Jackson v Victorian WorkCover Authority
[2024] VCC 637
•13 May 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-23-05062
| JULIE MAREE JACKSON | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE MACNAMARA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 April 2024 | |
DATE OF JUDGMENT: | 13 May 2024 | |
CASE MAY BE CITED AS: | Jackson v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 637 | |
REASONS FOR JUDGMENT
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Subject:SERIOUS INJURY APPLICATION
Catchwords: Serious injury application – Alleged injury to left and right shoulder – Concurrent significant injuries to hips and low back – Requirement to disentangle consequences of various injuries – Extensive treatment of injuries to low back and hips – No specialist treatment or ongoing treatment for elbow injuries – Finding of serious injury for both elbows
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013 (Vic); Transport Accident Act 1986 (Vic)
Cases Cited:Bezzina v Phi& Anor [2012] VSCA 161; Dressing v Porter & Anor [2006] VSCA 215; Sabo v George Weston Foods [2009] VSCA 242; Transport Accident Commission v Dennis [1998] 1 VR 702
Judgment: 1. Within 14 days the parties must bring in short minutes to give effect to these reasons
2.Costs reserved
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms F Ryan SC with Ms I Murphy | Arnold Thomas & Becker |
| For the Defendant | Mr D Churilov | Hall & Wilcox |
HIS HONOUR:
Background
1According to a history given to orthopaedic surgeon, Mr Ash Moaveni, the plaintiff, Ms Jackson, born in 1971, left school at Year 9 working in a number of occupations as a clothing machinist and on a poultry farm, at a tannery and as a factory cleaner (Plaintiff’s Court Book (“PCB”) 52 and 58).
2In late January 2017, when she resided in Rochester, Ms Jackson commenced employment with Biomix Pty Ltd (“Biomix”), initially on a part-time basis and full-time from November 2017. She worked as a “decontaminator”. She described her duties in that role as follows:
“ My duties as a Decontaminator required me to walk around with a 65-litre rubbish bin and a pick removing rubbish and other waste from lines of rubbish that has been delivered and dumped into rows or spread over the ground for us to go over and pick out [t]he rubbish. Once we fill the rubbish bins we have what are called bulker bags to empty the rubbish contents into. The bags of rubbish are then picked up by low loader and put into a skip.” (PCB 13, [4])
3She worked in that role from November 2017 to February 2019, sifting through wind rows of organic waste which had been turned over by an excavator “to remove contamination”. According to Ms Jackson, “[t]hey stopped picking the wind rows in late 2018” (PCB 14, [5]).
4Ms Jackson said she first became aware of pain in both her elbows “back on…9 May 2017 which is an approximate date only.” (Ibid, [8]) She said she had a series of three Cortisone injections relative to these elbow problems “in the space of 6 months”, funding the first injection herself, with the employer paying for the other two (Ibid, [10]).
5She says that the elbow pain which she suffers persists to this day, stating “[t]his condition is caused by the repetitious twisting and carrying heavy buckets of waste material throughout the shift. A full bucket of waste could weight up to 12.00 kgs.” (Ibid, [11] She worked a 38-hour week with her hours of duty being from 7.00am to 3.00pm Monday to Friday with a 15-minute morning tea break and a 30-minute lunch break (Ibid, [6]).
6Ms Jackson says she “officially reported the injury to both elbows but more so my left elbow in October 2018” (Ibid, [12]). In February 2019, Ms Jackson suffered problems with her right knee, describing repeated incidents where it “crack[ed]” (Ibid, [14]). She sought treatment from her then general practitioner, Dr Poate Redrekusa, when she suffered difficulty walking on her right leg. She returned to her duties at Biomix on 5 March 2019, and worked on light duties “for about two months” (PCB 15, [15]).
7Ms Jackson submitted a WorkCover claim dated 9 May 2019, describing her injury as “RSI in left and right elbows”. This injury was said to have occurred in the course of “continuous picking with pick and walking around with heavy bucket all day which has resulted in pain in both elbows. Left elbow is the main problem” (PCB 27-8).
8Ms Jackson consulted Dr Redrekusa at the Campaspe Medical Centre in Rochester in March 2019 (PCB 45).
9On 21 September 2018, Ms Jackson had attended the clinic for a consultation with Dr Eji Ekeanyanwu. The clinical record shows that Ms Jackson attended complaining of “Lateral Humeral Epicondylitis (Tennis Elbow)”. The record says that she attended “for a cortisone injection for left tennis elbow” (Defendant’s Court Book (“DCB”) 44-45).
10Dr Redrekusa, in a report by way of letter dated 17 December 2019 addressed to Ms Jackson’s solicitors said, with reference to the elbow condition:
“ Treatment has ben [sic] mainly trying to Rest it as much as possible. Also trial of a Brace Bandage. Also suggestion of changing arm movements at Work. + also analgesics ( Panadol Osteo & Tramadol). She had injection to this joint early in 2019.” (PCB 45)
11Dr Redrekusa remarked “I’ve only been looking after Julie since March 2019”. He continued:
“ I think her current employment is aggravating her injuries. If she was to rest that elbow it would recover completely, but she needs her job and she needs to carry a bucket using that arm, hence the constant aggravation.” (Ibid)
12As to Ms Jackson’s right knee, Dr Redrekusa told her solicitor “Diagnosis: Chondromalacia Patellae + Patella Ligament Strain” (Ibid).
