Kucera v Victorian WorkCover Authority
[2024] VCC 369
•29 April 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
CI-23-03654
| JAKUB KUCERA | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE SANGER | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 February 2024 | |
DATE OF JUDGMENT: | 29 April 2024 | |
CASE MAY BE CITED AS: | Kucera v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 369 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – pain and suffering – injury to right upper limb, hand, thumb and wrist
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s325(2), s335
Cases Cited:Humphries and Anor v Poljak [1992] 2 VR 129; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181
Judgment: Leave granted to commence a proceeding for pain and suffering damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms S Fernando | Slater and Gordon Ltd Lawyers |
| For the Defendant | Ms C A Kusiak | TG Legal + Technology Pty Ltd |
HER HONOUR:
Introduction
1Mr Kucera is a 44-year-old carpenter who migrated to Australia with his family from Prague, Czech Republic, when he was two years old. His path to becoming a carpenter was a little unusual, as he first trained to be, and then worked, as a police officer. However, he really wanted to work with his hands. Thus, in his thirties, he retrained to be a carpenter while working in the police force. Having qualified, he left the police force and started working in his chosen profession, initially for himself and then as an employee. He loved working as a carpenter, and happily worked overtime and shift work. He was well renumerated for his work. On 21 October 2019, he suffered an injury to his right thumb, hand and wrist, which is his dominant hand and arm. Following treatment and therapy, he hoped he would be able to return to his pre-injury employment, and in fact did so for nineteen months. However, he came to realise that he was not coping with the physical requirements of the job, so sought and then took a redundancy. Although he found work as a site supervisor, and remains in that role today, it was his work as a carpenter that he loved. As a result of his injury, he has lost both the ability to work in his chosen and loved profession as a carpenter and the higher remuneration he earned on prized union sites.
2Mr Kucera makes his application pursuant to s335 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) for a determination that his pain and suffering consequences to his right upper limb are “at least very considerable” and “more than significant or marked”.[1]
[1]Humphries and Anor v Poljak [1992] 2 VR 129 at 140 (“Humphries”)
3The diagnosis and cause of the injury, that it was permanent, and that it arose in compensable circumstances were not in dispute.
4Thus, the only issue to be decided in the case was whether the consequences from his right upper limb impairment were “at least very considerable” and certainly “more than significant or marked”.[2]
[2]Ibid
5In considering this, I was asked to assess Mr Kucera’s reliability as a witness with respect to:
(a) his ability to continue working as a carpenter, given he worked for some nineteen months in his pre-injury job following his return to work; and
(b) whether the redundancy was offered due to a downturn in the industry, rather than Mr Kucera having sought it due to an inability to cope with the physical requirements of the job.
6For the reasons set out below, I have found that Mr Kucera was a reliable witness who is entitled to a determination that he has suffered a “serious injury” arising from his workplace injury.
Mr Kucera’s background
7Mr Kucera was born in Prague in April 1979 and came to Australia in 1982. He lives with his fiancée, Ms Rachael Bons, and shares custody of his two teenage sons with his former partner. He is right-hand dominant.
8He was educated in Australia. He finished Year 12 and trained to enter the police force. He was a member of the police force for approximately eleven years.
9At the age of thirty, while a member of the police force, he undertook a pre-apprenticeship in carpentry.[3] He went to trade school on the weekends while working five days during the week. He obtained a Certificate III in Carpentry and Joinery at the age of thirty-six.[4]
[3]Mr Kucera’s second affidavit, affirmed 19 February 2024, Plaintiff’s Court Book (“PCB”) 31 at paragraph [9]
[4]Ibid
10He then obtained a Certificate IV in Building and Construction. He worked four days a week as a senior constable and then did three days a week at trade school. He was not paid while he was at trade school and continued working as a police officer to support his family. He obtained some hands-on experience doing odd jobs for friends.[5]
[5]Ibid
11He resigned from the police force in 2016 and began working as a carpenter.
12He initially worked for himself, subcontracting to Porter Davis. He next worked for Sharp Lines Carpentry and then Top Notch Carpentry in semi-commercial work, before commencing with I&D Group Pty Ltd (“the employer”) in or about July 2019 as a formwork carpenter.
The injury
13On 21 October 2019, Mr Kucera and a colleague were stripping formwork (laminated veneer lumbar (“LVL”)) from a ceiling when his colleague dropped his side of the LVL without warning, causing the LVL to forcefully strike Mr Kucera’s right thumb. He felt immediate pain in the right thumb, hand and wrist area. Mr Kucera continued working for a short period but stopped shortly thereafter.[6]
[6]Mr Kucera’s first affidavit, affirmed 28 February 2023, PCB 26 at paragraph [9]
14He drove to the Bacchus Marsh Hospital Emergency Department, where he underwent an x-ray of the right wrist and hand. He was diagnosed with a fractured scaphoid. His right hand, wrist and forearm were placed in a plaster cast.
15He was referred to the Plastics Injury Clinic as an outpatient. A CT scan undertaken of the right wrist there found that there was:
“… a comminuted minimally displaced fracture of the proximal scaphoid pole, with the dominant fracture line being transverse through the scaphoid waist, with multiple sclerotic bony fragments conforming to the proximal pole, raising concern for avascular necrosis of the proximal pole.”[7]
[7]PCB 44
16In or around late October 2019, Mr Kucera was referred to Mr Eugene Lim, a plastic surgeon. He underwent a further x-ray on 16 December 2019 of the “Scaphoid+Carpal Bones Right”, which found that there was:
“Ununited scaphoid waist fracture. Proximal pole is sclerotic, suggesting accompanying avascular necrosis of bone.”[8]
[8]PCB 45
17He underwent a CT scan of the wrist on 3 February 2020, which concluded:
“Non-united comminuted right scaphoid fracture with probable osteonecrosis of one of the larger fragments.”[9]
[9]PCB 47
18In early 2020, Mr Lim recommended that Mr Kucera undergo surgery, as he had a complex right scaphoid proximal pole fracture which had not healed, and which was extremely unlikely to heal.[10]
[10]Mr Kucera’s first affidavit, affirmed 28 February 2023, PCB 27 at paragraph [16] and PCB 59
19After obtaining a second opinion, Mr Kucera underwent a scaphoidectomy and midcarpal fusion on 8 May 2020. His wrist and hand remained in a plaster cast for eight weeks. He was referred for hand therapy and further review with Mr Lim.
