Mark v Victorian WorkCover Authority
[2023] VCC 1801
•3 October 2023 (Revised)
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-23-00698
| JUSTIN MARK |
| v |
| VICTORIAN WORKCOVER AUTHORITY |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 and 7 September 2023 | |
DATE OF JUDGMENT: | 3 October 2023 (Revised) | |
CASE MAY BE CITED AS: | Mark v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1801 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – impairment to right elbow/upper limb – pain and suffering only – range – credit
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s335(2)(d)
Cases Cited:TTB SMS Pty Ltd v Reading [2020] VSCA 203; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Dordev v Cowan & Ors [2006] VSCA 254; Stijepic v One Force Group Australia Pty Ltd (2009) VSCA 181; Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Peak Engineering & Anor v McKenzie [2014] VSCA 67
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms S Fernando | Slater and Gordon |
| For the Defendant | Mr B McKenzie | Russell Kennedy Lawyers |
HER HONOUR:
1This is an application for leave to bring proceedings for damages pursuant to s335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) for injury suffered by the plaintiff in the course of his employment with Melbourne Health (“the employer”) on 21 April 2020 (“the said date”).
2The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.
3The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s325(1) of the Act. There, “serious injury” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
4 The body function relied upon in this case is the right upper limb/elbow.
5Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.
6 The impairment of the body function must be permanent.
7 The plaintiff bears an overall burden of proof upon the balance of probabilities.
8By s325(1)(c) of the Act, the impairment must have consequences in relation to pain and suffering which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “at least very considerable” and “more than significant or marked”.
9Section 325(2)(h) requires all psychological consequences to be ignored in determining the plaintiff’s application in relation to the physical impairment.
10I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.[1]
[1]TTB SMS Pty Ltd v Reading [2020] VSCA 203
11I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[2] and Haden Engineering Pty Ltd v McKinnon[3] in reaching my conclusions.
[2] (2005) 14 VR 622
[3] (2010) 31 VR 1
12The plaintiff relied upon two affidavits and he was cross-examined. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
13The main consequence relied on by the plaintiff was the loss of his chosen career as a psychiatric nurse.[4]
[4] Transcript (“T”) 93; plaintiff’s first affidavit at paragraph [47]
14The defendant’s case was that the plaintiff’s elbow condition had either resolved, or to the extent it was ongoing, any consequences were minimal and not serious. Even if his credit was accepted, the consequences do not get anywhere near the relevant threshold.[5]
[5] T93
Plaintiff’s evidence
15The plaintiff is presently aged forty-eight, having been born in April 1975 in India. He is married with three children, aged twenty-two, fourteen and seventeen.
16After finishing high school, he spent two years studying a diploma course at a medical technology laboratory and then migrated to Australia. He then found a job as a Psychiatric Services Officer at the Austin Hospital (“the Austin”) in 2004.
17He remained at the Austin Hospital working full time for a number of years. In about 2007, he completed a Psychiatric Nursing course at RMIT.
18In 2015, he completed a three-year bachelor’s degree as a Registered Psychiatric Nurse at Charles Darwin University and continued to work and study full time. He then completed a two-year further post graduate course in mental health nursing at RMIT in 2017.[6]
[6] T8
19In 2017, he moved to the Northern Hospital in Epping where he worked full time as a psychiatric nurse with the employer.
20On 21 April 2020 (“the said date”), as he was restraining a psychiatric patient, he hit his right elbow hard on the metal hinge or post of a door (“the incident”).
21His right elbow was very painful. He thought the pain would settle but it became worse over the following days. He had shooting pain down his forearm and elbow joint and his elbow joint was stiff. He was struggling to cope with work.
22About a week later, he attended Northern Hospital Emergency for assessment. Following scans, he was advised he suffered a fracture of the right radial head. It was recommended he take a few weeks off work.
23Despite absence from work, his elbow did not improve and he continued to have severe elbow and forearm pain.
24He attended his usual general practitioner (“GP”) Dr Kugatheepan at Danaher Drive Medical Centre on 11 May 2020, who recommended an MRI scan of his elbow. That was carried out the following day. He was told it showed signs of a fracture and ulnar neuritis. Dr Kugatheepan recommended rest and referred him to a physiotherapist, whom the plaintiff started to see regularly. He was certified unfit for work and prescribed anti-inflammatories.
25He was told that a June MRI scan showed signs of ulnar neuritis and tendinosis and that there was a small tear to one of the tendons in his elbow.
26In August 2020, he tried to go back to work on light duties doing administrative work, and the plan was he would perform a graded return to normal work.
27He was put on normal duties in about October 2020, but once he started trying to do anything physical with his arm, his pain became significantly worse and he stopped working.
28Over the following months, he continued to suffer severe pain and restrictions in his right elbow and forearm. His right elbow would constantly swell, even when walking.
29He was referred to orthopaedic surgeon, Mr Ek, whom he first saw in March 2021. He recommended surgery to repair a tendon tear and remove loose bodies in the elbow (“the surgery”). The surgery was undertaken on 21 April 2021.
30In May 2021, the plaintiff was referred to psychologist, David Field, whom he began to see fortnightly at the Metro Pain Group. He also started to see Dr Vivian later at that practice.
31By that time, the plaintiff had begun to get very distressed and frustrated about his arm pain. He could not go back to work and was using his leave. He felt he was letting his family down. He was struggling even to do things around the house like cleaning and gardening. His wife worked full time as a nurse, and he did not feel it was fair that the burden of all the housework, including lawnmowing, was falling on her.
32He started post-operative physiotherapy and felt for a few months that he was recovering well but the pain returned.
33He had another elbow MRI scan in September 2021, which he understood showed expected post-operative changes. He continued to suffer pain and swelling, including a flare up in August 2021, after he had tried to go for a run.
34He thought he last saw Professor Ek in September 2021. He agreed with the contents of Professor Ek’s report. He had not gone back to see Professor Ek since then.[7]
[7] T70
35The plaintiff again returned to work in about January 2022 on full-time duties, working up to 40 hours per week within several weeks. However, despite the fact his arm was working a little bit better than it had before, he was becoming very concerned about his ability to cope physically.
36His duties included administering medications, and if something happened like an altercation with or between patients, he was concerned he did not have the strength to perform patient restraints if necessary, and that he might re-injure his arm and become unable to work entirely. He therefore left work after a couple of weeks.
37In September 2022, although there had been some improvement in his elbow pain, it seemed to depend on him keeping his activities pretty limited. He used to play badminton every Sunday but had been unable to return to his club because playing would flare up his elbow. His GP had told him he should not do anything too particularly strenuous, or any sports.
38He used to go for regular bike rides with his kids but had essentially given up on that. He had gone for several short cycles but had a fall not long ago which scared him because of the risk of re-injury. He believed the fall was due to a lack of strength in his right arm.
39If he did anything physical, such as cleaning or pruning the garden, his right elbow became painful and swollen and he had a clicking sensation. Gardening used to be his big hobby and stress release but he was then very limited in his ability to do it.
