Jackson v Victorian WorkCover Authority
[2018] VCC 711
•22 May 2018
| IN THE COUNTY COURT OF VICTORIA AT THE LATROBE VALLEY LAW COURTS COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-17-05014
| STEPHEN JACKSON | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE DYER | |
WHERE HELD: | Latrobe Valley Law Courts | |
DATE OF HEARING: | 10 and 11 May 2018 | |
DATE OF JUDGMENT: | 22 May 2018 | |
CASE MAY BE CITED AS: | Jackson v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 711 | |
REASONS FOR JUDGMENT
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Subject:Accident compensation
Catchwords: Serious injury; Foot injury; Pain and suffering; Extent of consequences
Legislation Cited: Accident Compensation Act 1985 s134AB
Cases Cited:Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Aburrow v Network Personnel and WorkSafe Victoria [2013] VSCA 46
Judgment:Application dismissed
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P F O’Dwyer SC with Mr G B Wicks | Maurice Blackburn Lawyers |
| For the Defendant | Mr P B Jens QC with Mr A Saunders | Minter Ellison |
HIS HONOUR:
Introduction
1 Stephen Jackson is a milk-tanker driver who suffered an injury to his right ankle and foot in the course of his employment on 6 August 2012. There is no dispute between the parties as to the circumstances in which the incident occurred. On the day of the incident, at the conclusion of his shift, he attended the West Gippsland Hospital, where x‑rays were taken, and he was unable to return to work.
2 X‑rays had revealed a fracture in the right foot, and Mr Jackson was placed in a moon-boot for a period of two to three months, but without any improvement. Eventually, in late November 2012, surgery was performed involving a bone graft and internal fixation to unite the fracture of the fifth metatarsal bone.
3 Following a further period of rest, and later physiotherapy, Mr Jackson was able to commence a graduated return to employment, and returned to his full pre-injury duties by April 2013.
4 Since that time he has continued to perform his pre-injury duties, albeit with a number of different employers, as the business has been sold on at least two occasions.
5 Mr Jackson is now sixty-four years of age, and seeks leave of the court to claim damages for pain and suffering on the basis that the injury to his right foot has left him with consequences which satisfy the statutory definition of “serious injury” as set out in s134AB(37) of the Accident Compensation Act 1985 (“the Act”).
6 Mr O’Dwyer SC, who appeared with Mr Wicks on behalf of the plaintiff, identified the right lower limb as the body function said to be relatively lost or impaired. He relied only on the definition of serious injury as set out in paragraph (a) of s134AB(37).
7 Mr Jens QC, who appeared with Mr Saunders on behalf of the defendant, opposed the grant of leave, on the basis that the consequences suffered by Mr Jackson did not meet the statutory threshold to enable leave to be granted.
8 Mr Jackson was the only witness required for cross-examination. The parties otherwise relied upon various medical reports and other documentary material that was tendered during the course of the hearing.
The lay evidence
9 Mr Jackson relied on two affidavits, sworn 31 May 2017 and 3 May 2018, in support of his application.[1]
[1]Exhibit A, pp7–11e
10 In his first affidavit Mr Jackson described the incident and initial treatment, and the difficulties encountered since returning to employment in March 2013. He described difficulties with his right foot and ankle when performing his work, stating “I am on my feet for prolonged periods and also driving and operating truck clutch-pedals repeatedly during each shift.”[2]
[2]Exhibit A, p10, [19]
11 He also made reference to difficulties climbing up and down onto the truck, and also using steps or ladders. He further made reference to ongoing problems with the ankle and foot during the course of each day, and problems becoming worse in cold weather.[3]
[3]Exhibit A, p11, [23] and [24]
12 Of particular significance to the present application was Mr Jackson’s reference to his participation in both social and competitive golf.
