Lucas v Victorian WorkCover Authority
[2019] VCC 1331
•3 September 2019
| IN THE COUNTY COURT OF VICTORIA AT Melbourne | Revised Not Restricted Suitable for Publication |
| serious injury List |
Case No. CI-18-05644
| IVAN LUCAS | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE PILLAY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 August 2019 | |
DATE OF JUDGMENT: | 3 September 2019 | |
CASE MAY BE CITED AS: | Lucas v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1331 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the right upper arm – pain and suffering – scarring – disfigurement - whether consequences are “very considerable”
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013 (Vic); Transport Accident Act 1986 (Vic); Accident Compensation Act 1985 (Vic)
Cases Cited:Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181; Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Ingram v Ingram [1996] 2 VR 435; Baker v Transport Accident Commission [1997] 1 VR 662; Transport Accident Commission v Garcia [2015] VSCA 225; Richards & Anor v Wylie (2000) 1 VR 79; Mutual Cleaning and Maintenance Pty Ltd v Stamboulakis [2007] VSCA 46; Transport Accident Commission & O’Dea v Dennis [1998] 1 VR 702; Sabo v George Weston Foods [2009] VSCA 242; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592
Judgment: Application granted pursuant to s325(1)(a) definition of “serious injury”. Application pursuant to subparagraph (b) dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M Fogarty | Arnold Dallas McPherson |
| For the Defendant | Mr E Makowski | Lander & Rogers |
HIS HONOUR:
1 The plaintiff, Mr Lucas, suffered an injury to his right upper arm, as a consequence of a work lifting incident on 31 July 2015. Mr Lucas brings a claim pursuant to s325 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (“the WIRC Act”) claiming that he has suffered:
(a) injury to the right arm, being a permanent serious impairment or loss of a body function; and
(b) a permanent serious disfigurement of the right arm.
2 Mr Lucas’ application seeks leave to bring proceedings for damages in relation to pain and suffering only.
3 The particulars of injury filed by Mr Lucas on 1 February 2019 identify the relevant injury to the right arm in the following terms:
(a) injury and impairment to the right arm;
(b) rupture of the right distal bicep tendon;
(c) pins and needles and numbness in the distribution of the lateral cutaneous nerve of the right forearm;
(d) secondary right trapezial pain;
(e) pain and suffering.
4 The defendant in this case concedes that the injury to the right arm and the subsequent disfigurement occurred in compensable circumstances and are permanent. At the hearing of this matter, Mr Fogarty, Counsel for the Plaintiff, conceded that the surgical scarring associated with the right arm injury was not of itself claimed to be a component of the claim for serious disfigurement.[1]
[1]Transcript (“T”) 88, L6-9
5 It therefore falls to me to decide two matters:
(a) Whether the physical injury to the Mr Lucas’ right arm can be said to result in pain and suffering consequences when judged by comparison with other cases which may be fairly described as more than significant or marked and as being at least very considerable;
(b) Whether the disfigurement caused by Mr Lucas’ right arm injury, being the rupture of the bicep tendon, when judged by comparison with other cases may be fairly described as more than significant or marked and as being at least very considerable.
Relevant background history
6 Mr Lucas was born in England in August 1962. He moved with his family to Australia in about 1970. He left school partway through Year 10 and commenced work at that time. In summary, he has a history of performing manual work since that time.
7 In March 2008, Mr Lucas commenced employment with the employer Speedpanel (Vic) Pty Ltd. Speedpanel (Vic) Pty Ltd manufactures concrete panels.
8 Mr Lucas has a relatively complex medical history. That history is relevant to the consequences of the claimed injuries upon his occupational, social and domestic life consequent to the subject injury on 31 July 2015. For that reason I have set it out in some detail.
9 In 1985, Mr Lucas was involved in a motor vehicle accident. He fractured bones in both arms and legs as a result of that accident. He had operations in respect of those fractures and in particular, developed a right leg length discrepancy that led to him having soreness in his back. This was corrected by further surgery.
