Marchouba v Victorian WorkCover Authority
[2022] VCC 313
•24 March 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-20-05804
| OLEG MARCHOUBA | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE ROBERTSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 July 2021 | |
DATE OF JUDGMENT: | 24 March 2022 | |
CASE MAY BE CITED AS: | Marchouba v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 313 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the left upper limb – wrist – thumb
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), s325(1) and (2)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; TTB SMS Pty Ltd v Reading [2020] VSCA 203; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 542; Sabo v George Weston Foods [2009] VSCA 242; Victorian WorkCover Authority v Papaconstantinou [2021] VSCA 145; Yirga-Denbu v Victorian WorkCover Authority (2018) 57 VR 545; Transport Accident Commission & O’Dea v Dennis [1998] 1 VR 702; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Hawkins v DHL Express (Australia) Pty Ltd [2013] VSCA 26
Judgment: Leave granted to commence a common law proceeding for pain and suffering damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr I McDonald SC with Mr P A Czarnota | Henry Carus + Associates |
| For the Defendant | Ms R H Stanley | Wisewould Mahony |
Table of Contents
The application
Background
Evidence
The issues
Relevant legal principles
Credit
Medical evidence
Mr Ash Chehata, orthopaedic surgeon
Mr Craig Mills, orthopaedic surgeon
Dr Peter A Blombery, consultant physician (vascular disease and pain physician)
Associate Professor Miron Goldwasser, orthopaedic surgeon
Mr John Buntine, hand, plastic and reconstructive surgeon
Analysis
Pain
Treatment
Work
Driving
Sleep
Housework
Hobbies and sport
fishing and boating
Bike riding
Stoicism
Conclusion
HER HONOUR:
The application
1By Amended Originating Motion dated 13 July 2021, the plaintiff (“Mr Marchouba”) sought leave pursuant to Division 2 of Part 7 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (“the Act”),[1] to bring proceedings for common law damages for personal injury sustained over the course of his employment including on or about 2 February 2018. No claim was made seeking leave to recover damages for loss of earning capacity.
[1]Amended Originating Motion dated 13 July 2020
2Mr Marchouba claimed that he suffered a “‘serious injury” within the meaning of paragraph (a) of s325(1) of the Act. While working in the roof space of a residential property for his employer, L & O Employment Company Pty Ltd (“L & O Employment Company”), Mr Marchouba slipped and lost his balance on a water pipe. He reached up to grab a timber beam to support himself and in doing so, cut his wrist on some metal bracing.[2] He claimed he sustained a “permanent serious impairment and loss of a body function” to his left upper limb and specifically his left hand, including the thumb and his left wrist, and a Chronic Pain Syndrome and/or Disorder.
[2]Plaintiff’s Affidavit sworn 20 July 2020 at paragraphs [11]-[12]
3Mr Marchouba’s foreshadowed claim that he suffered a “‘serious injury” within the meaning of s325(1)(c) of the Act in respect of a permanent severe mental or behavioural disturbance or disorder, was not pursued at trial.
4Having considered all of the evidence, I have concluded that:
(a) Mr Marchouba has suffered a compensable injury to the left wrist, left thumb and scarring, which arose in the course of employment;
(b) The left hand/wrist injury has resulted in impairment consequences that when judged objectively by comparison with other cases in the range of possible impairments, may be fairly described, at the date of hearing, as being “at least very considerable” and certainly “more than significant or marked”;
(c) Mr Marchouba has constant pain fluctuating in severity, ongoing restrictions of movement, numbness and tingling sensations in his left hand/wrist;
(d) Mr Marchouba had surgical treatment to his left hand/wrist and hand therapy for twelve months;
(e) He uses topical gels and takes regular Panadol analgesic medication, anti-inflammatory medication and Voltaren, 50 milligrams, to relieve his pain;
(f) He has returned to work but tasks take him longer to perform and he relies on his apprentice because of pain and limitations in his left hand/wrist;
(g) Pain causes Mr Marchouba significant sleep problems;
(h) Mr Marchouba’s pain levels are also affected by performing normal daily activities, domestic tasks and hobbies and sports such as fishing and bike riding;
(i) He is able to drive, but prolonged steering with his left hand aggravates his pain;
(j) Further, Mr Marchouba was a stoic person.
5Consequently, Mr Marchouba has suffered a serious injury to the left wrist/ thumb.
Background
6Mr Marchouba is a fifty-eight-year-old old man.
7He is married with two adult children.
8Mr Marchouba commenced working with the L & O Employment Company in June 2006. In his affidavit sworn 20 July 2020, Mr Marchouba said he commenced full-time work for L & O Employment Company as an “electrician”. Notwithstanding the title “electrician”, Mr Marchouba described his role as involving putting internet, alarm data and intercom cables into houses and new builds rather than electrical work.[3]
[3]Evidence of Mr Marchouba, Transcript (“T”) 11, Line/s (“L”) 2-28
9On 2 February 2018, when Mr Marchouba was working in a roof space, he stepped on a water pipe. He slipped and in attempting to grab hold of something to balance himself, he sliced his left wrist on a sharp metal object.
10Mr Marchouba applied some bandaging to the laceration and then drove himself to the Monash Hospital Emergency Department where his wound was cleaned and sutured with local anaesthesia. Mr Marchouba had ten days off work and then returned to light duties. He subsequently resumed normal duties.
11Mr Marchouba continued to have ongoing pain after his return to work. He saw his general practitioner, Dr Alex Vainer, whose notes recorded that Mr Marchouba was having difficulty moving his thumb. Dr Vainer referred Mr Marchouba for an ultrasound scan which was performed on 14 May 2018.
12The report of the radiologist, Dr Berlinski, noted that:
“The APL tendon has been transected and ruptured with retraction.
This is deep to the scar and it measures 2.3cm.
Thickened tendon sheath of the extensor pollicis brevis.
Other tendons are intact.
No joint effusion.”
13On 15 May 2018, Mr Marchouba lodged a WorkCover claim which was accepted.
