McDiarmid v BlueScope Steel Limited
[2021] VCC 1009
•1 February 2021
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| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-19-03521
| DARREN JAMES McDIARMID | Plaintiff |
| v | |
| BLUESCOPE STEEL LIMITED | Defendant |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 and 17 September 2020 (via ZOOM hearing) | |
DATE OF JUDGMENT: | 1 February 2021 | |
CASE MAY BE CITED AS: | McDiarmid v BlueScope Steel Limited | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1009 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – left wrist injury – paragraph (a) of the definition of “serious injury” – leave sought to bring common law proceedings for “pain and suffering” damages and “pecuniary loss” damages – the extent of any left wrist injury – whether plaintiff capable of discharging his onus – the application of Peak EngineeringPty Ltd v McKenzie
Legislation Cited: Workplace Injury Rehabilitation Compensation Act 2013, s325
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170; Hunter v Transport Accident Commission [2005] VSCA 1; Peak Engineering Pty Ltd v McKenzie [2014] VSCA 67; Petkovski v Galletti [1994] 1 VR 436; Acir v Frosster Pty Ltd [2009] VSC 454; Herald & Weekly Times Ltd and Victorian WorkCover Authority v Jessop [2014] VSCA 292; Harris v DJD Earthmoving Pty Ltd [2016] VSCA 188
Judgment: Leave to the plaintiff to bring common law proceedings for both pain and suffering damages and pecuniary loss damages in respect of the left wrist injury suffered by him during the course of his employment with the defendant in July 2014 and on 13 August 2014.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C W Harrison QC with Ms N Crowe | Maurice Blackburn Lawyers |
| For the Defendant | Ms A Bannon | Hall & Wilcox |
HIS HONOUR:
1 By way of Originating Motion filed on 31 July 2019, Mr Darren McDiarmid (“the plaintiff”) seeks leave pursuant to s335(2) of the Workplace Injury Rehabilitation and Compensation Act 2013 (as amended) (“the Act”) to bring common law proceedings for a left wrist injury (“the injury”) said to have occurred over a period due to multiple incidents arising out of and in the course of his employment with BlueScope Steel Limited (“the defendant”) and in particular in July 2014 and on 13 August 2014.
2 The plaintiff seeks leave to bring proceedings for “pain and suffering” damages and “pecuniary loss” damages within the meaning of s325(1) of the Act in respect of such injuries.
3 The plaintiff gave evidence and was cross-examined. Both parties tendered a number of documents.[1]
[1]Refer to Annexure “A”
Relevant legal principles
4 In relation to the injury, the Court must not give leave unless it is satisfied, on the balance of probabilities, that “the injury” is a “serious injury” within the meaning of “serious injury” defined in s325(1) of the Act.[2]
[2]See s335(5)(a) of the Act
5 In relation to the injury, the plaintiff relies on paragraph (a) of the definition of “serious injury” contained in s325(1) of the Act.[3] That paragraph states relevantly:
“serious injury meansꟷ
(a) permanent serious impairment or loss of a body function … .”
[3]Originally the plaintiff also relied on paragraph (c) but his counsel made clear during opening that no reliance was placed on that paragraph
6 The part of the body said to be impaired for the purposes of paragraph (a) is the left wrist.
7 In order to succeed, the plaintiff must prove on the balance of probabilities that:
(a)the injury arose out of or in the course of or due to the nature of his employment with the defendant on or after 1 July 2014;[4] and
(b)that the injury under paragraph (a) of the definition of “serious injury” is permanent in the sense that it is “likely to last for the foreseeable future”;[5] and
(c)that his injury in relation to “pain and suffering” and/or “loss of earning capacity” must be “serious”, that is:
“… when judged by comparison with other cases, in the range of possible impairments … as the case may be [can be] fairly described as being more than significant or marked, and as being at least very considerable.”[6]
This is sometimes referred to as the “narrative test”.