10 Mr Lucas also broke the scaphoid bone in his right wrist in that accident and required a bone graft. That left him with restricted movement of his right wrist but he deposes, in his affidavit of 23 August 2018, that this did not prevent him from performing physical and heavy work. He was asked about this in cross-examination but affirmed his position as set out in his affidavit.[2]
[2]Plaintiff’s Amended Court Book (“PCB”) 2-3
11 In the first half of 2015, the medical notes of the Boronia Medical Centre show that Mr Lucas had right knee problems, which were diagnosed as a meniscal tear and osteoarthritis.[3] He was referred to the Maroondah Hospital orthopaedics unit.
[3]Exhibit D8 - Boronia Medical Centre notes from 4 March 2015 until 10 May 2017
12 As noted above, Mr Lucas then suffered the claimed injury to his right bicep and arm on 31 July 2015. After sustaining the injury, he attended upon his treating doctor, Dr Bronwen Trivett, at the Heathmont General Practice. She immediately made arrangements for him to undergo an ultrasound of the right arm. That was completed on the same date by MIA. It was reported in the following terms:
“Examination confirms rupture of the distal insertion of the biceps muscle, the region generally heterogeneous and haemorrhagic, retracted tendon present in the low to mid third humeral area approximately 62 mm from the insertion.
The short head insertion of biceps shows loss of tension with bunching in the mid humerus area. Long head of biceps proximally is intact.”[4]
[4]PCB 51
13 Mr Lucas was then referred by his treating doctor to see Mr Christopher Pullen, orthopaedic surgeon, who he saw on 12 August 2015. He noted that Mr Lucas now had pain with movement and an obvious deformity in the right arm. He confirmed that Mr Lucas was off work and was taking Panadeine “extra” for both his knee and elbow problems at that time.[5] Of note Mr Pullen recorded that clinically, the biceps tendon had retracted significantly superiorly. He recorded that there were risks with operative intervention but it appeared that Mr Lucas was keen to have surgery and it was planned once he had completed his WorkCover claim.
[5]PCB 21. I have assumed that by “extra” it is meant Panadeine Forte
14 Mr Lucas then came to surgery on 1 September 2015, performed by Mr Pullen. At operation, he confirmed that there had been a complete avulsion of the distal biceps tendon. Significantly, he noted that the repair was under considerable tension.[6]
[6]PCB 22
15 In his post-operative report of 3 September 2015, Mr Pullen noted that there was a planned graded return to work over 24 weeks and by that stage, a return to pre-injury duties.[7]
[7]PCB 53
16 Mr Pullen referred Mr Lucas to occupational therapy with Ms Shortill, hand therapist. She provided a letter dated 16 September 2015 to Mr Pullen dated for that day. It appears that she saw Mr Lucas on only that occasion for post-operative review and fitting of a brace.
17 Mr Lucas then came under the guidance of WorkAble, a return to work occupational rehabilitation service, on around 23 September 2015. They noted that he was to remain off work completely until at least four weeks post-surgery.
18 Mr Lucas gave evidence that he returned to work approximately six to eight weeks after the surgery, and he recalled getting back to full-time hours, he thought, in late 2015. He recalled getting back to normal work activities some months after the incident but he said he could not do much heavy lifting and said that when he did it hurt, and he just put up with the pain.[8]
[8]T15, L8-25; T17, L19-22
19 There is some debate as to whether the duties he was doing prior to the date of injury involved any heavy lifting. I will return to this issue later in this judgment.
20 The WorkAble document was referred to by Counsel for the defendant, who noted that by October 2015, Mr Lucas had returned to work and by 28 January 2016, he was back to his normal pre-injury duties.[9] I interpolate here that the WorkAble documents record that Mr Lucas’ pre-injury duties were to operate various machines such as the roll former, operate forklifts, load panels of 3 kilograms which maybe “large/awkward in size”, maintenance and set-up of machinery, machine repairs using hand tools and supervision duties.[10]
[9]Defendant’s Court Book (“DCB”) 24
[10]DCB 16
21 On 19 May 2016, Mr Lucas had a total right knee replacement. He gave evidence that after five to six weeks he returned to work[11] doing modified duties but then returned to full-time duties.