14In mid-May 2018, Mr Marchouba was referred to see Mr Ash Chehata, orthopaedic surgeon. Mr Chehata noted an injury overlying the left radial styloid. The laceration was reported to have caused a rupture of the EPL as well as the APL tendons on the left wrist which were palpable and painful. There was some superficial radial nerve irritation, coupled with prominence of the APL retraction, with an inability by Mr Marchouba to fully abduct his left thumb. Mr Chehata recommended left hand and left wrist surgery.
15On 13 June 2018, a left-hand tendon reconstruction of Mr Marchouba’s thumb, APL/ARB, tendon graft and superficial radial nerve neurolysis, synovectomy and reconstruction of the tendon pulley were performed by Mr Chehata.
16Following surgery there was considerable scarring and Mr Marchouba’s left hand and wrist were placed in a splint for six to eight weeks.
17Upon review in August 2018, Mr Chehata noted radial nerve pins and needles, numbness and tightness across the dorsal aspect of Mr Marchouba’s left wrist. Some improvement of the IP joint of the thumb was noted and it was observed that it was continuing to gain range of movement. Hand therapy was recommended.
18Mr Marchouba had hand therapy for ten to twelve months but reported that this did not resolve his pain. The hand therapy ceased as there was no further benefit to be obtained from it.
19Mr Marchouba has resumed full-time work with L & O Employment Company but continues to experience pain and restrictions.
20Mr Marchouba is right hand dominant.
21None of these matters were controversial and given the admission of a compensable injury to the left wrist, left thumb and scarring, the task is really one of assessing the consequences suffered to Mr Marchouba as a result of injury to his left wrist and to his left hand.
Evidence
22At the hearing, Mr Marchouba relied upon two affidavits affirmed by him on 20 July 2020 and 6 July 2021. Mr Marchouba was also cross-examined.
23In his first affidavit, Mr Marchouba said that following surgery, his pain did not resolve. He has experienced constant pain, ongoing restriction of movement, and numbness and tingling sensations in his left hand and left wrist. He said he has good days and bad days, but his pain is constant.
24He has resumed work, but his hand and wrist continue to be painful. He pushes through the pain. He relies more on his right hand than his left to do heavier tasks now.
25Mr Marchouba also said that his pain is aggravated with prolonged use of his left hand and left wrist including during activities such as cooking, food preparation and cleaning.
26Pain causes him significant sleep problems. He wakes at night. He takes various medications including Voltaren, Celebrex, diclofenac, Panadol and Ibuprofen.
27Prior to the injury, fishing and boating were his favourite hobbies. Mr Marchouba continues to pursue them, but he said it is no longer the same. He experiences pain steering the boat and when holding the fishing rod and reeling in a catch.
28In his second affidavit, Mr Marchouba referred to another hobby: regular bike rides with his wife on a pushbike. He said that before his injury he and his wife used to ride all over Melbourne on bike tracks, often up to 50-60 kilometres at a time. They enjoyed the activity together. Now Mr Marchouba’s left hand pain is aggravated by prolonged steering and holding the handlebars and applying the handbrakes and consequently he has not ridden his pushbike since the incident.
29The defendant relied on two affidavits of Mr Martin Rennie, operations manager of L & O Employment Company, sworn on 25 June 2021. I have not summarised Mr Rennie’s affidavits; however, I will refer to the evidence in my reasoning where relevant.
30In addition, both parties relied on medical reports and other material which was tendered. I have read all tendered material.
31Video surveillance which had been foreshadowed as relevant by the Authority was neither played nor tendered.
The issues
32Counsel for the defendant accepted that Mr Marchouba suffered an injury on 2 February 2018 but submitted that this was a “range” case. Accordingly, I am to assess the seriousness of the injury by determining where within the spectrum of possible impairments the consequences for Mr Marchouba lie. Counsel for the defendant submitted that Mr Marchouba’s injury is not a trivial injury, but the consequences to Mr Marchouba do not meet the test, in that they are not at least “very considerable”.
Relevant legal principles
33Section 325(2) of the Act provides:
“(a)the terms serious and severe are to be satisfied by reference to the consequences to the worker of any impairment or loss of a body function, … as the case may be, with respect to—
(i)pain and suffering; or
(ii)loss of earning capacity—
when judged by comparison with other cases in the range of possible impairments or losses of a body function, … or mental or behavioural disturbances or disorders respectively;
(b)an impairment or loss of a body function … is not to be held to be serious for the purposes of section 335(2) unless—
(i)the pain and suffering consequence; or
(ii)the loss of earning capacity consequence—
is, when judged by comparison with other cases, in the range of possible impairments or losses of a body function, … as the case may be, fairly described as being more than significant or marked, and as being at least very considerable;
… .”
34To succeed in his application, Mr Marchouba has the onus of proving on the balance of probabilities, that:
(a) “the injury” suffered by him arose out of, or in the course of, or due to the nature of, his employment with L & O Employment Company;[4]
(b) “the injury” with its resulting impairment is permanent, in the sense that it is likely to continue into the foreseeable future;[5]
(c) “the consequences” to Mr Marchouba of the impairment to his left lower limb in relation to “pain and suffering” are “serious” such that when an objective comparison is made between the impairment suffered by Mr Marchouba and other cases in the range of possible impairments, the consequences can “be fairly described as being more than significant or marked and as being at least very considerable”.[6]
[4]Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 (“Barwon Spinners”) at paragraph [11]
[5]Barwon Spinners (supra) at paragraph [33]
[6]Section 325(1)(c) of the Act
35In TTB SMS Pty Ltd v Reading,[7] the Court of Appeal identified that in a pain and suffering case, in addition to the above matters, in assessing the seriousness of the claimed impairment consequences, a court is required to consider both the effects of the impairment and those aspects of the affected body function which remain unaffected.
