Manuel v Victorian WorkCover Authority
[2013] VCC 1264
•4 October 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-11-05944
| SELWYN JAMES MANUEL | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | First Defendant |
| and | |
| WESTMEATS PTY LTD | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE SMITH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 August 2013 | |
DATE OF JUDGMENT: | 4 October 2013 | |
CASE MAY BE CITED AS: | Manuel v Victorian WorkCover Authority & Anor | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1264 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – pain and suffering consequences of injury to the left arm – whether the consequences are “at least very considerable”
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Barwon Spinners Pty Ltd & Ors Podolak [2005] 14 VR 622; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1
Judgment: Leave granted to the plaintiff to bring a proceeding claiming pain and suffering damages in respect of injuries suffered by him in the course of his employment with the second defendant on or about 17 March 2008.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr E Makowski | Arnold Thomas & Becker |
| For the Defendants | Ms K Galpin | Hall & Wilcox |
HIS HONOUR:
1 Selwyn Manuel alleges that he suffered an injury to his left arm in the course of his employment with the second defendant, Westmeats Pty Ltd (“Westmeats”), in about September 2007. He seeks the leave of this Court to issue a proceeding to recover pain and suffering damages in respect of that injury.
2 His right to do so is governed by the provisions of s134AB of the Accident Compensation Act 1985 (“the Act”). In order to obtain such leave, the Court must be satisfied, on the balance of probabilities, that the injury suffered by him is a “serious injury”.[1]
[1]Section 134AB(19)(a) of the Act and Barwon Spinners & Ors Podolak (2005) 14 VR 622
3 The term “serious injury” is defined in s134AB(37) of the Act, insofar as is relevant to this application, as:
“(a) permanent serious impairment or loss of a body function.”
4 The body function relied upon in this application is that of Mr Manuel’s left upper limb.
5 The term “permanent” is to be interpreted as meaning “likely to persist in the foreseeable future”.[2]
[2]Barwon Spinners Pty Ltd & Ors Podolak (supra) at paragraphs [18] and [19]
6 The impairment or loss of a body function shall not be held to be serious for the purposes of this application unless the pain and suffering consequences are, when judged by comparison with other cases in the range of possible impairments or losses, fairly described as being “more than significant or marked and as being at least very considerable”.[3]
[3]Section 134AB(38)(b) and (c) of the Act
7 Mr Manuel submits that the pain and suffering consequences of his injuries can fairly be described as being “more than significant or marked and as being at least very considerable”. The defendants deny this is so.
Background
8 Mr Manuel is aged forty-three. On 7 March 2007, he commenced employment as a boner with Westmeats. His work as a boner involved the physical use of both of his hands and arms.
9 In the course of that employment, he suffered an injury to his left hand and elbow whilst boning.
10 Mr Manuel had suffered similar but milder symptoms in August 2006 whilst employed as a boner by an earlier employer, Tasman Meats in Brooklyn, as was disclosed by the clinical notes of his general practitioner, Dr McMahon. Notwithstanding his acceptance of those notes, Mr Manuel had little recall of those events and believed he was off work only for a short period at that time. He said his symptoms resolved quickly and completely. At the time he commenced work with Westmeats he was having no problem with his left arm. There is no evidence to the contrary, and I accept that that was the case.
11 Mr Manuel saw his general practitioner, Dr McMahon, in September 2007 complaining of a pain in his left wrist and loss of sensation in three fingers of the hand, consistent with carpal tunnel syndrome (“CTS”). He was referred to Mr Peter Mangos, general surgeon. In due course, nerve conduction tests were performed which showed severe left CTS.
12 On 24 January 2008, Mr Mangos performed a left carpal tunnel release. Mr Manuel initially reported improvement. Numbness and tingling of the hand had disappeared.
13 By April 2008, Mr Manuel had returned to work, working 4 hours per day boning and 4 hours per day general labouring. By May 2008, he was working 6 hours per day as a boner and his left hand symptoms had recurred, with numbness, tingling and weakness. He again went off work. He did not work for the defendant again.
14 In April 2010, Mr Manuel obtained employment with DHL Express at Tullamarine Airport on a full-time basis. Mr Manuel stated that his duties involved repeated heavy lifting. He had to pull and push loaded cargo onto planes. The heavy work caused pain in his left elbow, forearm, wrist and hand, particularly in the colder months.[4]
[4]Plaintiff’s Court Book (“PCB”) 20
15 Early in 2013, Mr Manuel was promoted to second in charge of his area with DHL. He performs a combination of supervisory work and still performs manual work, which includes the lifting and carrying of relatively heavy objects. He tries to use his left arm more as a support whilst conducting the lifting with his right arm.