13In an affidavit in this proceeding sworn 28 April 2023, Ms Jackson said:
“ I have not had any further treatment as I understand from my doctors that surgery would not have provided any guaranteed outcome [with respect to the elbows]. I persisted with work as I needed income and I was working on the weighbridge [at Biomix] until about November 2022 when my husband (Kirk) and I moved to Geelong. Even this lighter work was difficult including because carrying was involved and this increased my elbow pain.” (PCB 10, [7])
14She remained out of the workforce until she returned to work for Biomix in Geelong in May 2023.
15In an affidavit sworn 26 March 2024, she said:
“ I continue to be employed in a full-time position working remotely [that is, from home], co-ordinating weighbridge operations. This is mainly computer based work, which is much easier on my elbows than the physical role that I was performing before. I do not believe that I would be able to do any physical work now that involves using my upper limbs.” (PCB 19, [9])
16On Wednesday, 10 June 2020, Ms Jackson attended the Campaspe Medical Centre consulting Dr Haowei Shen, complaining of “ongoing lower back pain for last 2/7 [presumably days]” (DCB 57). The pain was said to be dull in nature. The doctor prescribed a hot pack and oral paracetamol.
17On 23 June 2020, Ms Jackson returned for review of this condition: this time being seen by Dr Michael Monzon, giving a history:
“ Patient came back today for review of her hip and back. Increasing pain on physical exertion pain extending to her legs and causing numbness of the knee. Waking her up at night[.] Not relieved by normal NSAIDS and panadol”. (DCB 58-59)
18The doctor ordered diagnostic imaging and guided cortisone injection to the left hip.
19As at 20 July 2020, at a further consultation with Dr Monzon, Ms Jackson gave the history that she had been “seen previously with sore bilateral hip…” (DCB 60). The doctor diagnosed “Left Trochanteric Bursitis”.
20At a further consultation, this time with Dr Ekeanyanwu, there was complaint of “chronic back and hip pain – ongoing back pain despite cortisone injection” (DCB 61).
21On 19 August 2021, Ms Jackson had a consultation at the Campaspe Medical Centre with Dr Monzon, once again relative to left trochanteric bursitis. The doctor’s examination records “Hip: left, tender, restriction present, restricted ROM, left hip” (DCB 65).
22The notes refer to a “repeat cortisone injection left hip” (DCB 66). Celebrex capsules of 100 milligrams which had previously been prescribed were “ceased” in favour of 200 milligram capsules.
23Dr Monzon recorded, on 13 October 2021, that Ms Jackson “had a cortisone treatment of both hips for subacromial bursitis[.] It was given yesterday[.] Today she woke up with discomfort from the procedure and missed work” (DCB 68).
24At a further surgical consultation on 7 September 2022, according to Dr Monzon, Ms Jackson “presented today with chronic back pain for the last 12 months” (DCB 73). Tramadol tablets were prescribed for the back pain.
25At a consultation on 14 September 2022, Dr Monzon recorded “mild relief from tramadol but admitted that pain has been partially controlled by this medication able to sleep at night” (DCB 74). The doctor noted that Ms Jackson “[s]uffered from chronic back pain” (Ibid).
26Following a move to Lara, a town near Geelong, Ms Jackson began attending the Myhealth Corio. At a consultation with Dr Lok Man Siu on 16 November 2022, she complained of “1. Bursitis. 2. LBP [viz lower back pain]”. She told the doctor that attendance at a chiropractor for 12 months had proven “not helpful”, reporting that pain from her lower back “RAdiated pain dowon to left LL [leg] sometimes [sic].” (DCB 79-80)
27Solicitors acting for Ms Jackson filed an Originating Motion dated 15 September 2023, seeking a finding that Ms Jackson had suffered a serious injury in the course of her employment with Biomix and that she be given leave to bring a damages claim pursuant to s335 of the Workplace Injury Rehabilitation and Compensation Act 2013.
28The solicitors filed a document styled Particulars of Injury, referring to:
(a) impairment of the upper right extremity including the elbow;
(b) impairment of the upper left extremity including the elbow.
