Hussain v Victorian WorkCover Authority
[2023] VCC 2283
•12 December 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-22-05584
| ARIF HUSSAIN | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE CLARK | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 September 2023 | |
DATE OF JUDGMENT: | 12 December 2023 | |
CASE MAY BE CITED AS: | Hussain v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 2283 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – right hand injury – pain and suffering – credit – range
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s325; s335
Cases Cited:John v Oaktech Pty Ltd [2020] VSCA 10; Petrovic v Victorian WorkCover Authority [2018] VSCA 243; Rowe v Transport Accident Commission [2017] VSCA 377; Woolworths Ltd v Warfe [2013] VSCA 22; Peak Engineering & Anor v McKenzie [2014] VSCA 67; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz [2012] VSCA 60; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; TTB SMS Pty Ltd v Reading [2020] VSCA 203; Porto v Design Line Cabinets Pty Ltd (Deregistered) & VWA [2012] VCC 1645; Razai v Victorian WorkCover Authority [2022] VCC 1732; McDougall v Victorian WorkCover Authority [2021] VCC 1292; Sorrentino v Victorian WorkCover Authority [2022] VCC 581; Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S McCredie | Zaparas Lawyers |
| For the Defendant | Mr G Hevey | Russell Kennedy |
HIS HONOUR:
Introduction
1The plaintiff, Mr Arif Hussain, suffered an injury to his right hand and, in particular, his right index finger on 11 November 2019 (“the injury”). His hand was crushed by a piece of steel (“the incident”). At that time, Mr Hussain was working for Scaffco (Aust) Equipment Hire Pty Ltd (“Scaffco”) as a scaffolder/labourer. Mr Hussain had his own ABN and he provided Scaffco with weekly tax invoices.
2Mr Hussain was born in Afghanistan. He is thirty-two years old. Mr Hussain arrived as an Asylum seeker in June 2006. After being released from detention, Mr Hussain came to live in Melbourne. Prior to commencing work with Scaffco in or about 2017,[1] Mr Hussain worked in an abattoir in Dandenong for approximately three years.[2]
[1]See Defendant’s Court Book (“DCB”) 38 – There was no direct evidence when Mr Hussain commenced at Scaffco, but he told Dr Thomas Robbins, plastic and hand surgeon, that he had worked for Scaffco for about two years, and the WorkCover claim form at DCB 17 said he had been a worker for about 2.5 years.
[2]Plaintiff’s Amended Court Book (“PACB”) 25 at paragraph [8]
3Mr Hussain is married. He has four children.
4By reason of the injury, Mr Hussain was off work for a period of time. He said he returned to work as a packer with a butcher sometime in late 2021.[3] On 24 August 2022, Mr Hussain commenced work with Valoriza Environmental Services Pty Ltd (“Valoriza”).[4] Mr Hussain continues to work in this job. He works sorting waste in a recycling processor. Mr Hussain says he currently earns about $950 per week in this job.
[3]PACB 27 at paragraph [25]
[4]PACB 37 at paragraph [2(b)]
5Mr Hussain said he continues to suffer ongoing pain and numbness in the right index finger. He says his pain and related restrictions affect him in many ways. Mr Hussain says the injury is a serious injury for pain and suffering purposes.
6The Victorian WorkCover Authority (“VWA”), who are the worker’s compensation insurer for Scaffco, denies Mr Hussain has suffered a serious injury.
What is the nature of Mr Hussain’s application?
7This is a serious injury application brought pursuant to s335 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”). Mr Hussain relies upon paragraph (a) of the definition of “serious injury” in s325(1) of the Act. That is, the injury is a “permanent serious impairment or loss of a body function”.
8For Mr Hussain to be successful, he must establish that the consequences which flow from the injury, when judged by comparison with other cases in the range of possible impairments or losses of body function, are “more than significant or marked” and “at least very considerable”, as per the narrative test set out in s325(2)(b) and s325(2)(c) of the Act.
9While Mr Hussain has been left with disfigurement to his right index finger as a consequence of the incident and surgery, he did not pursue a serious injury application for disfigurement pursuant to ss(b).
10While Mr Hussain said that he has suffered psychological distress by reason of the incident and the injury, he did not pursue a serious injury application for this psychological distress pursuant to ss(c).
What are the issues for the Court to determine in Mr Hussain’s application?