13 In his initial affidavit, Mr Jackson deposed to the following:
“Often, I struggle to complete 18 holes of golf because of worsening pain and soreness in my right foot and right ankle. I push myself to complete an 18-hole round of golf because I want to be part of the club competitions. Outside of the competitions, I restrict myself to only 9 holes because it is not as difficult for me.”[4]
[4]Exhibit A, p11, [26]
14 In Mr Jackson’s second affidavit sworn on 3 May 2018, further reference was made to the restrictions he now suffers in relation to playing golf.[5] In particular, Mr Jackson deposed to the following:
“I was very devoted and got down to a handicap of 11. I was also able to break into the 70s from time to time. Before my accident, even in winter, I played 18 holes once a week religiously.
Last winter I was not able to play much because the cold aggravates the pain. At one stage I did not play for two months. Now, in the warmer months I do not even play weekly. I try to get out at least once a month and sometimes more. I try to play 18 holes and alternate between walking and riding in a cart. If my foot is playing up, I do nine holes using a cart.”[6]
[5]Exhibit A, pp11(c)-(d), [12] & [13]
[6]Exhibit A, pp11(c)-(d), [12 & [13]
15 Mr Jackson’s first affidavit made further reference to his concern about the symptoms affecting his right foot becoming worse due to arthritis. He stated “I understand that the problems I have with my right foot and ankle as described are likely to get worse over time”.[7]
[7]Exhibit A, p11, [27]
16 Again in the most recent affidavit, Mr Jackson made further reference to the ongoing discomfort with his right foot, noting particular difficulty after driving, which was said to involve travelling “up to 600 kilometres a night”.[8]
[8]Exhibit A, p11(b), [5]
17 Mr Jackson also deposed to the level of medication that was required, stating:
“I take Nurofen or Panadol as required. That is usually a couple of times a week. I take two tablets as a dose, and more often than not a second one later in the day. When I am going to play golf, I take some beforehand and take some with me because sometimes I have to take them when I am playing. I use heat packs on my ankle and foot on a bad day and I rub Voltaren gel in at least weekly. I soak my foot in hot baths and elevate it in the bath as well.”[9]
[9]Exhibit A, p11(d), [17]
18 There was little reference to any ongoing medical treatment save for a reference to seeing a medico-legal surgeon who had indicated that it might be possible to operate on the tendon in Mr Jackson’s ankle.[10]
[10]Exhibit A, p11(d), [17]
19 There was also some reference by Mr Jackson to restrictions in his domestic activities and social life and some further difficulties when playing with his grandson, who is now in his early teens and actively engaged in sports.[11]
[11]Exhibit A, p11(d), [14]-[16]
20 When cross-examined, it became apparent that the reliability of Mr Jackson’s affidavit material was very much in issue. Mr Jens QC tendered into evidence a print-out of Mr Jackson’s golf handicap and competition records from 13 May 2014 to 8 May 2018.[12] This extract revealed that Mr Jackson’s handicap on 13 May 2014 was 11.4. On 8 May 2018, it was 11.2. The highest recorded handicap was 13.6 in mid-July 2016, and the lowest handicap was 10.4 recorded in June and July 2015.
[12]Exhibit 1
21 Of greater significance, the exhibit disclosed the plaintiff playing in 36 recorded competitions between 9 May 2017 and 8 May 2018, which is very much at odds with the material set out in his most recent affidavit to the effect of Mr Jackson “trying to get out at least once a month and sometimes more”.[13]
[13]Exhibit A, p11(c)-(d), [13]
22 In cross-examination, Mr Jackson at no point challenged the contents of Exhibit 1. Additionally, he gave evidence concerning the nature of his work, which was described as “90 per cent of it’s been on nightshift … some nights we might only do eight hours. Some nights we can do 12, 13”. Mr Jackson was currently working a rotating shift involving five nights and three nights off, totalling about 60 odd hours.[14]
[14]Transcript (“T”) 10, Line(s) (“L”) 28 – T11, L26
23 A further matter canvassed in cross-examination concerned a finger injury suffered by Mr Jackson in December 2013. Mr Jackson agreed that he had taken precautions to protect his finger when playing golf after this time, and agreed with a history recorded by a plastic surgeon who had examined him in October 2015.[15]
[15]T20, L13-30
24 Mr Jackson also agreed with matters raised in cross-examination about some difficulties in playing golf due to the rotating shifts involved in his work.[16]
[16]T23, L5-30
25 Finally, in cross-examination, Mr Jackson agreed with the following propositions:
“… in terms of lifestyle you are doing the same sort of work as you were doing prior to the accident.
