Markovic v Victorian WorkCover Authority
[2025] VCC 278
•4 April 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-24-03616
| SINISA MARKOVIC | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE SANGER | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 March 2025 | |
DATE OF JUDGMENT: | 4 April 2025 | |
CASE MAY BE CITED AS: | Markovic v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 278 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – bilateral carpal tunnel syndrome – whether injury to each wrist meets the test – whether injuries can be aggregated – pain and suffering – credibility and reliability
Legislation Cited: Workplace Injury and Rehabilitation Compensation Act 2013 (Vic), s325(2) and s335
Cases Cited:Humphries and Anor v Poljak [1992] 2 VR 129; Puhovac v VWA [2024] VCC 1591; Lexa v TAC [2019] VSCA 123; Jarvie v Sideliner Contracting Pty Ltd [2024] VSCA 144
Judgment:Application granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms A Smietanka | Zaparas Lawyers |
| For the Defendant | Ms M Cameron | Hall & Wilcox |
HER HONOUR:
Introduction
1Mr Markovic is a thirty-five year old man. He was working as a reach stacker in mid-2020 when he started developing pain in his wrists, particularly his right wrist. He was diagnosed with bilateral carpal tunnel syndrome and subsequently underwent a release on both wrists. He has successfully returned to unrestricted work, albeit that the proportion of his time spent driving is less with his current employer than it was with the employer in these proceedings.
2Mr Markovic made his application pursuant to s335 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) for a determination that the pain and suffering consequences from the aggregated impairment to his right and left limbs, or, in the alternative, the right limb alone, were “at least ‘very considerable’” and “more than ‘significant’ or ‘marked’.”[1]
[1]Humphries and Anor v Poljak [1992] 2 VR 129 at 140 (“Humphries”)
3It was not in dispute that Mr Markovic had bilateral carpal tunnel injuries to his right and left limb and that the injury, or injuries, were compensable.
4The issues for determination in this case were:
(a) Could Mr Markovic aggregate the right and left limbs for the purpose of s335 of the Act?
(b) Was Mr Markovic a credible and reliable witness?
(c) Were Mr Markovic’s impairment consequences very considerable, entitling him to leave to proceed?
5The legal principles to be applied were not in dispute, save for determination of the matter referred to in paragraph 4(a) above.
6Mr Markovic gave oral evidence and was cross-examined. The parties otherwise tendered various reports from their respective Court Books.
7I have considered the affidavits, the evidence of Mr Markovic at the hearing and the evidence of the experts relied upon at the hearing. While I do not propose to refer to all the evidence, I shall refer to the evidence to the extent necessary to explain my reasons.
8For the reasons set out below, I find that Mr Markovic is entitled to leave to proceed with a claim for damages for his pain and suffering arising from the injury to his right upper limb alone, or in the alternative, right and left upper limbs.
Could Mr Markovic aggregate the right and left upper limbs for the purpose of s335 of the Act?
9Counsel for Mr Markovic sought to rely on the impairment to the right and left upper limbs in this application.
10Counsel for the Victorian WorkCover Authority (‘VWA’) submitted this was impermissible as each upper limb constituted a separate body function.
11In support of this submission, Counsel for the VWA referred me to the Court of Appeal decision in Lexa v TAC[2] (‘Lexa’), and the decision of Clayton J in Puhovac v VWA[3] (‘Puhovac’) where this issue was considered.
[2] [2019] VSCA 123 (‘Lexa’)
[3] [2024] VCC 1591 (‘Puhovac’)
12Judge Clayton considered the decision of Lexa in her analysis in Puhovac.
13Interestingly, Puhovac was also about a worker who had developed bilateral carpal tunnel syndrome in the course of her employment.
14I have read and considered her Honour’s analysis of the relevant authorities and her reasons for decision.
15She concluded that it was unlikely the bilateral carpal tunnel syndrome could be considered a single body function and that the better view was that an impairment to each of the right and left arm would need to be separately assessed to determine whether the test for serious injury was met.[4]
[4] Puhovac at paragraph [7]
16Having considered her decision, together with that of Lexa, I respectfully agree with her analysis of the authorities and the conclusions she reached.
17However, if I am wrong about that, it would make no difference in this case, as I am satisfied Mr Markovic has established that his consequences, whether assessed in aggregate or from the right upper limb alone, are very considerable.
Relevant background facts and Mr Markovic’s evidence
18Mr Markovic has two children aged eight and three.[5] He has separated from his partner. He has the children most weekends, although not overnight.[6] He also has them whenever he gets time off work, or when there is a public holiday.[7]
[5] Transcript (“T”) 6, Line (“L”) 6; Exhibit P1, Plaintiff’s Court Book (“PCB”) 31 at paragraph [4b.]