11The VWA said there was no dispute that Mr Hussain:
(a) was a worker within the meaning of the Act;
(b) sustained the injury in the course of his work on 11 November 2019;
(c) as a result of the injury, required medical treatment, which included:
(i)surgery on the day of the incident at the Northern Hospital to:
· clean up the wound
· insert a K-wire into the right index finger to stabilise the fractures;[5]
(ii)at an Outpatient’s Clinic on 6 January 2022, the K-wire was removed;
(iii)nineteen sessions of hand therapy with Re-Wired Hand Therapy & Nerve Recovery (“Re-Wired”);
(iv)some physiotherapy.
[5]See the Northern Health Operation Report, dated 11 September 2019 at PACB [88]
This was, however, effectively all that was agreed to.
12In denying Mr Hussain’s application, the VWA said:
(a) Mr Hussain’s credit and reliability was in dispute;
(b) Mr Hussain embellished the consequences of the injury;
(c) the true residual consequences of the injury were minor;
(d) the medical evidence which Mr Hussain sought to rely on, in particular, Dr Meena Mittal, was unreliable;
(e) the consequences which Mr Hussain has been left with, by reason of the injury, do not satisfy the requisite test.
13That said, the issues for the Court to determine include:
(a) Mr Hussain’s credit and reliability and whether I can accept his evidence;
(b) which of the medical evidence should be accepted and the assistance that evidence provides;
(c) whether the consequences flowing from the injury satisfy the serious injury test.
What do I make of the VWA attack on Mr Hussain’s credit?
14As in a great number of cases of this type, the credit and reliability of Mr Hussain is critically important.[6]
[6]See, for example, the analysis of the Court of Appeal in Johns v Oaktech Pty Ltd [2020] VSCA 10, particularly at paragraph [76]
15I accept, at the time of the incident, Mr Hussain clearly suffered a nasty injury. A large piece of steel crushed his right hand. He was taken by colleagues to the Northern Hospital Emergency Department and underwent surgery later that day.
16I accept that Mr Hussain attended at hand therapy and physiotherapy, and worked hard to regain function of his right index finger. I also accept that Mr Hussain has been in regular employment with Valoriza since August 2022. Mr Hussain’s return to work must be acknowledged and he is to be congratulated on this achievement.
17That said, the nature and extent of Mr Hussain’s residual symptoms flowing from the injury, and the consequences, remain in real dispute.
18It is in this context that Mr Hussain’s credit and reliability was challenged on numerous fronts by the VWA.
19Having considered all of the evidence and observed Mr Hussain in the witness box, I accept there is a proper basis for the VWA challenge. Indeed, I accept there are many aspects of Mr Hussain’s evidence which were unsatisfactory. I accept the VWA’s submissions that Mr Hussain’s credibility has been impugned and that he sought to either minimise or embellish certain aspects of the injury. I accept his evidence was generally inconsistent and unreliable.
20In coming to this conclusion, I refer firstly to the inspection of Mr Hussain’s right index finger undertaken by me in the course of the hearing and Mr Hussain’s evidence at that time.
21At the time of the inspection, Mr Hussain:
(a) was not able to bend his right index finger beyond approximately 45 degrees;[7]
(b) was not able to form a fist.
[7]Transcript (“T”) 15, Lines (“L”) 9-17
22I prepared, immediately subsequent to my inspection, a diagram depicting Mr Hussain’s alleged level of movement of his right index finger and the location of his alleged pain and numbness.
23Mr Hussain’s demonstration to me in court was accompanied by much grimacing and screwing up of his face. Mr Hussain said, at the time of this demonstration, his pain level was 8-9/10.[8] At the time of the demonstration, I considered Mr Hussain’s presentation and evidence to be unconvincing.
[8]T16, L19
24Later in the application, Mr Hussain was challenged by the VWA in respect to the demonstration and it was put to him that he was not genuine. Mr Hussain said:
Q:“You see, my question to you is this. When you demonstrated this morning to the court your limited movement of that right finger, did you do so to indicate to the court something which was not in fact correct?---
A:I don’t know, probably.”[9]
[9]T27, L16-20
25In final submissions, Mr McCredie conceded that the level of movement which Mr Hussain displayed in the witness box was not a useful guide to determining Mr Hussain’s actual hand function.[10]
[10]T62, L4-7
26Moving now to the film which was shown in the course of the application.
27The VWA relied upon two sets of video surveillance:
(a) March 2022;[11]
(b) September 2023.[12]
The VWA said this video surveillance went to both credit and range.
[11]Defendant Exhibit 1
[12]Defendant Exhibit 2
28The video surveillance shown to the Court included Mr Hussain using his right hand to:
(a) open a car door;
(b) remove a screw-on petrol cap on his car for the purposes of filling the petrol tank;
(c) use a petrol-bowser pump;
(d) grip his steering wheel while driving;
(e) pick up a bucket of water and throw it over a car;
(f) close a car boot;
(g) hold and carry a baby bouncer.