[7] [2020] VSCA 203
36The assessment of whether an injury is a “serious injury” is largely a question of impression and value judgment[8] as to relative incapacity falling to be resolved by consideration of the evidence as a whole.[9]
[8]See Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 542 at 628; Sabo v George Weston Foods [2009] VSCA 242 at paragraph [67]
[9]Victorian WorkCover Authority v Papaconstantinou [2021] VSCA 145 referring to Yirga-Denbu v Victorian WorkCover Authority (2018) 57 VR 545 at 573, paragraph [89]
37In Transport Accident Commission & O’Dea v Dennis,[10] the Court of Appeal considered whether the impairment was “at least very considerable”. Their Honours determined that weight must be given to the adverb “very”. As Callaway JA said:
“... many disturbances are considerable, in the sense that they are important or substantial, without being very considerable. ...”
[10] [1998] 1 VR 702
38Although, the Court of Appeal was considering wording under the Transport Accident Act, the same wording is adopted under the Act. Accordingly, I adopt the reasoning of Callaway JA as outlined above.
39In Haden Engineering Pty Ltd v McKinnon,[11] the Court of Appeal identified that the “pain and suffering consequence” of an injury encompasses both the plaintiff’s experience of pain as well as the disabling effect of the pain on the plaintiff’s physical capabilities and enjoyment of life. The intensity, frequency, and duration of the pain must be assessed. Their honours noted:
“The evidentiary basis of the pain assessment will ordinarily comprise the following:
(a) what the plaintiff says about the pain (both in court and to doctors)
(b) what the plaintiff does about the pain (eg medication, rest, seeking medical treatment);
(c) what the doctors say about the extent and intensity of the plaintiff’s pain; and
(d) what the objective evidence shows about the disabling effect of the pain.”
[11] Haden (supra)
40Aside from these factors, the Court of Appeal in Haden identified other matters, which, although not a checklist, are relevant to the assessment of whether pain interferes with the ordinary activities of life. These include the effect of pain on Mr Marchouba’s:
“· sleep;
· mobility;
·cognitive functioning (whether directly because of the pain or indirectly because of the effects of pain-relieving medication);
· capacity for self-care and self-management;
· performance of household and family duties;
· recreational activities;
· social activities;
· sexual life; and
· enjoyment of life.
Whether and to what extent the matters listed are relevant to the court’s task in a particular case will, naturally, depend on the circumstances of the case.”[12]
[12]Haden (supra) at paragraph [16]
41In determining the application, the Court must not take into account psychological or psychiatric consequences for the purposes of paragraph (a) of the definition of “serious injury”: these can only be taken into account for the purposes of paragraph (c) of the definition of “serious injury”.[13]
[13]Section 325(2)(h) of the Act
42The Court must make the assessment of “serious injury” at the time the application is heard.[14]
[14]Section 325(2)(j) of the Act
Credit
43Mr Marchouba was born in Ukraine and is currently fifty-eight years of age. He completed schooling in Ukraine to Year 8 and then completed four-and-a-half years of technical college to qualify as an electrician. Following two years of national service, he worked as an electrician for five to six years.
44In 1990, Mr Marchouba migrated to Australia with his wife and daughter. Between 1990 to 2006, Mr Marchouba worked in various manual labour roles such as a labourer, factory worker and television antenna installer. In June 2006, he commenced work with L & O Employment Company.
45In cross-examination, the affidavits of Mr Rennie were put to Mr Marchouba. It was put to Mr Marchouba that he had not reported to Mr Rennie any ongoing issues with respect to his left hand for more than two-and-a-half years. Mr Marchouba accepted that he had not reported the ongoing issues with his left hand to Mr Rennie. His evidence was that he was not the sort of person to complain, and he had a fear that if he complained he would lose his job. I accept Mr Marchouba’s evidence about not making complaints of the ongoing issues with his left hand to Mr Rennie.
46Counsel for Mr Marchouba submitted that he is stoical and ought not be penalised with a finding that the consequences of his injury are not “serious”, on the basis that he has “got on with life”.
47Associate Professor Goldwasser, orthopaedic surgeon, described Mr Marchouba as friendly and co-operative.
48Dr Peter Blombery, vascular disease and pain medicine specialist, reported that Mr Marchouba presented reasonably with no exaggerated pain behaviour. Mr Marchouba reported to Dr Blombery that he had to rest his left hand at work quite frequently, for instance when holding cables. It therefore took him longer to complete jobs. Dr Blombery pointed out that Mr Marchouba told him that he had not complained about this at work because he could not see any reason to complain. This is consistent with Mr Marchouba’s evidence.
49Mr Marchouba struck me as a straightforward, no nonsense, sensible man who, after the incident, endeavoured to return to work and his former life. I accept that because he had been told by doctors that nothing could be done for his pain, he could see little point in complaining about further pain to them. I accept that he is stoic and has done the best he can to get on with his life.
50I rely on the statement of the Court of Appeal in Haden[15] that Mr Marchouba should not be penalised for his stoicism. Further, there was no suggestion by any of the medical witnesses that he attempted to exaggerate or embellish his presentation in a clinical setting.
[15] Supra
51Counsel for Mr Marchouba submitted that there had been video surveillance of him taken by the defendant and the fact that it was not shown was relevant to a favourable assessment of his credit. Counsel for the defendant, on the other hand, submitted that a failure to show the surveillance did not itself mean that the contents of the surveillance footage did not support the Authority’s contention. It was submitted that I should not take the failure of the surveillance footage to be shown into account.
52As the surveillance footage was not tendered, it is a matter of speculation what it contained. I have not relied on it and draw no inferences one way or the other as to what it contained.
53In any event, in my view, Mr Marchouba’s credit was not successfully attacked in cross-examination, and I make no adverse credit finding.
54I accept Mr Marchouba as a witness of truth.
Medical evidence
55The current medical evidence was expressed by Mr Chehata, Dr Craig Mills, orthopaedic surgeon, Dr Peter A Blombery, Associate Professor Goldwasser and Mr John A Buntine, hand, plastic and reconstructive surgeon.