[4] See s1 of the Act and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622
[5] See Barwon Spinners Pty Ltd & Ors v Podolak (op cit) at paragraphs [30]-[33]
[6]See s325(2)(b) and s325(2)(c) of the Act
8 Section 335(3) of the Act provides that the consequences of an injury and impairment in terms of “pain and suffering” and “loss of earning capacity” are to be considered separately. In the event that the worker satisfies subparagraph (i) of s325(2)(b), but not subparagraph (ii) of that subsection, he or she is entitled to bring proceedings in accordance with s335(2)(d) for the recovery of damages for pain and suffering only. A worker who satisfies the loss of earning capacity requirements of s325 of the Act is entitled as a “matter of statutory construction” to have leave to bring proceedings for “pain and suffering damages” and “pecuniary loss damages”.[7]
[7]See Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170 at paragraphs [60]-[64]; Acir v Frosster Pty Ltd [2009] VSC 454
9 In addition, in relation to establishing the loss of earning capacity, a court must not grant leave under s335(2)(d) on the basis that the worker has established the loss of working capacity required by s325(2)(e) unless the worker establishes, in addition to the requirements of paragraph (c) of the Act, that:
(a)as at the date of hearing of an application under s325(2)(d) of the Act, the worker has a loss of earning capacity of 40 per cent or more measured (subject to certain irrelevant sections) set out in s325(2)(f) of the Act; and
(b)the worker will, after the date of the hearing, continue to permanently have a loss of earning capacity which will be productive of a financial loss of 40 per cent or more.[8]
[8]See s325(2)(e) of the Act
10 Section 325(2)(h) provides that any psychological or psychiatric consequences of a physical injury are to be taken into account only for the purposes of paragraph (c) of the definition of serious injury and not otherwise.
11 The Court must give reasons that disclose the pathway of reasoning in dealing with the evidence and the issues raised by the application.[9]
[9]See Hunter v Transport Accident Commission [2005] VSCA 1 at paragraphs [23]-[25]
Issues
12 The Court queried counsel for the defendant what were the issues and was informed that:
(a)In relation to the pain and suffering consequences claimed by the plaintiff, the case can be described as a “range” case involving what was described as the non-dominant hand of the plaintiff. I was also informed that there were issues pertaining to the principles enunciated in Peak Engineering,[10] given that there were allegedly subsequent injuries to the dominant hand and back of the plaintiff;
(b)In relation to the pecuniary loss consequences, it would be submitted that the plaintiff has retained capacity for suitable employment, such that he does not meet the relevant threshold.[11]
[10]See Peak Engineering Pty Ltd v McKenzie [2014] VSCA 67
[11]See generally T11, L31 – T12, L10
Evidence of the Plaintiff
13 The plaintiff relies on affidavits sworn by him on 15 March 2019[12] and on 11 September 2020.[13]
[12]See exhibit “A” at pages 16-26 PCB
[13]See exhibit “A” at pages 27-30 PCB
14 In his evidence-in-chief, the plaintiff gave evidence that he was, by occupation, a “volunteer worker”.[14]
[14]See T13, L6
15 The plaintiff also gave evidence that he had recently reread his affidavits and was satisfied that they were accurate.[15]
[15]See T13, L9-15
16 The following evidence then ensued:
Q:“At paragraph 48 of your first affidavit, which is at p.22, you said: ‘More recently Disability Employment Services arranged for me to do a computer course, thereafter I hope to do further study.’ Did you actually do a computer course?---
A:No, I didn’t.
Q: Why not?---
A: I ended up doing the volunteer work for the Salvos.
Q:Then in your recent affidavit at paragraph 19 it’s recorded – this is at p.29: ‘In January 2020 I couldn’t volunteer at the Salvos for two and a half weeks because of increased left wrist pain.’ Is that correct?---
A: No, it is my right wrist.
Q:So subject to those two corrections, you’re satisfied with your affidavits?---
A:Yes.”[16]
[16]See T13, L16-27
17 I refer to the first affidavit of the plaintiff wherein he deposes that he was born in December 1961 – now making him fifty-nine years old – who was raised in Watsonia and later, in Newmark, Victoria. He is divorced and lives in Epping with four of his seven adult children. He also has seven grandchildren.