29Without revisiting the totality of the video evidence, I make particular reference to the September 2023 video at 3:13 minutes. At this time, Mr Hussain was shown at a service station using his right hand to operate a petrol-bowser nozzle when filling his car with petrol. Having reviewed that portion of the film on numerous occasions, I accept that it shows Mr Hussain:
(a) wrapping his hand, including his right index finger, around the petrol-bowser nozzle;
(b) applying force to trigger the petrol flow;
30Having been shown the video, Mr Hussain, when cross-examined by the VWA, said:
Q:“… Now, Mr Hussain, in relation to your trip to the service station on 11 September, which is literally only nine days ago, you were able to use your right hand to fill the petrol - or put the petrol bowser - I’ll start again; to put the petrol hose into your car and to operate the grip to squeeze the petrol, to get the petrol out of the bowser into your car. That’s correct, isn’t it?---
A:Yes.
Q:And when you had finished your task you put the pump back into the bowser, you picked up the lid to your car from your boot and used all of your right hand, I suggest, to screw that lid back onto the cover? That’s correct, isn’t it?---
A: I don’t remember.”[13]
[13]T30, L7-19
31I accept the video generally showed Mr Hussain using his right hand/index finger to a greater degree than he:
(a) deposed to in his affidavit evidence;
(b) demonstrated to the Court;
(c) asserted in his oral evidence;
(d) presented to medico-legal assessors.
32Moving now to Mr Hussain’s response to the video surveillance and his evidence generally. Mr Hevey put to Mr Hussain that, when he did not know he was being watched, his finger was capable of greater movement. Mr Hussain answered: “I don’t know that”.[14] That answer was evasive and untrue.
[14]T27, L2-3
33Indeed, Mr Hussain made numerous similar answers when being challenged in cross-examination. On numerous occasions he said:
(a) he did not know;
(b) he could not remember.[15]
These answers were unconvincing.
[15]See, for example, T28, L7-11; T20, L15-19; T26, L13-15 and T21, L20-24
34I do not accept that Mr Hussain, at the time of my inspection, was genuine in his endeavours. Mr Hussain was prepared to mislead the Court for the purposes of his application. Further, I generally found his evidence to be unsatisfactory. Mr Hussain was prepared to embellish and minimise, and was evasive and generally unconvincing.
35I accept the VWA’s submission that Mr Hussain’s credit was impugned.
36That said:
(a) I cannot accept, on face value, the consequences alleged by Mr Hussain as flowing from the injury;
(b) I will have to carefully analyse the objective evidence.
37It is, of course, appropriate to acknowledge that an adverse finding in respect of credit and reliability does not preclude a conclusion that Mr Hussain has in fact suffered a serious injury.
Which of the medical evidence should be accepted and what assistance does this evidence provide?
38I shall firstly review the treating medical practitioner evidence. I will then analyse the medico-legal evidence in chronological order.
The treating medical practitioner evidence
39I had very limited treating medical practitioner evidence. It consisted of:
(a) a letter of referral from Dr Thair Maky, general practitioner, to the Northern Hospital, dated 11 November 2019;[16]
(b) the Northern Hospital Operation Report for the 11 November 2019 surgery;[17]
(c) a medical certificate provided by Dr Peter Li, general practitioner, dated 29 June 2020;[18]
(d) a medical report from Dr Ian Brand, Northern Hospital, dated 22 January 2022;[19]
(e) the clinical notes from Re-Wired.[20]
[16]PACB 40-41
[17]PACB 42
[18]PACB 304-305
[19]DCB 32
[20]PACB 264-294
40The letter of Dr Maky confirmed the injuries. Something accepted by the VWA. It adds nothing.
41The Operation Report confirmed the procedure undertaken at the Northern Hospital . Again, something accepted by the VWA.
42The medical certificate of Dr Li related to an attendance by Mr Hussain on 29 June 2020. This certificate:
(a) is in excess of three years ago;
(b) confirmed the crush injury to Mr Hussain’s index finger;
(c) asserted that Mr Hussain required some modification in the use of his right hand and when lifting;
(d) said Mr Hussain was fit for suitable employment.
In the context of this application this certificate adds little.
43I move now to the report of Dr Brand.