29In her affidavit sworn 28 April 2023, Ms Jackson said:
“ I understand I have been diagnosed with permanent epicondylitis. I have used medication in the past but I now just put up with the pain as best I can. The pain is constant and is aggravated by heavier lifting, pushing, pulling or prolonged use of my upper limbs. I feel arms and grip strength is reduced.” (PCB 10, [9])
30She says that she now has to limit the size and weight of items which she can lift. Some days are better than others “[d]omestic tasks can increase my pain including when vacuuming. Prolonged driving increases pain if I hold the steering wheel in the proper way.” (Ibid, [10])
31She says that her sleep is “impacted from pain” as pressure on the elbow increases it. She has to limit outdoor activities around the house and “[h]olding my grandchildren increases the pain in my arms.” (PCB 10-11, [9]-[11])
32In a second affidavit sworn 26 March this year, she said that “the condition of my elbows has remained much as it was. I am not seeing any improvement.” (PCB 18, [3])
33She said that the pain in her right elbow “is both on the inside and the outside”. If she does too much work she said she gets “a burning pain from the elbow down my arms towards my hands. This happens on both sides.” (Ibid, [5])
34As to housekeeping, she said:
“ My husband does most of the heavier housework now, because of my elbow issues. I no longer do the vacuuming. I rarely sweep the floor or do heavier cleaning tasks. I can cook, but I need help lifting pots, and with repetitive activities like mashing. I have started using plastic dinner plates because the weight of our ceramic plates was aggravating my elbow pain. I avoid hanging washing up on our clothesline outside because lifting anything overhead severely aggravates my elbow pain.” (PCB 19, [8])
35In a further affidavit sworn 22 April this year, literally on the eve of the hearing, Ms Jackson said “I continue to experience constant pain in both my left and right elbow separately, even at rest.” (PCB 23, [6]).
36In neither of the first two affidavits are the injury, pain and limitations suffered by Ms Jackson to her hips and low back referred to at all. In the 2023 affidavit, she said of the injury to her right knee:
“ I continue with right knee pain and problems, although it has improved compared to previously. The more I walk, the more pain I can get. Twisting can increase my right knee pain. But comparing my two injuries, my elbows are the injuries which provide the most consequences to me.” (PCB 11, [13])
37Dealing for the first time with the injuries to her low back and hips, she said in the third affidavit sworn on the eve of the hearing “[m]y left and my right elbow separately cause me different problems to my back and hip pain because I cannot avoid using my arms.” (PCB 23, [5])
38In opening Ms Jackson’s application, her Senior Counsel, Ms Ryan SC, who appeared with Ms Murphy, stated that the application for leave to bring a damages claim was made with respect only to damages for pain and suffering (Transcript (“T”) 1, Lines (“L”) 12-15).
Legal considerations
39Section 327 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) authorises a “worker” to “recover damages in respect of an injury arising out of, or in the course of, or due to the nature of, employment if the injury is a serious injury”. Ms Jackson’s case is that she has sustained a serious injury within the meaning of the Act.
40Section 325 of the Act defines the phrase “serious injury” as follow:
“(a) permanent serious impairment or loss of a body function; or
(b) permanent serious disfigurement; or
(c) permanent severe mental or permanent severe behavioural disturbance or disorder; or
(d) loss of a foetus.”
41Ms Jackson’s case is that she has suffered a serious injury within the meaning of paragraph (a) of the definition.
42Sub-section (2) of s325 makes additional provision for the operation of this definition for the purposes of Part 7. The lengthy sub-section provides as follows:
“(2)For the purposes of the assessment of serious injury in accordance with section 335(2) and (5)—
(a)the following definitions apply—
"foetus" has the same meaning as in section 214(2);
"income from personal exertion" has the same meaning as in section 6(2) of the Transport Accident Act 1986; s. 325
(b)the terms serious and severe are to be satisfied by reference to the consequences to the worker of any impairment or loss of a body function, disfigurement, or mental or behavioural disturbance or disorder, as the case may be, with respect to—
(i)pain and suffering; or
(ii)loss of earning capacity—
when judged by comparison with other cases in the range of possible impairments or losses of a body function, disfigurements, or mental or behavioural disturbances or disorders, respectively;
(c)an impairment or loss of a body function or a disfigurement is not to be held to be serious for the purposes of section 335(2) unless—
(i)the pain and suffering consequence; or
(ii)the loss of earning capacity consequence—
is, when judged by comparison with other cases, in the range of possible impairments or losses of a body function, or disfigurements, as the case may be, fairly described as being more than significant or marked, and as being at least very considerable;
(d)a mental or behavioural disturbance or disorder is not to be held to be severe for the purposes of section 335(2) unless—
(i)the pain and suffering consequence; or
(ii)the loss of earning capacity consequence—
is, when judged by comparison with other cases, in the range of possible mental or behavioural disturbances or disorders, as the case may be, fairly described as being more than serious to the extent of being severe;
(e)if a worker relies upon paragraph (a), (b) or (c) of the definition of serious injury in subsection (1), the Authority or self-insurer must not issue a certificate under section 335(2)(c), and a court must not grant leave under section 335(2)(d), on the basis that the worker has established the loss of earning capacity required by paragraph (b) unless the worker establishes in addition to the requirements of paragraph (c) or (d), as the case may be, that—