[11]T56, L23-28
22 It appears Mr Lucas then worked from approximately July 2016 until September 2016. He was then imprisoned until December 2016. During his time in prison, he worked spraying weeds, which he said was because of increasing problems with a hernia.[12] This is consistent with information he passed to his treating doctor on 11 November 2016 and recorded in the Boronia Medical Centre notes.[13]
[12]T35, L10-11
[13]See exhibit D8 - Boronia Medical Centre notes from 4 March 2015 until 10 May 2017
23 Mr Lucas had a bilateral hernia repair performed by Mr Ernest Lim, general surgeon, on 2 December 2017.[14] Mr Lucas returned to work with lifting restrictions imposed by Mr Lim on account of his hernia. Mr Lucas was cleared by Mr Lim to resume his normal duties on 12 February 2018.[15]
[14]See exhibit D7 - reports of Dr Lim dated 9 October 2017, 12 December 2017 and 12 February 2018
[15]See exhibit D7 - reports of Dr Lim dated 9 October 2017, 12 December 2017 and 12 February 2018
24 Since that time, Mr Lucas has worked for Speedpanel (Vic) Pty Ltd on a full-time basis. Mr Lucas gave evidence that he continues to work with lifting restrictions in place on account of his right arm injury.[16] There were no contemporaneous documents tendered to support this assertion.
[16]T22, L24-25
Other medical opinions
25 Mr Lucas relies on two medico-legal reports of Mr Chehata, orthopaedic upper limb surgeon, dated 2 August 2018 and 21 August 2018. Save for one error, they are in almost identical form. Those reports opine that Mr Lucas has suffered from a re-rupture of the right distal bicep with severe proximal migration of the bicep muscle high in the mid-arm.[17] He took a history from Mr Lucas that he continues to experience, what Mr Chehata termed are, typical features of a distal biceps rupture “… fatigue pain, muscular cramping and loss of supination strength …”. Mr Chehata took a history that Mr Lucas remained on light duties with a lifting capacity restriction of only 1 to 2 kilograms related to his right arm injury.
[17]PCB 24
26 Mr Lucas also relies on a medico-legal report of Dr Sillcock, an occupational physician, who has provided a report dated 3 May 2019.[18] In her physical examination findings, she noted:
“His right biceps muscle was retracted and had the characteristic bulge of this injury. He was a little tender over the biceps region. He had reduced strength in his arm. His right shoulder had a tender spot anteriorly. He had a full range of movement apart from reduced internal rotation. His right elbow was not tender and had a normal range of movement including supination and pronation.”[19]
[18]PCB 37-47
[19]PCB 44
27 The defendant did not tender any medico-legal opinion.
28 On the basis of all the evidence in the case, I am satisfied that Mr Lucas has suffered an avulsion of the right biceps tendon which has been surgically repaired but which repair has failed, resulting in a re-rupture of the biceps tendon as opined by Mr Chehata. I find that Mr Lucas has resultant pain in the right arm, with pins and needles in the forearm. I find that he has some restriction of range of motion of the right arm and a loss of strength in keeping with Mr Chehata’s opinion. To the extent that it varies from the opinion of Dr Sillcock, I prefer the opinion of Mr Chehata, given his speciality as an orthopaedic surgeon.
29 I am also satisfied that as result of that injury sustained on 31 July 2015, Mr Lucas suffers with a “bunching” of the biceps tendon when his arm is bent up and the tendon retracts. I find this constitutes a disfigurement of the right upper arm.
