which had not resulted in improvement in the wrist pain. Investigations did not support a diagnosis of Carpal Tunnel Syndrome. Further investigations had not revealed where the pain in his wrist was located.
24 Mr Horvat was examined by Mr Barclay Reid, general surgeon, in February 2018. Although he did not receive a history of the wrist injury, he noted there was pain in the wrist which varied from time to time, lack of strength in the hands and numbness in the fingers intermittently. Testing for Carpal Tunnel Syndrome was normal. He said there was obvious voluntary restriction of all movement of the wrists, elbows and shoulders which differed to the restrictions displayed outside formal examination.
25 Mr Horvat was examined by Mr Michael Long, general surgeon, in October 2012. He obtained a history:
“At work on 2nd February 2012, he was aware of developing increasing pain about the right wrist at work, which he reported to … the Safety Officer. …
He believes the pain in the right wrist was caused and aggravated by the repeated operation of a rivet gun and undertaking cutting of metal.”[17]
[17]DCB 19
26 Mr Long noted a ganglion at the right wrist, approximately one centimetre in diameter. He thought movement of the wrist was unimpaired, compared to that of the left wrist. He said Mr Horvat suffered –
“Probable resolved tendinitis about right wrist and hand, which has clinically resolved. The ganglion noted in the anterolateral aspect of the right wrist is unlikely to be related to any specific work injury.”[18]
[18]DCB 22
27 Mr Long said that there were some degenerative changes in the joints of the wrist.
28 Mr Long examined Mr Horvat again in April 2013. According to his report, there was no complaint of wrist pain. The report focussed upon pain and restriction in the shoulders. Examination of the right and left wrist showed –
“Comparable, variable movement with marked over-reaction. The previously noted ‘ganglion’ anterolateral right wrist is probably a bony protuberance and of no consequence.”[19]
[19]DCB 29
29 Mr Long described the right wrist injury as:
“Previous soft tissue injury to right elbow and right wrist.”[20]
[20]DCB 30
30 He said further:
“This consultation was particularly difficult, as Mr Horvat presented an erratic history and over-reacted to such an extent that physical assessment [was] particularly difficult. It is probable that he has very significant psychosocial factors and he mentioned his increasing anger and frustration at work. These matters are beyond my specialty, but warrant urgent psychological/psychiatric assessment and treatment if indicated.”[21]
[21]DCB 31
31 A report of Dr Albert Tiong, radiation oncologist at the Peter MacCallum Cancer Centre, noted Mr Horvat was diagnosed with squamous cell carcinoma around the neck in 2014. It was apparently successfully treated with chemotherapy and radiation therapy.
32 A Medical Panel decision with Reasons dated 18 September 2014 was tendered. It was said Mr Horvat had “… mild persisting dysfunction of the right elbow and wrist following soft tissue injuries”.[22]
[22]DCB 38
Submissions on behalf of the Plaintiff
33 Mr Richards, for the plaintiff, submitted that all of the doctors who had examined Mr Horvat accepted that he had suffered an injury to his right wrist in while carrying out his employment duties. He relied in particular on the reports of the general practitioner, Dr Lovrich, and the recent report of the orthopaedic consultant, Mr Doig. He said it was clear there had been an aggravation of underlying osteoarthritis in the right wrist and that the symptoms had persisted, despite the opinion of Mr Long, who said that the tendinitis had resolved.
34 Mr Richards accepted that the 2017 affidavit emphasised the shoulder injury and consequences. He said there had been a significant aggravation of the wrist injury, with increased pain and investigation in 2018 prior to the resolution of the shoulder application. That was sufficient to warrant further scans, and a guided injection to the area, which had not provided any significant relief.
35 Mr Richards said essentially, the plaintiff was a truthful witness and I should accept his complaints of pain which was described as constant and at times severe. When taking account of the right wrist injury, it was necessary to consider that on the background of severe pain and restriction in the shoulders. In other words, the impact of the wrist injury was more significant for the plaintiff, given his other restrictions. Accepting that there was some degree of overlap in the consequences, nonetheless Mr Richards submitted that, in respect of those which could be specifically related to the wrist, in particular shaking, difficulty with manual dexterity, tasks involving use of the wrist or hand and personal activities of daily living, together with the ongoing pain, was sufficient to meet the statutory test.