And your main interest in terms of your sport, your passion in terms of sport, is your golf.
And your handicap is now lower than it was prior to the subject accident.”[17]
[17]T53, L23-31
26 There were further matters raised in cross-examination concerning the absence of medical treatment since approximately the middle of 2014. It is unnecessary to further consider those matters at this stage.
27 In re-examination, Mr Jackson emphasised difficulties such as using medication and limping, and the use of a golf cart on perhaps 50 per cent of the occasions he played golf. I accept that he did not attempt to exaggerate or overestimate the extent of his disability when re-examined.
The medical evidence
28 Mr Jackson relied on reports from his treating surgeon, Mr George Owen, his physiotherapist, Mr Scott Lindsay, and medico-legal opinions from Mr John O’Brien, orthopaedic surgeon, and Mr William Edwards, foot and ankle surgeon. The reports from all of these practitioners were tendered in evidence.[18] Additionally, a Medical Panel Opinion and Reasons dated 1 December 2015 was also tendered into evidence.[19]
[18]Exhibit A, pp12-31
[19]Exhibit A, pp33-37
29 The Medical Panel Opinion related to the level of impairment in Mr Jackson’s foot and ankle.
30 Mr George Owen, the treating surgeon, provided a short report dated 30 January 2018. He described the surgery performed on 21 November 2012 as follows:
“The findings at surgery was (scil were) of a non-union of the tuberosity of the fifth metatarsal, pseudoarthrosis was excised and the area bone grafted and fixed with a screw.”[20]
[20]Exhibit A, p12
31 He last saw Mr Jackson on 21 January 2013, noting:
“On that occasion he was making good progress and the latest x-rays showed everything to be satisfactory. He was not particularly tender and I felt it was time that he should attempt to go back to work even if it was on a restricted program.”[21]
[21]Exhibit A, p12
32 Mr Scott Lindsay, the physiotherapist, provided a report dated 26 March 2018 dealing with the finger injury.[22] He noted that his last consultation was 18 July 2014. Mr Lindsay provided a second report dated 20 April 2018, describing the treatment given for Mr Jackson’s foot and ankle injury.[23] In that report, he noted that he had last treated Mr Jackson for that injury on 23 May 2013. He stated:
“Based on my last assessment of him, it was unlikely that he would regain full movement and function of his right foot and ankle. It is my opinion that Stephen will suffer ongoing pain and stiffness in his right ankle and therefore lower back pain due to his altered gait pattern (limping).”[24]
[22]Exhibit A, pp13-16
[23]Exhibit A, pp17-20
[24]Exhibit A, p20
33 Mr John O’Brien, orthopaedic surgeon, examined Mr Jackson on 31 July 2017. His report dated 3 August 2017 was tendered into evidence.[25] Mr O’Brien noted present complaints involving difficulty getting in and out of the truck and walking on uneven ground, and complaints of an occasional click or snap in the vicinity of the right ankle region. He also noted:
“Mr Jackson states that at present he does not have any active treatment. He occasionally uses Nurofen for significant pain and now only very occasionally sees his local medical officer.”[26]
[25]Exhibit A, pp21-25
[26]Exhibit A, p22
34 Mr O’Brien also noted difficulty with playing golf as “prolonged walking on relatively uneven ground certainly aggravates the pain and is often a source of requirement of analgesic medication”.[27]
[27]Exhibit A, p23
35 Mr O’Brien regarded the clinical condition as stable with residual pain. He did not see any indication for further investigation or active treatment. As to the long term prognosis, he stated:
“The patient clearly remains symptomatic with very definite ankle and hindfoot pathology which I am sure will continue to be a source of pain related to weight bearing function.”[28]
[28]Exhibit A, p24
36 Mr O’Brien further noted what he described as mild disability associated with chronic right hindfoot pain. He concluded as follows:
“Overall I would consider the patient is now mildly limited in his general social, domestic and recreational pursuits and this I would consider would be ongoing.”[29]
[29]Exhibit A, p24