[6]T6, L24-25
[7]T6, L9-10
19He is right-hand dominant.
20He was born in Croatia and migrated to Australia in 1994 as a young child. He attended school to Year 11. He worked as a cleaner and forklift driver prior to the injury.
21He originally started working for Secon Freight Logistics Pty Ltd (‘the employer’) through a labour hire company.
22In or about March 2018, he was employed by the employer full time as a reach stacker operator. He worked 38 hours a week plus overtime.
23One of his roles involved operating a reach stacker machine, which was used to lift shipping containers. He would operate the arm of the reach stacker machine with his right hand by gripping the joystick constantly and pressing buttons, while his left hand was on the steering wheel.[8]
[8] Exhibit P1, PCB 27 at paragraph [8], correcting paragraph [8] at PCB 22
24He began to feel pain in his wrists in mid-2020, particularly his right wrist. He attended Dr Prabh Jyot Singh at the Kings Medical Centre and was prescribed Lyrica.[9]
[9]Exhibit P1, PCB 22 at paragraph [9]
25In or around October 2020, he attended Dr Peter Andrianakis, his treating general practitioner, regarding his symptoms. He was referred to Dr David Freilich, neurologist.
26Following nerve conduction studies, he was referred to Mr Timothy Bennett, hand, plastic and reconstructive surgeon. He recommended Mr Markovic undergo bilateral carpal tunnel release.
27He submitted a claim for compensation that was ultimately accepted.
28Mr Markovic underwent a right carpal release in May 2021 and a left carpal release in late July 2021 under the care of Mr Bennett.[10]
[10]Exhibit P1, PCB 23 at paragraph [14]-[15]
29On 25 August 2021, Mr Markovic attended Dr Andrianakis, who noted that “pain and discomfort persists”.[11]
[11]Exhibit D1, Defendant’s Court Book (“DCB”) 45
30In September 2021, Mr Markovic returned to work on light, modified duties, and on 21 November 2021, he was given a clearance certificate to return to normal duties.[12]
[12]Exhibit P1, PCB 50
31On 27 October 2021, the employer terminated Mr Markovic’s employment.[13]
[13]Exhibit D1, DCB 63
32In 2022, Mr Markovic returned to work as a reach stacker with Millers Transport Group (‘Millers’), where he worked eight to 10-hour shifts.[14] He commenced this employment for financial reasons, as he had recently been released from Metropolitan Remand Centre.[15]
[14]Exhibit P1, PCB 30 at paragraph [4a.]
[15]Exhibit P1, PCB 30 at paragraph [4a.]
33Following this work, he commenced working with Sidelink Transport (‘Sidelink’) as a reach stacker. He continues to work in this role, working eight hour shifts, where he does around four hours’ worth of driving, but broken up throughout the day.[16] He deposed to having the availability to do other jobs around the work site, such as working in the warehouse, as well as taking breaks.[17]
[16]Exhibit P1, PCB 30 at paragraph [4b.]
[17]Exhibit P1, PCB 30 at paragraph [4b.]
34On 29 October 2023, Mr Markovic attended Dr Andrianakis complaining of recurring hand pains, which were worse in the left hand.[18] He was prescribed Feldene (piroxicam) and Prodeine, and referred to physiotherapy for management.
[18]Exhibit P1, PCB 50
35On 14 April 2024, he attended Dr Andrianakis, who noted that he was still “struggling with hand pains and weakness”.[19] On 12 August 2024, he attended Dr Andrianakis again, who noted that he was still struggling with hand pains and weakness, “aches and pains [and] struggles with grip strength”.[20] He also noted that Mr Markovic’s right hand was worse.
[19]Exhibit D1, DCB 51
[20]Exhibit D1, DCB 52
36Mr Markovic deposed to the fact that he continues to experience symptoms in both wrists, which are aggravated with repetitive activity.[21] During cross-examination, he stated that when he attended Mr Stapleton at the request of the VWA’s solicitors in August 2024, the pain in his wrists returned following the operation.[22] He said that following the operation, he had no pain or pins and needles in his hands for a month or so before the pain and pins and needles returned.[23]
[21]Exhibit P1, PCB 27 at paragraph [10]
[22]T8, L9-12
[23]T8, L26-29
37He stated that he gets pins and needles in his whole hand, and a “stabbing, hurting pain” across his whole hand.[24] He said that the frequency of the pain depends on what he does and how he uses his hand.[25]
[24]T9, L19
[25]T9, L22-23
Credit and reliability
38The VWA submitted Mr Markovic was not a credible or reliable witness. It relied on differences between his affidavit evidence and his viva voce evidence in support of this submission.