(i)at the date of a decision under section 335(2)(c) or at the date of the hearing of an application under section 335(2)(d), the worker has a loss of earning capacity of 40 per cent or more, measured (except in the case of a worker referred to in item 1 of Schedule 2 or a worker under the age of 26 years at the date of the injury) as set out in paragraph (f); and
(ii) the worker (including a worker referred to in item 1 of Schedule 2 or a worker under the age of 26 years at the date of the injury) will, after the date of the decision or of the hearing, continue permanently to have a loss of earning capacity which will be productive of financial loss of 40 per cent or more;
(f)for the purposes of paragraph (e)(i), a worker’s loss of earning capacity is to be measured by comparing—
(i)the worker’s gross income from personal exertion (expressed at an annual rate) which the worker is—
(A)earning, whether in suitable employment or not; or
(B)capable of earning in suitable employment—
as at that date, whichever is the greater, and—
(ii)the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion during that part of the period within 3 years before and 3 years after the injury as most fairly reflects the worker’s earning capacity had the injury not occurred;
(g)a worker does not establish the loss of earning capacity required by paragraph (b) if the worker, taking into account the worker’s capacity for suitable employment after the injury and, where applicable, the reasonableness of the worker’s attempts to participate in rehabilitation or retraining—
(i)has; or
(ii)after rehabilitation or retraining, would have–
a capacity for any employment including alternative employment or further or additional employment which, if exercised, would result in the worker earning more than 60 per cent of gross income from personal exertion as determined in accordance with paragraph (f) had the injury not occurred;
(h)the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purposes of paragraph (c) of the definition of serious injury and not otherwise;
(i)the physical consequences of a mental or behavioural disturbance or disorder are to be taken into account only for the purposes of paragraph (c) of the definition of serious injury and not otherwise;
(j)the assessment of serious injury must be made at the time that the application is heard by the court, unless sections 348 and 358 apply;
(k)the monetary thresholds and statutory maximums specified by or under section 340 must be disregarded for the purposes of the assessment of serious injury.”
Expert opinions
43Dr Redrekusa, one of the general practitioners from the Campaspe Medical Centre in Rochester, who attended Ms Jackson before her move to Lara, provided a report in the form of a letter dated 17 December 2019 to Ms Jackson’s solicitors. This is the sole “treater’s” report available. The doctor said “I’ve only been looking after Julie since March 2019”. The doctor diagnosed Ms Jackson as suffering from humeral lateral epicondylitis (that is, Tennis Elbow). He said the treatment was “mainly trying to Rest it as much as possible” (PCB 45). The doctor’s report is further summarised in the “Background” section above.
44On 4 September 2020, Dr David Vivian, a musculoskeletal physician, who describes himself as having a “special interest in interventional pain techniques”, assessed Ms Jackson at the request of the WorkCover insurer. This assessment was carried out in accordance with the “telehealth” regime, that is remotely (PCB 29).
45Whilst Ms Jackson was visible on screen by the doctor, the doctor was not visible on screen to Ms Jackson due to a technical difficulty. On examination, according to Dr Vivian:
“There appeared to be a normal range of elbow extension and flexion, and forearm supination and pronation on both sides, but on the left side, there was some soreness induced on full extension and full supination, felt at the lateral epicondylar region Resisted wrist extension on the left side produced a mild discomfort around the lateral aspect of the elbow, and resisted movements on the right side were normal. She showed me that the tender points were over the medial epicondyle on the right elbow, and behind the lateral epicondyle on the left elbow.” (PCB 31)
46He said that shoulder movements “appeared normal” (Ibid).
47The doctor diagnosed right anterior knee pain consistent with patellofemoral dysfunction or underlying chondromalacia patellae left elbow lateral epicondylitis (Tennis Elbow) with a degree of peripheral sensitisation and probable epicondylitis (Golfer’s Elbow) in the right elbow (PCB 32).
48The doctor said, relative to the elbows, “I consider that work has probably been a significant factor in the evolution of these elbow problems.” (PCB 33) He noted that Ms Jackson’s work:
“ …was repetitive and the load, especially on the left forearm musculoskeletal structures, was significant. It is also significant that the major problem has been the left arm, and this is consistent with her holding the rubbish-bin in the manner she described.” (Ibid)
49The doctor noted the onset of pain “4-months after she commenced work” (Ibid). He continued “[w]ithout overload outside of work, the cumulative load at work implicates work as a significant factor.” (Ibid) He said even if there were significant outside activities, he considered that “work has been a factor” (Ibid). He concluded, “[t]he work-related component of the elbow pains is likely to persist long-term.” (Ibid)
50Ms Jackson was also assessed at the request of the WorkCover insurer by Dr David S Elder, who describes himself as a “consultant in the speciality of occupational [and] environmental medicine”.
51The assessment took place on 28 June 2021 and the doctor provided a report by way of letter to the insurer dated 28 June 2021. As to Ms Jackson’s symptoms in June 2021, relative to her elbows, the doctor said:
“ She has continuing left lateral epicondyle pain and right medial epicondyle. She describes the pain as burning. She does not describe any neurological disorder in the upper extremities. She spontaneously described that the pain affects her grip bilaterally.” (PCB 37)
52The doctor said at that stage Ms Jackson had had no treatment for her elbows “for about 12 months”, though she continued taking Celebrex.