40The scarring on his elbow was delicate and he tried to avoid knocking it on anything. If he knocked it, he got an electric shock sensation down his arm. The scarring looked very pale compared to his skin tone and he was self-conscious about its appearance.
41He continued under the care of the Metro Pain Group where he saw his psychologist, Dr Field, about twice a month.
42He saw his physiotherapist at Spine X in Mill Park twice a week, who had recommended light weight bearing and strengthening exercises which he did diligently. He attended hydrotherapy two or three times a week.
43He took Panadol and Nurofen on a as needed basis a few days a week, at least.
44More recently, he started getting pain down the right side of his neck. Mr Field had suggested that was because of the nerves having thickened on that side.[8] Some time ago, his surgeon suggested surgery to release the nerve in his elbow, but he was not keen on any further surgery.
[8] T71
45This discussion about further surgery happened in the appointment after the surgery. The plaintiff was unsure what surgeon was involved, as he confirmed he had not been back to Professor Ek.[9] He had seen Professor Ek’s assistant, but was not sure of his name.[10]
[9] T71
[10] T72; Dr Zbeda’s only report was in June 2021
46The plaintiff had realised that he could not return to work as a psychiatric nurse. It was too physical, and he was concerned about re-injuring his arm and having to go through similar rehabilitation. His right arm was weaker than his left. He was also concerned he would not be able to save himself or assist colleagues in case of an incident.
47He was contemplating retraining in general nursing or doing a course in cosmetic injections, but neither was really what he wanted to do. He had always loved psychiatric nursing and intended to spend the rest of his career doing it. Cosmetic injection work and general nursing work both paid quite a bit less than what he was earning as psychiatric nurse which required a post graduate specialisation.
48He was still not sure how successful he would be in retraining and returning to work. It was still very early days and he was not a person who adapted to new things easily, and the idea of going back and retraining in a new area was very difficult.
49The biggest consequence of this injury had been his loss of his chosen career which he found that very hard to deal with.
50He did not feel able to return to work as a psychiatric nurse.[11] He had tried doing general nursing. When it was suggested to him that he had not returned to general nursing because it did not pay well, he said it was because he was not able to use his arm physically.[12]
[11] T25
[12] T26
51His physiotherapist and his GP were not supporting a return to general nursing. He did not go ahead with general nursing because he had not studied for it, he had only studied for psychiatric nursing. He was getting good pay as a psychiatric nurse. If he wanted to be a general nurse or cosmetic nurse, he would need to start from the beginning and do the training.[13]
Current situation[14]
[13] T28
[14] August 2023 affidavit
52He continues to consult his GP. WorkCover has ceased funding for physiotherapy.
53He completed a 10-week pain management program with Metro Pain Group in about mid-2021, but it did not help him significantly. Thereafter, on and off he saw psychologist, David Field, whom he stopped seeing in February this year.
54He returned to work in late January 2023, working for the NDIS for 25 hours a week. His job is administrative in nature and involves allocating NDIS workers and organising training. Most of his workday is spent at the computer and involves typing and data entry. He is fortunate as he can work from home and can set his own hours. He tries to give himself regular breaks so he does not aggravate his right elbow. However, the nature of the job requires repetitive use of his right arm which increases his right elbow pain.
55In evidence-in-chief, he explained that when he started his current job at Aussie Care, his job involved work at home 25 hours per week, and then in addition, he got on-call work. Working online at home, he allocates NDIS workers to specific clients.[15]
[15] T8
56There are contracted hours in his present job; it is like part-time casual. Initially, he was told it would be 40 then 50 hours a fortnight.[16]
[16] T78
57He commenced work with Aussie Care on 26 December 2022. Prior thereto, he did some studies and training. He is now one of the directors. It is a management job. Sometimes he is paid travel allowances and was paid for some set-up training. While his payslip said he was full time, it is not a full-time job.[17]
[17] T78
58The various payslips set out 25 hours of online work a week and extra hours were for nursing support. As a supervising manager, he goes with a disability support worker to a client’s home. Those clients are mainly in the northern suburbs.[18] He does not do wound care or any other nursing duties but he can monitor medication.[19] He cannot physically do transfers or showers.[20]
[18] T13
[19] T12
[20] T29
59His payslips indicated that some fortnights he worked in excess of full-time hours. When the on-call work comes, he picks it up.[21] He receives a shift penalty when on call during the weekends.[22] If he wants to work more of these hours, there are more available.[23]
[21] T69
[22] T15
[23] T32
60He agreed he only clarified he was doing more hours when his payslips were shown to him.[24]
[24] T68
61The plaintiff was cross-examined about various accounts he had given to medical examiners about his current job.
62In August 2023, he told Dr Mutton he was working 25 hours per week from home and that further hours were available but he was not able to continue due to increasing symptoms. In that week, his payslip indicated he worked 31 hours.[25]
[25] T16
63He had also told Dr Mutton that he was doing administrative work such as rosters and planning. He did not tell him anything about the nursing support work because it was not in his regular duties, but he wanted to do some extra work for the money.[26]
[26] T17
64The plaintiff agreed that he had been performing significant amounts of nursing support work; however, in the last pay period for which he did not have a payslip, he did not do any.[27]
[27] T19
65Mr Moaveni’s history on 19 May 2023 was that the plaintiff had not worked since stopping with the employer and that he believed he could not return to work as a psychiatric nurse.[28]
[28] T19
66However, in the fortnight 15 to 28 May, the plaintiff’s payslip set out that he had worked 97.5 hours. He could not really explain why he had not told Mr Moaveni anything about Aussie Care on examination during that fortnight. He could not remember exactly what he had told him but agreed he was working at the time.[29]
[29] T22
67Sharon Christian, physiotherapist, who last saw the plaintiff two months ago, recently reported that he told her he was interested in light administrative roles. He had also told her of being hopeful of going back to work; however, he was not sure when that would happen. When it was suggested she was under the impression that he had not returned to work, he simply replied it was her suggestion he not to return to work as a psychiatric nurse.[30]
[30] T23
68There was no pre-employment medical for the Aussie Care job. They knew that he had stopped any physical work with clients. He is only doing a management role.[31]
[31] T25; T32
69He has a current certificate of capacity from Dr Kugathasan. His GP is happy for him to do his administrative work and he is aware of the Aussie Care job.[32]
[32] T25
70The plaintiff enjoys the office work at Aussie Care. He does not derive as much satisfaction from it as he did with psychiatric nursing because of his many years of study and work. He needs the money and also needs the job and he does not want to sit at home. He gets satisfaction from helping people. The job online at home fits in with his family, his wife working full-time and picking up their children from school.[33]
[33] T31
Current medication
71At the end of the workday, he manages his right elbow pain by using Panadol or Ibuprofen. He does not like taking medication. However, he would say he takes Panadol or Ibuprofen at least two to three days per week.