20He underwent a further CT scan of the right wrist and hand on 7 September 2020, which showed:
“Four point carpal fusion involving the capitate, hamate, triquetrum and lunate.
Resected Scaphoid. Small bony fragments in scaphoid bed.
No hardware complication.”[11]
[11]PCB 49
21Mr Lim also noted, in his letter dated 24 February 2021, that on review of Mr Kucera’s wrist in September 2020:
“… [Mr Kucera’s] wrist was painfree (sic), with evolving union of the arthrodesis on CT scan. Since this time … [Mr Kucera] has returned to his premorbid occupation as carpenter and apart from reduced wrist movement he has good grip strength and excellent function.”[12]
[12]PCB 60
22He attended hand therapy and had medication as required.
23He had a few months off work following his injury. He returned to work in or around February 2020 on a graduated return-to-work plan.
24In or around November 2020, he was provided with a clearance certificate from his general practitioner and returned to his pre-injury role as a formwork carpenter.
25He found it increasingly difficult to cope with the duties required in his role. This led him to seek a redundancy from his employer in 2022. After considering his request, the employer offered Mr Kucera a redundancy and he accepted it on or about 28 June 2022.[13]
[13]Affidavit of Danijela Klarica, affirmed 23 February 2024, Defendant’s Amended Court Book (“DACB”) 5 at paragraph [5]
14Letter of Mr Lim to Gallagher Bassett Services Pty Ltd, dated 1 March 2020, at PCB 59; Report of Mr Thomas, dated 31 August 2023, at PCB 67; Report of Mr Moaveni, dated 7 September 2023, at PCB 81; Report of Dr Boffa, dated 22 August 2020, at PCB 91; Report of Dr Barton, dated 6 March 2020, at DACB 16 and Report of Dr Stapleton, dated 15 June 2023, at DACB 28
26He started work two weeks later as a senior site supervisor with the Stoddart Group and has remained there ever since. He is mostly required to undertake administrative duties. He manages his wrist fatigue and pain with rest and massage. He said his remuneration is less in this role than it would have been had he been able to continue as a carpenter.
What is the injury?
27The nature of the injury was not in dispute. It was described in similar terms by all practitioners.[14] Given that the diagnosis of injury was not in dispute, and the descriptions of the injury from the various practitioners are expressed in a similar way, I find Mr Kucera has sustained a fractured scaphoid of the right wrist with non-union, requiring scaphoidectomy and midcarpal fusion.
Has a body function been impaired or lost?
28It was agreed at the hearing that the right upper limb had been impaired by reason of the injury to the right hand, thumb and wrist.
29It is nonetheless useful to consider the histories taken and the opinions provided by the medical practitioners, as they are relevant to my consideration of whether Mr Kucera’s pain and suffering consequences meet the “very considerable” threshold.[15]
[15]See s325(2) of the Act
Mr Eugene Lim, plastic surgeon
30As outlined above, Mr Lim has been involved in Mr Kucera’s treatment from the date of injury until September 2020.
31He said that, at his last consultation with him in September 2020, Mr Kucera reported his “… wrist was painfree (sic) with evolving union of the arthrodesis on CT scan” and he had returned to his premorbid occupation as a formwork carpenter, and, apart from reduced wrist movement, he had “… good grip strength and excellent function”.[16] Mr Lim stated that Mr Kucera’s condition was stable and that he “… had a permanently reduced, but functional range of wrist flexion and extension” that was unlikely to improve significantly in the future.[17]
[16]Letter of Mr Lim to Slater & Gordon Lawyers, dated 24 February 2021, at PCB 60
[17]Ibid
Melbourne Health
32Dr Denise Van Vugt, medico-legal officer at Melbourne Health, wrote a report on behalf of Melbourne Health on 26 December 2021.[18] She noted that the record from Mr Kucera’s attendance with Mr Lim on 7 September 2020 documents that he had flexion of 15 degrees and extension of 30 degrees without pain. A CT scan had shown healing of the fusion, and he was advised to continue with a strengthening program and to avoid high-impact activities, with no other restrictions.
[18]Report of Dr Van Vugt, dated 26 December 2021, at PCB 65
33Mr Kucera was continuing with a home-based strengthening program under the supervision of hand therapy via Telehealth. His right wrist rehabilitation continued to progress. On 22 October 2020, it was noted he was still attending to self-massaging for soft-tissue relief and had been able to return to push-ups and normal weight-lifting capacity. It does not appear he attended Melbourne Health after this time.
Ms Stephanie Ellis, occupational therapist
34In her clinical notes of 22 October 2020, Ms Ellis recorded that:
“AROM - excellent
Pain - very mild with composite extension and abduction of LF
Soft tissue - pain relief with massage
Strength - no issues, returned to push ups and normal weight lifting capacity.”[19]
[19]Clinical Notes of Ms Ellis, dated 22 October 2020, at DACB 24
35She went on to write that the intervention/treatment was as follows:
“Continue massage of the proximal forearm
Return to work - education pacing where possible
Continue strengthening program.”[20]
[20]Ibid
Mr Damon Thomas, plastic and reconstructive surgeon
36Mr Thomas said that Mr Kucera had:
“… stiffness with reduced range of motion. He has pain in the wrist. The wrist clicks. He gets early fatigue and overall, has reduction in strength of the wrist. … .”[21]
[21]Report of Mr Thomas, dated 31 August 2023, at PCB 68
37He said that this culminates in loss of function for anything involving the right hand and wrist.