37 The final medico-legal opinion relied upon in support of Mr Jackson was from Mr William Edwards, a foot and ankle orthopaedic surgeon. Mr Edwards examined Mr Jackson on 28 March 2018 and reported to the plaintiff’s solicitors on the same day.[30] On that occasion, he noted Mr Jackson’s symptoms as follows:
“He describes it as aching. He points to the lateral midfoot and lateral hindfoot. He rates the pain as 44/100 using a visual analogue pain scale. He says it is episodically severe. He says it is worse with activity. It is worse with standing and walking. Having said that he can walk for two or three hours. He says it is worse in the cold weather and worse with shoes for which reason he buys bigger shoes. …”[31]
[30]Exhibit A, pp26-31
[31]Exhibit A, p28
38 In terms of the restrictions imposed upon Mr Jackson, he described:
“This foot limits the amount of walking this man can comfortably perform to two or three hours. It limits the amount of golf he can play. It makes it difficult for him to negotiate stairs. It stops him from running. It makes it difficult for him to squat and kneel. It prevents him from playing kick to kick football with his foot. It makes it hard to carry, lift and push. It makes driving difficult – at least on rough roads. It wakes him perhaps one or two nights a week.”[32]
[32]Exhibit A, p30
39 Mr Edwards regarded the condition and restrictions as being permanent, absent any further intervention.
40 The defendant relied upon recent opinions from Dr Graham Doig, orthopaedic surgeon, dated 2 May 2018,[33] and Dr Tim Hwang, occupational physician, dated 18 April 2018.[34] Mr Jens QC also tendered into evidence a report from Mr John Buntine, plastic surgeon, dated 26 October 2015.[35] This report related to Mr Jackson’s finger injury and is not otherwise of assistance.
[33]Exhibit 2, pp1-6
[34]Exhibit 2, pp7-12
[35]Exhibit 2, pp13-22
41 Finally, a report from Dr Suzanne Homolka, dated 3 July 2015, was tendered into evidence. This report had been prepared as the initial impairment assessment and was only relevant in terms of a history taken at that time relating to Mr Jackson’s limitation in playing golf at the time of that examination.[36]
[36]Exhibit 2, pp23-29
42 Mr Doig examined Mr Jackson in Melbourne on 2 May 2018. He noted:
“His favourite pastime is golf and his able to walk 18 holes, albeit in discomfort. He believes he will have to use a golf cart if his pain deteriorates in the future.”[37]
[37]Exhibit 2, p3
43 Mr Doig went on to comment:
“He is still able to play golf albeit in discomfort with the use of a cart at this stage and he has no issues driving. … He has persistent stiffness in the ankle with difficulty walking on uneven ground. The prognosis must be guarded in that he will most likely have persistent pain and stiffness as he is over five years following his injury and surgery. His condition has stabilised.”[38]
[38]Exhibit A, p4
44 I should note that the circumstances of this medico-legal examination was raised in cross-examination with Mr Jackson. He admitted that, having seen Mr Doig early in the morning on the day of the appointment, he played in a golf competition in Warragul later on the same day.
45 Dr Tim Hwang, occupational physician, examined Mr Jackson on 18 April 2018 and reported to the defendant’s solicitors on the same date.[39] He again noted complaints of:
“… some degree of background discomfort most of the time … after a period of walking or standing there is some degree of increase in his symptoms. He may have some swelling towards the end of the day … He enjoys playing golf and plays 18 holes but tends to use a golf cart rather than walking … He takes Nurofen for pain relief and on average may take this 2-3 times per week. Sometimes he may go for a week without taking it. … he has not had any other treatment or investigations.”[40]
[39]Exhibit 2, pp7-11
[40]Exhibit 2, p9
46 In expressing his opinion, Dr Hwang commented:
“He continues to undertake normal activities but has some difficulty with playing golf and avoids kicking the footy with his right foot.
The main diagnosable condition is a fractured base of the right 5th metatarsal which has presumably healed. He continues to have some degree of ongoing symptoms and I am uncertain as to the cause of these. Further investigations may be helpful.