72While Dr Ghan noted in June in 2023 that the plaintiff was not taking any medication, when he “got better” he does not take any.[34]
[34] T73
73Dr Kugatheepan’s clinical records had no entry under “Current Medications”. Dr Mutton had noted paracetamol twice a day; Ibuprofen three to four times a day. The plaintiff took those tablets when he was in pain.[35] When he is rested and when he gets well, he does not take medication.[36]
[35] T74
[36] T75
74The plaintiff also attends his local pool and does hydrotherapy for his right elbow and is trying to do that a couple of times a week.
75He experiences intermittent pain in his right elbow which comes on or is aggravated by use of his right arm. He also experiences less frequent and mainly less intense pain.
76His right elbow affects carrying, lifting, reaching and pulling activities to varying degrees.
77When he uses his right hand and right arm a lot or undertakes physical activity his right elbow pain worsens and his whole arm is painful, and he finds it very difficult to bend it.
78He experiences a needle prick type sensation in his right elbow which is an intense sharp pain that can come on randomly and typically lasts for a few minutes. He gets this multiple times a week.
79He finds it difficult to sleep when he experiences the prick-type pain in his right elbow.
80He can still drive, but if it is a long drive he finds it difficult to keep his right arm in an extended position as that increases his right elbow pain.
81He continues to experience difficulty gardening.
82He has also found in the last couple of months he started to find activities which involve bending of his right arm such as shaving, vacuuming, mopping, more difficult as it increases his right elbow pain. While he still can do these activities, he needs breaks.
83It saddens him he can no longer work as a psychiatric nurse. He loved this job. He had worked in that field for seventeen years and got immense satisfaction from it. He does not believe he could return to this job or any job that is physical in nature.
84If he had not injured his elbow, he definitely intended to keep working as a psychiatric nurse. That is what he is trying now because of the nature of his job, like the last sixteen years:
“The physical activity of what I do reflects on my job because it’s a locked area. I have to deal highly aggressive patients, until they get better I need to sometimes physically restrain them, give them medication and seclude them. So this is the only way to keep myself fit to continue my job. That’s why I’m trying to do it still, even after the surgery. Because I tried to go back to work twice it seems like here and there I – with the pain I do my activity back to keep myself fit.”[37]
[37] T79
85His inability to do his psychiatric nursing was:
“… literally really affecting me. Like especially in 2021, totally my work was stopped and here and there the physical activity totally stopped. At that time mentally and physically I was very down. Yes it affected me a lot.”[38]
[38] T79
Progress
86On 15 January 2023, Dr Kugatheepan noted the plaintiff had returned from India. He had gone there over Christmas to visit his mother. He was there for five weeks. He managed his luggage with his left hand.[39]
[39]T35
87There was lots of improvement, as Dr Kugatheepan noted on 9 March 2023.[40]
[40] T41
88On 26 April 2023, it was correct as Dr Kugatheepan noted that he was getting some stiffness after certain exercises. It was wrong he had a flare-up after badminton because he had not played since the injury.[41] He used to play badminton every Sunday. He is a member of the badminton club in Bundoora.[42] There was no communication problem between he and Dr Kugatheepan.[43]
[41] T38
[42] T44
[43] T39
89On two occasions after his injury, he had an issue when ten-pin bowling. It was not his regular activity. His regular activity pre injury was badminton.[44] He did tell Dr Kugatheepan he enjoyed gardening and had to give it up.[45]
[44] T39
[45] T40
90He stopped bowling after he tried it twice, it was a very bad situation at the time so he struggled up to three days – “I couldn’t even brush and wash my face. So then I stopped.”[46]
[46] T45
91He agreed as at May 2023, as Mr Moaveni reported, there was minimal sleep disturbances and also that his neck pain affects his sleep.[47]
[47] T76
92As at 17 May 2023, he was swimming two or three times per week. He had not been swimming for a while after the elbow surgery. He got a bit better so he tried swimming and bowling and a few other things.[48]
[48] T41
93He goes to hydrotherapy at Heat Pump Spa in Mill Park and Watermark. He tries to swim laps of the 25-metre pool. He used to do like 80 or 100 laps, but he now does 10 or 15 and then he takes a rest.[49] He did not mention swimming in his affidavits because he “forgot”.[50]
[49] T42
[50] T43
94He used to do a lot of cycling, but not now. He tried once or twice then got pain and stopped. The last time was maybe March/April this year when he got a little bit better, but he has not done it since.[51]
[51] T42
95When he gets better ꟷ
“… so when I am not doing anything for a while, when I rest, so the pain gets better, then I try to do. So those sort of accommodations - It’s called pacing, so I try and rest and try to do some activities, if that pain continues, then stop it.”[52]
[52] T43
96His main regular activity pre injury was badminton every Sunday. Other activities were with the kids and with friends. He could have done more before the injury. After the injury, he tried here and there but did not continue playing badminton.[53]
[53] T43
97He last tried hiking with his children at the beginning of the year and after that he has not gone. They went on a 10-kilometre bushwalk near their house.[54] Having said he did a lot of hiking before the injury – “but now I’m you know a bit scared to do any sort of physical activities so I limit myself”.[55]
[54] T44
[55] T45
Running
98In his first affidavit sworn September 2022, he deposed he continued to suffer pain and swelling, including a flare up in August 2021, after he had tried to go for a run.
99He confirmed going for a run caused him difficulty. He did not mention running in his second affidavit. He still does not have the same problems as was the case after the surgery. He tried a few runs, “I got sorely and pain. But currently my run is not bad that much so yes I rest and run, it’s better now.”[56] He still goes running and it does not affect his elbow like it used to.[57]
[56] T45
[57] T46
100He agreed, as his physiotherapist noted, one of the aggravating factors with his elbow pain was walking fast.[58] He agreed that he told her there was no major difference in his pain since the beginning of treatment.[59]
[58] T49
[59] T50
Surveillance film
101There was film of the plaintiff running in the Nike Half Marathon on 11 December 2021, and also in that race the following year, on 2 October 2022. His time for the 21-kilometre run in 2021 was 2 hours and 37 minutes and in 2022, 2 hours and 30 minutes.
102He agreed, while running, he was moving both arms with them flexed as he was pumping along. He did a “V” signal when he went through the finish line in 2021.[60]
[60] T53
103He agreed that was quite a different picture to that which he painted of his running the day before in court. When it was suggested he did not look like he was in any pain at the end of the Half Marathons, he said he took a lot of tablets and:
“… push myself a lot to keep my physical activity up because I went through very bad times after I stopped my work and physical activities during the severe pain. Then this is the only way to come out of my mental state and physical health. I tried my extreme medic sports.”[61]
[61] T54
104He had told his physiotherapist and GP of his involvement in these Half Marathons. He told his solicitor that he can do all that.[62]
[62] T54
105While he agreed there was no sign of grimacing when he went through the finish line, he thought he mostly experienced the pain the following day at least two to three days, and then had a rest and took some tablets to get better from that.[63]
[63] T56
106He did a lot of running before the injury but had not done a Half Marathon until afterwards.[64] Before the injury, he did 10-kilometre bush runs most weeks.[65]
[64] T56
[65] T60
107He confirmed he was shown in a number of photographs participating in both Half Marathons.[66] He agreed his right arm bent was a posture he used throughout the 21 kilometres. He agreed he had a big smile on his face. He was running along at various times with his right arm bent at quite an angle.[67]
[66] T57
[67] T58
108Following the Half Marathons, he took tablets and had to rest. The following morning, he could not use his arm at all, so for at least two to three days he had pain with any activities.[68]
[68] T77
109There was further surveillance on 26 November 2022. Before that film was shown, I asked the plaintiff about the strong musculature in his arms shown in the photographs. He had deposed in his first affidavit that he does light weightbearing and strengthening exercises as recommended by his physiotherapist.