38It was his view that Mr Kucera would be precluded or restricted in relation to employment or activities involving:[22]
· pushing, pulling or lifting
· repetitive pushing, pulling or lifting
· repetitive and/or prolonged use of the right wrist
· overhead activities
· fine and manipulative use of the right wrist
· mobility of the right wrist.
[22]Ibid
39He said that:[23]
(a) Mr Kucera had a significant reduction in the ability to undertake all tasks listed above, however, he could do them to some degree;
(b) that these restrictions, and the incapacity arising from them, were permanent.
[23] Ibid
40With respect to prognosis, he said:[24]
(a) Mr Kucera has a significant injury to his right wrist and is quite limited with regards to his wrist function;
(b) this was permanent and he has a significant impairment from this;
(c) Mr Kucera already has an element of post-traumatic arthritis in the right wrist, and this would likely become more evident and deteriorate with time;
(d) no active treatment was required at present;
(e) if he were to develop more significant post-traumatic arthritis to the right wrist, further surgery may be required. While speculative at this point, Mr Kucera would likely require a wrist fusion if it came to this.
[24]Report of Mr Thomas, dated 31 August 2023, at PCB 69-70
Mr Ash Moaveni, consultant orthopaedic surgeon
41Mr Moaveni undertook a medico-legal assessment of Mr Kucera on 7 September 2023 via Telehealth and on 5 October 2023 in person.
42With respect to Mr Kucera's symptoms, he noted that:[25]
(a) Mr Kucera experiences discomfort and a pulling sensation in the right wrist and hand;
(b) Mr Kucera rated the discomfort as ranging between 3-8 out of 10, depending on the use of the right arm;
(c) the wrist can fatigue with use or weight in the right hand.
[25] Report of Mr Moaveni, dated 7 September 2023, at PCB 79
43He undertook a range-of-motion assessment with the aid of a goniometer for both wrists and repeated those tests on 5 October 2023 in person.
44The test results on 7 September 2023 were as follows:[26]
[26] Report of Mr Moaveni, dated 7 September 2023, at PCB 80
Wrist Motion Left Wrist (°) Right Wrist (°) Normal Range (°) Flexion 60 30 60 Extension 60 40 60 Radial Deviation 20 10 20 Ulnar Deviation 30 15 30
45The test results on 5 October 2023 were undertaken in person and were similar. They were as follows:[27]
[27] Report of Mr Moaveni, dated 5 October 2023, at PCB 88
Wrist Motion Left Wrist (°) Right Wrist (°) Normal Range (°) Flexion 60 30 60 Extension 60 40 60 Radial Deviation 20 15 20 Ulnar Deviation 30 10 30 46He also performed grip-strength tests on 5 October 2023, which revealed that the grip strength on the right side was 46/48/46 kilograms of force, and on the left side it was 54/50/52 kilograms of force.[28]
[28]Ibid
47He said that:
“As a consequence of the physical injury and impairment to Mr Kucera’s right wrist … [he] is likely to be precluded or restricted in relation to employment, or activities involving pushing, pulling, lifting, repetitive action, repetitive and prolonged use of the right wrist, overhead activities, fine and manipulative use of the right wrist, mobility of the right wrist and manual dexterity. The extent of Mr Kucera’s incapacity is severe and the incapacity is likely to continue for the foreseeable future.”[29]
[29]Report of Mr Moaveni, dated 5 October 2023, at PCB 83-84
48He believed Mr Kucera's prognosis was fair and that he was likely to continue to experience limitation of function and fatigue in his right wrist.
49He did not believe that Mr Kucera was at an increased risk of developing arthritis or long-term deterioration in the future and that he did not presently require, nor was likely to require, further surgery or other medical treatment.
Dr Umberto Boffa, consultant occupational and environmental physician
50Mr Kucera was reviewed by Dr Boffa on 22 August 2022 and 21 September 2022.
51He found that the repeated movements of the wrists were:[30]
[30] Report of Dr Boffa, dated 22 August 2022, at PCB 91
R L
Flexion 40° 70°
Extension 40° 50°
Deviation:
radial 20° 20°
ulnar 30° 30°.
52Repeated movements of the interphalangeal (“IP”), metacarpophalangeal (“MC”) and carpometacarpal (“CMC”) joints were:[31]
R L
(IP and MP extensions normal)
IP 80° 80°
MP 40° 45°
CMC:
abduction 60° 60°adduction 5cm 4cm[31] Ibid
opposition 3cm 6cm.
53He said that his condition will remain unchanged indefinitely and that Mr Kucera was independent in activities of daily living and had a reduced work capacity.
Dr David Barton, consultant occupational physician
54Dr Barton saw Mr Kucera on 3 March 2020, prior to Mr Kucera undergoing surgery.
55At the time of writing his report, he did not believe Mr Kucera could return to his pre-injury hours and duties. He thought Mr Kucera had a theoretical capacity for lighter duties. He thought that, after surgery and a recovery period, a return to similar duties may be appropriate.[32]
[32] Report of Dr Barton, dated 6 March 2020, at DACB 17
Dr Murray Stapleton, plastic and hand surgeon
56Dr Stapleton saw Mr Kucera on 13 June 2023 by Telehealth.
57He found his right wrist movements to be:[33]
Flexion 0-30°
Extension 0-50°
Radial deviation 0°
Ulnar deviation 0-30°.