16 Mr Manuel appears to have had no treatment since the surgery performed by Mr Mangos in January 2008. No doctor has suggested there is particular treatment that would assist.
17 Mr Manuel has not taken analgesic medication for some time.
Diagnosis of injury
18 Mr Manuel suffered CTS as a consequence of his employment with Westmeats in 2007.
19 Although there is some controversy concerning the association between CTS and occupational factors,[5] the defendants in this matter did not contest the causative link between the employment with Westmeats and the development of CTS.
[5]Mr Stapleton – Defendants’ Court Book (“DCB”) 21; Dr K Fraser – DCB 25
20 The defendants submitted that Mr Manuel’s current symptoms relate mainly to the ulnar aspect of his forearm, from the hand up to his elbow, and that I should not be satisfied that they relate to the work performed by him with it. It submitted that those symptoms were separate from the symptoms of CTS and are more likely to have been caused by his later heavy work at DHL. I do not consider that the evidence is so simple.
21 In October 2010, Mr Mangos noted that following Mr Manuel’s work at DHL, he complained of a return of symptoms in the left hand of weakness, numbness and tingling in the thumb, index and middle fingers. Mr Mangos further noted evidence of ulnar neuropathy in the nerve conduction studies performed in April 2012 and December 2012. At that time, Mr Mangos considered there had been an aggravation of left CTS and probable early right CTS.
22 In May 2013, Mr Mangos opined that:
(a) although there had been improvement in Mr Manuel’s symptoms of left CTS after the 2008 surgery, the EMG evidence showed that the injury had persisted until he obtained work with DHL;
(b) there had been a worsening of the median nerve neuropathy since he commenced with DHL. The majority of these symptoms were due to his work at Westmeats as compared with his work at DHL – 80/20;[6]
(c) the left ulnar neuropathy was connected with the original CTS injury.[7]
[6]PCB 34(d)
[7]PCB 34(d)
23 In December 2012, Dr Sedal, consultant neurologist, considered that:
(a) there had been an incomplete recovery of the medial nerve after decompression surgery. He did not consider there had been any recompression;[8]
[8]PCB 56(a)
(b) damage to the ulnar nerve was evident from the first EMG study performed in 2007. Dr Sedal considered that the ulnar nerve had been already damaged in Mr Manuel’s work for Westmeats and that nerve had been rendered symptomatic and aggravated during his recent DHL airport work.[9]
(c) Mr Manuel’s work with both Westmeats and DHL had contributed to his left ulnar nerve lesion.
[9]PCB 56(a)
24 On 12 April 2012, Mr Stapleton, surgeon, considered that there was, at that time, no signs of CTS. He made no mention of ulnar neuropathy. For reasons unknown, he had not been provided with the EMG report dated 5 April 2012.
25 In February 2013, Dr K Fraser, rheumatologist, considered that:
(a) Mr Manuel had no ongoing left CTS;
(b) he may have had a mild left ulnar neuropathy but he thought it was not clinically significant and not causing any functional incapacity[10]
(c) Mr Manuel’s ulnar neuropathy might have been triggered by heavy lifting with DHL but it was unlikely that his previous work as a boner with Westmeats was responsible.[11]
[10]DCB 26e
[11]DCB 26e
26 In June 2013, Professor Davis, consultant neurosurgeon, considered:
(a) there were still some ongoing problems associated with the CTS which was not surprising given the degree of median nerve compression and presumed overuse syndrome involving the left forearm.[12] He thought there may be a minor degree of residual symptomatic median nerve dysfunction, reflecting residual scarring in the nerve;
(b) the major neurological symptoms related to the ulnar nerve. He thought that Mr Manuel might require ulnar decompression but agreed with Dr Sedal that the results of ulnar decompression were less predictable than carpal tunnel decompression.[13]
[12]DCB 26k
[13]DCB 26k
27 Professor Davis did not comment as to the causal connection between the ulnar damage and work with Westmeats.
28 In March 2012, Mr Schofield, orthopaedic surgeon, took no history of symptoms of ulnar neuropathy. He did take a history of continuing symptoms which he thought were evidence of recurrent CTS probably due to scarring and thickening of that scar irritating and mildly compressing the median nerve.
29 In summary, of those doctors who diagnosed ulnar neuropathy, Mr Mangos and Dr Sedal are of the view that the condition is related to Mr Manuel’s employment with Westmeats. Mr Stapleton and Dr Fraser believe it is not related. Professor Davis, although acknowledging that the major problem was ulnar neuropathy, provided no opinion as to its causation.
30 The decision is not an easy one to make. In the end, I have concluded, on the balance of probabilities, that he does suffer from median and ulnar neuropathy and that both are connected to Mr Manuel’s employment with Westmeats.