30 After reviewing the medical material of the treating practitioners, the medico-legal practitioners and considering Mr Lucas’ evidence, both in affidavit form and that given in Court, I consider that the claimed physical injuries referrable to part (a) of the serious injury definition have the following consequences:
Pain
31 Mr Lucas deposes that he has pain every day which varies in intensity.[20] In his further affidavit, he deposed that his pain had worsened in the last year.[21] In re-examination, he confirmed that evidence, saying that on good days it is 4 to 5 out of 10 and then increases to 7 out of 10.[22]He stated that he gets this more intense pain three to five times per week. He gave evidence, and I accept, that the pain that he has causes him to feel fatigued and he retires to bed early. I also find that the pain that he has is often significant enough to wake him at night. This disrupts his sleep.[23]
[20]PCB 6 at paragraphs 30-34
[21]PCB 11 at paragraph 3
[22]T59, L6-22
[23]T59, L23-28
Medication
32 While Mr Lucas does not take medication for the pain, he stated that he did not like medication given the effect on his liver and kidneys. It was put to him that this was inconsistent with the fact that he drank alcohol which had deleterious effects on the body. Mr Lucas, in cross-examination, stated that he had in the past taken medication and did not want to become, in his words, a “pharmaceutical junkie” again.[24] He had developed other ways to deal with the pain such as relaxing, keeping busy or meditation. He also made the point that while he did drink, it was limited to weekends and was of a modest nature.[25] I accept his evidence on this point and find that while he does have pain every day, that it varies in intensity and he has for his own reasons found ways other than medication to cope.
[24]T46, L26-27
[25]T47, L3-7
Impact on work
33 The defendant cross-examined Mr Lucas to the effect that by the end of 2014 his work duties were not of a particularly heavy nature, that they did not involve heavy lifting and therefore his right arm injury had little to no effect on his ability to work normally. Mr Lucas conceded the point that by late 2014 his work was primarily forklift driving but not that his right arm injury had little effect on his work.
34 It was obvious during the course of this cross-examination that Mr Lucas was struggling with dates and times. I consider that he was doing his best to follow counsel’s questioning and attempting to answer honestly. I consider he simply did not have a fine grasp on the details of his changes in duties over the years and the many times off work for his right arm injury, the right knee operation, his imprisonment and then his hernia surgery.
35 What did become clear was that at the end of 2014, Mr Lucas was working in a role which was primarily related to forklift driving. The WorkAble document[26] provides a good contemporaneous record of his pre-injury work duties and I accept, on balance, that this was probably the state of Mr Lucas’ work capabilities pre-injury.
[26]DCB 11-15
36 Despite his many absences from work for various reasons, Mr Lucas is in a very similar role now and performs it on a full-time basis. The evidence is that he also has in place a lifting restriction relating to his right arm function. He gave evidence that after his arm injury, the lifting restriction came into place.[27] He gave evidence that his employer asked him in 2018 to perform work on a saw for eight hours and as this was not consistent with his restrictions, he refused to perform that task.[28] He gave evidence that this resulted in a warning from his employer. While the defendant disputed this, the nature and format of these applications makes it difficult to determine that specific issue and I find that Mr Lucas worked on after his injury with a lifting restriction of 1 to 2 kilograms in place. This suggests a significant loss of strength in the dominant right arm. Of itself this is a serious deficit.
[27]T31, L11
[28]T29, L13-16 and T31 L2-20
37 Mr Lucas deposes to the fact that while he performs his role as a forklift driver, he has difficulties with various machines at the workplace. For example in his first affidavit sworn 23 August 2018, he deposes that a counterweight forklift is difficult to drive because it involves repetitive reaching. He also has difficulty pulling himself into the forklift with his right arm.[29] This is consistent with the report of Mr Chehata, who notes that with such a distal biceps injury, a patient is expected to lose a considerable amount of strength, “not only in the ability to carry, but also supination strength, associated with significant retraction and muscle cramping”.[30] I note also that, pre-injury, one of his tasks was machine repair which involved the use of hand tools. Mr Lucas deposes that the use of hand tools is now difficult. I accept that this imposes a difficulty for him at work.
[29]PCB 12
[30]PCB 29
38 The defendant points to the fact that Mr Lucas has returned to his full-time normal work duties as a considerable factor in assessing whether the consequences of his right arm injury are significant or marked. The defendant referred me to Stijepic v One Force Group Aust Pty Ltd & Anor[31] which relied in turn on the decision on the judgment of Chernov JA in Sumbul v Melbourne All Toya Wreckers Pty Ltd[32] to the effect that a return to work is important in the context of whether Mr Lucas has suffered significant or marked consequences of his injury.