[33] Report of Dr Stapleton, dated 15 June 2023, at DACB 27
58He said that:[34]
(a) his wrist had a reduced range of movement and the power of his grip in his right hand was very much reduced;
(b) the right wrist is painful if he inadvertently bumps it;
(c) Mr Kucera described having lost 50 per cent of the functional capacity of his right wrist;
(d) the long-term prognosis was good, and that Mr Kucera had reached maximum medical improvement;
(e) he had observed the complete lack of movement of the wrist joint; and
(f) given it was Mr Kucera's dominant hand, all domestic activities would be affected, and the same would apply to his social and recreational activities.
[34] Report of Dr Stapleton, dated 15 June 2023, at DACB 26-29
59All the medical opinions support Mr Kucera’s evidence that there is a permanent impairment to the right upper limb on examination, with accompanying restriction of movement and pain. I therefore find that Mr Kucera has sustained a permanent impairment to the right upper limb.[35]
[35] Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at paragraph [33] (“Barwon Spinners”)
What are the consequences?
Pain, treatment and restriction of movement
60In an affidavit affirmed on 28 February 2023, and adopted by Mr Kucera at the hearing, Mr Kucera said:
“As I am right handed, I have had to take account of my injury and make adjustments to most aspects of life. This is because the range of movement in my right wrist has significantly decreased due to the insertion of the metal plate and screws which keep my wrist in a fixed position.
I also experience wrist fatigue. I get this when I am doing a task repetitively and also at the end of a working day.
I experience a fair bit of clicking in my right wrist.
It is difficult to grip things with my right hand due to the loss of mobility in my wrist. I struggle to rotate my wrist all the way around items I am trying to pick up or carry. I usually will need to move my whole body and adjust the position for my right shoulder.”[36]
[36]Mr Kucera’s first affidavit, affirmed 28 February 2023, PCB 27-28 at paragraphs [19]-[22]
61In his second affidavit, affirmed on 19 February 2024, and adopted by Mr Kucera at the hearing, he said that:
“I continue to experience discomfort and a pulling sensation in my right wrist when I am using my right hand and wrist. When I use my right wrist too much, the discomfort turns into an ache. I would say that this can be somewhere between a three to eight out of 10, depending on how much I am using the wrist.
My right wrist becomes fatigued with use and also carrying weight in my right hand.
I continue to experience clicking and difficulty gripping, grasping and holding items with my right hand and wrist.”[37]
[37]Mr Kucera’s second affidavit, affirmed 19 February 2024, PCB 30-31 at paragraphs [3]-[5]
62He later said that:
“The range of movement I have in my right wrist is significantly reduced and it feels stiff and immobile. I worry that my restrictions will get worse with time.”[38]
[38]Mr Kucera’s second affidavit, affirmed 19 February 2024, PCB 33 at paragraph [14]
63In his third affidavit, affirmed on 22 February 2024, and adopted by Mr Kucera at the hearing, he said that:
“I continue to stretch and do exercises for my right wrist when I feel wrist fatigue … My work now, as a Senior Site Supervisor, involves frequent laptop use. I manage this by taking regular breaks from typing. I will just rest my wrist and also stretch it out. At home, at times I will ask my partner to massage my hand / wrist to give me some relief from the wrist fatigue I experience.
I have adapted how I do things to accommodate for the ache I experience as well as the reduced range of movement and loss of grip strength. I was told by Mr Lim that the best-case scenario was that I would get 50% mobility back in my right wrist. I worked hard and did the exercises I was shown by the therapist to get the best range of movement I possibly could. I have been told that there is no further treatment that will improve the function of my right wrist. I am generally a positive person and try to make the best of difficult situations. I have learned to live with my injury.”[39]
[39]Mr Kucera’s third affidavit, affirmed 22 February 2024, PCB 35 at paragraphs [3]-[4]
64Mr Kucera’s evidence is supported by Ms Bons. In her affidavit, affirmed on 6 October 2023, she said:
“I am aware that Jake experiences wrist or hand fatigue and when he does, he will ask me to massage his hand. Jake has complained to me that he has reduced strength in his hand/wrist and would often come home from work and talk to me about this.
He will occasionally show me when the wrist is clicking. Jake will at times complain of pain after a day's work or increased activity, and I have noticed this seems to be more frequent in winter.
…
…. A big concern for Jake is the likelihood of developing worsening arthritis in his right wrist, which is his dominant side. He is only 44 years old and he has a long time to live with his injury.”[40]
[40]Affidavit of Rachael Bons, affirmed 6 October 2023, PCB 38-39 at paragraphs [10]-[11] and [16]
65The opinions of the medical practitioners regarding Mr Kucera’s pain, treatment and restrictions have been outlined above. Other comments or opinions they offered that are relevant to assessing Mr Kucera’s pain and treatment are:
(a) Mr Moaveni said that Mr Kucera has suffered from significant pain. He does not believe that Mr Kucera is at an increased risk of developing arthritis or long-term deterioration in the future, nor does he believe that he will require further surgery or medical treatment;
(b) Mr Thomas, on the other hand, raised the prospect of a wrist fusion if Mr Kucera were to go on to develop more significant post-traumatic arthritis;
(c) Dr Stapleton said he was surprised that Mr Kucera said his wrist was not painful, even in cold weather.
66Mr Kucera’s evidence regarding his pain and restriction of movement is supported by the opinions of Mr Lim, Ms Ellis, Mr Thomas, Mr Moaveni and Dr Stapleton relevant to the time that they saw him.
67I find that both Mr Kucera and his practitioners, those being Mr Lim and Ms Ellis, were more optimistic about his prognosis and ongoing restrictions when they last saw him in late 2020. At that time, Mr Kucera was on his way back to his pre-injury duties and was determined to succeed. While he had been advised he would be subject to some restrictions,[41] it was only with the effluxion of time and Mr Kucera’s attempt to consistently perform those pre-injury duties over nineteen months that the full extent of Mr Kucera’s pain and restriction of movement became apparent to him. He was thus able to provide that history to Mr Thomas, Mr Moaveni and Dr Stapleton, the medico-legal experts, who did not question the veracity of the pain and restrictions he described. I therefore prefer the findings of permanent pain, restriction of movement and need for future treatment outlined in the more recent opinions of Mr Thomas, Mr Moaveni and Dr Stapleton to those of Mr Lim and Ms Ellis.
