Kouchnarev v Victorian WorkCover Authority
[2021] VCC 329
•9 April 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-20-03402
| ARTIOM KOUCHNAREV | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE PURCELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 March 2021 (via Zoom Hearing) | |
DATE OF JUDGMENT: | 9 April 2021 | |
CASE MAY BE CITED AS: | Kouchnarev v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 329 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – shoulder dislocation – pain and suffering
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s335
Cases Cited:Petkvoski v Galletti [1994] 1 VR 436; Peak Engineering & Anor. v McKenzie [2014] VSCA 67; Dwyer v Calco Timbers Pty Ltd (No.2) [2008] VSCA 260; TTB SMS Pty Ltd v Reading [2020] VSCA 203
Judgment: Application granted
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr B Anderson | Zaparas Lawyers Pty Ltd |
| For the Defendant | Mr B McKenzie | Minter Ellison |
HIS HONOUR:
Introduction
1The plaintiff, Mr Artiom Kouchnarev, is a now thirty-one-year-old married man. Notwithstanding his relatively young age, he is a man who has been unfortunate enough to suffer a number of physical injuries during his life. In September 2011, he was involved in a motorcycle accident in which he sustained injuries to his pelvis, a ruptured left testicle, a fractured right wrist, injury to left wrist, injury to the right knee and various other cuts and bruises. He underwent various surgical procedures and as a consequence of that accident he abandoned a plan to pursue a career as a personal trainer. In an affidavit sworn 19 March 2021,[1] the plaintiff gave evidence that in respect to the motorcycle accident:
“I can say that I made a full recovery from my right wrist injury. I still have ongoing symptoms in my right knee, left wrist and left hip. I have some pain which comes and goes in these body parts. I do not take medications for the pain. I have physiotherapy treatment as required. My main ongoing concern arising from the motorcycle accident is anxiety, for which I take Valium medication.”[2]
[1]Plaintiff’s Court Book (“PCB”) 72
[2] PCB 73
2In addition to injuries from the motorcycle accident, the plaintiff has also had a problem with his right shoulder. He is right-hand dominant. He had an episode on Christmas Day 2012 when lifting weights and his right shoulder dislocated. He had a further episode in February 2013 when he fell at the beach. There was then a third episode on July 2013 when he was swimming. After each of those episodes he was able to self-reduce the dislocation. Eventually he came under the care of the orthopaedic surgeon, Mr Ash Moaveni, in respect to treatment for the right shoulder. Mr Moaveni had earlier in time treated the plaintiff for the previously injured right wrist, including performing surgery to the plaintiff’s right wrist on 8 February 2013. When the plaintiff first attended Mr Moaveni for treatment for his right shoulder, there was apparently some discussion about whether the dislocations could be traced back to the motorcycle accident, but eventually Mr Moaveni referred the plaintiff to The Alfred hospital where he in fact performed shoulder stabilisation surgery and treated the plaintiff as a public patient. That surgery took place on 29 July 2014.
3By the time that the plaintiff underwent the surgery to his shoulder in July 2014, he had commenced studying a diploma in logistics and was by then pursuing a career path in warehousing/logistics. He completed that diploma in 2015. He had various warehousing/logistic-type employment in 2015 and by 2016 had completed an advanced diploma in leadership and management.
4In March 2016, the plaintiff commenced working with a company called The Institute Pty Ltd, which is better known as the Sage Institute of Education in Elsternwick (“the employer”). He was employed as a warehouse and maintenance assistant. That work involved some physical warehouse-type duties. By the time the plaintiff commenced with the employer, he had in fact suffered a fracture of his left foot, when he fell while training on a trampoline. In fact he commenced with the employer while his left foot was still in a moonboot.
5The plaintiff was undertaking warehousing duties for the employer on 31 May 2016. On that day he was using a trolley to try and move a box, when he suffered another dislocation of his right shoulder (“the incident”).
6Following the incident, the plaintiff was again referred back to Mr Moaveni. I shall deal with the medical material in more detail later in these reasons. For present purposes, it is sufficient to note that Mr Moaveni arranged a further MRI scan of the plaintiff’s shoulder. He then consulted with the plaintiff on 13 January 2017 and advised that the MRI scan, amongst other things, demonstrated anterior inferior bone loss. Mr Moaveni explained that the plaintiff would require further surgery described as a Latarjet procedure, but before embarking on that surgery, arranged a further CT scan of the plaintiff’s shoulder to better assess the extent of his bone loss. The CT scan was performed on 16 February 2017. The plaintiff attended Mr Moaveni again on 23 February 2017. The CT scan had confirmed that the plaintiff had approximately a 15 per cent anterior bone loss of the right shoulder. At that consultation, Mr Moaveni recommended conservative treatment, but if that failed then there would be a need for further surgery. The plaintiff re-attended Mr Moaveni on 31 August 2017. His shoulder was still unstable. Eventually, after a request for funding was made to WorkCover, the plaintiff underwent further shoulder surgery on 11 May 2018.
