Larkins, Anthony v The Jewellery Chain Pty Ltd and VWA
[2009] VCC 996
•6 August 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT GEELONG
CIVIL DIVISION
Case No. CI-07-03649
| ANTHONY LARKINS | Plaintiff |
| v | |
| THE JEWELLERY CHAIN PTY LTD | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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| JUDGE: | HIS HONOUR JUDGE O'NEILL |
| WHERE HELD: | Geelong |
| DATE OF HEARING: | 30 July 2009 |
| DATE OF JUDGMENT: | 6 August 2009 |
| CASE MAY BE CITED AS: | Larkins, Anthony v The Jewellery Chain Pty Ltd & VWA |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 0996 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Serious injury application – s.134AB Accident Compensation Act 1985 – crush injury to left great toe – consequent condition in right knee – pain and suffering only.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J H Mighell SC with | Maurice Blackburn |
| Mr D J N Purcell | ||
| For the Defendants | Mr J H Tebbutt with | Wisewoulds |
| Ms A M Magee | ||
| HIS HONOUR: |
Preliminary
1 The plaintiff suffered a significant crush injury to his left great toe in the course of his employment with the first defendant on 27 July 2000. Following surgery and rehabilitation, the plaintiff was able to return to work in a number of employments, and is currently working full-time as a sales representative.
2 As a result, he claims, of an altered gait, he suffered pain and swelling in his right knee.
3 This is an application for leave to bring proceedings pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered in the course of the plaintiff’s employment on 27 July 2000.
4 Mr Mighell, on behalf of the plaintiff, identified the body function said to be lost or impaired as the left lower leg. The application is thus brought under sub-section (a) of the definition of “serious injury” contained in s.134AB(37) of the Act and leave is sought in respect of pain and suffering only. The plaintiff claims that as a result of an altered gait caused by the left foot injury, he has developed pain and swelling in the right knee. This, according to Mr Mighell is to be seen as a consequence of the left foot injury, and not the impairment of another body function.
5 In order to succeed, the plaintiff must prove, the onus being upon him, that the consequences emanating from the loss or impairment of the body function are at least “very considerable” and more than “significant” or “marked”. I must consider the consequences for this particular plaintiff, viewed objectively, arising from the injury. I must also compare the impairment arising from injury in this application with other cases in the range of possible impairments or losses of the body function of the left lower leg.
6 The plaintiff was the only witness called to give evidence and be cross- examined. In addition, medical reports from both treating and consultant practitioners, radiological reports and other material were tendered. I have read all the tendered material.
7 On behalf of the defendants, Mr Tebbutt outlined the position of his clients in response to the application as follows:
•
It was accepted that the plaintiff suffered the crush injury to his left great toe as alleged.
•
In addition, it was not disputed that one of the consequences of that injury was the development of pain and some swelling to the right knee as a result of altered gait.
•
When judged against other cases in the range, the consequences to the plaintiff did not meet the “very considerable” level.
•
The plaintiff was in full-time employment and able to carry out his duties without significant impairment.
•
The plaintiff was not presently receiving any medical treatment nor medication.
Relevant Background
8 The plaintiff was born in December 1962 and is currently forty-six years of age. He is separated with three young children. He left school after Year 11, undertook a motor mechanic apprenticeship, which he did not complete, and commenced work with the first defendant in 1984. After various positions within the company, he worked in an administrative capacity assisting the directors.
9 He was healthy prior to the incident and particularly had no difficulties with his left nor right leg. He was actively involved in the care and welfare of his children and enjoyed playing cricket, tennis and a range of other outdoor activities. He was a keen golfer, played golf at the Eastern Sward Golf Club at Carrum and attained a handicap of 21. He enjoyed snow skiing and regularly took his children to the mountains and taught them to ski.
The Injury and its Consequences
10 On 27 July 2000, the plaintiff was operating a forklift at new warehouse premises conducted by the first defendant. He fell backwards from the vehicle and his left foot was caught between it and a concrete kerb which resulted in a crushing injury to his left big toe.
11 He was taken to the Dandenong Hospital and there was some consideration given to amputating the toe. He was transferred to Epworth Hospital and came under the care of Mr Farrow, a plastic and reconstructive surgeon, who initially debrided the injury in theatre. On the following day, he undertook a reconstruction. X-rays of the left foot confirmed a number of fractures of the bones of the great toe. In order to achieve the reconstruction, Mr Farrow obtained a full thickness skin graft from the sole of the left foot and used it to cover the skin denuded from the big toe. A further skin graft from further up the leg was taken to cover the donor site on the instep.