39I had the opportunity to observe Mr Markovic give evidence. I formed the view that he did his best to answer the questions that were put to him honestly and was not trying to mislead or deceive the Court. He made concessions which were against his own interest, such as providing evidence that he was pain free for parts of the day. I found it significant that no attack was made on his credibility by way of showing surveillance footage, despite surveillance footage having been undertaken.[26] I also found the fact that he had returned to work and had maintained that employment for the last four years showed he was motivated, and was consistent with him being an honest witness.
[26]Counsel for the VWA did not tender the surveillance footage but made an admission that there had been 42.5 hours of surveillance in total, that contained five minutes and 32 seconds of footage. Five minutes and five seconds of that footage was proposed to be played to the Court but the plaintiff indicated that it was not him in the footage; see T51, L30-31; T52, L1-5
40However, his oral evidence was often inconsistent with his affidavit evidence. Where this occurred, I found his oral evidence to be more reliable than his affidavit evidence, as he provided a more fulsome explanation of what he was intending to convey. For example, in his affidavit evidence, he deposed that he had constant pain, whereas at the hearing, he stated that he constantly gets pain, depending on what he was doing.[27]
[27] T13, L9-10
41There were occasions when I found that neither his oral evidence nor his affidavit evidence was reliable, such as when he described how often he saw his treating general practitioner, Dr Andrianakis, or how often he was prescribed Feldene (piroxicam).
42Therefore, while I found him to be a credible witness, I did not find him to be a reliable witness. Thus, where appropriate, I have also had recourse to the contemporaneous records, medical records and the evidence of the lay witnesses before making findings in this case.
Are the impairment consequences of Mr Markovic’s impairment “very considerable” or “more than ‘significant’ or ‘marked’”?
43There was no dispute Mr Markovic had sustained bilateral carpal tunnel syndrome in compensable circumstances. No issue was taken with whether the consequences of the impairment, whether the right upper limb alone, or the right and left upper limbs together, were permanent.
44As outlined above, I am of the view Mr Markovic cannot aggregate the impairment consequences of his right and left limbs for the purpose of this proceeding.
45However, I was also satisfied the evidence established that the consequences had been adequately disentangled to allow me to assess the consequences of the right limb alone, should that be required.
46This was because of the evidence of Mr John Crock, plastic and reconstructive surgeon, regarding the impairment arising separately from the right and left limbs, to which I will refer in more detail below, the evidence I accepted from Mr Markovic regarding his impairment, and because I was satisfied that the consequences that arose from Mr Markovic’s bilateral upper limb injuries, such as the need to take medication, were equally referable to the right limb alone.
47Where necessary, I will identify the impairment consequences that relate to the right upper limb alone.
48I will now turn to consider each of the consequences Mr Markovic relied on in support of his application.
Pain and symptoms
49In his affidavit affirmed on 27 February 2025, Mr Markovic said his right wrist pain remained constant, as did his left wrist pain.[28]
[28] Exhibit P1, PCB 34 at paragraph [8]
50He qualified this when giving his oral evidence at the hearing.
51He said that, by “constant”, he meant he constantly gets pain, depending on what he is doing.[29] He said the pain was not constantly there, but that he constantly got the pain.[30]
[29] T13, L9-10
[30] T12, L21-24
52He said he had pain symptoms in his right hand 40 per cent of the day and in his left hand 30 per cent of the day over the last year.[31] He also said it was fair to say that 30 per cent of the time he had no pain or pins and needles in his right hand,[32] and 50 per cent of the time he had no pain in his left hand.[33] He agreed, when put to him, this meant that his pain in his right and left hand was not constant.[34]
[31] T31, L14-25
[32] T10, L1-8
[33] T11, L7-8
[34] T12, L31; T13, L1-2
53He agreed that, after the operation, he had:
(a) pain in the right wrist from time to time, which meant he did not have pain all the time;[35]
(b) no sensory loss at the fingertips of his right hand;[36] and
(c) pins and needles in the whole right hand and a stabbing pain in the right hand, which would occur subject to how he used his hand.[37]
[35] T8, L16-17
[36] T8, 20-23
[37] T9, L22-27; T10, L9-21
54He gets tingling in his hands if he uses them for more than fifteen minutes, worse on the right than the left.[38]
[38] T11, L31; T12, L1-6
55Mr Markovic said his pain varied over the last four years. He said it could be painful today and not tomorrow.[39]
[39] T30, L22-23
56He said that, since the release on his right hand, he gets a stabbing pain in his right hand that could happen once a week or three times a week. When it happens, he has to shake his hands and put them under hot water to relieve the symptoms.[40]
[40] T30, L32; T31, L1-7
57The pain in his left hand is the same as in his right hand, that is a stabbing pain all over the left hand.[41]
[41] T10, L27; T11, L1
58Turning to the medical evidence, Mr Markovic saw Mr Crock on 26 September 2024. Mr Crock recorded that Mr Markovic had pillar pain (pain at the bottom of the wrists) after surgery, which was persistent, but only intermittently troublesome. He also noted Mr Markovic was getting recurrent carpal tunnel syndrome again. He would start to get tingling in his fingers, worse on the right than the left,[42] after doing repetitive activities for more than fifteen minutes or so.