7By 7 February 2018, the plaintiff had returned to work with an organisation called Dairy Technical Services Limited. In the course of that work, in February 2018, the plaintiff injured his right thumb. That injury required referral to the orthopaedic surgeon, Mr Steve Csongvay, who consulted with the plaintiff on 10 January 2019. Eventually the plaintiff underwent thumb surgery – the surgery was delayed after the plaintiff suffered a nasty laceration to his right hand middle finger – on 15 April 2019, which was an ulnar collateral ligament repair. The plaintiff has some ongoing weakness of right hand grip strength, but estimates he has made a 90 to 95 per cent recovery from the right thumb injury.[3]
[3]PCB 73
8The short point is, as mentioned at the commencement of these reasons, that the plaintiff is a man who, at a still relatively young age of thirty-one years, has had numerous physical injuries from various events to have occurred in his life.
9This is a serious injury application, pursuant to s335 of the Workplace Injury Rehabilitation and Compensation Act 2013. The plaintiff seeks a determination of “serious injury” so as to commence a proceeding for pain and suffering damages. In particular, the plaintiff relies upon s335(5)(a) in respect to injury of the right shoulder. This application does not raise any complicated or novel legal or factual principles. The main issue is simply whether or not the plaintiff has persisting impairment and consequences from compensable injury so as to meet the definition of “serious injury”. The defendant accepts that causation is not an issue and neither is permanency.[4] The defendant’s position is that the compensable right shoulder injury needs to be assessed on the basis of an aggravation injury in accordance with the principles of Petkovski v Galletti[5]. In addition, the defendant submitted via its Counsel that the plaintiff has a range of impairment consequences from other injuries and conditions, and he has failed to discharge his evidentiary burden to establish which impairment consequences are attributable to the compensable right shoulder injury, as opposed to consequences which may be caused or contributed to by other injuries or conditions (the ‘disentanglement’ issue).[6]
[4]Transcript (“T”) 4, Lines (“L”) 25ꟷ27
[5][1994] 1 VR 436
[6] Peak Engineering & Anor. v McKenzie [2014] VSCA 67 at paragraphs 24, 25
10The plaintiff was represented by Mr Anderson of Counsel. The defendant was represented by Mr McKenzie of Counsel. As is the usual course, the plaintiff was the only witness required for cross-examination. He also relied on three affidavits sworn by him. The parties otherwise tendered various medical reports and clinical records. I have taken all of the evidence and tendered material into account but will only refer to it to the extent necessary in these reasons to disclose my path of reasoning.
The aggravation issue
11The defendant submits that the injury to the right shoulder from the incident was an aggravation of a pre-existing right shoulder condition and as such it is incumbent upon the plaintiff to identify consequences from the aggravation that are, of themselves, “serious”. In other words, it is not enough if the aggravation injury is only a small contribution to the plaintiff’s current impairment and consequences.
12There is no doubt that the plaintiff had recurrent dislocations of his shoulder throughout 2012 and 2013. Equally, it appears on the evidence that his right shoulder was treated by way of surgery and was asymptomatic at the time of the incident. There is no evidence that it caused any ongoing impairment. Mr Moaveni deals with this issue in a comprehensive report dated 12 December 2019.[7] In that report, he notes that in 2016 the plaintiff suffered a hyperabduction injury to the right shoulder. He notes that in the 2016 incident, the plaintiff suffered recurrent anterior instability of the right shoulder, with anterior glenoid bone loss (15 per cent). He further notes that the earlier right shoulder injury caused recurrent anterior instability of the right shoulder, without significant bone loss. Mr Moaveni then states:
“Given the extent of the bone loss, the 2016 right shoulder injury may be a new injury”.[8]
[7]PCB 28
[8]PCB 37
13Mr Moaveni’s report is comprehensive and compelling and tends to the conclusion that, in the incident, the plaintiff suffered a new injury and not the aggravation of an underlying condition.