[41]Letter of Mr Lim to Slater & Gordon Lawyers, dated 24 February 2021, at PCB 60; Clinical Notes of Ms Ellis, dated 22 October 2020, at DACB 24
68As a result of the injury to Mr Kucera’s right upper limb, I find that Mr Kucera:
(a) has constant pain that varies between 3-8 out of 10, depending on his level of activity;[42]
(b) has a stiffness with reduced range of movement in his right wrist;[43]
(c) has difficulty gripping, grasping and holding items with his right hand;[44]
(d) has a reduction in strength in his right wrist;[45]
(e) struggles to rotate his wrist to pick up items;[46]
(f) suffers from wrist fatigue after using his right wrist;[47]
(g) is restricted in relation to activities involving pushing, pulling, lifting, repetitive or prolonged use of the right wrist, overhead activities, fine and manipulative use of the right wrist and mobility of the right wrist;[48]
(h) manages his constant pain and fatigue with rest and massage;[49]
(i) has post-traumatic arthritis in the right wrist which will likely become more evident and deteriorate with time;[50] and
(j) may come to a fusion if he develops more significant post-traumatic arthritis.[51]
[42]Mr Kucera’s second affidavit, affirmed 19 February 2024, PCB 30 at paragraph [3]; Report of Dr Thomas, dated 31 August 2023, at PCB 68; Report of Mr Moaveni, dated 7 September 2023, at PCB 79
[43]Letter of Mr Lim to Slater & Gordon Lawyers, dated 24 February 2021, at PCB 60; Report of Dr Thomas, dated 31 August 2023, at PCB 68; Reports of Mr Moaveni, dated 7 September 2023 and 5 October 2023, at PCB 80 and 88; Report of Dr Boffa, dated 22 August 2022, at PCB 91; Report of Dr Stapleton, dated 15 June 2023, at DACB 26-27
[44] Reports of Mr Moaveni, dated 7 September 2023 and 5 October 2023, at PCB 80 and 88
[45] Report of Dr Thomas, dated 31 August 2023, at PCB 68
[46]Mr Kucera’s first affidavit, affirmed 28 February 2023, PCB 28 at paragraph [22]; Transcript (“T”) 25, Lines (“L”) 7-12
[47] Report of Mr Moaveni, dated 7 September 2023, at PCB 79
[48]Report of Dr Thomas, dated 31 August 2023, at PCB 68; Report of Dr Moaveni, dated 5 October 2023, at PCB 83-84
[49]Mr Kucera’s third affidavit, affirmed 22 February 2024, at PCB 35 at paragraph [3]; Affidavit of Rachael Bons, affirmed 6 October 2023, at PCB 38 at paragraph [10]
[50] Report of Dr Thomas, dated 31 August 2023, at PCB 69-70
[51] Report of Dr Thomas, dated 31 August 2023, at PCB 70
Loss of career
69The most substantial loss to Mr Kucera from his right upper limb impairment is the loss of his career as a carpenter. His evidence was that he was passionate about working with his hands; he worked hard to obtain the qualifications and complete his carpentry apprenticeship while working as a police officer; he successfully made the transition to being a carpenter at thirty-six years of age, and he would have been earning more than he is earning today, had he been able to continue working as a carpenter.
70In his second affidavit, affirmed on 19 February 2024, and adopted by Mr Kucera at the hearing, he said:
“I am no longer able to work as a carpenter, which is a great loss to me. I had wanted to work in a trade since I was young and would follow my dad, who was a plumber, around for pocket money. I initially pursued other career paths as my dad was keen for me to get an education, but the itch to work with my hands never left me.
…
… I got a real sense of satisfaction from building homes.
I enjoyed being a carpenter. I took a great deal of pride in knowing that I was the person who put nails in the timber and built the structure that someone would enjoy and make memories there with their families.
…
…. I miss working on the tools and using my hands to build and finish projects. I do not get the same sense of job satisfaction from my job now … .”[52]
[52]Mr Kucera’s second affidavit, affirmed 19 February 2024, PCB 31-32 at paragraphs [8], [10]-[11] and [13]
71In his third affidavit, affirmed on 22 February 2024, and adopted by Mr Kucera at the hearing, he said:
“… It is also deeply frustrating to me that I have lost the ability to pursue my passion and work in a job I really loved.”[53]
[53]Mr Kucera’s third affidavit, affirmed 22 February 2024, PCB 35-36 at paragraph [8]
72Ms Bons affirmed an affidavit on 6 October 2023 regarding the impact of the injury on Mr Kucera. Ms Bons said that:
“ … He loved his carpentry job and working on the tools with his hands, and he would always let his enjoyment of his work show. He always left home like he was looking forward to his workday and no matter how long the workday was, he returned happy. He worked 8 to 10 hours a day, 5 to 6 days per week. He loved the physical aspects of his job and was very capable with his hands.
…
Jake has been fortunate enough to be able to return to a suitable job in a supervisory role. However, I am aware that he had to take a reduction in pay with his current role. He has expressed to me that he dearly misses being ‘on the tools’ of his trade which was a big part of who he was before the injury.”[54]
[54]Affidavit of Rachael Bons, affirmed 6 October 2023, PCB 37-38 at paragraphs [5] and [12]
73Ms Bons’ evidence supports Mr Kucera’s evidence that he loved being a carpenter, that he misses being on the tools and that he has found a suitable job at a lower rate of pay.