[42] Exhibit P1, PCB 57
59Dr Murray Stapleton, plastic and hand surgeon, saw Mr Markovic on 14 August 2024. He recorded that Mr Markovic’s left hand was “fine”.[43] He had pain on the flexor surface of the right wrist from time to time, particularly after repetitive work. He had no sensory loss at the fingertips of the right hand.[44]
[43] Exhibit D1, DCB 9
[44] Ibid
60On 21 January 2025, Dr Andrianakis recorded that Mr Markovic was still struggling with hand pains, especially when doing manual duties.[45] In his report of 27 January 2025, he recorded that Mr Markovic continued to complain of hand pains and discomfort that needed anti-inflammatory and analgesia, though he remained working.[46]
[45] Exhibit P1, PCB 50
[46] Ibid
61While there were undoubtedly inconsistencies in Mr Markovic’s evidence about his experience of pain, I am satisfied he was consistent in expressing that he had regular, daily pain in his right and left wrists.
62Where there was an inconsistency, I have preferred his oral evidence to his affidavit evidence. This is because he was able to better explain what he meant to convey, such as what he meant when he referred to the pain being “constant”.
63I am also satisfied that the history recorded by the medical experts corroborate Mr Markovic’s evidence about his history of his symptoms.
64I therefore accept and find that:
(a) the pain in his right and left wrists varies, depending on his level of activity;
(b) he gets tingling in his fingers and hands, worse on his right side, after fifteen minutes of repetitive activity;
(c) he has pain over the scar on his right and left wrists; and
(d) he gets stabbing pains in his right and left hands one to three times a week.
65I am also satisfied and accept that he has less grip strength in his right hand as compared to his left, based on the objective tests undertaken by Mr Crock. I am satisfied this is not inconsistent with his evidence that he thought his right hand was strong.[47]
[47] T12, L16
66The fact he has been able to return to work and maintain employment does not mitigate against these findings of pain and symptoms.
67I also accept that:
(a) he has a vulnerability to recurrence of the carpal tunnel compression based on the opinion of Mr Crock[48] and Mr Stapleton,[49] which is significant for a young man of Mr Markovic’s age; and
(b) no further surgical treatment has been recommended to treat the recurrence of his symptoms, and that his future treatment will involve behaviour modification, applying “common sense” to his own condition.[50]
[48] Exhibit P1, PCB 57
[49] Exhibit D1, DCB 11
[50] Exhibit P1, PCB 58
Medication and treatment
68Mr Markovic takes medication and does hand-strengthening exercises at home, as recommended by his physiotherapist, for his right and left hand symptoms.
69With respect to the medication, Mr Markovic’s evidence was, broadly, that he regularly took Feldene (piroxicam), an anti-inflammatory, for his pain; Valium (diazepam) to help him sleep; and one other tablet, the name of which he could not recall.[51]
[51] T42, L15
70The clinical records and the photograph of the medication produced later in the hearing suggested that the name of the medication he could not recall was Prodeine. I will consider this further below.
71He agreed in cross-examination that he took Feldene (piroxicam) every second day or even less than that, despite having deposed to having taken it daily in his affidavits affirmed on 14 February 2025 and 27 February 2025. He said he was supposed to take it every day, but that he could forget to take it.[52]
[52]T18, L25-27
72His evidence was that he took Valium (diazepam) as needed to assist with sleeping, which could be two times a week or seven times a week.[53] He took the “other medication” twice a week or rarely.[54]
[53] T17, L27-30
[54] T42, L16-19
73He initially said he attended Dr Andrianakis’s rooms once a month to obtain a prescription,[55] that he thought the prescriptions had repeats on them,[56] and that his mother would pick up his prescriptions when he was unable to.[57]
[55] T14, L14-15
[56] T32, L2-3
[57] T15, L30-31
74However, Dr Andrianakis’s notes revealed that Mr Markovic had attended his rooms four times since November 2021 for problems with his hands, those dates being in October 2023, April 2024, August 2024 and January 2025.