[31][2009] VSCA 181 at paragraph [45]
[32][2006] VSCA 292 at paragraph [24]
39 Both Counsel also made reference to the Court of Appeal decision in Haden Engineering Pty Ltd v McKinnon.[33] There, the Court of Appeal noted that a return to full-time employment did not preclude a positive finding that the worker had sustained a serious injury.[34]
[33](2010) 31 VR 1
[34](ibid) at paragraph [15]
40 I have assessed Mr Lucas’ claim in this context. I find that prior to his injury, he worked predominantly in a role driving forklifts, but also with some manual tasks such as lifting of panels and machine repair using hand tools. After the right arm injury, he returned to work with a lifting restriction and worked predominantly in the same type of employment. I find that his arm injury caused him difficulty with driving the counterweight forklift and using hand tools but that he was not otherwise restricted at work by reason of his right arm injury. While he worked under a lifting restriction, given his role as a forklift driver he was not required to perform many, if any, lifting tasks. I do note that the lifting restriction was 1 to 2 kilograms and that the WorkAble document identified his pre-injury job tasks as lifting awkward, large panels of 3 kilograms in weight. This task was also impacted by the work restriction imposed as a result of the right arm injury.
Effect on domestic tasks
41 Mr Lucas deposed in his affidavits to a range of domestic tasks that he had difficulty with. These included gardening, household maintenance, painting and hanging out the washing. I note that Mr Lucas’ accepted injury is to his right dominant arm. The types of complaints that he makes are consistent with the range of effects that Mr Chehata has opined could be expected from an avulsed biceps tendon. It is also broadly consistent with the history given to Dr Sillcock in her report of 3 May 2019.[35]
[35]PCB 40
Surveillance film
42 Surveillance film was shown to Mr Lucas.[36] Prior to the film being shown to Mr Lucas, he was asked in cross-examination to confirm parts of his affidavit. In short he confirmed that he had difficulty putting his right arm behind his back, trouble putting on jackets and tops and doing things such as washing his hair. Mr Lucas’ evidence was to the effect that he could do all those things but “… Um, I find it just a bit harder to do everything, um, but I just do it”.[37]
[36]Exhibit D2 - surveillance video of 5 May 2019
[37]T41, L24-25
43 Film was then shown. It was put to Mr Lucas that his evidence was incorrect and the film showed him as being unrestricted in his activities. Mr Lucas disagreed, and reaffirmed his evidence that he performed most tasks but with difficulty. His evidence was “Like I said I do - I do shop and I do this and I pick up bags. I do everything. It just hurts. You just get on with life. That’s all I can say I do.”[38]
[38]T44, L8-11
44 In his closing, Counsel for the defendant conceded, properly in my view, that a direct attack on Mr Lucas’ credit had failed. Instead, he contended the film bolstered his case that Mr Lucas was exaggerating the effect of the right arm injury upon his life.
45 Having viewed the film and observed Mr Lucas give evidence, I find that he was a truthful and credible witness. The film did not contradict his assertions as to the effect the right arm injury has on his function. For example he readily conceded that he filled air into the tyres on the car on many occasions (not just that time shown on the film) even though it hurt. He did not seek to paint a picture that the tasks he was engaged in on that day were unusual, simply that they were tasks which were difficult.
46 I am fortified in this view because my impression of Mr Lucas is that he is a stoical man. He has had numerous injuries and has returned to work after each one working in manual jobs. This evidences a strong ethic to simply get on with things. The fact that he is willing to persevere should not be held against him.[39] Mr Lucas’ former wife has also provided an affidavit which supports his evidence as to the effect the right arm injury has had on his ability to perform the household tasks and home maintenance tasks. This assists in fortifying my view.