31 I accept Mr Manuel’s evidence that he had had symptoms of pain along the ulnar aspect of his left arm from a time soon after the original injury. He did not complain of such pain to doctors who examined him but this, I consider, is likely to be because, for much of that time, the major symptoms were those relating to the median nerve. Accepting that evidence leads me to conclude that the symptoms probably pre-dated employment by DHL and leads me to prefer the evidence of Mr Mangos and Dr Sedal over that of Mr Stapleton and Dr Fraser.
Consequences of injury
32 Mr Manuel has received minimal treatment since the surgery of January 2008. He has, to his credit, undertaken a number of different courses and made every attempt to return to the workforce. He is currently employed full time in a relatively heavy job.
33 On the evidence before me, I consider that Mr Manuel currently suffers from a number of consequences of his injury:
(a)He suffers from pain. He takes no painkilling medication. He suffered from side effects of nausea when taking Panadeine Forte and other painkilling medications. Rather, he uses marijuana for pain relief. In his recent affidavit, he states that he has used it regularly from about the time that he was injured at work. He had not mentioned such self-medication to any doctor who examined him and did not mention it in his first two affidavits in support of this application. In his oral evidence, he said that the reason for this was that he was ashamed to have taken and to still be taking that drug. He only recently revealed his use of it to his legal representatives when he was queried as to why he took no analgesia. I consider those explanations are plausible. He appeared to me to be a relatively conservative man who would not, in normal circumstances, be partaking in the smoking of marijuana. I accept that he was genuinely embarrassed to be doing so;
(b)That embarrassment and shame as a consequence of his use of marijuana as an analgesic is ongoing;
(c)He experiences pain when performing the heavier aspects of his employment with DHL;
(d)He describes “unbearable” pain in his arm as his body cools down at the end of a working day;
(e)He has difficulty sleeping unless he uses marijuana;
(f)His left hand feels much weaker than the right;
(g)He has difficulty performing fine actions such as doing up buttons;
(h)He has attempted to return to snorkelling but has found that the coldness of the water causes his hand to freeze, in the sense that he cannot open or close the fingers of the hand and suffers from additional pain. This has made snorkelling difficult and unenjoyable. Although no medical witness directly analysed the causative link between being in cold water and the symptoms referred to, most of those witnesses who were aware of the complaint considered it relevant to include in their reports and did not raise any dispute concerning that link. I am satisfied, on balance, that the cold temperature of the water does cause him considerable pain and loss of movement in his hand;
(i)I am satisfied that snorkelling with family and friends was something that he had done since he was a child and was part of a family tradition. It is a considerable loss to him not to be able to continue to enjoy it;
(i)Whilst he is able to cook, he experiences difficulty in performing a range of household tasks. He has difficulty using a Whipper-Snipper. Although he is not a keen gardener, he does like to keep the garden tidy;
(j)He has had to cease playing golf, which he enjoyed pre-injury;
(k)The range of work alternatives previously open to him is much narrower now as a consequence of his inability to use his left arm in an unrestricted manner;
(l)Although not qualified as having a 40 per cent loss of earning capacity as required by s134AB(38), he has suffered a reduction in income. Six years ago, he was earning between $1,100 and $1,250 per week. He is currently earning $1,080 per week. In real terms, this would constitute a substantial loss of income.
34 Counsel for the defendants submitted that Mr Manuel’s current employment and his lack of treatment since 2010 was not indicative of a “serious injury” as defined. I accept that in some cases those matters might be decisive. However, I accept here, that the nature of his injury is such that no doctor has indicated that any particular treatment will assist him. He has been prepared to undergo invasive surgery and appears to have followed advice from those treating him at all times. The fact that those treating practitioners have reached a point where they are apparently unable to offer him any medical or surgical solutions should not go against him; nor should his determination to return to work if he could find a job. He has done so. I accept that he suffers pain performing his work duties. I find that he has been stoical, and that attitude should not go against him.[14]
[14]Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 at paragraph [3]; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1at paragraph [47]
35 In all the circumstances, I consider that Mr Manuel has established that the consequences of his injury (as referred to above) are more than significant or marked and are at least very considerable. I am satisfied his impairment is permanent.
Conclusion
36 For the reasons expressed above, I am satisfied that Mr Manuel has suffered a “serious injury” as that term is defined in the Act.
37 Accordingly, there will be leave pursuant to s134AB(16)(b) of the Act for Mr Manuel to commence a proceeding claiming pain and suffering damages in respect of injuries suffered by him in the course of his employment with the second defendant, Westmeats, on or about 17 March 2008.
38 I shall hear the parties in respect of costs.
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