74His evidence was that his work for the employer involved constant gripping with the right hand, swinging a hammer, using a drill and punching or hammering in about 500 nails a day,[55] pulling with the right hand, and lifting and carrying items weighing up to 25 kilograms from the floor up onto his shoulder.[56]
[55]T26, L17-19
[56]T7, L1-9
75Ms Klarica, the return-to-work co-ordinator for the employer, in her affidavit affirmed 23 February 2024, supports Mr Kucera’s evidence about the general nature of the duties that Mr Kucera was required to undertake as a carpenter.
76Mr Kucera said that he found full-time carpentry work difficult after he returned to normal duties following his injury. He struggled with wrist fatigue by the end of the day, he struggled to use his dominant right hand repetitively, such as when using a hammer, and found it difficult to carry items such as planks of timber due to the decrease in his wrist mobility.[57] He said that it got too much. He was too sore too often.[58]
[57]Mr Kucera’s first affidavit, affirmed 28 February 2024, PCB 29 at paragraph [28]
[58]T26, L17-22
77Consequently, he asked his employer to offer him a redundancy. After consideration of his request by his employer, this was offered. He accepted a redundancy on or about 28 June 2022, approximately nineteen months after returning to normal duties.[59]
[59]T14, L25-31 and T15, L1-9; Affidavit of Danijela Klarica, affirmed 23 February 2024, DACB 5 at paragraph [5]
78Mr Kucera saw Mr Thomas on 31 August 2023. He said that, at the time of the accident, Mr Kucera was working full time as a right-hand dominant carpenter. He has had to transition away from this, as he could not continue with his pre-injury role.
79Mr Thomas noted the restrictions Mr Kucera had for employment, outlined at paragraph 38 above. He found that he does not have the capacity to work in his pre-injury employment and that this incapacity will be permanent.
80Mr Moaveni, who saw Mr Kucera on 7 September 2023, was of the view that Mr Kucera’s incapacity was severe, that he did not have the capacity to perform his pre-injury duties as a carpenter, and that this incapacity was permanent and would last into the foreseeable future.[60] He also outlined the restrictions that Mr Kucera would be subject to into the foreseeable future, referred to in paragraph 47 above. These are consistent with the restrictions outlined by Mr Thomas.
[60]Barwon Spinners at paragraph [33]
81Dr Barton found that Mr Kucera had a theoretical capacity for lighter duties or that, alternatively, after surgery, a return to similar duties may be appropriate. However, the utility of his opinion is limited, given he examined Mr Kucera prior to surgery being performed.
82Dr Stapleton was not asked for his opinion on Mr Kucera’s work capacity. He noted Mr Kucera’s employment history, including the change of role, and did not question whether he may have been able to continue in his pre-injury duties.
83I prefer the opinions of Mr Thomas and Mr Moaveni regarding Mr Kucera’s permanent restrictions for employment because they are recent and they had the benefit of receiving the full-work and injury history. They both find that he does not have the capacity to return to work as a carpenter, and that this incapacity is permanent. They support the evidence of Mr Kucera regarding his work capacity.
84I have taken the clearance certificates of Mr Kucera’s general practitioner, dated 2 November 2020 and 27 September 2023,[61] and the reports of Mr Lim and Ms Ellis into account at arriving at this view. I am satisfied that they represent their views as at the time they last saw Mr Kucera.
[61]DACB 58-61
85I have also considered the clearance certificate issued in September 2023 and concluded that it is not relevant for my determination in this matter, as at this time, Mr Kucera was undertaking his work as a site supervisor. His ability to undertake these duties is not in dispute.
86The absence of any report from Mr Kucera’s general practitioner leads to an inference that their evidence would not have assisted Mr Kucera. However, the force of that inference is reduced somewhat, as the notes of the clinic were tendered by the Victorian WorkCover Authority (“VWA”), and by the fact that Mr Kucera did not return to his general practitioner seeking advice on his ability to return to his former work.
87I have considered the evidence regarding the redundancy. While Ms Klarica said, in her affidavit, that there was a downturn in work in 2022, she did not say that this was the reason Mr Kucera was offered a redundancy. The employment separation certificate was exhibited to her affidavit. The person who completed it crossed the box to indicate that the reason Mr Kucera ceased work was because there was a shortage of work. However, they also crossed the box to indicate that Mr Kucera had not made a claim, nor was likely to make a claim, for worker’s compensation at that time. This second point was clearly wrong, and casts doubt on the reliability of that certificate. Taken together, I find that Mr Kucera’s reliability as a witness was not impugned by this evidence. I thus find that he sought a redundancy, which was ultimately offered and accepted, as he was unable to cope with the physical requirements of the job as a carpenter.
88When considering the nature of the duties required to be undertaken as described by both Mr Kucera and Ms Klarica, and the permanent restrictions for employment that Mr Kucera is subject to as described by Mr Thomas, Mr Moaveni and Dr Stapleton, I find that Mr Kucera is no longer able to work as a carpenter because of the pain and restrictions imposed on him by the injury.
89Some evidence was relied upon, both in Mr Kucera’s affidavits and at the hearing of this matter, regarding Mr Kucera’s pecuniary disadvantage.
90While pure loss of earning capacity consequences are not relevant to the assessment of consequences when dealing with an application for leave to commence a proceeding for pain and suffering damages only, it is relevant to consider any frustration or loss of pleasure that the inability to undertake the relevant activity produces.[62] In this case, the relevant activity is Mr Kucera’s former career as a carpenter on union sites.
[62]Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326 at paragraph [43] (“Ellis Management”)
91I have thus considered the evidence relied upon on that basis only.