75When asked whether he thought Dr Andrianakis’s notes were wrong, he said no, that he would have obtained prescriptions from Dr Andrianakis more than three times a year.[58] Shortly after, he agreed that Dr Andrianakis’s record of his attendances in 2024 was wrong.[59]
[58] T16, L1-3
[59] T16, L10
76After cross-examination had concluded, leave was granted to permit further cross-examination regarding the matters raised in a brief supplementary report obtained from Dr Andrianakis dated 3 March 2025.
77In that report, Dr Andrianakis confirmed the accuracy of his clinical records and said he had not issued prescriptions for Valium (diazepam) in Mr Markovic’s mother’s name for Mr Markovic. He further said, had he intended to issue a prescription for Valium (diazepam) to Mr Markovic, he would e-script it directly to him and that this could be done by telephone consultation, as it had been on 21 February 2025 (which I have inferred to be 21 January 2025, based on the notes he provided).
78I have inferred that, the fact he did not refer to issuing prescriptions for Feldene (piroxicam) in his mother’s name for Mr Markovic, to mean he also had not done that.
79The records showed that, since November 2021, Mr Markovic had been prescribed the following medication for his injury:
(a) twenty-five tablets of Feldene (piroxicam) on 29 October 2023, 14 April 2024, 12 August 2024, 16 December 2024 and 21 January 2025;
(b) fifty tablets of Valium (diazepam) on 21 November 2021, 14 April 2024, 12 August 2024 and 21 January 2025; and
(c) twenty-four tablets of Prodeine on 29 October 2023, 14 April 2024, 12 August 2024, 16 December 2024 and 21 January 2025.
80In response to this, Mr Markovic accepted he had only seen Dr Andrianakis four times since 21 November 2021 and said the reason there was a gap in his treatment was because he was in prison over this period.[60]
[60] T40, L24–26; T40, L30; T31, L1
81Mr Markovic also said that, having spoken to his mother overnight, he now understood she was giving him her medication, rather than her collecting and filling prescriptions from Dr Andrianakis intended for him.
82Following this, Mr Markovic was asked to produce the boxes of medication in his possession allegedly provided by his mother.
83Following a brief adjournment, Mr Markovic produced photographs of the medication at his house he alleged he was taking that had been supplied by his mother. The photographs were for Prodeine Extra tablets 500 milligrams, issued for his father, Mr Milovan Markovic, in December 2023, and a sheet of Valium five milligram tablets.
84When asked about the discrepancy, he said that the packets looked the same.[61]
[61] T43, L29-31
85There was no affidavit from Mr Markovic’s father. The affidavit sworn by his mother did not refer to her providing medication to Mr Markovic.
86Mr Markovic also said he had been prescribed pain-relieving medication while incarcerated. No evidence addressing this was tendered from any practitioners he attended for treatment while in prison.
87At the conclusion of cross-examination he said:
“… So the Valium I take at night.
…
For the pain, to sleep throughout the night. The Piroxicam I take pretty much daily, if not every second day, and that third one I take whenever.”[62]
[62] T46, L5-8
88When the records of Dr Andrianakis were put to him, he did not dispute the repeats of the medication that had been issued were for Nexium, rather than the Feldene (piroxicam) that he had earlier said were subject to repeat prescriptions.
89Mr Markovic’s evidence about the medication he took, and the frequency with which he took it, was vague, unclear and inconsistent. His oral evidence was unsupported by lay witness affidavit or expert evidence. This was unsatisfactory, given that Mr Markovic bears the onus of proof, and in this case, there was an issue with his reliability as a witness.
90However, when analysing the totality of the evidence on this question, I have taken into account the fact that Mr Markovic is an unsophisticated person who is not academically minded. I was persuaded that his identification of the medicine he was taking, based on how the packet looked, rather than what was written on it, showed he had better visual, than written, recall. I was also persuaded by his evidence that he regularly took medication for his symptoms, albeit that he could not advise the Court how regularly he took the medication, and whether that medication was prescribed for himself, his mother, or his father.
91I was not impressed with how his evidence changed regarding the frequency of his attendances with Dr Andrianakis. However, he ultimately accepted the record of Dr Andrianakis as being correct. I accept his evidence that he regularly took medication prescribed by Dr Andrianakis, albeit that I found him to be cavalier about who the medication was prescribed for.
92I was also satisfied he continues to require anti-inflammatory medication and analgesia for his hand pains and discomfort based on Dr Andrianakis’s opinion, expressed in his report of 25 January 2025.