Mr Ash Chehata, orthopaedic surgeon
56Mr Chehata first examined Mr Marchouba on 16 May 2018. He obtained a history of Mr Marchouba’s injury and noted the rupture of the EPL and APL tendons due to the laceration. Mr Chehata noted that Mr Marchouba’s left hand was palpable and painful. It was recommended that Mr Marchouba expect to undergo surgery, with a planned review once he had considered all his options.
57Mr Marchouba returned to Mr Chehata on 7 June 2018. It was recorded that he had radial nerve irritation and an inability to fully abduct his left thumb. Mr Chehata said this was consistent with the rupture.
58On 13 June 2018, Mr Chehata performed surgery on Mr Marchouba’s left hand. Mr Chehata reported that he was able to re-approximate the ends under a normal amount of tension, as well as reinforcing the tendon repair. Mr Chehata noted that there was considerable scarring which required him to perform a formal synovectomy and capsular repair as well as neurolysis of the superficial branch of the radial nerve. Mr Chehata reported that Mr Marchouba would need to be in a thumb spiker for a period of three to four weeks and would then be able to begin gentle exercises with hand therapy.
59On 25 June 2018, Mr Chehata reviewed Mr Marchouba and reported that his surgical wounds had healed well. He had some nerve sensation changes. It was recorded that Mr Marchouba would require hand therapy. Mr Chehata directed that Mr Marchouba was unable to return to any form of employment in the interim.
60In a medical questionnaire dated 27 July 2018, Mr Chehata recorded that Mr Marchouba’s surgery was successful with an excellent prognosis. Mr Chehata said that the tendon would require six to twelve weeks for the best chance to heal from the reconstruction. He recorded that Mr Marchouba would not be able to return to work until at least twelve weeks after the surgical procedure. Mr Chehata did not record any return-to-work restrictions but noted that this was dependent on Mr Marchouba’s strength for manual duties. Mr Marchouba required hand therapy, but Mr Chehata did not envisage any further surgical intervention.
61On 16 August 2018, Mr Chehata reviewed Mr Marchouba and reported that the tendons in his left hand were attached. He expected that the pins and needles and numbness Mr Marchouba was experiencing in his hand would settle within six to twelve months. He also expected that the tightness across the dorsal aspect of Mr Marchouba’s wrist attributable to stiffness relating to operative intervention would improve with time. The IP joint of the thumb was continuing to gain range of movement and Mr Chehata expected Mr Marchouba to make a full recovery. He recorded that Mr Marchouba would remain on modified duties for the following few weeks.
Mr Craig Mills, orthopaedic surgeon
62Mr Mills examined Mr Marchouba at an in-person assessment on 20 May 2021, on request from Mr Marchouba’s solicitors. A report was prepared dated 6 June 2021.
63Mr Marchouba reported to Mr Mills that he sustained an injury to his left hand and thumb, and that his left wrist developed chronic pain which was significantly upsetting to him. Mr Mills noted that Mr Marchouba’s work was manual work which involved a number of carrying tasks, pushing, pulling, lifting, twisting and turning of items up to 25 kilograms or so. Mr Mills noted that Mr Marchouba reported no history of discomfort or troubles with his left hand, wrist or arm on commencement of work with L & O Employment Company in 2006.
64Mr Marchouba gave a history of the incident to Mr Mills and subsequent treatment at Monash Hospital, consultations with his general practitioner and surgical intervention performed by Mr Chehata.
65Mr Mills recorded that Mr Marchouba had returned to work and was working five days a week, eight hours per shift. He was performing his normal duties, albeit they were taking longer to complete.
66Mr Marchouba reported numbness at and from the base of his thumb and occasional bracelet area pain. He reported being unable to ride a road bike. He reported that his pain fluctuated with activity and was, at times, as severe as 6-7 out of 10 pain level. When he had a busy day or undertook sporting activities, he believed numbness to his entire thumb worsened.
67On examination, Mr Mills noted that Mr Marchouba had a slight S shaped incision over the left radial border of the thumb which was well healed and surgical in nature. Mr Mills recorded a scar of 11.5 centimetres and noted mild thenar wasting. He recorded that Mr Marchouba’s wrist was normal and had a full range of movement. There was no marked wasting when his forearms were compared.
68Mr Mills recorded that Mr Marchouba had substantially reduced sensation in both the median and radial nerve of his left hand with reduced sensation to light touch/pin prick in the 60 to 80 per cent range for the whole thumb.
69Mr Mills opined that Mr Marchouba had reached maximum medical improvement and there was unlikely to be substantive improvement with further surgery. He said that Mr Marchouba remained moderately to severely restricted in terms of his personal and recreational activities. He was limited in terms of household tasks that required significant force using both hands and this was likely to remain the case both for recreational activities and household tasks for the foreseeable future.
Dr Peter A Blombery, consultant physician (vascular disease and pain physician)
70Dr Blombery examined Mr Marchouba at the request of his solicitors on 8 April 2021. Dr Blombery took a history from Mr Marchouba of lacerating his left wrist on metal bracing and attending the Monash Hospital in Clayton. Mr Marchouba described to Dr Blombery the subsequent treatment with his general practitioner, surgical intervention performed by Mr Chehata and hand therapy.
71Mr Marchouba described his current symptoms of ongoing pain in the left wrist area. Dr Blombery recorded that Mr Marchouba’s wrist area was tender to touch with numbness over the left thenar and the base of the thumb. Dr Blombery recorded that Mr Marchouba had occasional left-hand spasm medial to the operated area.
72Mr Marchouba reported that he occasionally had disrupted sleep due to the pain. His pain could increase to 7-8 out of 10.
73On examination, Dr Blombery recorded that Mr Marchouba presented reasonably with no exaggerated pain behaviour. He had a full range of movement in his left wrist with tenderness on pressure over the ventral wrist and tingling and sensitivity over the scar in the left forearm. Dr Blombery opined that the sensitivity was unlikely to change. Dr Blombery recorded that the power of hand grip was 22 kilograms in the left hand compared to 48 kilograms in the right hand.