110He now goes to the gym for exercising regularly; he does swimming and running; he does weights.[69] He does free weights, pull ups. He does dumbbell curls mostly up to 8 kilograms, and then stops if the pain comes back.[70]
[69] T60
[70] T61
111There was 3 minutes and 54 seconds of film on 22 November 2022. The plaintiff was shown getting out his car, taking his gym bag into Mill Park Leisure Centre. He went in at 10.32am and came out at 12.53pm. During that time, he tried to do some swimming, but most of the time he sat in the spa where the heat pump is in the pool.[71]
[71] T62
112In the next film shown, taken on 5 November 2022, he was shown driving to Powerhouse Gym in South Morang. He entered at 10.43am and emerged at 1.13pm. That was where he did the weight training. While he was there for two-and-a-half hours, he took a break and did some exercises. He does bicep curls with free weights using both arms. He pulls a nautilus weight down. He also does bench presses.[72] He sets the weight at close to 20 kilograms to do pull downs and pull ups. He tries to do as much as he can, and once he gets pain, he stops. He does four or five sets. He does bench press on a machine lying down lifting a maximum of 40 kilograms. He agreed that involved transferring the force with both arms. He does a similar number of sets until he gets pain, then he stops.[73] He agreed there was no sign of any pain when he left the gym.[74]
[72] T64
[73] T65
[74] T66
113Five minutes and 13 seconds of surveillance in July 2023 was then shown. On 2 July, the plaintiff was walking along a bushland track. On 8 July 2023, he was attending a religious service with his family.[75]
[75] T68
114He agreed he had told Mr Moaveni he had minimal difficulty with personal hygiene.[76]
[76] T75
115He agreed that working at home suited his family life. He is quite busy with his children’s activities after school. He helps with cooking and cleaning, and shares activities around the house.[77] He can still engage in lawnmowing and gardening.[78]
[77] T76
[78] T75
Neck and right shoulder
116He still has problems with his neck, and agreed that part of the reason he takes medication is for his neck as well as his elbow.[79]
[79] T76
117Right shoulder problems came on after the surgery, as did the neck problems. No one had sent him for any investigations of those conditions. His physiotherapist is also treating him for both conditions.[80]
[80] T77
118His elbow is the main problem compared to his neck pain.[81]
[81] T77
Summary of Earnings
Financial Year Ending
Gross Income
Payer
30 June 2016 $24,298.00
$39,659.00
$11,077.00
Melbourne Health
St Vincents Hospital (Melbourne Limited)
Australian Nursing Agency Pty Ltd
30 June 2017 $64,416.00
$7,727.00
Melbourne Health
Australian Nursing Agency Pty Ltd
30 June 2018 $72,972.00 Melbourne Health 30 June 2019 $87,361.00 Melbourne Health 30 June 2020 $97,154.00 Melbourne Health 30 June 2021 $97,236.00 Melbourne Health 30 June 2022 $77,952.00 Melbourne Health Plaintiff’s treating practitioners
119On 28 April 2020, the plaintiff presented at Northern Hospital Emergency. The diagnosis was right elbow pain, the plaintiff having struck his right elbow on the corner of a door whilst at work one week earlier.
120Simple analgesia was prescribed and an appointment was made with the fracture clinic in one to two weeks.
Physiotherapy
121The plaintiff presented to Mill Park Physiotherapy on 27 January 2021, for a flare up of a previous workplace injury to his right elbow. Physiotherapist, James Greene, referred him to Mr Ek.
122Sharon Christian, physiotherapist of Spine X Physio Care, first saw the plaintiff in May 2021 on referral from Dr Kugatheepan, three weeks post elbow surgery.
123Ms Christian most recently reported in September 2023.
124The history was that the plaintiff had worked as a psychiatric nurse for seventeen years. He reported loving his job but cannot do it now due to its physical demands and his inability to use his right arm.
125The plaintiff had no capacity to work as a clinical psychiatric nurse. He received financial assistance from his current WorkCover. Due to most of the ADLs increasing the pain and making him uncomfortable, he is recommended to do only light administrative duties at work. He reports interest in doing light admin roles like managing, supervising et cetera.
126Over the course of three years of physiotherapy, the plaintiff had never reported being completely pain free. He remained concerned about his complete and full recovery and the constant need for rehabilitation always, as his pain was intense at times:
“He reports to remain in the workforce without causing too much pressure on the affected areas and working within limitations of his pain, however, he's not sure when that could happen and if it could be ever possible. The constant elbow aggravating factors along neural pain symptoms remains a significant subject of concern for Mr Mark and the impact of the same in future life and career.”
127The plaintiff had not been able to return to work. His work is physically demanding and it is very difficult for him to manage. The pain affects his sleeping and he is not able to rest well. His social life is significantly impaired, as reported by him. He reported that he could not keep his arm flexed or extended for long periods of time.
128Hydrotherapy and manual therapy had been the only positive factors so far in giving him good pain relief for at least a day or two. He had been practising all his exercises and rehabilitation effectively at home as well.
129Under the heading “Aggravating Factors,” she included any activities of daily living has aggravated the pain. Tasks like shaving, cleaning, vacuuming, carrying a bag of groceries, walking fast et cetera. The pain is extreme when waking in the morning, when sometimes he cannot touch his face with his right hand.
Dr Kugatheepan, GP, Danaher Drive Medical Centre
130In this most recent report of June 2023, Dr Kugatheepan noted the incident circumstances and subsequent investigations and treatment leading to surgery. He also noted Dr Ek’s post-operative comments that the plaintiff was doing extremely well with a small flare up of one week pain and discomfort in the right elbow. By that time, symptoms had settled and Mr Ek had reassured the plaintiff.
131The plaintiff was increasingly anxious to return to his psychiatry wards as it needed more physical demand like restraining psychiatric patients. He had tried to return to his duties on many occasions which ended up in flare-ups. He had to step back at times when he was needed physically to help others in the high dependency unit. He had a sense that he was no longer fit for his role as a psychiatric nurse, and he feared that this would potentially increase the risk of re-injuring his elbow. His fear was if he got hurt again he would not be able to support his family. Eventually, he ceased work and then was on personal annual leave.
132Therefore, the plaintiff was planning to change his career which did not involve much physical demand and was currently retraining and upskilling in that regard.
133As his regular GP who witnessed his flare-ups and re-injuries, he agreed with the plaintiff’s fear. It would be prudent for him to move to a different area of specialty which may not need much physical demands.