93I am therefore satisfied, on the evidence, of the following:
(a) that Mr Markovic regularly takes Feldene (piroxicam) and Valium (diazepam) to treat the symptoms arising from his right and left hands; and
(b) that Mr Markovic takes Prodeine for the symptoms in his right and left hands as required.
94Counsel for the VWA invited me to draw an adverse inference about the lay witness affidavit of Mr Markovic’s mother. On review of her affidavit evidence, I formed the view that she had not failed to provide evidence and thus I have not made such an inference.
Medical evidence regarding restrictions arising from the injury
95Turning to the medical evidence, Mr Crock opined that Mr Markovic had ongoing restrictions for working on tasks with his right hand for more than fifteen minutes, particularly if they were repetitive tasks.[63] He also thought Mr Markovic had restrictions for repetitive tasks requiring loading the wrist, such as tightening screws with a spanner or a screwdriver.[64]
[63] Exhibit P1, PCB 57
[64] Exhibit P1, PCB 58
96Mr Crock was also of the opinion Mr Markovic was subject to restrictions involving repetitive tasks with his left hand, particularly vibrating tasks, such as mowing a lawn or driving a truck on a rough road.[65]
[65] Exhibit P1, PCB 58
97Mr Crock noted that Mr Markovic had more stamina and strength in his left wrist as compared with the right, based on his grip-strength tests.[66]
[66] Exhibit P1, PCB 58
98Mr Crock’s opinion is consistent with the opinion of Dr Andrianakis, albeit that he has not provided an opinion on the restrictions arising separately from the right and left wrists. He said Mr Markovic was not likely to be fit to perform many repetitive and heavy lifting manual tasks.[67] However, I accept the restrictions apply if the impairment is to the right upper limb alone, particularly for a right-handed worker. Alternatively, they apply to the right upper limb and left upper limb in aggregate.
[67] Exhibit P1, PCB 50
99There was no other medical evidence tendered that was relevant to this question.
100I therefore find and accept that Mr Markovic is subject to the restrictions as outlined by Mr Crock and Dr Andrianakis to the right upper limb alone, or to the right and left upper limb in aggregate.
Sleep
101Mr Markovic’s oral evidence was that his hand symptoms wake him up some nights, but not every night.[68] This contrasted with his affidavit evidence that his quality of sleep was disturbed every night.[69]
[68] T23, L28
[69] Exhibit P1, PCB 31 at paragraph [6c.]
102While he did not refer to this consequence in his first and second affidavits, given the clinical records show he has been prescribed Valium (diazepam) since 5 July 2021, with instructions from Dr Andrianakis to take it in the evening, I am satisfied he has had difficulty with his sleep since at least that time.
103The fact his sleep was disturbed was corroborated by the unchallenged affidavit evidence of his partner, Ms Melinda McGowan, sworn 27 February 2025. She also deposed to noticing that he wakes in pain.[70]
[70] Exhibit P1, PCB 38
104He said that his sleep was disturbed at night, but not every night.[71] He said that the pain comes and goes, and thus it might not hurt him tonight but could hurt him the next night.[72] It depended on what he had been doing.
[71] T23, L29 – T24, L3
[72] T24, L9-14
105He said that the number of times his right-hand symptoms woke him varied. It could be once this week and every day the next week. He said that, prior to developing his carpal tunnel syndrome, he was a heavy sleeper.[73]
[73] T34, L10-16
106This evidence was consistent with the unchallenged evidence of his mother.[74]
[74] Exhibit P1, PCB 35 at paragraph [7]
107I accept that:
(a) Mr Markovic’s sleep is disturbed some nights because of the symptoms in his right, or his right and left hands;
(b) how often his sleep is disturbed depends on what he has been doing; and
(c) he takes Valium (diazepam) to assist him with sleep.
Gardening
108Mr Markovic’s oral evidence was that he spends less time in the garden now than he did prior to his injury. He said he now spends an hour in the garden when necessary, whereas he used to spend a couple of hours in the garden.[75] He later said he could spend fifteen minutes in the garden or a couple of hours,[76] depending on when his hands became sore.[77]
[75] T20, L23-26
[76] T21, L13-15
[77] T21, L16-17
109He also said he could not chop wood or do landscaping anymore. He said he could not spend as much time in the garden doing general maintenance.[78]
[78] T21, L1-7
110He said he was doing about 60 per cent less gardening now than prior to his carpal tunnel syndrome. He used to enjoy gardening and landscaping. He said he found it healing and he enjoyed everything about it.[79]
[79] T32, L23-31; T33, L1-8
111This evidence was not inconsistent with his affidavit evidence.[80]
[80] Exhibit P1, PCB 32-33, paragraph [6f.]