74Mr Marchouba was noted to be taking medications including the anti-inflammatory, Voltaren, 50 milligrams a day, as well as occasional Panadol for pain.
75Dr Blombery said that there was no further treatment which would be effective in improving Mr Marchouba’s condition apart from the use of anti-inflammatory or analgesic medications for his pain management.
76Dr Blombery noted that the injury had had a significant impact on Mr Marchouba’s ability to do his job as an electrician. He has limited power in his left hand, best demonstrated by the reduction in grip strength. He has sensitivity over the scar in the left forearm.
Associate Professor Miron Goldwasser, orthopaedic surgeon
77Associate Professor Goldwasser examined Mr Marchouba on 16 May 2019 for the purposes of conducting an impairment assessment. He took a history from Mr Marchouba of the mechanism of injury and treatment at Monash Hospital, subsequent treatment with Mr Marchouba’s general practitioner and surgery performed by Mr Chehata.
78Associate Professor Goldwasser reported that Mr Marchouba was not being prescribed any medication and had had physiotherapy which ceased on 9 April 2019. Mr Marchouba reported to Associate Professor Goldwasser that he continued home exercises two to three times per week. Associate Professor Goldwasser was of the opinion that Mr Marchouba’s condition, while fluctuating, had remained much the same for over six months. There were no further plans for surgical intervention.
79On examination, Associate Professor Goldwasser reported that Mr Marchouba had an 11-centimetre scar on the radial side of the distal forearm extending to the base of the thumb, which was well healed, soft, mobile, non-tender, stable and not requiring any special treatment. Associate Professor Goldwasser reported that Mr Marchouba was still troubled by pain at the base of his thumb and wrist, with intermittent cramping when the pain became more severe. He reported that Mr Marchouba continued to be aware of a tingling sensation in his wrist area near the scar. When it was touched, it was unpleasant. When tapped, it caused an electricity-type of feeling which Associate Professor Goldwasser said was consistent with Tinel’s sign involving a cutaneous branch of the radial nerve. There was altered sensation on the radial side of the wrist extending to the thumb where sensation was less distinct.
80Associate Professor Goldwasser reported that the muscle power in Mr Marchouba’s right thumb appeared to be weaker than in the left thumb. The reason for that observation is unclear but it seems anomalous and may be an error given that the report otherwise refers to Mr Marchouba’s left thumb; Associate Professor Goldwasser reported that grip strength was weaker in the left hand and other medical evidence is to the effect that the strength in the left thumb is weaker than the right.
Mr John Buntine, hand, plastic and reconstructive surgeon
81Mr Buntine examined Mr Marchouba in person on 6 November 2020 at the request of the Authority’s solicitors.
82Mr Buntine prepared two reports, dated 6 November 2020 and 22 February 2021.
83In his first report, Mr Buntine took a history from Mr Marchouba. He was also provided with Mr Marchouba’s affidavit sworn 20 July 2020; the unsworn affidavit of Martin Rennie; the ultrasound of the left wrist dated 14 May 2018; the operation report dated 13 June 2018, and the report of Associate Professor Goldwasser dated 17 May 2019.
84Mr Buntine described Mr Marchouba’s injury as a rupture to the abductor pollicis longus tendon and a rupture of the extensor pollicis brevis tendon and said it was:
“… a significant injury as the two tendons play an important role in assisting extension of the wrist and thumb.”
85Mr Buntine noted that Mr Marchouba said that the expectation of pain caused by any strenuous use of his right hand (corrected to his left hand in Mr Buntine’s second report), caused him to restrict the use he makes of the hand.
86Mr Marchouba reported to Mr Buntine that his pain had worsened. He had last attended his surgeon two or three weeks after the operation and had also attended hand therapy, initially one to two times per week and later, monthly for a year. He reported attending his general practitioner for prescription analgesics about every six weeks.
87Mr Marchouba reported to Mr Buntine that his right-hand grip was not as strong as it used to be, and that he tended to use his left hand for anything which required a strong grip. The reference to Mr Marchouba’s right-hand grip was identified as an error in Mr Buntine’s later report.
88Mr Marchouba also reported to Mr Buntine that the scar on his left wrist and hand is slightly hyperaesthetic and that firmly touching or knocking the scar causes mild discomfort, as a result of which, he is slower at work. Mr Marchouba reported that he called an apprentice when he was having difficulty with something which lowered his work rate.
89On examination, Mr Buntine, reported a mild restriction of the left wrist. Mr Buntine opined that Mr Marchouba’s condition is consistent with some limitation of social, recreational and domestic activities.
Analysis
90I shall now consider the pain and suffering consequences to Mr Marchouba of his left-hand injury.
Pain
91Mr Marchouba’s evidence in his first affidavit was that he experienced constant pain, ongoing restrictions of movement, numbness and tingling sensations in his left hand/wrist and that he continues to suffer constant pain. He has good days and bad days but generally, the pain is always there. He said that his pain is worse in cold weather. His pain levels are generally aggravated with prolonged use of his left wrist/hand at work and when performing normal daily activities such as cooking, food preparation and cleaning.
92Mr Mills reported that Mr Marchouba’s pain fluctuates and is related to activity and could be as severe as 6-7 out of 10.
93Mr Buntine reported that the expectation of pain caused by any strenuous use of his right hand (which was corrected to left hand in Mr Buntine’s second report) caused Mr Marchouba to restrict the use he made of the hand. Again, the reference to the use of Mr Marchouba’s right hand is an error.
94The medical evidence was that Mr Marchouba would continue to suffer pain and the only treatment available to him was the use of medication, topical gels and home-based exercises.
95I accept that the level of pain Mr Marchouba suffers is a consequence which I can take into account.