134Prior to the injury, the plaintiff used to be a physically active person who enjoyed playing badminton, bowling and gardening but had to give up these activities as he was fearful of recurrence of his condition.
135At present, the plaintiff had stopped taking regular pain medication and anti-inflammatories. He had two to three physiotherapy and hydrotherapy sessions per week. That was really useful for him to stabilise his elbow. This should be continued further until his condition resolved. It was unpredictable to say for how long the plaintiff needed these services, it depended on periodical review by him and the physiotherapist.
Mr Ek, orthopaedic surgeon
136Mr Ek wrote to Xchanging on 9 March 2021 requesting approval for surgery.
137On 21 April 2021, he performed a right elbow arthroscopic debridement of impinging osteophytes, right elbow arthroscopic contracture release and right arthroscopic removal of loose bodies.
138On 24 August 2021, having seen the plaintiff post surgery, Mr Ek advised the GP that the plaintiff he was doing extremely well until last week, when he suddenly felt pain and discomfort in his right elbow with associated irritability. The plaintiff said he was rehabbing his elbow very well and had returned back to the majority of his previous activities until, for seemingly no reason, he developed elbow pain.
139The plaintiff had quite an irritable elbow with the range of motion from 20 to 100 degrees with quite marked tenderness at the end of ranges.
140An MRI scan was arranged to rule out any structural abnormalities or any possible loose fragments that may be causing the plaintiff’s current symptoms.
141Mr Ek advised Dr Kugatheepan on 21 September 2021, that he had spoken to the plaintiff following the MRI scan which demonstrated post-operative changes of the common extensor origin tendon with some mild synovitis, but certainly nothing that would be attributing to his overall swelling and pain.
142The plaintiff told him the symptoms had certainly settled down. He reassured the plaintiff it was unlikely the symptoms would persist or recur given the MRI findings, and he had not made another appointment to see the plaintiff again unless he had any ongoing issues.
Dr Robert Zbeda, upper limb fellow
143By letter dated 22 June 2021, Dr Zbeda, on behalf of Mr Ek, wrote to Dr Kugatheepan, advising that the plaintiff was doing well so far. They had recommended he continue to work with physiotherapy to work on range of motion and strengthening. They would like him to start to push the range of motion exercises, as well as start light strengthening and working his way up in a gradual fashion. The plaintiff did have some ulnar neuritis. However, at that stage, he had no sensory or motor deficits. They would continue to follow him and hopefully that would resolve with continued physio and would see him in two months.
Dr David Vivian, musculoskeletal physician
144Dr Vivian wrote to Dr Kugatheepan on 14 September 2021 following his examination of the plaintiff.
145Examination of the elbow appeared mildly swollen and there was quite marked tenderness. There was reduced elbow flexion to 110 degrees and extension decreased by 20 degrees.
146The plaintiff’s sleep was disturbed and he was getting some fatigue. Consideration could be given to a low dose tricyclic to see if that helped his sleep.
147The diagnosis was internal derangement of the right elbow with perhaps recurrent loose body. The plaintiff did not have lateral epicondylitis at that time. There was prominent ulnar neuritis and significant central sensitisation.
David Field, psychologist
148The plaintiff was referred to Mr Field in around May 2021.
149As at May 2022, he thought the plaintiff was suffering an Adjustment Disorder with Mixed Anxiety and Depressed Mood. The plaintiff was not able to work at that time. Ongoing psychological support was recommended.
Medico-legal evidence
Mr Ash Moaveni, orthopaedic surgeon
150Mr Moaveni saw the plaintiff in May 2023.
151The plaintiff currently reported taking Panadol and Nurofen a few days a week, due to ongoing pain in his right elbow as well as ongoing symptoms in his cervical spine.
152The plaintiff initially took time off work due to right elbow pain and attempted light duties (administration in August 2020) and returned to normal duties in October that year. However, as soon as he undertook anything physical, his right arm pain worsened.
153Consequently, the plaintiff stopped work again and used up his leave entitlements. He returned to work again on full duties 40 hours per week in January 2022. However, due to increasing re-injury concerns, he ceased work after a couple of weeks and had not worked since. He believed he could not return to work as a psychiatric nurse.
154The plaintiff described intermittent pain in his right elbow which worsened with use of the arm. When the elbow flared up, he rated the pain at 7 to 8 out of 10 and the pain could interrupt his sleep. On occasion, he experienced pins and needles as well numbness in his right hand.
155Following elbow surgery, the plaintiff began experiencing pain on the right side of his cervical spine.
156The plaintiff reported minimal difficulty in performing self-care and personal hygiene with moderate difficulty in shopping and housework. He reported modest difficulty in gardening and/or lawn maintenance. He had a driving tolerance of less than an hour. He reported minimal sleep disturbance due to his pain. His sleep was predominantly affected when his symptoms had been aggravated.
157The plaintiff reported considerable difficulty in social and recreational activities. These included playing badminton, bowling, bike riding and gardening. He tried to play badminton a number of times; however, he experienced increased pain in this elbow, together with swelling.
158The diagnosis was fractured right radial head, common extensor origin tendon tear of the right elbow, aggravation of pre-existing degenerative arthritis right elbow and loose bodies, right elbow removed with elbow arthroscopy.
159The plaintiff had ongoing loss of strength and stamina in the right elbow and reduced range of movement, together with ongoing pain.
160On balance, the plaintiff’s employment was an ongoing material cause of his diagnosed injuries.
161It was unlikely there would be further deterioration in the condition. The plaintiff’s pain and impact on his domestic and leisure activities was likely to persist and he was unlikely to require further treatment. He did not have the capacity to perform his pre-injury role as a psychiatric nurse.
Investigations
162Following a CT scan of the right elbow in April 2020, it was reported there was a small anterior jointed fusion with subtle cortical irregularity on the posterolateral corner of the radial head suggestive of an undisplaced tiny fracture. Another 3‑ millimetre bony fragment was seen on the posteromedial aspect of the humerus ulnar joint. Although no obvious defect was seen in the apparent bones, but possibility of a small avulsion fragment could not be entirely excluded.
163An x-ray of the right elbow and left hand in April 2020 reported a “small anterior fat pad noted ? Small effusion. Multiple small well corticated bony fragments are seen on the anterior elbow joint space ? Chronic ossicles.” There was a tiny bony fragment measuring around 3 millimetres in the “humeroulnar joint ? Avulsion injury.” Further evaluation with CT was suggested. Small osteophyte seen in the radial head and proximal ulna with tiny traction spur at the olecranon, in keeping with degenerative changes.
164No acute bony injury was noted in the left hand. Subtle tiny periarticular calcifications were seen in the second and third DIP joint, most likely degenerative changes
165A right elbow MRI scan in May 2020 was reported to show moderate tendinosis of the common extensor tendon origin. No tear. Soft tissue oedema at the ulnar and dorsal aspect of the elbow suggestive of soft tissue contusion associated with ulnar neuritis, likely post-traumatic in nature in the current clinical setting. No marrow oedema to suggest subacute fracture. Capsular thickening and focal fluid pocket at the posterior radial humeral joint suggestive of regional capsulitis. Three-millimetre loose body in the glenohumeral joint as documented in the external April 2020 CT scan.