44Dr Brand was not involved in Mr Hussain’s treatment. He provided the report based on the medical records of the Northern Hospital. Dr Brand:
(a) provided the history of injury;
(b) outlined Mr Hussain’s attendance on 11 November 2019 and the assessment which was undertaken;
(c) detailed the treatment undertaken on 11 November 2019;
(d) confirmed Mr Hussain was referred to:
(i)hand therapy;
(ii)the plastics outpatient department for a review;
(e) said that Mr Hussain had been discharged from the Northern Hospital, as ongoing therapy had been organised in Dandenong;
(f) said “[t]here is nothing in the medical records to suggest he would be unfit for preinjury duties as a scaffolder”.[21]
The report provided historical context, but adds little to the matters currently in issue before the Court.
[21]DCB 32
45The only other treating medical practitioner materials is the “patient file” from Re-Wired. It is trite to say that these notes do not constitute an Order-33 compliant report which address the issues specific to the application. The patient file went to some thirty pages. Mr Hussain attended either Ms Rebecca Lurie or Ms Jessica Godwin (qualifications unknown), between 15 January 2020 and 18 June 2020.[22]
[22]PACB 287-294
46The Re-Wired notes provide some insight in respect to the treatment and findings on examination at that time. However, they are in excess of three years old.
47There are a number of entries which record “passive range can achieve close to full fist”.[23]
[23]PACB 288
48There were other entries which recorded, “[r]ange remains limited”.[24] However, in the absence of evidence explaining the nature, extent and significance of such findings, this evidence is of limited use.
[24]PACB 288, PACB 289, PACB 290
49Finally, there is the entry of 14 May 2020, where Ms Godwin said, “noted is able to use hand for majority of tasks”.[25]
[25]PACB 288
50Again, I note this observation is made in the absence of a formal report. It is difficult to be certain of the weight which I ought attribute to this observation. However, on face value, it tends against a significant ongoing functional restriction.
51Mr Hussain, in his affidavit sworn 15 August 2023, asserted, “I continue to consult my GP, Dr [Qasim] Hamimi.”[26] I have no evidence in respect to the injury from Dr Hamimi nor, indeed, any general practitioner, subsequent to the day of the incident, and the one medical certificate of Dr Li.
[26]PACB 33 at paragraph [9]
52The materials in evidence from the treating medical practitioners:
(a) are in excess of three years old;
(b) tend to the conclusion that Mr Hussain has achieved a good recovery, in that he is able to use his right hand for the majority of tasks.
The medico-legal evidence
53I will review the medico-legal evidence in chronological order.
Dr Thomas Robbins, hand and plastic surgeon – report dated 6 May 2020
54Dr Robbins assessed Mr Hussain for the VWA on 5 May 2020. This consultation was conducted by video link.
55Dr Robbins said Mr Hussain told him that, domestically, he cannot lift anything heavier than a cup or a plate.[27]
[27]DCB 38
56On examination, Dr Robbins said:
“On examination of [Mr Hussain’s] hand via video, his finger and hand are normal in appearance and he has full range of movements. He did not complain of any sensory loss and was given the chance to do so.”[28]
[28]DCB 38
57Dr Robbins said, in his opinion, Mr Hussain was fit to return to his normal work.[29] Dr Robbins concluded:
“The accident occurred to his right index finger on 11 November 2019, that is, it is now six months since the accident. Such injuries would be expected to be resolved in the order of two months.”[30]
[29]Question 6 at DCB 40
[30]DCB 43
Dr John Anstee, plastic surgeon – report dated 14 April 2022
58Dr Anstee assessed Mr Hussain for the VWA on 30 March 2022.
59At the time of this assessment, Mr Hussain said he was employed packing meat four or five days per week.
60Dr Anstee reported Mr Hussain said his complaints include:
“●any right hand task has been made more difficult and in some cases impossible by virtue of the injury
● he has had constant pain since the day of the accident
● a hot environment causes pain in the right index finger as does a cold environment
● he must take 3-4 Panadol every day to take the edge off the pain”[31]
[31]DCB 44
61On examination, Dr Anstee said of Mr Hussain’s right index finger:
(a) the range of movement was limited;
(b) there was some temperature difference;
(c) the sweat patterns were the same between the left and right index finger;
(d) Mr Hussain complained of no useful sensation in the distal half of the right index finger.[32]
[32]DCB 45
62Dr Anstee said that Mr Hussain told him he was not having any ongoing treatment.[33]
[33]Question 4 at DCB 46
63Dr Anstee, when asked if the objective investigation results were consistent with his examination of Mr Hussain, said:
“I have examined the right index finger with measurements and temperature assessments. If Mr. Hussain has no useful sensation at the finger one would expect some changes to the sweat patterns which I did not find. One might also expect a greater degree of wasting. My findings correlate with the radiological information.”[34]
[34]Question 6 at DCB 46
64Dr Anstee said that Mr Hussain “has some residual disability” following the injury.[35] However, Dr Anstee said he was not sure if Mr Hussain’s presentation was “completely genuine”.[36]
[35]DCB 45
[36]Question 3 at DCB 46
65When expressing his concern about the variation in movement and the genuineness of his test results, Dr Anstee said:
(a) he did not expect Mr Hussain to be symptom free;
(b) there was no reason why Mr Hussain does not suffer some pain and limitation of function;
(c) the permanent physical disability was “moderate”.[37]
[37]Question 3 at DCB 46
66In respect to Mr Hussain’s work capacity, Dr Anstee noted that Mr Hussain was working undertaking meatpacking, in which he understood Mr Hussain used both hands.[38]
[38]Question 9 at DCB 46
Dr Meena Mittal, pain physician and specialist anaesthetist – report dated 4 September 2023
67Dr Mittal examined Mr Hussain for his solicitors on 4 September 2023.