[39]See Haden Engineering Pty Ltd v McKinnon (supra) at paragraph [13]
Effect on recreational pursuits
47 Mr Lucas gave evidence that he had been effected in his ability to enjoy golf the way he used to by his right arm injury. He conceded in cross-examination that in the six months prior to his injury, that he had not played a game of golf but that his golfing was restricted to going to the driving range with his son to hit a bucket of balls one to two times per week. Counsel for the defendant put to him that this was an exaggeration, as he was suffering from right knee problems at that time. Mr Lucas, however, maintained his position. I accept Mr Lucas’ evidence and find that this golfing pursuit has been denied him by the effect of his right arm injury. I similarly find that he has been deprived of the social opportunity that came with being able to go to the driving range with his son. I do not find that Mr Lucas’ fishing opportunities have been restricted as he alleged, as under cross-examination, he admitted that he had given this up well prior to the subject incident. Having accepted Mr Lucas as a credible witness, I find that his dog walking has been effected by his right arm injury.[40]
[40]T54, L17-18
Effects on the activities of daily living
48 Mr Lucas alleges that his dressing, toileting and washing of his hair are impacted by his right arm injury. In particular, he gave evidence that he had to toilet himself using his left arm, even though he is right arm dominant. His evidence on this point is that while he was effected by his right arm injury in these tasks, he found ways to perform them so that he could get on with his life. I accept his evidence on this point.
49 When considered overall, I find that Mr Lucas’ pain and suffering consequences arising from his right arm injury are at least very considerable for the following reasons in summation:
(a) He has pain every day which varies and often increases during the day to a level which he described as 7 out of 10, with 10 being at the more severe end;
(b) He has pain at night which effects his sleep;
(c) He does not take pain medication (and has not for any of his other injuries) but finds other ways to deal with his pain;[41]
[41]Save for short periods of time following hernia surgery and total knee replacement surgery. (See exhibit D7 – entry dated 6 December 2017 and exhibit D8 – entry dated 2 May 2016)
(d) He is impacted in his ability to complete domestic tasks and maintenance duties around the home including painting, gardening, washing, vacuuming and hanging clothing out;
(e) He has permanent work restrictions which limit his current work duties, and the pain from his arm causes him to be fatigued;
(f) He has pins and needles in his right forearm, and right shoulder pain;
(g) He is not able to pursue his gym-based activities;
(h) He can no longer play golf at the driving range with his son;
(i) He can no longer walk his former partner’s dogs as he used to;
(j) He is a stoical man who has at all times tried to get on with his work despite his pain and limitations.
50 Having made the comparison with like cases and having regard to the above factors I find that the Plaintiff has a serious injury. Accordingly, I grant Mr Lucas leave to bring proceedings to recover damages for pain and suffering in relation to his right arm injury suffered at work on 31 July 2015 pursuant to subparagraph (a).
Serious disfigurement
51 I turn now to consider Mr Lucas’ case under subparagraph (b) of the definition of “serious injury”.
52 I was referred to the case of Ingram v Ingram & Anor[42] by Counsel for the defendant. Counsel for the plaintiff, referred me to two cases arising under the Transport Accident Act 1986 (“the TAAct”) being Baker v Transport Accident Commission[43] and Transport Accident Commission v Garcia.[44]
[42][1996] 2 VR 435
[43][1997] 1 VR 662
[44][2015] VSCA 225
53 The relevant part of the judgment that defendant’s Counsel relies on from Ingram states:
“… There is much to be said for the view that the psychological dimension of an injury, or at least the part that can be described as mental or behavioural, was primarily to be considered by reference to s93(17)(c) and it would be an unusual case where it was appropriate to lead evidence of subjective response to disfigurement.”[45]
[45]Ingram (ibid) at 438
54 In Richards & Anor v Wylie,[46] the Court of Appeal accepted that the mental response to a physical impairment can be counted as a consequence of the loss of a body function. That was a case dealing with the TAAct and not the WIRCAct or the similar provisions in the Accident Compensation Act 1985 (Vic) (“the AC Act”) at s134AB. I note that there is a significant difference in the legislation between WIRC Act and AC Act cases and those brought under the TA Act. Relevantly, the definition contained in s325(2)(h) and (i) of the WIRC Act make clear that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purposes of paragraph 325(1) of the definition of “serious injury” part (c) and not otherwise. These subsections are not replicated in the TA Act.