166There were further right elbow MRI scans in June 2020 and October 2020.
167There was an ultrasound of the right elbow on 18 January 2021.
168There were further MRI scans of the right elbow in February 2021 and again in September 2021.
Defendant’s medical evidence
Treaters
169In June 2021, Mr Ek thought the prognosis was good and full recovery was expected at about six months.
170The plaintiff would be able to work full duties after six months, no heavy lifting – 1 to 2 kilograms – no repetitive use of right shoulder for the first two months. There were no barriers that may impede his returning and ability to achieve full-time return to work.
171Physiotherapy would be needed to assist in the recovery for up to six months. On 1 July 2021, Mr Ek made similar comments, but noted that physiotherapy once a week for up to four months would be anticipated.
Medico-legal evidence
Dr David Elder, occupational therapist
172Dr Elder examined the plaintiff for the purposes of an AMA assessment in May 2022.
173The plaintiff reported ongoing pain in the elbow associated with activity and if he bumps the scar, he gets an “electric shock” along the elbow. This can also happen at night as he changes position.
174On examination, the scar was tender and very pale in appearance. There was some restriction in range of motion of the elbow. There was no ulnar nerve motor or sensory disfunction. There was no wasting of the small musculature.
175Grip strength in the right was 40 kilograms in comparison to 55 kilograms on the left.
176The diagnosis was surgically treated lateral epicondylitis.
Mr Francis Ghan, orthopaedic surgeon
177Dr Ghan first saw the plaintiff in December 2021 on Telehealth.
178The plaintiff said he had had a number of flare ups since the surgery and described a swelling in the right forearm and had difficulties touching his face. At night, he felt his elbow was throbbing. He was taking Panadol and Brufen.
179On examination, range of motion on the right elbow was from 20 to 135 degrees. The range of motion was free and painless.
180Based on that examination, the plaintiff’s right elbow had recovered and the injury had resolved, and he could return to normal duties and hours immediately. The prognosis was good and no further treatment was necessary.
181Typically, a fractured right head of radius would heal within three months. The plaintiff’s ongoing symptoms resulting in surgery, and his ongoing incapacity could not be explained on an organic basis. The right elbow injury had resolved, and he had recovered and was able to return to normal duties and hours immediately. His current condition was no longer related to the incident injury.
182On re-examination in June 2023, the plaintiff presented in a straightforward manner.
183He said his right elbow pain was much improved. He was able to do housework, he still did swimming twice a week. However, he found sporting activities such as badminton and bowing caused him right elbow pain the next morning and so he had stopped these activities. He was not taking any medication.
184On examination, there was a flexion deformity of the right elbow. The surgical scar was non-tender and non-keloid.
185Based on the physical examination of the right elbow, there was a residual flexion deformity of 20 degrees with otherwise almost full flexion and full pronation and supination. The flexion deformity was a natural consequence of the fracture, and no further surgery would rectify it. While the plaintiff complained of right neck and shoulder pain following the surgery, there did not appear to be any pathology in those areas.
186The diagnosis was an undisplaced fractured radial head with the employment being a cause thereof. Work no longer materially contributed to the plaintiff’s current condition.
187The plaintiff’s right elbow functioning was good and he was left with a slight flexion deformity, but there should not be any functional capacity issue in the future.
188The plaintiff was fit to return to normal pre-injury duties and hours and able to perform the duties in the Kinnect March 2022 report on a full-time basis.
Dr Phillip Mutton, occupational physician
189Dr Mutton first saw the plaintiff in May 2022.
190The plaintiff told him that he was then independent in terms of activities of daily living. He was able to drive and could lift up to 2 kilograms and certainly lift a bottle of milk. He had much improved and there was less pain. He noticed there was a slight extension lag in the right elbow. He did get some morning pain in the elbow with flexion such as when cleaning his teeth. He may get electric shock-like pains in the region of the lateral epicondyle scar.
191The plaintiff was fearful of further injury if he continued in his role as a psychiatric nurse and was therefore reconsidering his future career options. He was considering using his general nursing skills as he had an interest in clinical instruction, in particular, IV therapy and the like.
192On examination, there was no specific tenderness over the right elbow. There was no pain with resistance with extension at the wrist. There was a slight loss of full pronation and a slight extension lag.
193There was evidence of a radial head fracture which was treated conservatively. Ongoing issues related to ongoing inflammatory response and lateral epicondylitis and ulnar neuritis, which responded to the surgery.
194The plaintiff had returned to work in January 2022, but had now taken personal leave as he did not feel he wished to continue his current career. From a physical viewpoint, the condition had resolved. There was a slight loss of full extension and a slight loss full pronation but there appeared to be no functional loss of significance. The plaintiff could lift up to 2 kilograms. He could return to pre-injury duties and hours and, from a physical point of view, there was no functional loss in relation to the dominant arm.
195The plaintiff could return to modified or alternate duties. He should avoid heavy lifting greater than 5 to 10 kilograms in the affected right upper limb. He had a capacity for suitable employment and, in all likelihood, he could undertake the full range of his psychiatric nursing duties but he was fearful of re-injury.
196Based on the plaintiff’s current presentation and taking into account his physical injury, he could work as a registered nurse, polytechnic teacher, medical technician, health and welfare services manager and phlebotomist.[82]
[82] Kinnect vocational report dated March 2022
197On re-examination in August 2023, the surgery scar was subjected to minor tenderness. There was a slight extension lag. There was slight loss of full flexion and slight loss of palm down pronation. The neck was unremarkable and there was no loss in the hands or fingers.
198The radial head fracture had healed but there were also some soft tissue injuries that have predominantly included some ulnar neuritis and lateral epicondylitis for which the plaintiff had surgery.
199It was likely the plaintiff’s employment did contribute to his condition in a significant manner given the traumatic incident. Work is a materially contributing factor due to ongoing symptoms.
200The plaintiff presented with pain in association with the known pathology.
201There must be some question about prognosis, the surgery was two years ago, and the condition was probably stable. It was likely the plaintiff would be left with some residual stiffness due to osteoarthritic change and soft tissue changes.
202It was unlikely the plaintiff would return to physical patient contact as a psychiatric nurse due to the ongoing issues with his dominant right upper limb. He did not think the plaintiff would be able to do so in the future.
203The plaintiff had the capacity to return to suitable employment and had returned to 25 hours per week doing some administrative work. The plaintiff believed that that was the most he could do with withdrawal of physiotherapy and increasing symptoms, and the doctor agreed.
204In view of some deterioration with withdrawal of physiotherapy, less physical tasks may be more appropriate and therefore perhaps the plaintiff avoid phlebotomist and registered nurse.
205The plaintiff was motivated to return to work and had taken up employment and was having a career change.