112It was also consistent with Mr Crock’s evidence about his ongoing restrictions arising from his right and left hand injuries, particularly with respect to undertaking repetitive tasks with load to the right wrist or using vibrating tools with the left wrist.[81]
[81] Exhibit P1, PCB 57 and PCB 58
113Based on his evidence, I accept and find that he enjoyed gardening and landscaping prior to the onset of his carpal tunnel syndrome and is now significantly restricted in what he can do. The fact his parenting responsibilities have changed since the onset of his carpal tunnel syndrome have not diminished the impact of this loss.
Gym
114In his affidavit evidence, he said he used to go to the gym three to four times a week and used to enjoy lifting weights. He said he used to enjoy weightlifting until he injured his hands.[82]
[82] Exhibit P1, PCB 33 at paragraph [6g.]
115In his oral evidence, he said that he had not been to the Derrimut gym for seven to ten years,[83] which would mean he had not been going there since 2015 to 2018.
[83] T35, L20-22
116I have placed less weight on the significance of this consequence to Mr Markovic, as it would seem he had ceased going to the gym before the time he developed his symptoms.
Cars
117His affidavit evidence was that he used to enjoy working on cars every weekend and he had almost stopped working on cars now because of his hands.
118His oral evidence was that he could work on cars to some extent, and the reason he had not worked on cars since developing his injury was that he just had not got back into it.[84] He said that he knew what he would go through, so he just did not bother.[85] He was worried about the effect of straining and pulling on his injury.[86]
[84] T23, L5-9
[85] T34, L5-6
[86] T34, L7-8
119His evidence was supported to some extent by his partner, Ms McGowan, in her affidavit evidence. Given she did not know Mr Markovic prior to the injury, her evidence was of some, but limited, utility.[87]
[87] Exhibit P1, PCB 39 at paragraph [15]
120I nonetheless accept his evidence that he used to enjoy working on cars prior to the onset of his hand injuries, as I found his explanation about why he had not tried to work on cars plausible.
121I also find his evidence was supported by the medical evidence of Dr Andrianakis and Mr Crock regarding his permanent restrictions for his right and left hand injuries.
Driving
122His affidavit evidence was that driving increases the pain in his right wrist and that he tended to avoid long drives now.[88]
[88] Exhibit P1, PCB 25 at paragraph [29]
123His oral evidence was that he was uncomfortable driving his car due to hand and wrist pain, however he did not have a licence until recently and thus could not tell the Court when he last felt uncomfortable driving a car.[89] He could manage the driving required at work because it was not constant.[90]
[89] T21, L22 ꟷ T22, L2
[90] T21, L22-25
124It was not clear from the evidence how much his ability to drive, or to enjoy long drives, had been impacted by the injury. I have thus placed limited weight on this consequence.
Xbox
125His affidavit evidence was that he used to play his Xbox for three to four hours a night prior to his injury.[91] He said he used to enjoy playing every day. He said he could play for twelve to twenty-four hours straight on the weekend with his friends. He said it was fun, it was a good way to de-stress and debrief, it calmed his mind and took his mind off things.[92] He said he was now lucky to be able to play for twenty minutes day.
[91]Exhibit P1, PCB 32 at paragraph [6e]
[92]Exhibit P1, PCB 32 at paragraph [6e]
126His oral evidence was that he still played Xbox after work and on weekends when he had time.[93] The length of time he played depended on how his hands were going. He agreed that on some days he could play for a couple of hours and other days he might be able to play for ten minutes.[94] He agreed he would not play Xbox for twelve to twenty-four hours straight anymore, given the responsibility he had for his children at his home on weekends.[95]
[93] T24, L21
[94] T24, L27-29
[95] T25, L3-4
127Consistent with his other evidence, and my finding that the pain in his right and left hand varies subject to activity, I accept his ability to engage in this activity is dependent on the symptoms he has in his hands. I also accept that, while his life priorities have changed, he is nonetheless restricted in his ability to engage in his activity because of the injury to his right and left hands, and that this is a significant consequence.
Sex life
128I accept his oral evidence that his sex life has been impacted by his injury.[96] His partner said that, in terms of their sex life, Mr Markovic complains about his hands being sore.[97]
[96] T25, L5-8
[97] Exhibit P1, PCB 38 at paragraph [13]
129He confirmed he still enjoyed his sex life.
130I accept this is a not insignificant consequence for a young man.