18 The plaintiff is naturally right handed.
19 In 1976, the plaintiff left Debney Park High School after completing Form 3. At that time, he was living with his grandparents and had a difficult home life. His grandfather gave him the option of continuing at school or going to work, and having been ambitious to join the navy (which he never did), he decided to start work and earn some money.
20 The plaintiff has obtained various trade-related certificates, along with a certificate in small business – which he obtained when he tried to run his own business with his then wife. Other than those he has no formal qualifications.
21 After leaving school, the plaintiff has performed the following work:
(a)He initially worked in a sports store for about twelve months;
(b)Then moved to Whyalla in South Australia to work for BHP, where he worked as a machine operator for about thirteen years;
(c)Then he worked as a farmhand and later, for one of the local councils, again, in South Australia;
(d)In 1995, he moved back to Victoria, where he worked as a machine operator in a factory in Coburg and was there for about two years;
(e)In 1997, he moved back to South Australia, where he set up a small business which he ran with his wife. The business consisted of making timber furniture by hand; however, the business did not make much money and eventually failed, closing in 2004;
(f)After the business failed, the plaintiff worked at a local primary school for about four or five years, performing maintenance work;
(g)Then, in about 2008, he commenced work for Fielders as a machine operator at the Campbellfield roofing factory and believes that business was later purchased by the defendant.
22 The plaintiff describes his work with the defendant as being “both heavy and repetitive; it involved a lot of difficult manual handling”.[17]
[17]See exhibit “A” at paragraph [15] of the first affidavit at page 18 PCB
23 The plaintiff describes an injury to his left wrist when stacking heavy sheets of metal flooring (with the assistance of a co-worker) with one hand – that was the system – on a day in early to mid-July 2014 and again on 13 August 2014.
24 In addition to the incidents in July 2014 and again on 13 August 2014, the plaintiff believes that his injury was also caused by the heavy and repetitive nature of his duties – that is the regular manual handling of heavy sheets of metal flooring. The plaintiff describes that the manual handling of heavy sheets of metal flooring was one of his main responsibilities. In particular, he operated various steel-pressing machines which makes sheets of metal flooring, and it was part of his job to then stack the sheets, which was a heavy and difficult task. The edge of each sheet was like a tongue and groove and consequently, each sheet had to be “flipped” as it was being stacked. Flipping was very difficult, especially at the top of the stack, but also because the sheets were heavy, sometimes hot from the production process, and slippery, again, from the production process.
25 After such incidents, the plaintiff had low-grade persisting pain in his left wrist, for which he needed over-the-counter medication. At that time, he did not think too much about it as he always had sore wrists at the end of the working day, which he believed was just due to the nature of his duties.
26 In particular, although the August incident was much the same, as he was stacking sheets with a co-worker, however on that occasion the “flip” was mistimed and the sheet came crashing down on his left wrist and was jammed between the sheet and the top of the stack.
27 The plaintiff was immediately aware of a sharp pain in his left wrist and although he worked on for about an hour-and-a-half until “smoko”, the co-worker advised the plaintiff that his wrist looked red and swollen and by that time it had become increasingly sore, causing the plaintiff to get it looked at.
28 The plaintiff reported the injury, then went to see the factory doctor, Dr Dayasagar, at Tristar Medical Group Epping, and later, made a WorkCover claim, which was accepted, as was a subsequent permanent impairment claim.
29 Before starting work with the defendant, the plaintiff describes himself as having “by and large enjoyed good health”.[18] In particular, the plaintiff was able to work without restriction and otherwise engage in a full range of activities outside of work. He does not remember suffering injury or illness of any significance, but that he would have to check the records of his doctors to be “certain”.
[18]See exhibit “A” at paragraph [16] of the first affidavit at page 18 PCB
30 Dr Dayasagar initially arranged for the plaintiff to undertake a number of scans, including an MRI scan, and also prescribed medications, which he had difficulty tolerating, and he was put on light duties and otherwise advised to rest his wrist as much as possible.