12 He remained in hospital for approximately ten days and was on non weight- bearing crutches for approximately ten weeks. Thereafter, he used a walking stick. The initial pain to the site eased to some extent with time and approximately ten weeks after surgery he was able to return to full-time clerical duties. In November 2000, his employment with the first defendant was terminated.
13 He consulted Dr William Howard, pain management specialist, after surgery because of persisting pain.
14 In the middle of 2003, pain in the area of the toe was a significant issue, and he again consulted Mr Farrow. It was determined there was neuroma in the inner arch of the foot, and in addition, the scarring to the front of the foot had tightened, causing the toes of the left foot to become raised. Surgery was considered but was not proceeded with, and as an alternative, the plaintiff was referred for Feldenkrais physiotherapy with Ms Lisa Campbell. The scarred area responded well to this treatment with the toes becoming less raised, and improved sensation in the area. The plaintiff had about twenty sessions.
15 After his employment with the first defendant was terminated, the plaintiff worked as a manual labourer for a period, but was unable to sustain this work because of pain in his toe. This job lasted about six months. He then took work in office management with a family member for about four years. In approximately 2005, he commenced work with his current employer, Super Groups, which involved him in the sales of earthmoving equipment up to 8 tons. His area of responsibility has been northern Victoria, and he travels approximately 70,000 kilometres per year to various rural towns, as far north as Mildura, selling this earthmoving equipment. While he occasionally demonstrates the machinery, more usually his work involves travel and sales out of brochures.
16 In mid 2004, he developed pain in his right knee and at one point the knee became locked, swollen and he was unable to fully extend it. He consulted Dr Peter Larkins, who referred him to Mr Iain McLean, orthopaedic surgeon, and told Mr McLean that he thought the problem with the right knee was related to an altered gait because of the problems with his left toe. Mr McLean noted wasting of the left calf and some swelling of the right knee. MRI investigation showed a small radial tear to the medial meniscus with minor wearing of the weight-bearing area of the medial femoral condyle. Mr McLean discussed arthroscopic surgery but he could not give any guarantee as to the outcome, and at the end of the day Mr McLean advised the plaintiff to continue without surgery until the pain in the knee became difficult to bear.
17 The plaintiff gave evidence as to his current problems. He has pain which is reasonably constant to the top of the left great toe. It is in the nature of an ache and from time to time there is a sharp pain, particularly at night. The underside of the large toe is desensitised, and he has to be careful and be sure he does not stub the toe or injure it in some way because of the loss of feeling. The donor site on the instep is particularly sensitive, particularly if knocked. He has to be careful to ensure he does not walk across ground with a protruding object. The scarring on the top of the foot is sometimes tight, and there is a pulling sensation to the toes of the left foot. He applies moisturising cream and self massages the area. There are calluses underneath the large toe and on the right side of the foot.
18 The plaintiff believes his walking gait is altered, albeit subtly, as a result of which there is more pressure on the right leg. Occasionally the right knee locks up and aches, particularly in cold weather. Once a year or so the knee swells and he needs anti-inflammatory medication. If the knee remains in the one position for long, he needs to stand and move about.
19 I observed the donor site and scarring to the left foot. It is set out clearly in tendered photographs.[1] There is clear wasting of the calf muscle on the left leg, described in various medical reports as being between 1 and 2.5 centimetres.
[1] Plaintiff’s Court Book (“PCB”) 58-65
20 Aside from the pain in the left toe and donor sites, the plaintiff gave evidence that he found standing for long periods of time difficult, and likewise sitting. Long periods in the car made his right knee painful. He finds it difficult to “lead” with the left foot. Stairs and uneven ground are a problem. He needs to be careful with sunscreen to cover the two donor sites. The scarring I observed was unsightly, although I note this is not a case involving a claim for disfigurement.
21 The plaintiff claims he has been unable to resume his golf. He has tried on one occasion but was unable to complete the course. He has not attempted to play golf with the assistance of a golf buggy. He has been unable to return to skiing. He is unable to undertake any employment or recreational activities involving strenuous use of the left or right leg. He is able to walk, although not long distances. He finds running beyond him.
22 He is able to maintain his current employment although on longer journeys he stops from time to time to move his right knee about and raise his left foot to take the pressure off the sole. He is not planning to undergo the arthroscopic surgery to the right knee, as suggested by Mr McLean, but this remains an option, depending on the pain in the knee. He uses normal shoes without any orthotic implants, but changes shoes regularly, and needs to wear shoes which have a wide area around the toe.
23 He has recently been diagnosed as diabetic and believes there may be some problems with ulceration to his legs in the future. There is, however, no medical evidence to this effect.