Analysis
36 I start by assessing the evidence of the plaintiff.
37 The plaintiff was not a satisfactory witness and I have distinct reservations accepting his description of the pain and restriction in the wrist. He was evasive in cross-examination and regularly refused to answer questions directly. His explanation about inaccuracies and overlap in his first affidavit was unacceptable. On a number of occasions he queried why he was being asked anything about his shoulders. I do not accept his evidence in respect of the wrist as reliable and truthful.
38 In his first affidavit, he said that but for the shoulder injury, and accepting that he had suffered a wrist injury, he would have kept working. I accept that as being the true position. I am not satisfied his wrist injury would have prevented him working had he not injured his shoulders.
39 There is a considerable overlap between the consequences which he describes in respect of the shoulder injury, with those in respect of the wrist.
40 Likewise, the assessment of Dr Lovrich of his restrictions is similar in many respects to his assessment of restrictions in respect of the shoulder injury.
41 The opinion of Mr Long, albeit at an earlier time, would indicate there was little complaint about pain in the wrist, and, further, that the situation had largely resolved.
42 Mr Reid, more recently, noted inconsistencies in physical examination. Given my assessment of the plaintiff, in the course of cross-examination, I accept his opinion in that regard.
43 Likewise, Mr Long, in 2013, noted overreaction.
44 I accept the Medical Panel’s opinion as “mild persisting dysfunction … of the wrist following soft tissue injuries”.
45 I accept that the injury suffered in February 2012 was a soft tissue injury to the right wrist. It is likely Mr Horvat aggravated underlying degenerative changes in the wrist at that time. Radiology discloses not insignificant changes in the wrist. He also has changes in the left wrist.
46 Mr Doig was of the view it was difficult to point out precisely where the pain was coming from.
47 Therefore, the radiological changes, themselves, do not point to significant injury from the workplace incident.
48 I do accept, however, that there was an aggravation of symptoms in the wrist in 2018, requiring further investigation, assessment and treatment by Dr Lovrich, and referral for an injection; however, I am not satisfied that aggravation was particularly dramatic nor long lasting. I do not accept the plaintiff’s description of the ongoing pain and restriction as particularly reliable.
49 Of the consequences to which he refers in his affidavit, I am satisfied he does have some ongoing pain in the wrist, although I do not assess it as particularly significant. I accept that he has difficulties with some tasks involving the use of the wrist and hand, including opening taps and bottles, using utensils, and some personal activities such as shaving and brushing his teeth. I further accept there is some difficulty in some maintenance items, including the use of tools.
50 In assessing the impact of these restrictions upon the plaintiff, it is necessary to take into account the fact that he already has a significant problem with his shoulders and right elbow. Thus, the impact, even of relatively modest restrictions, can be more significant than in an otherwise healthy person. He has an already modified lifestyle, with restrictions in a range of social, recreational, domestic and work-related activities. Those matters must be taken into account in assessing the consequences in respect of the right wrist injury.[23]
[23]See Bezzina v Phi [2012] VSCA 161 at paragraph [23]
51 Even accepting there was some aggravation of the plaintiff’s symptoms in 2018 and there are restrictions in the activities and tasks which I have described, I have concluded that the plaintiff has not proved, the onus being upon him, that those restrictions reach the “very considerable” test the legislation requires. I find I am unable to rely upon the evidence of the plaintiff as to the nature and extent of the pain which he says he suffers. Many of the other consequences, in relation to the activities he says he cannot perform, and the medication that he takes, have not been sufficiently disentangled from those which relate only to the wrist to satisfy the statutory test. Both his affidavits, and the opinions of Dr Lovrich and Mr Doig, blur the consequences of the respective injuries. The opinion of Mr Doig is undermined, because he did not receive an extensive description of the shoulder injury. He noted:
“He said that since then he has developed the bilateral shoulder and elbow pain which I have not gone into.”[24]
[24]PCB 109
52 Mr Doig then went on to describe a range of restrictions, not only in respect of employment, but social, domestic and recreational activities where he has not, on the one hand, examined what restrictions relate to the shoulders, and which relate to the wrist.
53 Accepting the consequences which relate specifically to the wrist, I am not satisfied they meet the statutory test. The application should be refused.
54 I shall make consequence orders.
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