31 Shortly afterwards, and after the results of the MRI scan were available, Dr Dayasagar referred the plaintiff to the orthopaedic surgeon, Mr Peter Maloney, who initially recommended that the plaintiff persevere with conservative treatment, including the use of a brace.
32 When that failed, Mr Maloney then recommended fusion surgery of the left wrist. In this respect, the plaintiff comments that although he has reconsidered his decision from time to time (because of the persisting pain in the wrist), he decided against surgery because the risk of the operation would also mean that he would have no movement in his left wrist.
33 From time to time he wore a splint, which he found very uncomfortable, and after the splint broke he did not replace it.
34 At the time of his first affidavit, he continued to see his general practitioner, now Dr Tunaley, who was also at the Tristar Medical Group, on a regular basis. The plaintiff deposes he also saw a mental health nurse on a regular basis, but has now stopped that treatment as his mental health has improved significantly and he no longer feels the need for it.
35 The plaintiff deposes that by way of medication, he takes Panadol only when necessary, and Panadeine Forte only when desperate, due to the side effects. He has tried a number of medications and as yet has not found one that he can tolerate – they all seem to cause disabling stomach pain. Because of this, he seems to prefer to manage his condition by avoiding activities that he knows will aggravate it.
36 After the August 2014 incident, Dr Dayasagar certified the plaintiff for light duties and generally speaking, he did very light work, involving counting screws, light packing, writing production labels and the like.
37 At first the plaintiff coped well enough, but by February 2015, he found that even the very light work he was doing aggravated his condition. Dr Dayasagar then cut back his hours at work to two-hour shifts ꟷ whereas before he had been working full time up to that point. The plaintiff deposes that even with that reduction, he continued to struggle and in June 2015, he stopped work on the advice of Dr Dayasagar ꟷ who had urged him to stop work earlier, but the plaintiff wished to keep going as long as he could.
38 On ceasing work, the plaintiff received weekly payments of compensation for an extended period of time and now – at the time of the swearing of his first affidavit – was in receipt of Centrelink benefits, and he was looking for work with the assistance of a specialist disability employment service agency. Furthermore, the defendant had sent him to the occupational rehabilitation service provider, IPAR, who has helped him look for work without success.
39 The plaintiff notes that recently, Disability Employment Services arranged for him to do a computer course and he hopes to do further study.
40 The plaintiff was concerned that he will struggle as he is limited to using one hand on the keyboard as repetitive use of the keyboard aggravates his left wrist condition.
41 At the time of swearing his first affidavit, the plaintiff did not know if or when he would be able to return to work, although it was clear that he would not be able to return to his pre-injury duties or similarly heavy work because of the strain it will place on his left wrist.
42 The plaintiff also notes that he doubts he could cope physically with sedentary work other than on the most limited basis. Most office jobs require at least some computer use and he has real difficulty using a computer other than for short periods. He also notes that he believes he is not suited to sedentary work, at least not without significant retraining, as he does not have the skills or experience.
43 In this respect, the plaintiff notes again he has very limited computer skills, he has no formal qualifications since leaving school early, and he has had no experience working in an office or in sales, or any other sedentary job – he has always done manual work.