24 He believes the pain in his left toe is becoming worse, although the right knee is stable.
25 The plaintiff is receiving no current medical treatment for the left foot nor right knee. He takes anti-inflammatory medication once a year or so for the right knee. He massages the scarring area of the left foot with moisturising cream.
Medical Evidence
26 Mr Farrow, plastic and reconstructive surgeon, provided a report of 20 July 2006.[2] He described the operative procedures undertaken and his treatment of the plaintiff initially, and then again in June 2003. He noted, upon review in August 2003, that the pain in the area of the neuroma had improved. He considered that the problems with the great toe would limit the plaintiff only to a minor degree in normal walking.
[2] PCB 28-29
27 The plaintiff has been treated from time to time by his general practitioner, Dr Connors.[3] The plaintiff consulted Dr Connors from time to time when he had exacerbations in his left toe and right knee in 2003 and 2004. In his report of July 2006, he thought the condition in the plaintiff’s left foot “is as good as it is going to be”. He thought the plaintiff would require the arthroscopic surgery at some time in the future.
[3] PCB 39-40
28 The treating knee surgeon, Mr McLean, provided a report of 24 July 2006.[4] Upon examination in February 2005, he noted definite wasting of the left calf. There was moderate effusion of the right knee with crepitus and clicking to that area. He accepted that because of the left foot problems, the plaintiff had needed to load the right knee, and that was the source of his pain in that area. The plaintiff told him he had difficulty getting up and down or with sudden twisting movements of the right knee. He diagnosed a medial meniscal and chondral and patella chondral pathology to the right knee. He concluded with the advice to the plaintiff that if the knee worried him sufficiently, then an arthroscopy would be appropriate.
[4] PCB 42-43
29 The plaintiff was examined on behalf of his solicitors by Mr Fogarty, orthopaedic surgeon, in January 2009.[5] He obtained a history from the plaintiff that if he sat for long periods of time, his right knee became sore. He had constant pain in the left foot with numbness in the sole under the left big toe. There was a decreased range of motion of the toe. The plaintiff said he had no trouble driving except if he sat for long periods. The plaintiff was then taking no medication. Mr Fogarty noted 2.5 centimetres of wasting in the left calf as compared to the right. The plaintiff was able to walk without a limp or other aid. He noted the evidence of the small radial tear in the medial meniscus of the right knee upon the MRI scan. He considered that the plaintiff had some limitation for heavy manual work as a result of the right knee and left toe injury and that his incapacity in that regard was permanent. He thought that the right knee condition would remain stable with the prospect of arthroscopic surgery to remove the torn meniscus.
[5] PCB 46-49
30 The plaintiff was examined by Dr Amanda Sillcock, occupational physician, in June 2009.[6] She obtained a history that the left foot became painful if the plaintiff stood for more than 20 minutes. He was able to sit without trouble. Walking caused increased pain after two kilometres or so. The plaintiff managed housework, although he had a house cleaner up until December 2008. He was able to mow the lawn but had difficulty climbing ladders and could no longer play golf. She noted there were no restrictions with the plaintiff being able to work full-time hours in his current employment. She thought the condition in the left toe was unlikely to change in the foreseeable future.
[6] PCB 50-55
31 The plaintiff was examined at the request of the defendants by Mr Brendan Dooley, orthopaedic surgeon, in June 2007.[7] Having examined the plaintiff, Mr Dooley diagnosed a full thickness skin loss and soft tissue injury to the plantar aspect of the left great toe. He thought the prognosis was excellent and the plaintiff would have only minimal problems from the area. He considered the symptoms to the plaintiff’s right knee as minor and relating to a pre-existing degenerative change in the right knee joint. He thought that the plaintiff had made a good recovery from the crush injury to the left foot, and the right knee problem was unrelated to the incident.
[7] Defendants’ Court Book (“DCB”) 3-6
32 The plaintiff was examined by Mr Buntine, plastic and reconstructive surgeon, in September and December 2006.[8] He obtained a history not dissimilar to the various other practitioners. He noted the scarring, desensitised area and flattening around the great toe. Sweat gland function and hair growth to the left foot were normal. He said there was neither total loss nor loss of use of the left foot as a result of the injury.
[8] DCB 7-13
33 The plaintiff was examined by Mr John Hart, orthopaedic surgeon, in October and November 2006.[9] His examination in terms of the calf wasting, pain to the left toe area and grafted donor site and desensitised area were similar to the other practitioners, although he recorded only one centimetre of wasting of the left calf. He accepted the relationship between the left toe injury and the onset of problems in the right knee. He noted the plaintiff was able to walk normally although he avoided running. The plaintiff complained to him of problems with his lower lumbar spine, but these were of short duration, and unrelated to the incident.