Treatment
96Mr Marchouba has undergone a surgical procedure to his left hand/wrist, has had hand therapy for twelve months and takes analgesic and anti-inflammatory medication regularly. Mr Marchouba reported to medical witnesses, including Associate Professor Goldwasser, that he has continued with home exercises since his physiotherapy ceased and continues to apply topical gels to his left hand/wrist.
97Mr Marchouba’s evidence was that his current treatment involves the use of anti-inflammatory medication and Voltaren 50 milligrams most days. He usually takes this in the afternoon or at night after he has finished work for the day. He also takes one to three Panadol tablets about every two to three days and applies topical gels most nights before bed.
98He said that his hand/wrist continues to be painful, but he pushes through the pain. He said for instance, that he has not reported any ongoing problems to Martin Rennie. He said that this was because he was “not the sort of person to complain about my injury or pain to my boss”.
99In court, Mr Marchouba said that he carries Voltaren tablets in his wallet which he takes if he has a cramp in his left hand.
100Mr Marchouba reported to Mr Mills and Dr Blombery that he takes daily Voltaren 50 milligrams as well as occasional Panadol for pain.
101Mr Buntine reported that Mr Marchouba takes Voltaren 50 milligrams about three times per week due to pain affecting his left wrist and that he rubs gel into the region most nights.
102Dr Blombery said that there is no further treatment which will be effective in improving Mr Marchouba’s condition, apart from the use of anti-inflammatory or analgesic medications for his pain management.
103Mr Chehata said that there is no further surgery which is warranted or planned.
104Mr Mills opined that Mr Marchouba has reached maximum medical improvement and there is unlikely to be substantive improvement with further surgery.
105I accept that Mr Marchouba’s left hand/wrist injury has stabilised and there is no further treatment which can be offered to him. I accept that Mr Marchouba requires ongoing anti-inflammatory medication, Panadol and topical gels to manage his pain.
Work
106In June 2018, Mr Marchouba underwent surgery which was performed by Mr Chehata. Mr Marchouba had some time off work when his wrist was in a splint. He then resumed work on light duties before returning to full-time normal duties.
107Mr Marchouba’s evidence was that his hand/wrist continues to be painful, but that he pushes through the pain. His evidence was that he has a mortgage, and he feels he has no choice but to work.
108He relies on his right hand more to do heavier tasks.
109Due to pain and cramping in his left hand, Mr Marchouba said that he also relies on his apprentice to perform tasks which require grip strength or fine manipulation. His evidence was that it takes him longer to complete a job due to his left hand/wrist injury.
110Before his injury, Mr Marchouba deposed that he used to also do a lot of subcontractor work on the weekends and after hours. He said in evidence that although he still does some subcontracting work, this has now reduced. He has had to refuse a lot of work because he does not feel physically capable.
111The defendant relied on the affidavits of Mr Martin Rennie. Mr Rennie is an operations manager working for L & O Employment Company. Mr Rennie was not cross-examined. Mr Rennie deposed that when Mr Marchouba returned to full duties following his surgery, he told Mr Marchouba not to do anything too hard, heavy or anything he had trouble with. Mr Marchouba was told to ask for help and to leave anything he could not do unfinished. At no stage has Mr Marchouba reported any ongoing issue or limitation with his hand/forearm and Mr Rennie is not aware of Mr Marchouba being unable to complete a job or requiring time to rest his hand.
112Mr Rennie also said that Mr Marchouba did not always work with an apprentice and has worked alone at times, particularly since the COVID-19 pandemic, when the staff have all worked alone.
113Mr Marchouba’s evidence was that he never reported ongoing problems with his hand to L & O Employment Company because he was not the type of person to complain about his injury or pain to his boss. Mr Marchouba said that he just put up with the pain, got on with his life and did his work as best as he could. He deposed that he was worried that if he complained he might lose his job.
114Mr Marchouba reported to Dr Blombery that he put more pressure on his right hand now and was mentally always aware of his left hand. Mr Marchouba reported to Dr Blombery that he had to rest his left hand quite frequently at work, such as when he was holding cables, and this meant it took him longer to complete a job.
115Dr Blombery was of the view that Mr Marchouba’s ability to do his work had been “significantly impacted”. He was unable to do parts of his occupation and now has to depend on other people to assist him. The power of Mr Marchouba’s hand grip is now 50 per cent reduced on the left side compared to the right side. He is able to do some work duties but not duties which involve heavy repetitive use of the left hand and wrist. Dr Blombery reported that Mr Marchouba has not complained about the need to rest his hand at work because he could not see any point in complaining. This is consistent with Mr Marchouba’s evidence.
116Mr Marchouba reported to Associate Professor Goldwasser that when performing activities which require a strong grip, he asks his apprentice to complete the task as he cannot manipulate small objects as he does not have full strength on gripping. A similar account was provided to Mr Buntine.
117Mr Marchouba accepted that due to the COVID-19 pandemic, he has not had an apprentice with him and has had to work alone. He said that due to the pain in his left hand/wrist, reduction in grip strength and the fact that he has to rest his left hand, he takes longer to complete his work.
118I accept Mr Marchouba’s evidence that since his work injury he has required the assistance of his apprentice to perform tasks, particularly where grip strength and fine manipulation are required. I also accept Mr Marchouba’s evidence that it takes him longer to complete his work due to the pain and limitations in his left hand/wrist. I also take into account that Mr Marchouba is a manual worker.
119Mr Rennie is an operations manager who is not with Mr Marchouba day-to-day. In court, Mr Marchouba explained that he has not complained to Mr Rennie about his pain because Mr Rennie cannot fix it. Having had the benefit of observing Mr Marchouba, I accept his evidence that he is not the type of person who complains about his pain and has done his best to get on with his life and his work.
120I accept that Mr Marchouba is committed to his work. He is in pain at the end of his workday and relies on pain management medication and topical gels to manage his pain. He also experiences numbness and tingling in his left hand/wrist. I rely on the comments made by the Court of Appeal in Hawkins v DHL Express (Aust) Pty Ltd[16] where the Court said the disabling effect of pain may be demonstrated by consideration of whether the plaintiff has resumed employment and if so, what limitations there are on the plaintiff’s employment. I accept that the disabling effect of pain is demonstrated in this instance through the fact that Mr Marchouba has resumed employment and has done so with the assistance of an apprentice or requiring a longer time to complete his work. I accept this is a consequence which I can take into account.