206The plaintiff reported there had been a deterioration with cessation of physiotherapy. Any physical activity resulted in increasing discomfort in the right elbow and may extend to the neck. He could not fully straighten or flex his elbow, and he had difficulty touching his face. He had no medial elbow pain, but did have lateral pain only.
207The plaintiff reported he was independent in terms of ADLs. He could drive 45 minutes. He was now working 25 hours per week and his sleep had been variably interrupted particularly in the last two months.
Dr Eli Kotler, psychiatrist
208Dr Kotler carried out an AMA assessment in May 2022.
209His impression was the plaintiff most likely had an Adjustment Disorder with Mixed Anxiety and Depressed Mood in partial remission. He had a significant anxiety about reinjuring himself.
210From a psychiatric perspective, the plaintiff could return to work in modified or alternative duties and hours. He appeared to have a full capacity apart from roles in which he could reinjure his arm.
211It would be appropriate to continue two to four weekly psycho-therapy until he returned to work.
Aussie Care payslips
212The plaintiff commenced work for Aussie Care on 26 December 2022. By February 2023, he was earning in excess of $4,000 gross per fortnight including payment for nursing support which continued for some months.
213His hours varied but he was working about 80 hours a fortnight. By March, he was earning in excess of $5,000 gross per fortnight for over 90 hours work. His highest gross fortnightly weekly earnings were in the first fortnight of May where he earned $8,238 for 98 hours wok. From late June, he averaged about $5,500 per fortnight. His most recent payslip was for 7 to 23 August 2023 where he earned $3,800 net for ordinary hours only, no nursing support.
Overview
214It is accepted that the plaintiff suffered a radial fracture to his right elbow and also a tear to the common extensor tendon when he hit his elbow on a door while involved in restraint of an aggressive patient.[83] He underwent elbow surgery in April 2021.
[83]Claim for statutory benefits accepted by XChanging in May 2020, Impairment benefit claim accepted in May 2022 - examination by Dr Elder
215There was no significant dispute on the medical evidence save that Dr Ghan thought the plaintiff’s condition had resolved. He was an outlier in this regard and does not provide any path of reasoning in support of this view, with the consensus of medical opinion that the plaintiff continues to suffer from the effects of the work injury.[84]
[84] T94
Credit
216As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[85]
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
[85]Supra at paragraph [12]
217Counsel for the defendant submitted credit is particularly important in this case.[86] The plaintiff did the two Half Marathons, having told his physiotherapist walking fast aggravated his elbow pain. He did not tell any doctor about his significant running, the level of which was relevant both as to his credit and capacity.[87]
[86] T81
[87] T85
218Further, in terms of what the plaintiff can and cannot do, he has told doctors he is limited by his elbow pain in activities like ten pin bowling, although he did not bowl before the incident, yet he did not tell examiners about any running, let alone running Half Marathons.[88]
[88] T86
219It was submitted the plaintiff’s affidavit evidence about his running was totally inaccurate. His affidavit was pretty much “I’ve tried running it hurt and I stopped”. Further, it was only after the incident that he first did a Half Marathon and he had then done two.[89]
[89] T86
220The surveillance film clearly showed, and the plaintiff agreed, that his right arm was pumping away in a flexed position and at the end of the race, having run for two and a half hours, he smiled and was elated.[90]
[90] T87
221While the plaintiff claimed to be unable to return to psychiatric nursing for fear of re-injury, it was submitted participating in these types of races involved running with a pack of people and there did not seem to be any guarding or anything of that nature by the plaintiff of his right elbow. In any event, all the doctors who thought the plaintiff’s fear of re-injury was a relevant factor in terms of his work capacity, relied on the plaintiff’s truthfulness, unaware of his participation in Half Marathons and other heavy activities.[91]
[91] T87
222In response, counsel for the plaintiff submitted the plaintiff could still be accepted as a man of credit. He made various concessions. He said he can still do certain activities, but could manage with medication and/or rest. When he told examiners he was not working, he meant he was not working as a psychiatric nurse and was not deliberately misleading the Court.[92]
[92] T99
223I had significant concerns about the plaintiff’s credit particularly in light of the surveillance film and the photographs of his participation in the two Nike Half Marathons.[93]
[93] T83; T95
224Clearly, the amount of running shown was far more than simply going for a jog. The plaintiff had trained for and participated in two Half Marathons and appeared in the two films to have enjoyed the experience and ran a reasonable time.[94]
[94] T55
225He only made a very fleeting reference to running in his first affidavit – he had tried to have a run and he got a bit sore and he stopped. He did not mention running at all before or after the incident to any doctors. He told no one about his participation in the Nike Half Marathons in 2021 and 2022.
226In fact, the plaintiff’s current physiotherapist noted that walking too fast was an aggravating factor, a far cry from the plaintiff’s ability to run for two-and-a-half hours plus over 21 kilometres.
227The plaintiff had an opportunity in cross-examination to disclose his involvement in the Half Marathons, but persisted with his evidence that he had tried to run after the elbow surgery, got sore and that was it, although he did say his elbow was not a problem with running now as much as it was then.
228It is somewhat extraordinary when describing the consequences of his elbow injury, the plaintiff focussed on badminton, ten-pin bowling and other less physically taxing activities. He has obviously put his mind to the sort of activities he was involved in and omitted to mention the very significant Half Marathons and also gym work involving weights.
229It is extraordinary that he started endurance running after an injury which he claims results in restricted arm movement and a fear of his elbow being knocked.
230The plaintiff was shown in the surveillance films and in the photographs looking fit, happy and not struggling at all with the significant distance that he had run.
231Clearly, there is a risk of getting knocked or there being impact on his elbow in distance running, surrounded by many other runners, yet he did not show any signs of guarding or protecting his elbow whatsoever.
232Another credit issue was the plaintiff’s involvement in gym, in particular, lifting weights with his right arm. It was only after I asked him about his good musculature, as shown in the “Nike” photographs, that he mentioned being a member of a gym and doing weights. He then admitted he was able to do dumbbell curls with both arms, lifting up to 8 kilograms. He also did pullup and pulldown repetitions on the nautilus machine of weights up to 20 kilograms.
233This was a man who had deposed last year that his physiotherapist had recommended light weightbearing and strengthening exercises which he did diligently and that he attended hydrotherapy two or three times a week.
234I do not accept that having attended the gym for two-and-a-half hours on the day he was filmed, that the plaintiff did only a couple of sets of repetitions and rarely took breaks.[95]
[95] T98
235I do not accept that the plaintiff would have problems shaving his face or washing his hair when he can lift these relatively heavy weights with his right arm.
236There was also a credit issue in terms of his current work and the knowledge of examiners of the extent thereof.[96] The plaintiff did not tell Dr Mutton of any of the nursing supervision work he did in addition to the 25 hours per week online. His physiotherapist who has seen him as recently as two months ago, was under the impression he had not returned to work. He told Mr Moaveni that he was not working when, at the time of that examination, he had worked in excess of 90 hours that fortnight.
[96] T87
237Therefore, a number of the doctors who are supportive of the plaintiff’s application do not know of the full extent of his current work. None know of his involvement in the two Half Marathons.