68Dr Mittal said, in respect to his current levels of pain, Mr Hussain told her:
(a) He had constant pain in the right index finger.
(b) He suffered sharp stabbing pain in the right index finger.
(c) The pain was worse on activity or in cold weather. The baseline for the pain was 8/10. When aggravated it increased to 10/10.
(d) While the majority of the pain was in his right index finger, at times, the pain radiated to the proximal aspect of the palm of his right hand and the medial aspect of his right wrist.[39]
[39]PACB 46
69On clinical examination, Dr Mittal reported:
“Examination of the right hand in comparison to the left revealed an extended right index finger. There was mild deformity of the distal interphalangeal joint in the dorsal aspect. There was mild tenderness on palpation of the distal interphalangeal joint and the distal phalanx. He had limited range of motion of the distal interphalangeal joint extending between 5 to 10 degrees. There was lack of movement of the proximal interphalangeal joint actively, mostly limited by pain; however, the passive range of motion of the proximal interphalangeal joint was between 5 degrees to 50 degrees. There was no sensory abnormality to light touch and pinprick. The temperature and color of the right index finger and the right hand was normal. There were no trophic changes. There was no change in diaphoresis.[40]
[40]PACB 47
70In respect to Mr Hussain’s hand function, Dr Mittal said that he told her:
(a) he did not utilise his right index finger to assist with lifting;
(b) he lacked flexion in the joint;
(c) he was unable to make a fist;
(d) he struggled with driving;
(e) he had reduced capacity to engage in fine motor skills.[41]
[41]Ibid
71In respect to current treatment, Dr Mittal said Mr Hussain told her:
(a) he remained under the care of his general practitioner;
(b) he utilised Paracetamol on a “prn basis”.[42]
[42]“prn” stands for pro re rata basis. That is, not scheduled, but rather taken as needed.
72Dr Mittal said that Mr Hussain told her he was working at a recycling factory. In respect to this work, Dr Mittal said that Mr Hussain told her he utilises his left arm for the job.[43] Indeed, Dr Mittal said:
“… Given Mr Hussaini’s (sic) injury, the extent of pain and dysfunction in the right upper limb, he is completely reliant on the left upper limb for his occupational duties. This limits him to part time work only since excessive reliance on a single limb will place him at high risk of sustaining injuries in the functioning limb.”[44]
(Emphasis added.)
[43]PACB 46
[44]Question 9 at PACB 49
73It was Dr Mittal’s clinical impression that Mr Hussain presented with:
(a) persistent post-surgical pain;
(b) a limited range of motion of the distal interphalangeal joint;
(c) reduced range of motion in the proximal interphalangeal joint;
(d) no evidence of complex regional pain syndrome.[45]
[45]PACB 47
74As to Mr Hussain’s activities of daily living, in answer to Question 10, Dr Mittal said:
“As a consequence of Mr Hussaini’s (sic) right hand index finger, he is precluded and restricted in activities of daily living such as domestic activities, social and recreational activities. However, I also believe that part of the reason for not engaging in recreational activities is not as a result directly of the injury in the right index finger, but more so due to fear avoidance behaviour, and also due to his psychological symptoms of low mood and increasing social isolation. As such, I cannot report that the injuries in the right index finger alone are responsible for his preclusion from his recreational activities. The domestic activities, however, are certainly being avoided as a result of his pain and deformity in the right index finger and I consider that to be permanent that is likely to continue to the foreseeable future.”[46]
[46]PACB 49
75Dr Mittal said that she considered Mr Hussain’s prognosis to be guarded.
What conclusions do I reach from the medical evidence?