[9] DCB 15-27
34 Mr Deacon, orthopaedic surgeon, examined the plaintiff in December 2005.[10] The report is extensive and provides a comprehensive history of the incident, the surgery thereafter and the problems with the toe and right knee over the years to 2005. The plaintiff complained to Mr Deacon of loss of flexibility in the right knee and pain upon twisting or turning. There was complaint of pain to the skin graft area on the underside of the left foot. He thought it was reasonable to link the right knee problems as a result of overload, because of the left foot injury. The problems in the right knee, he said, were degenerative. At the time the plaintiff was working as an office manager on full-time duties, and Mr Deacon considered he was capable of maintaining that employment. He thought it was reasonable for the plaintiff to have the arthroscopic surgery to the right knee and thought there would be a reasonable outcome. The surgery would involve trimming the degenerate medial meniscus with chondroplasty of the medial femoral condyle.
[10] DCB 28-37
35 Finally, the plaintiff was examined on behalf of the defendant by Mr Ian Jones, orthopaedic surgeon, in May 2009.[11] Again, in an extensive report, Mr Jones provided an accurate history. The current complaints of the plaintiff were hypersensitivity on the instep of the left foot where the skin graft was harvested. If that area was touched or knocked, then pain was produced. In addition, Mr Jones received a history of intermittent pain on the top of the left toe which lasted for about ten minutes. The plaintiff complained of his right knee “locking up” if he sat and drove for three hours. Occasionally the knee swelled and was painful. He reported a sitting capacity limit of 45 minutes. The plaintiff estimated he could run for short distances. Mr Jones noted he was having no treatment save for some intermittent physiotherapy. Upon examination, there was no swelling of the right knee. He noted the “slight” wasting of the left calf. There was a full range of movement in the left ankle but he noted the left great toe was wasted and there was a lack of full extension in the joint. Mr Jones concluded as follows[12]:
“This patient presents with left forefoot symptoms in the form of principally pain in the donor site area where a graft was taken from his instep to apply to the pulps and tip of his great toe. These symptoms of dyaesthesia probably reflect a neuroma in the scar. With regard to the injured area itself, Mr Larkins has a slightly restricted range of great toe movement compared with the right asymptomatic great toe. He has lost bulk from the pulp of the great toe and he appears to lack full active extension of the terminal joint of that toe. He has some paresthesia of the toe itself with numbness in the toe. Secondary to his malfunctioning left great toe Mr Larkins has developed some callosities under the first and second metatarsal heads. In the right knee, Mr Larkins suffers principally from some patellofemoral arthritis with a similar but less pronounced degree of the same condition involving his left knee. In addition, he has some radiographic evidence but no clinical evidence of a meniscal tear.”
[11] DCB 38-43
[12] DCB 42
Conclusions as to the Medical Evidence
36 Aside from the opinion of Mr Dooley, the medical opinions are essentially uniform. The plaintiff suffered a significant crushing injury to his left great toe which required reconstruction with the assistance of grafting of skin from the instep of the foot. While the surgery appears to have been reasonably successful, the plaintiff has been left with pain in the great toe, and from the donor skin site. There is clear wasting to the left calf and he is restricted in strenuous activities involving the left foot. In addition, the plaintiff has developed pain, locking and occasional swelling in the right knee which I accept, despite the opinion of Mr Dooley, as related to the incident, in the sense that the plaintiff has in some manner altered his gait which put more stress upon the right knee.
37 The plaintiff has, in the past, had extensive treatment, but is now undergoing no active treatment, and only rarely takes medication.
38 There is the prospect of arthroscopic surgery to the right knee, although according to the opinion of Mr McLean, the pain in the area is not sufficient at the present time to prompt the plaintiff to undergo that surgery.
39 The various medical opinions confirm the restriction that the plaintiff claims in the activities referred to in his affidavit, and in evidence.
Credibility of the Plaintiff
40 I found the plaintiff a credible and reliable witness. He was honest and frank in his responses to questions in cross-examination, and made appropriate concessions where necessary. In submissions, Mr Tebbutt did not seek to impeach the plaintiff’s credit.
41 Surveillance film of the plaintiff taken in November 2008, and May and June 2009, was shown. The film appeared to be taken at the plaintiff’s employment premises. He was seen to walk around the premises, get in and out of motor vehicles, fix by means of nylon tie-down ropes, a large bucket to a tandem trailer, and drive the trailer away. Generally he was able to walk and move about the premises in a reasonably uninhibited manner. I could detect neither limp nor favouring of the left nor right legs.