[16] [2013] VSCA 26 at paragraph [63]
Driving
121Mr Marchouba’s evidence is that he can and does drive for work, but prolonged steering with his left hand generally aggravates his pain. In cross-examination, Mr Marchouba accepted that he had driven four-and-a-half hours to Portland for a fishing trip in or about February 2019. Mr Marchouba said that he does not use his left hand when he is driving and steers with his right hand only. I accept this evidence.
122Mr Marchouba reported to Mr Mills that he is able to drive. His car is automatic, and he mostly uses his right arm to steer. He reported having occasional shoulder pain in his left shoulder when driving. In court, Mr Marchouba said that the pain in his shoulder is in his right shoulder.
123Mr Marchouba reported to Dr Blombery and Associate Professor Goldwasser that he favours his right hand when driving. Mr Buntine reported that driving long distances troubles Mr Marchouba’s right wrist and at the base of the right thumb. Mr Buntine’s evidence overall supports Mr Marchouba’s account of favouring use of his right arm for driving over his left and lends credence to his account overall.
124I accept that Mr Marchouba has pain in his left hand/wrist when he drives, and he mostly uses his right hand for steering. Accordingly, I accept that this is a consequence I can take into account.
Sleep
125Mr Marchouba’s evidence is that his pain causes significant sleep problems, causing him to wake during the night with pain and take medication when he does. He said he keeps pain medication at his bedside.
126Dr Blombery reported that Mr Marchouba’s sleep is occasionally disrupted due to pain and the pain can increase to 7-8 out of 10. He also noted that Mr Marchouba takes anti-inflammatory medication, Voltaren, and also Panadol for pain.
127Counsel for the defendant submitted that in the last two years, Mr Marchouba has not made complaints to his general practitioner about his pain and the pain affecting his sleep. Even if this is correct, Mr Marchouba’s evidence in relation to his sleep being affected was not challenged in cross-examination. His evidence was that he is not the type of person to complain. He has done his best to move on with his life.
128I accept that Mr Marchouba has difficulty sleeping and that the quality of his sleep is affected because of the pain in his left hand/wrist. I accept that Mr Marchouba takes Panadol medication to assist with his pain when he has disrupted sleep.
Housework
129Mr Marchouba’s evidence was that his pain levels are generally aggravated when performing normal daily activities. He deposed that he tries to help out around the house, depending on his pain, but duties such as cooking, food preparation and cleaning aggravate his pain. He said he finds household tasks difficult due to the reduced grip strength of his left hand.
130Mr Marchouba reported to Mr Mills that he was able to assist with lighter cooking and cleaning activities and was able to do some gardening, but mostly he uses his right hand. Mr Marchouba reported a reduced grip strength for opening jars, opening doors, carrying and steadying items, and his work activities are slower.
131Mr Marchouba reported to Dr Blombery that he finds it difficult to cook and hold small items in his left hand.
132Mr Marchouba reported to Mr Buntine that his ability to assist his wife with domestic tasks has been reduced but he can still garden with his right hand.
133Counsel for the defendant submitted that the difficulty in completing household tasks is of itself not a consequence which seemingly was a real passion of Mr Marchouba. For instance, Mr Marchouba did not describe embarrassment or shame that his wife now has to do more. Counsel for the defendant submitted that missing out on housework is not necessarily the worst of the consequences.
134Further, Mr Marchouba’s ability to adapt to gardening with his right hand demonstrates that he has not suffered the consequential impairment of having to give up his pastime of gardening.
135Mr Marchouba’s evidence in relation to household tasks was not challenged in cross-examination. He made consistent complaints to the medical witnesses in relation to the difficulty his pain and reduced grip strength have caused, particularly with respect to his ability to assist in household tasks.
136I do not accept counsel for the defendant’s submission that the inability to assist in housework is not a real consequence to Mr Marchouba. Activities of daily living – including housework – are a significant part of life. I did not understand why it is necessary for Mr Marchouba to express shame that his wife now has to perform more housework, for the Court to accept that this has had a very considerable impact on his life.
137I accept that Mr Marchouba now has difficulty with household tasks such as cleaning and cooking due to the pain in his left hand/wrist and reduced grip strength. I accept that Mr Marchouba has a retained capacity to assist in lighter cooking and cleaning activities. I accept that Mr Marchouba’s reduced grip strength affects his ability to open jars, open doors, carry and steady items, and he is slower. Accordingly, these are consequences which I can take into account.
138I accept that gardening is a task Mr Marchouba is still able to do; however, it must now be done predominantly with his right hand. I accept this is a consequence which I can take into account.
Hobbies and sport
Fishing and boating
139Mr Marchouba’s evidence was that prior to the work injury, fishing and boating were his favourite hobbies. His evidence was that after his injury, he continued to pursue these hobbies, but it was not the same. He now experiences pain while steering the boat, holding a fishing rod and reeling in a catch.
140Mr Mills also reported that Mr Marchouba finds fishing painful and driving a boat to be difficult.
141Dr Blombery reported that Mr Marchouba still does some fishing on a boat but not very often.
142Associate Professor Goldwasser reported that Mr Marchouba enjoys fishing but is upset he cannot do it as well as he did prior to his left hand/wrist injury, because of intermittent pain and cramps in his left thumb and wrist area.
143In cross-examination, Mr Marchouba accepted that he still goes fishing from time to time. He said he owns a Haines Hunter six-meter boat. He was taken to a photograph of himself included in “Geoff’s Fishing Report” dated 10 February 2019. In the photograph, Mr Marchouba was holding a Hapuka fish he had caught which he said would have weighed approximately 12-15 kilograms. Mr Marchouba said that on the occasion when the photograph was taken, he was fishing in Portland out in the deep sea.