Household chores
131His affidavit evidence was that he found household chores difficult due to the pain, particularly in his right wrist.[98]
[98] Exhibit P1, PCB 24 at paragraph [24]
132In his oral evidence, he said he splits his chores with his brother who he lives with[99] and his hands and wrists do not stop him from doing anything around the house.[100]
[99] T7, L21
[100] T20, L3-4
133I have relied on his oral evidence about his household chores. Considering this evidence, this does not seem to be a significant consequence.
Capacity for work
134Mr Markovic had intended to return to his pre-injury employment with the employer in November 2021 if he had not been terminated for unrelated reasons.[101]
[101] T27, 16-28; T28, L8-9
135As stated earlier, Mr Markovic subsequently found work with Millers and then with Sidelink as a reach stacker.
136He is now earning double the money he was with the employer.[102] He was initially performing the same duties with Sidelink as a reach stacker that he had been doing at Millers and with the employer, but lost that job when he went to prison. After his release, he returned to Sidelink as a reach stacker, but the duties changed such that he was not constantly driving. He described himself as being an “all rounder”.[103]
[102] T27, L11-12
[103] T28, L29
137He was not obtaining certificates from Dr Andrianakis stating he was subject to restrictions for employment.[104] He could not remember having taken a day off for hand and wrist symptoms since returning to work in November 2021.
[104] T28, L18-19
138He is employed as a casual. His hours vary between twenty hours a week and fifty hours a week.[105] He works eight- to ten-hour shifts.[106] If he is offered a shift, he takes it.
[105] T26, L23-25
[106] T27, L7-8
139He said that he loved the job.[107]
[107] T33, L30
140I accept Mr Markovic has done his best to return to suitable employment. While he has been cleared fit for normal duties and has worked as a reach stacker since being cleared, I accept the variety in the duties he has and the pace with which he is able to work is better suited for the permanent restrictions he is subject to, as referred to by Mr Crock and Dr Andrianakis. This is not diminished by the fact he is not obtaining certificates outlining restrictions he has for employment.
141Counsel for Mr Markovic submitted Mr Markovic was stoic as referred to in the decision in Jarvie v Sideliner Contracting Pty Ltd.[108] I have not made that finding. There was no evidence Mr Markovic was putting up with pain and suffering to make the best of his situation, understating his level of pain, or masking to the observer the true dimension of the pain consequences. Rather, I found his evidence to be that he was working in a job he loved, which was consistent with his restrictions. This is not, however, to diminish the significance of Mr Markovic’s return to and maintenance of his employment, which I found impressive.
[108] [2024] VSCA 144, [69]
142I find the fact he has returned to work despite the interruptions caused by his periods in prison, together with the fact he does not take time off for his symptoms and accepts all shifts offered, shows that he is motivated to return to work and maintain his employment. The fact he loves his job no doubt helps with this.
143I find that he will be limited in the work he can do into the foreseeable future as a result of the restrictions he has to his left and right hands. He does not believe he could go back to the heavy labouring he used to do all day. He said he would find heavy and repetitive work difficult on a consistent basis.[109] This evidence was not challenged by the VWA at the hearing. His evidence about his work restrictions is consistent with the restrictions outlined by Mr Crock and Dr Andrianakis. For a young manual worker with limited transferable skills, who is working in casual employment, I accept this is a significant consequence.
[109] Exhibit P1, PCB 33 at paragraph [6i.]
Summary and conclusion
144There are many cases that clearly meet the test of “very considerable”, and there are many cases that clearly do not. Then there are those cases in between. Mr Markovic’s case is an example of a case that hovered right around the borderline of that test.
145Mr Markovic is a young man. He will be subject to the consequences outlined above for the rest of his life. He will have frequent pain which will require ongoing prescription medication and he will be subject to sleep disturbance on a regular basis.
146While he has retained the ability to work and enjoy his prior hobbies of gardening, working on cars and playing Xbox, the extent to which he can do so has been limited by the permanent restrictions imposed on his right hand, or, in the alternative, both hands, because of the injury.
147While, individually, these consequences might not have achieved the level of at least “‘significant’ or ‘marked’”, I have formed the view that, together, the consequences of the impairment to Mr Markovic are fairly described as being “at least very considerable” when “judged by comparison with other cases, in the range of possible impairment or losses”.[110] This is particularly because of his young age.
[110] Section 335(2) of the Act
148Considering this, I find Mr Markovic is entitled to leave to proceed with a claim for damages based on his pain and suffering arising from the injury to his right upper limb alone, or in the alternative, right and left upper limbs.
149I ask the parties to draft orders to reflect this finding and will hear from the parties on the question of costs.
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