92Mr Kucera said that he would have been capable of earning at least $160,000 gross per year now if he was still working as a formwork carpenter with the employer and that this loss had caused financial hardship, particularly given increases to the cost of living.[63] Mr Kucera’s frustration is outlined in his third affidavit, affirmed 22 February 2024, where he states:
“I feel frustrated that I can no longer be a carpenter as I would have been on a higher income and earned more superannuation. It is also deeply frustrating to me that I have lost the ability to pursue my passion and work in a job I really loved.”[64]
[63]Mr Kucera’s third affidavit, affirmed 22 February 2024, PCB 35-36 at paragraphs [6]-[7]
[64]Mr Kucera’s third affidavit, affirmed 22 February 2024, PCB 36 at paragraph [8]
93Both Top Notch Carpentry and the employer were CFMEU union sites.[65] Mr Kucera’s evidence was that the remuneration on these sites was typically higher than elsewhere and therefore highly prized. He also said that he had been a good worker, who worked all the overtime and shiftwork requested by his employer.[66] This was supported by Ms Bons in her affidavit.
[65]T22, L15-16
[66]T16, L10-12
94He presently earns $110,000 gross annually, plus superannuation, as a site supervisor.[67] He did not believe he would get a salary increase unless he was promoted. He said this was a possibility if somebody left.[68]
[67]T20, L22
[68]T21, L27-28
95The VWA submitted that Mr Kucera’s figure of $160,000 did not allow for downturns in the industry, was built on an assumption that he would have worked fifty-two weeks in the year, that in his last full year with the employer he earned $131,324, rather than something close to $160,000, and that he might be promoted at the Stoddart Group, and thus get a pay rise.[69]
[69]T22, L24-29
96The VWA also submitted that he might be capable of earning additional income through his company “AusCo”. Mr Kucera said “AusCo” was an inactive company, that he had a Facebook page that related to it, that he has never generated any income from it,[70] and that he did not have time to work on another business in addition to the work that he was undertaking for the Stoddart Group. He said he has kept it as a back-up plan, which, if enlivened, would see him being a project manager with a couple of crews of carpenters working for him.[71] There was no evidence that he had done anything more than contemplated a plan for future income should he need it. There was no evidence that Mr Kucera had generated income from AusCo to date.
[70] T26, L25-26
[71]T26, L28-31 and T27, L1-2 and L6-7
97Given that any plans to generate income through this company in the future are no more than an idea, and my findings are based on the evidence as it was at the time of hearing, I am satisfied that nothing turns on this submission. I also find that Mr Kucera’s credit was not impugned by this evidence.
98I find that Mr Kucera had a reasonable basis for believing that he would have continued working on union sites as a carpenter had he not been injured, and his inability to do so has caused him great deal of frustration. One of the elements of this frustration is his inability to continue earning higher levels of remuneration. Given that this is an application for leave for pain and suffering only, it is not necessary for me to make any other findings on this point.
Mr Kucera’s residual work capacity
99Mr Kucera commenced work for the Stoddart Group as a site supervisor on or about 11 July 2022, about two weeks after finishing with the employer. He has remained in this role to date.
100He said that the work was mostly office work, and that he uses his car as his office.[72] The work involves a lot of typing. He experiences wrist fatigue after about an hour. He manages his fatigue by taking regular rest breaks and stretching out his wrist.[73] His job involves travelling to different sites across Victoria[74] and ensuring that carpenters build the Stoddart Group frames in accordance with Australian Standards and the Building Codes. He shows carpenters how the steel-framing system works and what the fixture requirements are. He does not construct the steel framing.
[72]T18, L22
[73]Mr Kucera’s third affidavit, affirmed 22 February 2024, PCB 35 at paragraph [3]
[74]T18, L23-25
101Mr Kucera told Mr Thomas and Mr Moaveni about his current duties.
102Mr Thomas said that Mr Kucera cannot undertake anything physical in his supervisory role and therefore there are ongoing limitations with his work capacity.
103Mr Moaveni recorded Mr Kucera as having told him that he is now predominately office based, very rarely on the tools, and that if he uses a computer keyboard for more than one hour, he requires a ten-to-fifteen-minute break.[75] He said that this was due to the ongoing fatigue and loss of motion in the right wrist.
[75]Report of Mr Moaveni, dated 7 September 2023, at PCB 84
104Neither of them questioned whether the duties were suitable, given the restrictions he is now subject to. I find that their opinions support Mr Kucera’s evidence that he has retained a residual work capacity that allows him to work as a site supervisor in the construction industry.
105It was put by the VWA that, in the absence of evidence from his employer or colleagues that, as his current role involves minimal time on the tools, I should be reluctant to accept he has lost his career as a carpenter. I have taken this into account. The duties Mr Kucera has said he is undertaking are consistent with the permanent restrictions Mr Thomas, Mr Moaveni and Dr Stapleton have found Mr Kucera is subject to. As Mr Kucera’s credit was not in issue in this case, and I have not found his credit to be impugned elsewhere, I accept Mr Kucera’s evidence regarding the duties he is required to undertake at the Stoddart Group and find that they are consistent with the restrictions he now has.
Other activities
106Mr Kucera gave evidence about other activities that have been impacted by his injury and restrictions, which are outlined below.
Gym and Camping
107He used to be an avid gym goer. He can still exercise, but has had to modify the exercises he performs. He finds it difficult to do a regular push-up, because it is hard to lay his right palm flat to the floor.[76]
[76]Mr Kucera’s first affidavit, affirmed 28 February 2023, PCB 28 at paragraph [25]
108He finds camping more difficult. He finds it hard to lift and carry all the gear.
Carpentry around the home
109Ms Bons said, in her affidavit, that Mr Kucera built the deck at the front of their house prior to his injury, and this was not something he would be able to do now.[77]
[77]Affidavit of Rachael Bons, affirmed 6 October 2023, PCB 38 at paragraph [6]
110Mr Kucera said that, since his injury, he might fix some decking boards at home or a neighbour’s fence, and that he might do something like this once or twice a year.[78]
[78]T24, L26-29 and T24, L3-4
Gardening
111While he can still garden, he finds the vibration from the Whipper Snipper is uncomfortable to his right hand and wrist.[79] He experiences wrist fatigue. He changes to using the Whipper Snipper with his left hand.