144Mr Marchouba’s evidence was that he had caught the fish using an electric reel which meant that he was not required to manually reel the fish in. His evidence was that the use of the electric reel meant he did not even have to hold the fishing rod and only had to press a button to reel the fish in. He said that he used the electric fishing rod with his right hand only. He said that there was not much effort involved in using his left hand to get the fish off the line and into the boat.
145Mr Marchouba accepted that he had driven to Portland and towed his boat. He accepted that he had placed the boat on the trailer himself. He explained that he has a drive on/drive off trailer for his boat. He demonstrated how he used his right hand to unhook the boat from the trailer and explained how he reversed the boat into the water to a certain position.
146He said for the Portland fishing trip, he drove the boat in the water approximately 40 kilometres. This took him 45 minutes. He fished for half a day and then drove home the next day.
147He accepted that when he makes a journey to go fishing, he usually goes fishing for one or two days. He said however, that he never goes fishing on the day he is driving home. I understood that Mr Marchouba might make a trip and fish on day one and then stay overnight and drive home the next day. His evidence was that he does not take trips to Portland often and he does not enter events or competitions.
148I accept that Mr Marchouba’s ability to go fishing has been affected due to his left hand/wrist injury. I accept Mr Marchouba’s evidence that he does not go fishing as much as he used to. I accept that he predominantly uses his right hand when he is fishing. I take into account that Mr Marchouba is right hand dominant.
Bike riding
149Mr Marchouba’s evidence was that another favourite hobby of his was going on regular rides with his wife on a pushbike. Prior to the work injury, Mr Marchouba and his wife would go riding on most weekends. Mr Marchouba deposed that this was an activity he and his wife enjoyed doing together.
150Mr Marchouba’s evidence was that he had been riding bicycles his entire life and in Ukraine he used to compete in long distance bicycle races.
151Mr Mills confirmed that Mr Marchouba used to be able to ride a bike, but he is now unable to do that comfortably due to the injury to his thumb.
152Dr Blombery reported that Mr Marchouba told him that he used to enjoy riding a pushbike with his wife but can no longer do that.
153Mr Buntine reported that Mr Marchouba has great difficulty with riding a pushbike.
154Mr Marchouba deposed that prolonged steering and holding of the bicycle handles generally aggravates his left hand/wrist pain. He said that he has not ridden his pushbike since his work injury.
155In cross-examination, it was put to Mr Marchouba that he had attended his doctor over the two years prior to the hearing in relation to ankle, knee, elbow, shoulder and back ailments and those ailments would have prevented him from riding a pushbike even if his left hand was not injured. Mr Marchouba did not accept that proposition.
156Counsel for the defendant criticised Mr Marchouba for not deposing to his inability to bike ride in his first affidavit and submitted that Mr Marchouba’s inability to bike ride is affected by his other ailments.
157Mr Marchouba gave a history of his prior back pain to the medical witnesses. I accept that Mr Marchouba was frank and truthful with the medical witnesses. There was no medical evidence before me as to how Mr Marchouba’s other ailments affected his ability to ride a pushbike. In those circumstances, I accept that Mr Marchouba has given up riding a pushbike as a result of his work injury. I accept Mr Marchouba’s counsel’s submission that whether his other ailments may have affected his ability to ride a pushbike is speculative.
158I accept that Mr Marchouba was a regular bike rider, and it was an activity he enjoyed throughout his life and, in particular, an activity he enjoyed with his wife. He can no longer ride a pushbike because of his work-related injury to the left hand/wrist. This is a consequence I can take into account.
Stoicism
159Associate Professor Goldwasser described Mr Marchouba as friendly and co-operative. Dr Blombery reported that Mr Marchouba presented reasonably with no exaggerated pain behaviour. Mr Marchouba continues to work despite his pain. He presented in Court as a man who was committed to working and to getting on with his life, tolerating constant pain and restrictions. I adopt what the Court of Appeal said in Haden;[17] namely, that the Court should not penalise a stoic plaintiff by treating their injury as less serious simply because the plaintiff is willing to endure the pain or remain more active than another plaintiff would. Accordingly, I accept Mr Marchouba’s stoicism.
[17] Supra
Conclusion
160I am satisfied that Mr Marchouba was involved in a work accident which resulted in him experiencing symptoms of a physical nature. The consequences of his left hand/wrist alone have impacted upon his life. He has suffered for three years, and the medical evidence is that the injury is permanent, in the sense that it will persist into the foreseeable future.
161The medical witnesses accepted that Mr Marchouba would suffer consequences. Mr Marchouba has suffered impairment consequences since 2018. There is no suggestion that his condition will improve. In fact, a number of the medical witnesses have opined that there is no further treatment available for him.
162In assessing Mr Marchouba’s pain and suffering consequences, I have had regard to what Mr Marchouba said about the pain, what he did about the pain (including medication and treatment), what the doctors said about the extent and intensity of his pain, and what the objective evidence showed about the disabling effect of the pain.
163I have found Mr Marchouba to be a credible and reliable witness. Consequently, I accept his account of the pain he has experienced.
164Having considered all of the evidence, I am satisfied that Mr Marchouba will suffer the impairment consequences from his injury that I have identified into the foreseeable future.
165The medical evidence is that there is no further surgery or medication which is likely to assist in the treatment of Mr Marchouba’s injury.
166For the foregoing reasons, I am satisfied that Mr Marchouba has established that the left hand/wrist injury has consequences to Mr Marchouba that, when judged objectively by comparison with other cases in the range of possible impairments, may be fairly described, at the date of hearing, as being “at least very considerable” and certainly “more than significant or marked”.
167In reaching this conclusion I have considered other serious injury applications where plaintiffs have been successful. I have also considered all of the claimed impairment consequences and I have attributed appropriate weight to each consequence in light of the evidence.
168I grant Mr Marchouba leave to commence common law proceedings for pain and suffering damages.
169I will hear the parties on costs.
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