53Dr Elder concluded:
“ …the worker has bilateral elbow pain. The development of her symptomatology appeared in conjunction with her work tasks and that type of work is certainly consistent with the literature for development of epicondylitis.” (PCB 38)
54Also in June 2020, on the 17th, Ms Jackson was assessed for medico-legal purposes at the request of her solicitors by Dr David Kennedy, a sports and industrial physician, who provided a report to the solicitors by letter dated 23 June 2020 (PCB 46). Once again, the assessment was carried out remotely.
55Dr Kennedy was assessing Ms Jackson’s right knee injury additionally to the problem with her elbows. As to the right knee, Dr Kennedy said he was told “[t]he right knee has settled down with only an occasional niggling pain when pushing a trolley.” (PCB 49) He recorded that Ms Jackson “avoids squatting, crouching and kneeling on the right knee joint…is careful with steps and stairs”. (Ibid)
56As to the elbows, Dr Kennedy reports being told that Ms Jackson “has pain around the left elbow, more on the outer side, extending deep into the elbow joint” (Ibid). He said she was “[u]nable to rest her left elbow and forearm when sitting as it causes a burning pain” (Ibid). According to the doctor, “[w]hen using the iTablet at work she holds it in her left hand and uses her right hand to do the typing” (Ibid).
57Ms Jackson complained to the doctor of “occasional right elbow pain, more on the inner side of the elbow, but this is much less than on the left side” (Ibid). The doctor noted no obvious weakness in Ms Jackson’s hands though she reported that:
“ Holding any objects in the left hand causes a burning pain around the outer side of the left elbow, extending into the back and outer side of the left forearm which can be tender to touch, and on the right side the tenderness is more on the inner aspect of the right elbow and the inner aspect of the right forearm.” (Ibid)
58Consistently with the findings of other examiners, Dr Kennedy found a full range of movement in the elbow joints with tenderness:
“ …over the lateral epicondyle on the right side, extending down in the distribution of the common extensor musculature. In the right elbow joint the tenderness was on the medial side around the area which appeared to be the medial epicondyle and the common flexor origins.” (Ibid)
59The doctor concluded:
“ Mrs Jackson, on or about May/June 2017 with the repetitive nature of the work, has developed problems with left lateral epicondylitis and common extensor tenosynovitis and right medial epicondylitis and common flexor tenosynovitis which has continued to cause problems with any repetitive upper limb activities under load or stress.” (PCB 50)
60More recently, Ms Jackson underwent a medico-legal assessment by consultant orthopaedic surgeon, Mr Ash Moaveni, at the request of her solicitors. Mr Moaveni carried out his assessment in person at his rooms in East Melbourne on 8 November 2023, and provided a report by way of letter to the solicitors (PCB 52).
61Mr Moaveni took a lengthy history of the progress of Ms Jackson’s conditions and provided a digest of the medical reports and assessments with which he had been briefed. He recorded Ms Jackson’s description of her “current symptoms” as follows:
“Left Elbow
Ms Jackson experiences pain in the lateral aspect of the left elbow. The pain is worse with use and elevation of the left arm and she can wake up two or three times per night due to left elbow pain. She has intermittent pins and needles in the left little and left ring fingers. At the time of assessment, she rated her pain as 7 or 8 out of 10, when exacerbated.
Right Elbow
Ms Jackson experiences pain on the medial and lateral aspects of the right elbow. At the time of assessment, she rated her pain as seven out of 10, when exacerbated. She denied any pins and needles, however her pain disturbs her sleep and she can wake up two or three times per night due to right elbow pain.” (PCB 62)
62As to the right knee, he recorded Ms Jackson as having told him that “her knee symptoms are manageable at the present time” (PCB 63).
63As to “Self-Care and Personal Hygiene”, Mr Moaveni recorded:
“ Ms Jackson reported minimal difficulty in performing self-care and personal hygiene, including showering, dressing, eating and toileting. In particular, Ms Jackson reported she has difficulty drying her hair.” (Ibid)
64He said Ms Jackson told him that she “has to change hands frequently when using her phone” (Ibid), and complained of “frequent sleep disturbances due to her pain” (Ibid).
65Mr Moaveni concluded:
“The organic injury to Ms Jackson’s left elbow is lateral epicondylitis. The presumptive organic injury to Ms Jackson’s right elbow is medial epicondylitis. I note that imaging studies of the right elbow have not been performed and this would be useful in order to confirm this presumptive diagnosis.” (PCB 66)
66Mr Moaveni said:
“The consequences of the organic injuries to the left and right elbows are likely to persist for the foreseeable future. Ms Jackson has had ongoing symptoms since 2017. Despite the passage of time and appropriate treatment, including steroid injections, her symptoms have not improved.” (PCB 67)
67As to the right knee, Mr Moaveni diagnosed “patellofemoral dysfunction, including chondromalacia patellae right knee” (Ibid).
68More recently still, Ms Jackson’s solicitors had her assessed for medico-legal purposes by Dr Joseph Slesenger, a specialist occupational physician, who carried out his assessment on 7 February 2024, and provided a report to the solicitors by way of a letter dated 9 February 2024 (PCB 69).