76I accept, at the time of the incident, Mr Hussain suffered a nasty injury. X-rays demonstrated a mallet finger deformity of the distal phalanx of the right index finger. There was a comminuted fracture of the dorsum of the base of the distal phalanx.[47] Mr Hussain underwent appropriate surgery and a K-wire was inserted. The K-wire was subsequently removed and Mr Hussain participated in rehabilitation. All this has been conceded by the VWA.
[47]PCB 285 and see the answer to Question 2 in the report of Dr Anstee at DCB 45 and the report of Dr Brand at DCB 32.
77By mid-2020, the hand therapy had ceased. Mr Hussain was said to have, subsequent to this, limited physiotherapy. I was not provided with any objective evidence in respect to the nature, extent and outcome of this physiotherapy treatment. What is clear, is that in the last couple of years, Mr Hussain has not received any manual therapy for the injury.
78Mr Hussain’s evidence about ongoing treatment with his general practitioner is inconsistent. It has variously been said by Mr Hussain:
(a) in his affidavit evidence, that he has had ongoing general practitioner management;
(b) to Dr Mittal, at the time of the September 2023 assessment, that he remains in his general practitioner’s care;
(c) to Dr Anstee, that he was not having any treatment.
79I was not provided with any general practitioner evidence subsequent to the medical certificate of Dr Li.
80The treating medical practitioner evidence provides historical context and tends to the conclusion that Mr Hussain has achieved a good functional outcome and is able to use his right hand for the majority of tasks.
81Moving now to the medico-legal evidence.
82It is accepted that, in applications such as this, where credit is in issue, care must be taken when weighing the value to be given to the opinions of medico-legal experts. Put simply, the opinions are only as good as the underlying history on which they are based.[48]
[48]See, for example, Petrovic v Victorian WorkCover Authority [2018] VSCA 243; Rowe v Transport Accident Commission [2017] VSCA 377; Woolworths Ltd v Warfe [2013] VSCA 22
83I go firstly to the report of Dr Mittal, the most recent of the medico-legal experts. There are many aspects of Dr Mittal’s evidence which trouble me. I start with Dr Mittal’s answer to Question 10 in her report, which I have quoted verbatim at paragraph 74 of this judgment. Dr Mittal made reference to “fear avoidance behaviour”.
84This is not a ss(c) application. Care must be taken not to give heed to psychological consequences. That such consequences must be disentangled from my analysis of the subject injury is clear.[49] Likewise, the process to be followed in disentanglement is well established.[50]
[49]Peak Engineering & Anor v McKenzie [2014] VSCA 67
[50]AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz [2012] VSCA 60 – see the analysis set out in paragraphs [25]-[35]
85This then leads to my second concern: Dr Mittal’s reliance upon Mr Hussain’s history. Dr Mittal accepted Mr Hussain’s history and complaints on face value. There are many aspects of the history which Dr Mittal relied upon which I do not accept. For example, the assertions that:
(a) Mr Hussain “is completely reliant on the left upper limb for his occupational duties”;[51]
(b) he has a baseline pain level of 8/10;
(c) there is radiation of the pain to the palm of his hand and into the right wrist;
(d) he does not utilise the right index finger when lifting.
This list is not exhaustive.
[51]See paragraph 72 of this judgment and PACB 49
86The acceptance and adoption by Dr Mittal of the history and complaints provided by Mr Hussain, impacts upon the use I can make of her evidence in this application. I consider Dr Mittal’s evidence to be significantly flawed by reason of her reliance on the histories provided and the presentation of Mr Hussain at the time of her assessment. Dr Mittal’s evidence is of very limited assistance to me.
87Referring now to Dr Anstee.
88Dr Anstee qualified his evidence based on his concerns that Mr Hussain was not genuine. In the circumstances, that was appropriate.
89Dr Anstee, having raised his concern about the genuineness of Mr Hussain’s complaints and presentation, accepted there would be some residual disability. Dr Anstee said, of the residual pain and permanent disability, that it is “moderate”.
90While Dr Anstee did properly express concern about Mr Hussain’s genuineness, I am still troubled about the use I can make of his evidence. Unlike the Court, Dr Anstee did not have the benefit of reviewing the film, observing Mr Hussain in the witness box or analysing his answers when cross-examined. Dr Antsee’s evidence is, at best, of qualified assistance to me.
91Moving now to Dr Robbins.
92Dr Robbins saw Mr Hussain back in 2020. His medical report is quite dated.
93Of relevance, however, is Dr Robbins’ finding, on examination, that Mr Hussain had “full range of movements”.[52] This, of course, runs contrary to Mr Hussain’s affidavit evidence, his presentation to other medico-legal assessors, and, indeed, his presentation to this court.