238As Chernov JA said in Dordev v Cowan & Ors,[97] in this type of case, a plaintiff’s credibility is relevant not only to whether his evidence should be accepted, but it is also relevant to the reliability of the medical evidence, because the opinions of the doctors are essentially dependent on the credibility and reliability of the history given to them by the plaintiff.
[97][2006] VSCA 254 at paragraph [14]
239Accordingly, in this case, what appear on their face to be medico-legal opinions supportive of the plaintiff’s application, must be looked at in the light of my views as to his credit.
Consequences
Pain
240The evidentiary basis of the pain assessment will ordinarily comprise, inter alia, what the plaintiff says about the pain (both in Court and to doctors).[98]
[98]Haden Engineering v McKinnon (supra) at paragraph [11]
241Generally, the plaintiff has described intermittent pain in his right elbow which worsens with use of the arm. He does not appear to have a regular painkilling medication regime, taking over the counter medication when required.[99]
[99] T97
242As the Court of Appeal in Stijepic v One Force Group Australia Pty Ltd[100] noted:
“[S]o far as the appellant’s pain is concerned, the burden of the evidence is that while he continues to suffer from episodes of pain, and will continue to do so, he does not suffer a continuous substantial level of pain. It is, we consider, confirmatory of this that the appellant’s pain appears to be controlled by moderate strength, non-prescription, medication.”
[100] [2009] VSCA 181 at paragraph [48]
Treatment
243Following elbow surgery in April 2021, the plaintiff was last seen by operating surgeon, Professor Ek in September 2021. At that time, the plaintiff reported his symptoms had certainly settled down and the surgeon was pleased with his progress. No further investigations or specialist review has been necessary since that time. There has been no suggestion of further surgery by any treater, despite the plaintiff’s evidence in this regard.[101]
[101] T82
Work
244The main consequence relied on by the plaintiff was loss of career as a psychiatric nurse.[102] He had spent years studying to be a psychiatric nurse, then did postgraduate study in mental health, and worked in that capacity for seventeen years.[103]
[102] Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326
[103] T96
245Because of his right elbow injury, it was submitted the plaintiff was no longer being able to do his pre-injury job which he loved and from which he derived satisfaction.[104] He tried general nursing post injury and could not do it. Dr Mutton who had examined the plaintiff on the defendant’s behalf, agreed the plaintiff was no longer suitable for this career.[105]
[104] T93; T96
[105] T94
246It was submitted the plaintiff is doing his current job because he needs money and just does not want to sit at home.[106]
[106] T96
247In response, counsel for the defendant submitted that to the extent doctors, such as Dr Mutton, put restrictions on the plaintiff’s capacity for work, they are all in the dark about what he does at Aussie Care.[107]
[107] T83
248The plaintiff’s physiotherapist seemed unaware that the plaintiff often worked in excess of full-time hours and thought that he one day could do light admin work.[108] The plaintiff told Mr Moaveni he was not working.[109]
[108] T87
[109] T88
249While counsel for the defendant conceded that potential physical contact is something relevant to a return to psychiatric nursing, it was only one of the factors that had to be taken into account “in this difficult balancing exercise”.[110]
[110] T84
250It was also submitted it was interesting the plaintiff’s put his upset at not being able to do psychiatric nursing in an earlier timeframe, 2020/2021.[111] Further, it was important that he was still open to taking any call for nursing supervision work that comes in.[112] The plaintiff said he enjoyed the office part of his current job and would work all the hours that were available, which would seem to be at odds with his affidavit evidence of being tired at the end of the day. He agreed he received satisfaction from the nursing supervision role. While he is not doing what he necessarily wanted to do, he is working in a related field.[113]
[111] T20-T21; T84
[112] T88
[113] T89
251Given my views as to the plaintiff’s credit and his capacity, I am not satisfied that because of any elbow injury, he is unable to work as a psychiatric nurse. The prolonged flexed posture, the jolting of his arm repeatedly for over 2 hours running on the road and the exposure to being knocked by other runners are all relevant factors in reaching this conclusion.
252In addition, the plaintiff has demonstrated a full-time capacity for work in a similar field - a combination of the online staff placement and also attending clients at home in a nursing supervisory capacity – a capacity for work clearly at odds with what he has told various examiners. He has the ability to work in excess of 90 hours per fortnight earning more than $8,000 gross and is willing to take on further nursing supervision work if it is available.
253The plaintiff enjoys administrative work and the nursing supervision, and still has some contact with patients/clients of the NDIS scheme, albeit not psychiatric patients in the field for which he is trained.
Other consequences
254Badminton appears to have been the plaintiff’s most significant recreational activity before the incident. Although he was part of a badminton club and played every Sunday before the incident, there is no evidence that he played at a high level or of any particular personal achievements in this field.
255While the plaintiff claimed to be limited in gardening which used to be a big hobby and stress release for him,[114] he agreed in cross-examination he can still engage in gardening and household activities.[115]
[114] T98
[115] T75-76
256He is able to drive, although his evidence as to what extent is variable.
257Although he deposed to problems with sleep due to elbow pain, he agreed he had minimal sleep disturbance as Mr Moaveni recently reported.
258There is no suggestion of interference with social activities or community activities. The plaintiff is able to attend church with his family. He has no problems interacting with his children. Working from home suits he and his family. He can participate in community activities such as the Half Marathons. He attends gym on a regular basis. He can interact with staff and clients when doing nursing supervision duties.
259As counsel for the defendant submitted, the plaintiff has maintained his capacity to engage in physical fitness and he looks very fit. He has a significant retained capacity as his ability to involve in weights at the gym indicates.[116]
[116] T93
260As the Court of Appeal noted in Stijepic:
“It is to be remembered that in reaching a conclusion whether a worker has established that he (or she) suffered serious injury ‘the significance of what has been lost, which bears upon the seriousness of consequences, may be informed, to an extent, by what is retained.”[117]
[117]See Stijepic v One Force Group Australia Pty Ltd (supra) at paragraph [44]; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 at paragraph [27]
261There does not appear to be any interference with activities of daily living. Insofar as any is claimed, such claims are difficult to reconcile with the plaintiff’s current workload and his ability to run half marathons and do weights at the gym.
262There is no interference with sexual relations.
263While the plaintiff deposes to problems with personal hygiene activities, he told Dr Moaveni he had minimal difficulty with self-care and personal hygiene.[118]
[118] T92
264In terms of comorbidities, while the plaintiff says his main problem is his right elbow[119] rather than his neck and right shoulder,[120] I am not required to undertake a Peak[121] analysis as I am not satisfied the consequences of any right elbow impairment are serious.
[119] T99
[120] T81
[121] Peak Engineering & Anor v McKenzie [2014] VSCA 67
265Taking into account all the evidence, I am not satisfied that the consequences of any elbow impairment when judged by comparison with other cases in the range of possible impairments may be described at the date of hearing, as being at least very considerable and more than significant or marked.
266Accordingly, the application is dismissed.
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