14It may be that having had earlier dislocations of the right shoulder the plaintiff was vulnerable to further dislocation injury. That is essentially what the orthopaedic surgeon, Mr Michael Dooley, has opined in a report of 30 June 2020, commissioned at the request of the defendant.[9] In that report, Mr Dooley says that given the plaintiff’s past history, further dislocation “was not unexpected”.[10] Similarly, the orthopaedic surgeon, Mr Ash Chehata, assessed the plaintiff and provided a report dated 4 February 2021 at the request of his solicitors. In that report, Mr Chehata stated that:
“The incident on 31 May 2016 is certainly a significant aggravating event causing a redislocation of a previous injury. It has certainly aggravated a previous dislocation from 2012 … .”[11]
[9]Defendant’s Court Book (“DCB”) 13
[10]DCB 15
[11]PCB 56
15Mr Chehata clarifies that opinion in a supplementary report of 10 March 2021.[12] In that report, he states that:
“It would appear from the documentation that he had a stabilisation procedure in 2014 and there were no further dislocations. It was only due to the heavy and awkward work with a trolley and box that occurred on 31 May 2016 that could have caused a re-dislocation. It was only then that the redislocation was so severe, having dislocated his shoulder in 2012, that he required a Laterjet procedure, as essentially he became highly unstable.
…
There is no doubt that the re-dislocation that occurred on 31 May 2016 was the inciting event for a further procedure, which was far more extensive, being the Laterjet procedure involving an osteotomy of the coracoid … .”[13]
[12]PCB 59
[13]PCB 60
16In circumstances where the plaintiff had an asymptomatic right shoulder as at May 2016, but may have had a vulnerability for a re-dislocation by reason of the earlier symptoms and surgery, the fact is that the incident caused a further dislocation, with symptoms of such severity that required further surgery, being “far more extensive”[14] surgery, by way of a Laterjet procedure.
[14]PCB 60
17Bearing in mind that I am dealing with a gateway provision and not an assessment of damages where matters such as vicissitudes and the like are relevant, there is no doubt that the incident was productive of symptoms associated with a re-dislocation, with the need for Laterjet surgery and incomplete resolution. In those circumstances, even if the compensable injury is approached on the basis of an aggravation of an earlier injury, or the aggravation of an already vulnerable shoulder, I am satisfied that it is the aggravation (the re-dislocation) that caused the need for Laterjet surgery. It is the incomplete resolution from such surgery that causes the plaintiff ongoing impairment consequences.
18Whether the incident caused a new injury, or the aggravation of an earlier injury, is ultimately a moot point as the end result is the same. The incident caused the re-dislocation, which in turn caused the need for the Laterjet surgery, and it is the outcome from such surgery that causes the current impairment and impairment consequences. That is the opinion as expressed by Mr Moaveni and Mr Chehata and I accept those opinions. To the extent that Mr Dooley is of a different opinion, I do not accept his opinion. He seems to place some emphasis on the fact that the plaintiff’s shoulder continued to be unstable following the incident,[15]but of course the ongoing instability was due to the initial advice to try conservative treatment before embarking on major surgery and also the delay in having the surgery.
[15] DCB 15
The Plaintiff’s unrelated conditions
19The cross-examination of the plaintiff attempted to establish that the plaintiff’s unrelated medical condition, and in particular his motorcycle injuries and right thumb injury, are the cause of ongoing restriction for a range of day-to-day activity and as such those restrictions cannot be taken into account insofar as identifying impairment and impairment consequences from the compensable right shoulder injury.
20In my view, the cross-examination did not succeed in establishing that the plaintiff could not identify impairment consequences from the right shoulder.
21The starting point for this analysis is my assessment of the plaintiff. This is not a case in which his credit is in issue. He struck me as a straightforward witness and he made appropriate concessions. I am satisfied that I can rely upon his affidavit and oral evidence. He also struck me as stoic,[16] as evidenced by the fact that despite what appear to be significant orthopaedic injuries in the motorcycle accident, the plaintiff returned to manual work and also to strenuous recreational activities such as kayaking. To illustrate this point, notwithstanding his various pre-existing orthopaedic injuries, he in fact was training on a trampoline in March 2016 when a spring on the trampoline gave way and he broke his left foot. It is fair to say that he is not a man who has “thrown in the towel” following his various accidents and incidents, once again evidenced by the fact that notwithstanding major right shoulder surgery for a second time, he was in fact doing a lifting task when he injured his right thumb in 2018.
[16] Dwyer v Calco Timbers Pty Ltd (No.2) [2008] VSCA 260 at paragraph 3
22In respect to the right thumb injury, clearly the plaintiff suffered a thumb injury of some severity, as evidenced by the need for surgery. Overall though the medical evidence paints an optimistic picture of the result from that surgery. The treating surgeon, Mr Csongvay, says that he expects the plaintiff will “regain more or less normal strength in his right thumb but may experience some residual stiffness”.[17] Dr Terry Saxby, orthopaedic surgeon, in a report dated 29 October 2019 opined that the thumb injury at that time had not fully resolved but in the next two months “should be fully resolved”.[18] Dr Majid Rahgozar, consultant occupational physician, in a report dated 4 February 2020 opined that the plaintiff remained mildly symptomatic in the right hand but no particular treatment was required.[19] That medical evidence fits with the plaintiff’s own evidence that he was about 90-95 per cent recovered from the thumb injury. In my view the plaintiff did not seek to ‘play down’ the ongoing consequences of his thumb injury and his evidence[20] about his ongoing thumb symptoms confirms his reliability as a witness.