[52]DCB 38
94Dr Robbins said that he expected Mr Hussain’s injury to resolve within two months. Dr Robbins did not re-examine Mr Hussain.
95Dr Robbins’ optimistic views about Mr Hussain’s prognosis is, on one view, consistent with Mr Hussain’s return to work as a meatpacker and at the recycling plant.
96All of the medico-legal evidence is subject to the caveat that the assessors did not have the benefit of viewing the surveillance film, or observing Mr Hussain in the witness box and analysing his answers when cross-examined.
97Given my findings in respect to credit and the video surveillance, the medico-legal evidence is of limited assistance.
98I accept that, on careful analysis of the objective evidence flowing from these assessments, I can accept, for example, that:
(a) there is a curved scar over the right index finger, as described by Dr Anstee and noted in my diagram;
(b) the circumference of the right index finger at the nailbed is somewhat reduced, as set out in Dr Anstee’s examination;
(c) there may be some diminution of sensation to part of the right index finger.
99However, I do not have the same confidence in respect to any findings of pain and pain-related restriction. While Dr Anstee said that Mr Hussain may not be symptom free, and there may be ongoing consequences in terms of pain and some functional restriction, the medico-legal experts did not have, as I have, the benefit of the totality of the evidence. The medico-legal evidence must be tempered by the balance of the evidence in the application. The medico-legal evidence is of limited assistance to me.
Has Mr Hussain suffered a serious injury?
100It is Mr Hussain who bears the onus of proof.
101To establish serious injury, the threshold is high.
102As set in Stijepic v One Force Group Aust Pty Ltd & Anor,[53] while the evidence may disclose pain and suffering consequences which are both and marked serious, for Mr Hussain to be successful, I have to be persuaded that the consequences flowing from the injury can fairly be described as “more than significant or marked” and being “at least very considerable”.
[53][2009] VSCA 181
103In assessing Mr Hussain’s pain and suffering consequences, I am assisted in my analysis by the observations made by Maxwell P in Haden Engineering Pty Ltd v McKinnon.[54]
[54](2010) 31 VR 1
104Before proceeding with such analysis, it is appropriate I make some preliminary comments.
105Firstly, in his affidavit evidence, Mr Hussain outlined, in great detail, a wide range of consequences, which, if accepted as being genuine, may lead to a finding in his favour.
106I do not accept Mr Hussain’s affidavit evidence. I consider it:
(a) to be unreliable;
(b) greatly embellishes the true consequences of the injury;
(c) in many aspects is just plain wrong.
107Secondly, Mr Hussain, having been shown the video surveillance, and having been well tested in the course of cross-examination, ultimately said:
Q:“You see, Mr Hussain, while this injury may give you some intermittent pain that causes you to take four to five Panadol a week, that is really the only problem associated with this injury for you today, isn’t it?---
A:Yes.”[55]
(Emphasis added.)
[55]T30, L20-24
108I consider this concession by Mr Hussain reflects the true state of the ongoing consequences suffered by him: That is, he suffers some intermittent pain that causes him to take four to five Panadol a week. This concession by Mr Hussain, in itself, tends against any consequences being “more than significant or marked”.
109Having said that, I will now move to specific consequences which have been alleged. I start with pain.
110When assessing pain, it is well established the Court must take heed of, not only what an applicant says about their level of pain, but also:
(a) what, in fact, they have done about the pain which they say they suffer;
(b) what the medical practitioners say;
(c) what the objective evidence reveals.
111Mr Hussain’s evidence, in respect to his use of painkilling medication, ultimately came down to this:
(a) he said he took four to five Panadol per week;[56]
(b) if he did not have pain, he did not take the Panadol;[57]
(c) he would take Panadol only two or three times per week;[58]
(d) he mostly took the Panadol at night.[59]
[56]Paragraph [2(a)] at PACB 37
[57]T19, L3-4
[58]T18, L20-22
[59]T19, L11-14
112I do not accept that Mr Hussain has constant pain. Any pain is intermittent in nature. His use of Panadol is restricted to two, or perhaps three, times per week.
113Mr Hussain’s allegation of 8/10 pain is not supported by objective evidence. There is no evidence of any ongoing attendances upon his general practitioner or the provision of prescription painkilling medication, ongoing manual therapy, nor, indeed, any treatment other than intermittent Panadol. Mr Hussain’s allegation of 8/10 pain as a baseline is not consistent with his own oral evidence.
114That Mr Hussain takes Panadol when in pain, and he takes Panadol only two or three times per week, tends against a finding of serious injury.
115Moving now to sleep.