69As to the right elbow, Dr Slesenger recorded Ms Jackson as complaining of “constant and moderate” pain in the right elbow, with a:
“ …well-preserved range of movements in the elbow [though]…difficulty with repetitive elbow tasks. She has difficulty gripping, twisting, pushing, pulling and torque movements. She advised that the symptoms are noticeable on waking in the morning and she advised of morning stiffness in her right elbow.” (PCB 72)
70He recorded complaints of similar symptoms in the left elbow, once again with “well-preserved” ranges of movement, together with difficulties with gripping, torque movements, pushing and pulling. He noted that Ms Jackson was right handed.
71As to the right knee, Dr Slesenger recorded:
“ She has residual mild, intermittent discomfort in the infrapatellar region. She is able to walk, stand, climb up and down stairs, but does so slowly. She is unable to squat.” (Ibid)
72Dr Slesenger recorded a history of lower back pain developing around 2020, with a diagnosis of osteoarthritis and sciatica with treatment by a physiotherapist and pregabalin. As to the low back, Dr Slesenger recorded:
“ She advised that her symptoms have improved although she advised of residual lower back pain that is severe. She advised that she can walk for about five minutes and sit for about 15 minutes without aggravating her symptoms.” (PCB 73)
73Dr Slesenger’s diagnosis as to the elbows was as follows:
“● Right elbow:
o Epicondylitis (medial and lateral).
o Chronic right elbow pain.
● Left elbow:
o Medial epicondylitis/tendinopathy.
o Chronic left elbow pain.” (PCB 80)
74Dr Slesenger said “…I do not anticipate a significant change in her presentation in the foreseeable future” (PCB 81). He said that the following restrictions should be imposed on her employment consequent upon the condition of her elbows:
“● No push, pull, carry or lift over 5 kg.
● Avoid forceful gripping, pushing and pulling.
● Avoid forceful torque movements.” (Ibid)
75At the request of the WorkCover Authority’s solicitors, Ms Jackson attended an examination by Dr Simon Journeaux, a consultant trauma and orthopaedic surgeon, on 9 March this year, for medico-legal purposes. On examination Dr Journeaux said that Ms Jackson looked well but unfit. He recorded her height as being 157 centimetres, with a weight of 108.1 kilograms and a body mass index of 43.9 kg/m2, and recorded:
“Examination of the right elbow is normal to inspection. On palpation, there is evidence of lateral epicondylitis. Provocative tests for tennis elbow are negative. There is minor tenderness over the common flexor origin. I also noted minor tenderness adjacent to the olecranon laterally. Active range of movement of the elbow is full both in flexion, extension, pronation and supination.
Examination of the left elbow revealed evidence of lateral epicondylitis of a minor degree. Provocative tests for tennis elbow were negative. Active range of movement was full.” (DCB 12)
76In the absence of oral evidence from the doctor I am unable to determine the meaning or purport of the statements about “provocative tests” (DCB 12). Dr Journeaux, by reference to general practice clinical notes, constructed a detailed chronology of Ms Jackson’s treatment. His conclusion was:
“The claimant, on the medical evidence, has the following diagnoses:
a. Bilateral lateral epicondylitis (tennis elbow) - right greater than left.
b. Asymptomatic patellofemoral chondromalacia right knee and left knee.” (DCB 23)
77The doctor said:
“ It is my view in respect of her elbow conditions, her work is a significant contributing factor. I am somewhat surprised given that she has moved into a lighter role that her symptoms have not resolved.” (DCB 26)
78As to the right knee, Dr Journeaux said:
“There is no work relatedness to her knee conditions and this is constitutional.” (DCB 27)
79He said Ms Jackson’s prognosis was:
“ …for ongoing symptoms as noted above for the foreseeable future. Given that she has not sought treatment for many years, I am not of the opinion any further treatment should be necessarily undertaken.” (Ibid)
80He concluded:
“The claimant does have impairment resulting from the compensable injury which is likely to continue for the foreseeable future. This applies only to the elbows.” (Ibid)
81Having been provided with further materials by the solicitors, the doctor was requested to provide a supplementary report, which he furnished in a letter to the defendant’s solicitors dated 9 April 2024. Despite the further material, Dr Journeaux maintained the view expressed in his principal report, stating:
“ I am satisfied that the pre-injury job demands are a plausible cause of Ms Jackson’s impairment. I note the repetitive nature of the tasks, requirement to forcefully grip, to lift weights of up to 12 kg and I am satisfied that both the right and left elbow impairment relates to her employment.” (DCB 31)
82He said that even as was suggested by the supplementary materials provided to him that Ms Jackson had been engaged in renovating a house, those:
“ …activities would be at least an equal contributing cause to the onset of elbow symptoms as well as her employment tasks. In essence, the causation analysis would hinge on what activity/activities were causing most of the “stress” to the elbows. It is therefore probable that activities such as plastering, painting and tiling could contribute in terms of causation of bilateral lateral epicondylitis.” (DCB 33)
Conclusions
83In light of the unanimity of expert opinion, the defendant did not deny that Ms Jackson had suffered work-related injury to her left and right elbows. The fact that Ms Jackson continues, albeit working from home, to work full-time on lighter duties, necessarily precluded any contention that she had suffered a serious injury in terms of loss of earning capacity, despite there being material in the Plaintiff’s Court Book relative to that issue.