44 At paragraphs 57 to 74 of his first affidavit, the plaintiff sets out the various consequences of his left wrist injury. These include:
(a)He suffers chronic left wrist pain, which is an aching type of pain of varying degree;
(b)If he “overdoes” it his condition is readily aggravated and the pain is worse, as it is also in cold weather;
(c)As a consequence, he is now unable to engage in a number of activities and has difficulty engaging in a range of others:
(i)He has lost his trade and he is no longer able to return to his previous duties or similarly heavy work. To date, he has been unable to find work and at least without retraining he worries about being unemployable;
(ii)He now has some difficulty with a range of daily activities, such as showering and dressing (never having had such difficulty in the past). While he is able to cope, he now has to take care not to aggravate his wrist condition when, say, washing his hair or cutting his nails;
(iii)He now has difficulty with even moderately heavy chores. Before his wrist injury, he had not difficulty doing things around the house which involved, since his divorce, the bulk of the housework. Now, however, he has difficulty doing anything that involves heavy lifting or repeated and forceful use of his left arm. The plaintiff gives an example of how hanging out the washing aggravates his condition, as does sweeping and vacuuming, which he finds difficult. He perseveres and does what he can, but is now more reliant on his children to assist him;
(iv)He is similarly limited in what he can do in the garden. Before his wrist injury, he had no difficulty keeping the garden maintained. Now he can do smaller jobs but, again, requires the assistance of his children to do the heavier jobs, such as mowing and edging;
(v)He is no longer able to do much, if any, woodworking. Before his wrist injury, he did a lot of woodworking as it was his chief hobby and any spare time he had, he would spend in the shed working on one thing or another. Now, because of the injury, he is unable to do much, if anything. He tries to do a bit just using his right hand and sometimes his son helps him, however, it is largely pointless – “because I am so restricted by my inability to use my left wrist”;[19]
(vi)He now rarely goes dancing anymore. Before his left wrist injury, he enjoyed dancing very much and would go at least once, if not twice, per week. However, he now no longer goes as he has found that such activity would jar his wrist and he would pay for it the next day, and in the end he decided it is just not worth it anymore.
[19]See exhibit “A” at paragraph [72] of the first affidavit at page 25 PCB
45 By way of his second affidavit, the plaintiff notes that his general practitioner, Dr Tunaley, has retired, and he now consults Dr Gurpinder Chahal at the Tristar Medical Group.
46 The plaintiff describes having constant left wrist pain which increases with activity, causing the whole of his left wrist to ache. He also describes having pins and needles around the base of the left thumb, with the pain radiating to his left elbow, and such pain is sometimes sharp and stabbing. The pain fluctuates in severity and is often worse in the evening and in cold weather.
47 The plaintiff takes four to six Panadol Osteo a day, most days of the week.
48 The plaintiff has difficulty lifting and with activities that involve pulling with his left hand. His left hand is weaker than his right and he has difficulty gripping items. To relieve the pain, he soaks the wrist in warm water and sometimes has a hot shower.
49 The plaintiff has used his right arm more since his left arm injury and now has right wrist pain. Towards the end of 2019, Dr Chahal recommended he undergo an x-ray, which he understands shows some degenerative changes in his right wrist.
50 Left wrist pain wakes him at night and he often feels tired during the day. He has some difficulty with self-care as described in his first affidavit, and he has trouble showering, washing his hair and cutting his nails. He undertakes such activities slowly to avoid making the left wrist pain worse. He tries to do some of the lighter aspects of cooking and cleaning and mainly uses his right arm. He does less and takes things more slowly, and rests when he needs to. Before the left wrist injury, he cooked seven nights a week, but now he only cooks about once a week. His children help with the heavier tasks around the house, such as mowing the lawn, hanging out the washing, sweeping, vacuuming and cooking.
51 Using his left hand when driving aggravates the pain and the plaintiff tries to drive using his right hand, placing his left hand on the console. He has also tried to do some woodwork since the injury, making some shelving for the Salvation Army, but he experienced increased pain and he has essentially given up trying. He has packed up a lot of his tools since his left wrist injury as the vibration increases the pain and there are not many tools he can use one handed. He is still unable to go Salsa dancing, which he did most Friday nights, and this has impacted on his social life significantly – he lost his relationship with his girlfriend, who was also his dancing partner.
52 The plaintiff misses working with the defendant and he has lost many friends with whom he worked. He had a big social group of friends from work who went dancing together. He was also proud of the work that he did with the defendant, with the bosses making him feel like he had worth and that he was needed. He continues to have the fusion operation recommended to him, but as stated in his first affidavit, he is trying to wait as long as possible before undergoing such procedure.