[17] PCB 42
[18] DCB 29
[19] DCB 40
[20] T 44, L 1-15
23I am satisfied that the restrictions deposed to in his affidavits and as expanded upon in his oral evidence are due to the right shoulder injury and are not due to any other injury/condition and in particular are not due to the right thumb injury. On an analysis of the evidence there is no ‘disentangling issue’. Apart from the evidence of the plaintiff as contained in his affidavits regarding any ongoing symptoms from the motorcycle accident, summarised by him in March 2021 as “some pain which comes and goes” in his right knee, left wrist and left hip, but no evidence of any real impairment from those conditions, apart from ongoing anxiety symptoms,[21] there is no evidence that he is restricted for day to day activity by those injuries/conditions, perhaps apart from some interference with sleep. I accept the submission made by his Counsel that the right shoulder causes additional impairment for sleep in that if he rolls onto the right shoulder at night the pain is sufficient to wake him. This would be a problem for anyone but perhaps even more so for a man who already has problems with sleep due to the ongoing anxiety condition related to the motorcycle accident.
[21] PCB 73
Is the shoulder injury a serious injury?
24I now turn to the remaining and major issue in this application, namely whether the compensable right shoulder injury is productive of impairment consequences that are ‘at least very considerable’.
25Mr Moaveni’s report is influential in the overall resolution of this application. He has the obvious advantage of having seen the plaintiff before and after the incident, as well as performing both shoulder surgeries. He describes in considerable detail the rationale for and nature of the Laterjet surgery performed in 2016, including the need for bone grafting and the insertion of a metal plate and screws.[22] He concludes his report by stating that the plaintiff had a stable and mobile right shoulder, but:
“… in the longer term, the client may be at increased risk of post-traumatic arthritis of the right shoulder, given the multiple episodes of instability, bone loss and surgical procedures”.[23]
[22] PCB 33, 34
[23] PCB 37
26Mr Moaveni opines that the bone loss in the plaintiff’s right shoulder was due to the incident and not the earlier procedures. This opinion is confirmed by Mr Chehata, who describes how recurrent dislocation can grind away the cartilage in the shoulder joint.[24] Mr Chehata states that the re-dislocation that occurred in May 2016 was the inciting event for a further procedure, which was far more extensive, being the Laterjet procedure involving an osteotomy of the coracoid. Following the Laterjet procedure, there is now progressive arthritic change. He states that the plaintiff has not progressed as expected since the incident and is now unlikely to be able to return to his pre-injury employment as a storeman:
“… considering the extent in restriction of his range of movement, as well as chronic shoulder pain and an inability to rotate due to the ongoing stiffness, which is related to the Laterjet procedure”.[25]
[24] PCB 60
[25]PCB 60
27The factual finding that the incident caused significant bone loss requiring major surgery by way of the Laterjet procedure, with consequential ongoing restriction in the range of movement of the right shoulder, with an inability to rotate the shoulder or perform activity above shoulder height, as well as the development of post-traumatic arthritic change and the risk of progressive symptoms, in a young man, is sufficient for a finding of a “very considerable” pain and suffering consequence.
28Pausing here, I do not accept the submission of the defendant that the plaintiff’s ongoing impairment can be characterised as more than trivial but less than ‘very considerable’.
29But, in addition, I also accept the consequences as deposed to by the plaintiff in his affidavit material in respect to interference in a range of day to day activity. In particular, his evidence that he suffers ongoing pain and reduced function in the right shoulder, with increased pain with use of the right shoulder, a loss of strength, a restriction for a range of recreational activities, and a need for ongoing physiotherapy.[26] When those consequences are added to the consequences as previously described, then I am fortified in my conclusion that the plaintiff has suffered a “serious injury”. The impairment consequences of his injured right shoulder are at least ‘very considerable’ when compared with the range of physical impairments that may be suffered.[27]
[26]PCB 11-12, 15-16
[27] TTB SMS Pty Ltd v Reading [2020] VSCA 203 at paragraph 31
30Accordingly, I grant leave to the plaintiff to commence a common law proceeding for pain and suffering damages arising out of the incident of 31 May 2016. I shall hear from the parties as to the question of costs.
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