84As to the contention that Ms Jackson has suffered serious injuries to both of her elbows in terms of the pain and suffering consequences, defendant’s counsel Mr Churilov put to Ms Jackson that the issues relative to her shoulders “pale into insignificance” in comparison to the ongoing pain and requirements for treatment of the low back and hips (T58, L12-17).
85In closing submissions, Mr Churilov agreed that the issues relative to the low back and the hips were “overwhelmingly more important than the elbows” (T68, L22-25). The repeated complaints and extensive treatment as to the low back and the hips, in contrast to the lack of treatment or ongoing complaint to treating practitioners relative to the elbow, was testament to this (Ibid, L26-31). According to Mr Churilov, I should be guided by the approach of the Court of Appeal in Bezzina v Phi & Anor [2012] VSCA 161, where the plaintiff sought to reverse Judge Cohen’s determination that he had not suffered a “serious injury” for the purposes of the Transport Accident Act 1986. In dismissing the appeal, Harper JA and Beach AJA (as he then was) said at [23]:
“In assessing whether each claimed serious injury satisfied the ‘very considerable’ test, her Honour was required to examine the impact of the injury on the applicant as a whole. Far from her Honour’s approach being erroneous, her Honour was bound, when examining the consequences of the claimed serious injury, to look at how they affected the applicant as he was and would likely have been absent the injuries he sustained in the transport accident. This included looking at and considering the effect (and likely effect in the future) of the applicant’s pre-existing injuries. To the extent that the evidence was said to be so sparse as to impede the judge in that task (a matter about which we are far from persuaded in any event), the responsibility lies with the applicant or his legal advisors. We note in this context that when her Honour said, during the course of the hearing, that she ‘had to look at … what his level of functioning in total was just before the transport accident and what worsening on a long term basis has been brought about by the injuries suffered in the motor accident’, senior counsel for the applicant did not raise any objection.”
86According to Mr Churilov, this “disentangling” process should lead me to reject the contention that the injuries to either of the elbows were “serious” in the statutory sense.
87In response, Ms Ryan SC and Ms Murphy relied on another decision of the Court of Appeal, namely Dressing v Porter & Anor [2006] VSCA 215. The Court was constituted by Callaway, Buchanan and Ashley JJA. The principal judgment was given by Ashley JA, with whom the other two judges concurred. The primary judge had rejected the plaintiff’s contention that he had sustained a serious injury. In concluding that that determination should be set aside, Ashley JA said at [44]:
“There were, as I see it, two threads to his Honour’s conclusion that the appellant had not made out his case. First, that the various medical problems from which the appellant suffered made it difficult to separate out the-then consequences of the neck injury. Second, that the appellant had not established that his inability to work, and the restrictions and limitations from which he suffered, were due to his neck injury.”
88As here, the plaintiff suffered from a number of injuries and disabilities, only one of which could be the subject of a serious injury determination and leave to bring a damages claim. In the view of Ashley JA, the primary judge had failed to make findings on a number of crucial issues. He said at [47]:
“What his Honour had to do was to decide what symptoms afflicted the appellant in consequence of his compensable injury, and with what effect. If, by reason of pain and suffering consequences the compensable injury met the serious injury test, it was beside the point that some other condition might also have satisfied the test by reason of its pain and suffering consequences. His Honour’s reasons rather suggest that he approached the matter on the footing that there must only be one condition which could satisfy the test.”
89Ms Ryan SC and Ms Murphy contended that the scenario described by Ashley JA corresponded with what I was required to determine here. If the back and hip problems had been compensable injuries, it would be beside the point if they could be the subject of a finding of “serious injury”. What counted was whether, viewed individually, the injuries to the two elbows met the relevant criterion.
90The upshot of these authorities is that the Court’s task is to use the “but for” criterion of causation to compare the condition which Ms Jackson would be in now had she not suffered the injury to the right or alternatively the left elbow, with the condition in which she now finds herself. If, in accordance with such analysis, the one or the other injury meets the statutory criterion of seriousness, the fact that the injuries to the low back or hips might likewise satisfy that criterion is beside the point. There is no inconsistency between the two Court of Appeal decisions. Both mandate a process of disentanglement. Ms Ryan SC and Ms Murphy contended that disentanglement of the pain and suffering consequences of the injuries to the low back and hips on the one hand, and the elbows on the other hand, was relatively straightforward.
91The lack of any ongoing treatment for the elbows raises a somewhat different issue. According to Mr Churilov on behalf of the defendant, this lack of treatment is indicative of a lack of intensity in the elbow injuries. Mr Churilov said this application was similar to the one considered by the Court of Appeal in Sabo v George Weston Foods [2009] VSCA 242 (Sabo’s case), where the plaintiff unsuccessfully appealed against this Court’s refusal to make a finding of serious injury. In dismissing the appeal, Neave and Mandie JJA said at [72]:
“None of the doctors described Mr Sabo’s level of pain as excruciating or unrelenting. Although his pain is persistent it is relieved by medication which he takes as required and he has not found it necessary to have an epidural steroid injection. He does not have severe neurological symptoms.”