42 Mr Tebbutt freely admitted that the purpose of the surveillance film was not to impeach the plaintiff’s credit, but rather to provide an indication of the freedom of movement the plaintiff was able to exhibit in the course of a normal day. On one occasion, I noted the plaintiff was able to walk from a pavement down onto a gutter area leading with his left leg.
43 While I could not detect any limp nor favouring of either leg, I accept that the alteration to the plaintiff’s gait may well be subtle and difficult to discern on surveillance film. Even a slight favouring of the left leg could lead to additional pressure on the right knee. There are clear objective signs of the effect of the injury on the left leg including particularly the calf muscle wasting which was obvious when I observed the plaintiff’s left leg.
Submissions on behalf of the Defendants
44 Mr Tebbutt’s principal submission was when the consequences caused as a result of the injury to the left toe when considered amongst the range of injuries to the left lower limb, did not achieve the “very considerable” level.
45 He submitted that the plaintiff was able to engage in full-time employment, travelling approximately 70,000 kilometres per year, able to get in and out of vehicles without undue distress and, in the course of such employment, spent a fair amount of time on his feet.
46 Further, the plaintiff was receiving neither active treatment, nor any medication aside from some self-massage and the occasional anti- inflammatory tablets.
47 He did not dispute that the plaintiff had the pain, but a measure of the modesty of the pain from the left toe and right knee was that he took no pain- killing medication, nor, in relation to the right knee, was the pain sufficient to warrant the arthroscopic procedure. The plaintiff wore no orthotics nor other inserts for his left foot. While there was occasional swelling to the right knee, the medical evidence indicated the problem was more one of ache and discomfort to that area.
48 The plaintiff confirmed that since he had been working in his current employment, he had no time off as a result of his injuries. Further, he was the sole parent to his children, and undertook the bulk of the domestic duties in his household. He did much of the cooking, cleaning, washing, ironing and the like, although his children assisted.
49 In accordance with authority, Mr Tebbutt submitted that the Act set the bar to a high level, in terms of the consequences, and the plaintiff had failed to achieve that level.
Submissions on behalf of the Plaintiff
50 Mr Mighell submitted that there was clear evidence that the plaintiff suffered chronic pain in the left foot, and had done so now for nine years. The pain was not only in the area of the toe, but to the scar on the top of the foot, and the donor site on the instep. There was clear objective evidence of the pain given the wasting in the calf area. That reflected the fact that the plaintiff was unable to use his left leg in a normal manner.
51 Mr Mighell reflected that the plaintiff was only forty-six years of age, and faced the realistic prospect of arthroscopic surgery to a degenerative right knee. It was the unusual combination, said Mr Mighell, of the problems in his left foot, and the right knee, that lead to the overall consequences reaching the “very considerable” level.
Conclusion
52 I have not found this application straightforward to determine. On the one hand, the plaintiff is able to engage in full-time work which requires a considerable amount of driving. He has made a good recovery from surgery to the left toe, and in fact returned to work after some ten weeks. He currently receives neither treatment nor medication for either the left foot or the right leg.
53 The video surveillance film indicates the plaintiff appears to walk in a free and unrestricted manner, although I accept there are subtleties of his gait which have led to the right knee problems.
54 On the other hand, there is merit in the submission of Mr Mighell that the plaintiff has constant aching pain in the left foot from the various sites. He would not be able to manage any employment which required physical use of his lower limbs. He has been unable to return to golf, which he enjoyed and played regularly before the incident, and faces the prospect of surgery, particularly to the right knee. There are some restrictions in the manner in which he can walk and run and he needs to be careful on uneven surfaces, climbing ladders and the like. There are some restrictions in the activities that he is able to engage in with his children.
55 When I come to weigh up the competing arguments, I am of the view that the consequences flowing from the injury of July 2000 to his left foot and the related right knee condition, do achieve the “very considerable” level when a comparison is made with other cases in the ranges of injuries to the lower limbs. I accept the plaintiff is a truthful historian and accept his complaints of pain. He is a relatively young man and there is no medical evidence to indicate there is any relief in sight through surgical or other treatment.
56 While he has remained reasonably active, particularly in relation to his employment, there is a range of activities, in particular his enjoyment of golf and snow skiing, in which he is restricted. When I consider these matters, I am of the view that the consequences to the plaintiff do reach the “very considerable” level as the legislation requires.
57 I will make consequent orders granting leave to the plaintiff to institute proceedings at common law.
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