[79]Mr Kucera’s first affidavit, affirmed 28 February 2023, PCB 28 at paragraph [24]
Playing with his children
112He is conscious of his right wrist when “… knocking about” with his children.[80] When they are “… wrestling or just mucking around”, he tells his children to be careful of his wrist because it is so immobile.[81]
[80]Mr Kucera’s second affidavit, affirmed 19 February 2024, PCB 31 at paragraph [7]
[81]Mr Kucera’s first affidavit, affirmed 28 February 2023, PCB 28 at paragraph [26]
113Many of these limitations and consequences were referred to by Ms Bons in her affidavit, supporting Mr Kucera’s evidence of the other consequences that have been affected by his injury.
114These limitations and restrictions are supported by Mr Thomas, Mr Moaveni and Dr Stapleton.
115All these impacts were significant. I have taken them into account when deciding the case.
What is Mr Kucera’s retained capacity?
116In considering that which has been lost, I also need to consider what has been retained.[82]
[82] Dwyer v Calco Timber Pty Ltd (No 2) [2008] VSCA 260 at paragraph [27] (“Dwyer (No 2)”)
117I find that, based on his evidence, the evidence of Ms Bons, and the evidence of Mr Thomas, Mr Moaveni and Dr Stapleton, that he has retained a capacity for work in suitable employment, the ability to engage in recreational activities, minor carpentry around the home, cooking and household chores, gardening and the ability to play with his children, albeit with restriction and modification, as outlined above.
118He did not say that his sleep, driving, capacity for self-care, the ability to look after his two sons or his sexual life are impacted by the injury.[83] I have taken this into account when weighing up whether the overall consequences can be fairly described as being “very considerable”.
[83] Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1 at paragraph [16] (“Haden Engineering”)
Conclusion
119Taking all the evidence into account, I consider that the consequences of Mr Kucera’s impairment of the right upper limb can be fairly described as being “at least very considerable”.[84]
[84]Section 325(2) of the Act; Humphries at 140
120While many of the consequences suffered by Mr Kucera are significant, the most considerable of these is the loss of his ability to continue his chosen career as a carpenter.
121This was a profession and career that he loved. He said that, despite having trained to work as a police officer, he had an itch to work with his hands that never left him.[85] This drove him to retrain to be a carpenter in his thirties while working in the police force. His commitment and dedication to balancing the competing demands of work and study is particularly impressive, given he had a young family at the time.
[85] Mr Kucera’s second affidavit, affirmed 19 February 2024, PCB 31 at paragraph [8]
122He resigned from the police force and found employment in the construction industry. He ultimately obtained employment at highly prized union sites, where the level of remuneration was more favourable than elsewhere.
123He enjoyed the work. He was a reliable worker, working all the overtime and shift work asked of him. He believes he would have continued working on union sites earning higher levels of remuneration than was available at other sites had he not been injured.
124Having returned to the work he loved with the employer after his injury, he continued for nineteen months before concluding that he could no longer cope with the pain and fatigue, so he sought, and was ultimately offered, a redundancy.
125The fact he attempted to work in his pre-injury duties for nineteen months with the restrictions, pain and symptoms he described, led me to conclude that he was a stoic person who had done his best to return to the career that he loved and had retrained to do as an adult.[86]
[86] Haden Engineering at paragraph [13]; Dwyer (No 2) at paragraph [3]
126His loss is best summed up by him:
“I have lost the ability to pursue my passion and work in a job I really loved.”[87]
[87]Mr Kucera’s third affidavit, affirmed 22 February 2024, PCB 36 at paragraph [8]
127It is also summed up well by Ms Bons:
“He has expressed to me that he dearly misses being ‘on the tools’ of his trade which was a big part of who he was before the injury.”[88]
[88]Affidavit of Rachael Bons, affirmed 6 October 2023, PCB 37-38 at paragraphs [5] and [12]
128After accepting the redundancy, he obtained suitable employment as a site supervisor in construction. He travels to various sites and supervises the way the steel work is constructed. He does not engage in manual tasks. His role is largely administrative, and his car is his office. He manages the pain and fatigue he experiences with rest breaks, home exercises and self-massage. He has continued in that position to date. He is to be commended, rather than punished, for having found alternative suitable employment.
129Despite having found alternative suitable employment, he remains frustrated at his inability to work as a carpenter on union sites. An element of that frustration is the loss of the higher level of remuneration he was able to earn in that role on those sites.
130He is a young man. He is forty-four years old. He will have to live with the pain and restrictions he now has for the rest of his life.[89]
[89]Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181 at paragraph [43]; Haden Engineering at paragraph [17]
131He has constant pain which increases with activity, particularly with the activities required as a carpenter. He describes the pain as being a 3-8 out of 10. He manages his pain with massage and rest, as recommended to him by Ms Ellis and Mr Lim. He does not take medication for the pain. There is no further treatment available to him. He might come to a wrist fusion if he develops more significant post-traumatic arthritis.
132I have considered the other recreational, domestic and social activities that have been impacted by Mr Kucera’s injury in reaching my view. While they are significant, the loss of his ability to work in his chosen profession as a carpenter is the most significant. It goes to the heart of his identity and enjoyment of life. When considered with all the other losses, I find that the overall consequences to Mr Kucera are fairly described as being at least very considerable.[90]
[90]Ellis Management at paragraph [52]
133Accordingly, leave is granted to Mr Kucera to commence a proceeding for pain and suffering damages.
134I will hear from the parties on the form of final orders.
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