92Ms Ryan SC and Ms Murphy noted complaints by Ms Jackson of persistent pain and no concession that analgesic or other treatments provided relief. No doctor suggested that there was any effective treatment which could alleviate the ongoing elbow pain. All examiners accepted that the pain and restrictions caused by Ms Jackson’s elbow injuries would persist for the indefinite future: that is, they should be regarded as permanent or long-term. In those circumstances, they said, this case should be regarded as a polar opposite to Sabo’s case. In light of the findings of the medical experts, whether retained on behalf of the plaintiff or the defendant, I accept their contention on this point.
93Mr Churilov also relied on the Court of Appeal’s decision in Transport Accident Commission v Dennis [1998] 1 VR 702 (Dennis’s case). In that case the Court, constituted by Brooking, Phillips and Callaway JJA, reversed a finding of serious injury made by a judge of this Court. There, reliance was placed on paragraph (c) of the definition of serious injury appearing in s93 of the Transport Accident Act 1986 relative to an alleged serious or severe behavioural disturbance. The Court considered that the medical evidence simply did not support a finding of serious injury in accordance with that portion of the definition. Brooking JA said:
“It is enough to say, as Callaway J.A. has said, that on the least exacting view, from the point of view of the respondent [the plaintiff], which might be taken of the meaning of “severe”, the requirement imposed by the use of that word has not been met in this case.” [1998] 1 VR 702, 706
94Later, on the same page, Phillips JA remarked:
“I have some doubt whether the evidence showed that the plaintiff was suffering from any “behavioural disturbance”.”
95Dennis’s case provides no analogy for present purposes.
96I must say that were I in the situation of Ms Jackson, afflicted by persistent and intractable pain in my elbows, I would be unlikely to simply accept the advice of a treating general practitioner that there was no effective treatment available to provide me with relief from that pain. I would at the very least seek a referral to a specialist such as an orthopaedic surgeon or a neurosurgeon. Again, in the circumstances of persistent pain which is not readily treatable or relieved by analgesia, one might expect the treating general practitioner to provide a referral to a specialist in pain management or to a pain-management clinic. No such referrals were made.
97On the other hand, it is perhaps equally significant that there is no medical opinion supporting the view that any treatment is available for the injuries to the elbows, even despite all medical witnesses accepting the reality of the injuries and the likely persistence of the pain on an ongoing or permanent basis. In the absence of any attack upon Ms Jackson’s credit or any opinion by any medical witness of malingering or significant exaggeration, I should accept her explanation that she has ceased treatment on the elbows not because the pain and suffering consequences of those injuries are insignificant, but rather because she has accepted medical advice that no treatment is in fact available.
98Mr Churilov suggested I should be sceptical about the restrictions said to be suffered by Ms Jackson in her activities of daily living and performance of household duties. He said the evidence was relatively scanty. An affidavit sworn by Ms Jackson’s daughter Aimee (PCB 25) was, he said, characterised by hearsay and the impersonal passive. Many or all of the restrictions would be imposed in any event by the problems with Ms Jackson’s low back and hips, especially those related to walking.
99In a broad sense, there are two mechanisms in the body: one relating to ambulation involving the legs and the low back; the other taking the balance of the actions required in life, the principal elements being the arms. Accepting that any issues as to mobility and endurance in standing ought to be attributed to the injuries to the low back and hips, restrictions in the ability to use Ms Jackson’s arms affect every action which she might take or wish to take, including matters of which she spoke such as hair-washing and personal hygiene. In my view, the importance of these matters means that the restrictions in question meet the statutory test of seriousness quoted above from the statute. Issues of sleep disturbance may also be important consequences for the purposes of judging the seriousness of an issue. Given the pain generated by the low back and the hip, one might think that any sleep disturbance which Ms Jackson suffers would derive primarily from those.
100At the time of the hearing, the low back and the hip problems were apparently in remission. Ms Jackson was able to sit without apparent discomfort throughout her evidence-in-chief and cross-examination. Nevertheless, I accept the observation made by Mr Churilov that the remission of pain which Ms Jackson enjoys relative to the hips and the low back derives from a recent cortisone injection. The account which she gave of these injections in her cross-examination indicates that they provide relief in the short to medium term, but have not in the past provided permanent or long-lasting relief. I accept Mr Churilov’s contention that I should infer that this will be the case with the latest injection as well. Nevertheless, the considerations which I mentioned relative to the importance of the arms in almost everything which we do in daily life supports the view that, at least as to the right arm, Ms Jackson has suffered a serious injury. The right arm is her preferred arm. As to the left arm, it would seem the restrictions are more extensive but perhaps of less significance, because the left arm is not the preferred one.
101With some hesitation I conclude that there should be a finding of serious injury relative to both the left and the right elbows, and leave to bring damages proceedings as sought should be granted.
Costs
102I have heard no submissions on the question of costs, and so I will reserve them.
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