…
It is possible that some degenerative factors may contribute to his symptoms. However, further investigation may be helpful.”[41]
[41]Exhibit 2, p11
47 Finally, I should note that the Medical Panel opinion concluded that there was a 6 per cent whole person impairment assessed in accordance of the AMA Guidelines. Such an opinion does not appear to be in any way conflicting with any of the other medical opinions relied upon in this case. The level of whole person impairment is not of any real assistance in making an assessment of this type of application.
Analysis
48 I regarded Mr Jackson to be an honest witness who was generally reliable in terms of the evidence given before me. Although there were significant variances between material set out in his supporting affidavits and the evidence given in the application (particularly in terms of the level of active participation in golf), I do not find that this was due to any attempt by Mr Jackson to mislead me.
49 I am also prepared to accept that Mr Jackson has showed a degree of stoicism in terms of his return to full time employment, his persistence with his sporting activities and his avoidance of further medical treatment. In accordance with binding authorities in Dwyer v Calco Timbers Pty Ltd (No 2)[42] and Haden Engineering Pty Ltd v McKinnon[43], Mr Jackson’s application should be treated no less favourably than another applicant who “being of less strength of character, simply resigned himself to his injury.”[44]
[42][2008] VSCA 260 at [3]
[43][2010] VSCA 69 at [47]
[44]Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 at [3]
50 The essential issue in this case is to assess the extent of consequences which result from the compensable injury. Such an assessment can be formed to some extent to by an examination of what has been retained.
51 The medical evidence satisfies me that there is a degree of ongoing pain which Mr Jackson endures on a daily basis. There is also a certain degree of inconvenience with matters such as the need to purchase larger footwear to accommodate the anatomical changes in his right foot. Such matters are unchallenged on behalf of the defendant but do not of themselves satisfy the comparative test required under the legislation. In order to succeed, Mr Jackson must satisfy the court that the consequences of his injury in terms of pain and suffering can fairly be described as at least very considerable and more than significant or marked when judged by comparison with other cases in the range of possible impairments or losses.
52 The Court of Appeal has also provided some further assistance in evaluating the pain and suffering consequence in Aburrow v Network Personnel Pty Ltd.[45]Although such authority assists in providing a blueprint for the evaluation exercise, it must necessarily be applied to each application on an individual basis.
[45][2013] VSCA 46 at [9] – [11]
53 In Mr Jackson’s case I am not satisfied that the assessment of pain provided by him to Mr Edwards as a VAS rating 44/100 is consistent with his ability to persist in his pre-injury full time employment, his ongoing participation in his recreational activity of golf and the absence of any medical treatment for the foot and ankle since mid-2013. I am more inclined to the view that the description of mild limitation recorded by Mr O’Brien in 2017 is a more accurate descriptor of the level of interference actually suffered by Mr Jackson.
54 It is true that much emphasis was placed upon his recreational activity of golf. An objective assessment based largely on Exhibit 1 and the acceptance of its accuracy by Mr Jackson shows that over the period between 2014 and 2018 there was virtually no change in either his handicap or the frequency with which he was able to play. In fairness, there are no records predating the date of Mr Jackson’s ankle injury. However, he did not assert either before me or in his affidavit evidence that his golf handicap had ever been lower than as recently recorded nor that he had ever played with significantly greater frequency than he does at present.
55 There is no evidence in this application from the treating general practitioner. There is simply an absence of evidence of any recent complaint to any treating medical practitioner. I am therefore led to the conclusion that the experience of pain, and indeed the pain and suffering consequences, could not fairly be adjudged as at least very considerable and more than significant or marked when a proper comparison is made.
56 Even though submissions were advanced to the effect that the plaintiff faces an uncertain prognosis, there is simply no persuasive medical evidence to suggest that arthritis is likely to develop and further disable Mr Jackson in future years.
57 I am unable to be satisfied that he has made out his application for leave. This application must, therefore, be dismissed.
58 I will hear from the parties in relation to the formal orders to be made and the question of costs.
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