53 In mid-2019, the plaintiff started volunteering at the Salvation Army store in Lalor and helps out three days per week: Monday, Wednesday and Friday, for about four hours a day. On a typical day he sorted items such as clothes, DVDs, shoes and books. The work was light and he could rest when needed. However, he did need a day off in between to rest after each day of work. He was not paid for any of this work.
54 In January 2020, the plaintiff could not volunteer at the Salvation Army for two-and-a-half weeks because of increased right wrist pain. In about February 2020, he experienced some back pain, but after a few weeks such pain settled.
55 In particular, the plaintiff states that he believes he would struggle to attend work regularly and reliably. At the end of the day with the Salvation Army, his left wrist pain is worse and he is only ever able to self-pace at work. “Over time, I needed more and more time off to rest” and he does not believe that an employer would let him rest and work at his own pace.
56 The plaintiff believes he will struggle with office work and notes that while he does have a computer at home, he is a one-finger typist. He mainly uses the computer at home for the ALF fantasy teams and to google. He again notes that he has only worked on manual jobs and left school at the end of Form 3.
57 The plaintiff deposes that IPAR suggested he attend a computer course with a one-handed keypad. His understanding is that IPAR was waiting for funding but he did not know for how long the course was going to be.
58 The plaintiff also relies on an affidavit of his daughter, Dana McDiarmid, sworn on 11 September 2020.[20] In that affidavit, Ms McDiarmid describes herself as being twenty-four years old and working as a security operator at Securitas. She lives with her father. She notes that prior to the wrist injury, she was unaware of her father having any difficulties with that wrist and indeed, prior to the wrist injury, her father would take her and her brothers to the beach, Funfields and weekend markets. She also observed that most weekends her father would go out dancing, to barbecues, and to the football with his brothers. He was busy around the house mowing lawns, gardening and making something with this handywork. Furthermore, he cooked all the meals for the family and seemed happy most of the time. He never complained about much.
[20]See exhibit “A” at page 31 PCB
59 Ms McDiarmid notes in her affidavit that after the plaintiff suffered his left wrist injury, he lost his social life and that she can see he is upset about not going out much and that he gets angry when he could not do things.
60 Ms McDiarmid now sees her father in pain through observations of his face and can hear it also in his voice. Her father cooks less now, does a little bit of gardening and small amounts of cleaning, but she sees him in pain afterwards. She comments that her father’s life is different now, and he does not have many friends or a girlfriend.
61 Ms McDiarmid notes that her father now complains about things and can be impatient, and she sees him regularly taking painkillers for his wrist condition. She also notes that she observed him to be in far greater discomfort and pain when he was volunteering at the Salvation Army.
Radiology
62 I refer to the following radiology:
(a)On 13 August 2014, the plaintiff underwent a plain x-ray of his wrist at the request of Dr Dayasagar.[21] The radiologist concluded:
[21]See exhibit “A” at page 76 PCB
“There is abnormality is (sic) seen involving the distal pole of the scaphoid, which has a sclerotic margin and may represent an old scaphoid fracture, however in this clinical setting, further evaluation with CT and MRI is suggested in order to determine if there is an acute component present. There is widening of the scapholunate interval, which suggests scapholunate ligamentous disruption. Once again, the chronicity of this is uncertain, and MRI would best evaluate the scapholunate and lunotriquetral ligaments.”[22]
[22]See exhibit “A” at page 76 PCB
(b)On 14 August 2014, the plaintiff underwent an MRI scan of his left wrist at the request of Dr Dayasagar.[23] The radiologist concludes:
[23]See exhibit “A” at pages 77-78 PCB
“1. Tear of the scapholunate ligament with mild widening of the joint.
2. Evidence of an old healed fracture, possibly an incomplete fracture, at the ventral cortex of the waist of the scaphoid. There is a little marrow oedema, but this is not centred around the fracture line and there is also a ventral subcortical bone cyst and some lateral cortical spurring.
3. The lunate shows evidence of previous trabecular microfractures, but lack of oedema suggests that these may be chronic and there is no definite cortical involvement.