[46](2000) 1 VR 79 at paragraph [17]
55 In Mutual Cleaning and Maintenance Pty Ltd v Stamboulakis,[47] Maxwell P made clear that Richards & Anor v Wylie[48] had no application to s134AB matters (or consequentially matters arising, as this one does, under the WIRC Act) as the TA Act and the AC Act contained different legislative provisions. As such, I prefer and rely on the reasoning in Ingram as set out above.
[47][2007] VSCA 46
[48]Supra
56 I am mindful of the fact that the WIRC Act has specific subsections which deal with the way that psychological or psychiatric consequences of a physical injury are to be dealt with when considering subparagraphs (a) and (b) of the definition of “serious injury”. They state:
“(h) the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purposes of paragraph (c) of the definition of serious injury and not otherwise;
(i) the physical consequences of a mental or behavioural disturbance or disorder are to be taken into account only for the purposes of paragraph (c) of the definition of serious injury and not otherwise.”
57 In my opinion, attention must be directed to the word “psychological” to determine whether or not a mental consequence (which is of a lesser order than a diagnosable psychiatric condition) needs to be taken into account in considering whether or not a disfigurement, or a physical impairment claim under ss(a), can consider that mental element. I can find no particular authority on this point. Turning to a dictionary definition of the term ‘psychological’ taken from the Concise Oxford Dictionary, 9th edition, it states:
“Psychological: of, relating to, or arising in the mind.”
58 That is a very broad definition and clearly encompasses the mental perception or feeling as to the appearance of the disfigurement, or for that matter its impact on a worker for the purposes of subparagraph (a) of the definition of “serious injury” contained in s325 of the WIRC Act. Adopting that reasoning, and the Court of Appeal’s comments in Ingram,[49] I find that the mental consequence of Mr Lucas’ perception of his disfigurement should not be counted in the assessment of whether or not he has a serious injury for the purposes of subparagraphs (a) and (b).
[49]Supra
59 Mr Lucas suffers from a re-rupture of the distal bicep. This results in a retraction and bunching of the bicep when the arm is flexed. As the bicep tendon is retracted and bunches it can be seen that a hollow forms between the elbow and the dislodged distal end of the bicep tendon. The skin in that area is loose, flabby and wrinkled. The bunched bicep tendon is prominent, forming what looks like a ball, and looks obviously out of place. All parties accept that the disfigurement is permanent. I have attached photographs tendered by Mr Lucas which depict the right upper arm disfigurement.
60 In considering whether Mr Lucas’ impairment is “at least very considerable,” weight must be given to the adverb “very”. As Callaway JA said in Transport Accident Commission & O’Dea v Dennis:[50]
“… many disturbances are considerable, in the sense that they are important or substantial, without being very considerable. … .”
[50][1998] 1 VR 702 at paragraph [13]
61 In determining the application, it has been observed that the question of whether or not any injury satisfies the narrative test is largely a question of impression and value judgement.[51] This is particularly so in disfigurement cases.[52]
[51]Sabo v George Weston Foods [2009] VSCA 242 at paragraph [67] and Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592 at paragraph [192]
[52]Transport Accident Commission v Garcia (supra) at paragraph [32]
62 Here, Mr Lucas complains that he is very conscious of the bunching of the bicep and it draws negative comments.[53]
[53]T26, L8-12
63 In considering whether the bunching of the biceps tendon itself, and without recourse to any mental element, discloses a serious disfigurement, I have been greatly assisted by a viewing of Mr Lucas’ right arm. It presents a perspective which is not apparent on the photographs which have been tendered. I have however the task of assessing this case against other cases which have been determined. To this extent, I have reviewed numerous decisions of this Court and of the Court of Appeal as to what constitutes serious disfigurement. Having performed that task, I find that Mr Lucas’ right arm injury does not satisfy the test of serious disfigurement. While it is it unusual, it does not, in my opinion, rise to the required level.
64 For the sake of completeness, even if I were to add the mental element discussed in Garcia,[54] I would still find that Mr Lucas’ disfigurement does not reach the requisite level to satisfy the test of being a “serious injury”.
[54]Supra
65 I will hear the parties on costs.
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