116Mr Hussain said, in his affidavit evidence, his sleep was disturbed most nights by:
(a) pain;[60]
(b) upset and frustration.[61]
[60]Paragraph [2(a)] at PACB 37
[61]Ibid
117When giving his oral evidence, Mr Hussain was inconsistent. His position changed. He said his sleep:
(a) was helped by the Panadol because it helped him get calmer;[62]
(b) then said, no, it was only the pain from his finger;[63]
(c) then accepted that his worries did wake him at night.[64]
[62]T19, L21-23
[63]T19, L24-27
[64]T19, L28 – T20, L2
118Mr Hussain’s evidence in respect to sleep was inconsistent and unconvincing. I cannot be certain as to the level of sleep impairment flowing from the injury.
119Now turning to work.
120Mr Hussain has, since sometime in late 2021, returned to work. He has undertaken work which is physically demanding. That is:
(a) packing meat;
(b) sorting waste in the recycling factory.
121I do not accept that Mr Hussain, as he represented to Dr Mittal, works as a one-armed man. To the contrary, I accept that he uses both hands in the course of his employment to do, what is, physical and repetitive work. That is, both meatpacking and working sorting environmental waste.
122Given the facts and circumstances of this particular case, Mr Hussain’s return to work, where he utilises his right hand, tends against a finding of serious injury.
123Moving now to Mr Hussain’s capacity for self-care, self-management and his undertaking of domestic, recreational and sporting activities. I do not accept Mr Hussain suffers the consequences set out in his affidavit evidence. The affidavit evidence:
(a) is contrary to what Mr Hussain ultimately conceded to be his level of function in cross-examination;
(b) is discredited by the video surveillance;
(c) is unreliable;
(d) is contrary to what I find to be the true state of affairs.
124For the avoidance of doubt, I do not accept that Mr Hussain suffers the functional impairments which he asserts. There is no objective evidence which supports such a conclusion. It is contrary to the film.
125In assessing this application, I am conscious of the need to assess Mr Hussain’s injuries in comparison to other cases. Indeed, in the course of the application, I was referred to a number of authorities.
126There have, over the years, been many finger-injury cases before this court. I have undertaken a review. They are too numerous to reference them all in this judgment. I refer to a sample:
(a) TTB SMS Pty Ltd v Reading:[65]
[65][2020] VSCA 203
The applicant suffered injury to his right little and ring fingers, which were surgically repaired. The applicant returned to work. The applicant took over-the-counter medication once or twice per week. His application was unsuccessful.
(b) Porto v Design Line Cabinets Pty Ltd (Deregistered) & VWA:[66]
[66][2012] VCC 1645
The applicant suffered partial amputation to the ends of his middle and ring fingers of his right hand. The applicant was successful.
(c) Razai v Victorian WorkCover Authority:[67]
[67][2022] VCC 1732
The applicant suffered an amputation of his right index finger when it was struck by a band saw. Surgery was undertaken to re-attach the finger. He was a young man. The applicant was successful.
(d) McDougall v Victorian WorkCover Authority:[68]
The applicant suffered a crush injury to the left index finger. He underwent surgery to repair the finger. He returned to work. The applicant was unsuccessful.
(e) Sorrentino v Victorian WorkCover Authority:[69]
[68][2021] VCC 1292
[69][2022] VCC 581
The applicant suffered a laceration to her left little finger, resulting in damage to the sensory nerve. She was twenty-four years of age at the time of the injury. The applicant was successful.
127It is, of course, trite to say that each application must be determined on its own facts and circumstances.
128As the Court of Appeal said in Ellis Management Services Pty Ltd v Taylor,[70] in range cases:
“The judgment in issue is an evaluative one involving a synthesis of matters of fact and degree. Such a judgment necessarily involves a consideration of detailed facts and a weighting of cumulative factors. Different minds might reasonably reach different conclusions as to where the overall seriousness of the consequences fell within a range. … .”[71]
[70][2013] VSCA 326
[71](Ibid) at paragraph [59]
129I do not accept that Mr Hussain has discharged the onus in this application. While Mr Hussain may have some intermittent pain in his right index finger, I do not accept that this pain and any consequential pain-related restrictions:
(a) are to the level which he asserted in his affidavit evidence;
(b) are to the level reported to the medico-legal assessors;
130Having been in the unique position of observing Mr Hussain in the witness box and having considered all of the evidence, I do not accept that Mr Hussain has discharged his onus and established that the injury satisfies the test of serious injury for pain and suffering purposes. Leave will not be granted.
Orders
131I shall hear the parties in respect to the consequential orders to be made in this matter. ---
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