4. Moderate degenerative radioscaphoid joint OA.
5. Dorsal capsular thickening and oedema consistent with previous trauma.
6. Low grade tenosynovitis related to EPL and the extensor carpi radialis tendons (extensor compartments 2 and 3).
Wrist surgeon referral recommended for assessment of the scapholunate ligament, as injury to this may result in long term carpal instability. Injuries to the lunate and scaphoid appear old, however it may be worthwhile considering CT to better assess whether these are completely united.”[24]
[24]See exhibit “A” at page 78 PCB
(c)I also refer to an x-ray of the right wrist undertaken on 10 December 2019 at the request of Dr Gurpinder Chanal (a doctor at the Tristar Medical Group). The clinical notes recorded on the x-ray report are that there was “swelling and tenderness over anatomical snuffbox. Limited range of motion of wrist ?fracture? scaphoid ?fractured carpal bones.”[25]
The radiologist reports that:
“Report: Abnormal morphology of the scaphoid bone with bony densities in the radial aspect of the scaphoid. This may indicate an old injury. No convincing evidence of an acute scaphoid fracture. Evidence of radioscaphoid joint degenerative changes with subchondral sclerosis and joint space narrowing. There is also mild widening of the scapholunate interval most likely related to prior injury.
Degenerative changes are present in the triscaphe joint as well as the first CMC joint.
Comment:
Features of an old scaphoid injury. Age-indeterminate widening of the scapholunate interval. Acute scaphoid injury not detected and difficult to exclude given bony changes. If there is a strong clinical suspicion of scaphoid fracture or acute scapholunate ligament injury, further evaluation with MRI recommended.”[26]
[25]See exhibit “A” at page 79 PCB
[26]See exhibit “A” at page 79 DCB
The medical treatment received by the Plaintiff
63 Consistent with the affidavit material of the plaintiff, the treating general practitioner, Dr Dayasagar (Tristar Medical Group), referred the plaintiff to the orthopaedic hand surgeon, Mr Maloney.[27]
[27]See exhibit “A” at page 55 PCB
64 The plaintiff relies on the following medical reports from the treating hand surgeon, Mr Maloney, dated 20 August 2014,[28] 8 October 2014[29] and, finally, 30 June 2015.[30]
[28]See exhibit “A” at pages 67-68 PCB
[29]See exhibit “A” at page 69 PCB
[30]See exhibit “A” at pages 70-72 PCB
65 Mr Maloney reports that he first consulted with the plaintiff on 20 August 2014, and a history was obtained that on 1 August 2014, the plaintiff suffered a left wrist injury when manually handling steel plates which were required to be “lifted and folded” on top of each other. It was during this process of the twisting manoeuvre that the left wrist became sandwiched between two large metal plates, and to extricate the left hand he twisted the left wrist. Since that time, he had been unable to undertake any work. Five weeks earlier, he had a similar twisting injury to the wrist but managed to return to work.
66 After the 13 August 2014 incident, the plaintiff noticed immediate swelling and pain in the left wrist and applied a bandage and was also examined by his general practitioner. When first seen, Mr Maloney considered that the plaintiff required rigid immobilisation for comfort and simple analgesia. He suggested to the plaintiff that he wear a brace for four to six weeks to see if there was any significant resolution of his symptoms.
67 On 9 May 2014, Mr Maloney then again consulted with the plaintiff, who stated he felt better having spent some time in the brace. At that time, he was undertaking light duties and although they were light duties, he was still complaining of some pain but it was manageable.
68 There was some brief discussion about other options should his symptoms not settle and they largely involved surgery to the left wrist.
69 Mr Maloney diagnosed the plaintiff to have pre-existing wrist osteoarthrosis of a grade two SLAC (scapholunate advanced collapse) aetiology. Arthritis is localised in the radioscaphoid fossa.
70 Mr Maloney was of the opinion that although the plaintiff had pre-existing wrist arthritis, he was not aware of this until the twisting injury at work and a plain x‑ray was organised. He considered that the wrist arthritis had “flared” as a result of the twisting and crush injury from his workplace accident. He considered the injury is consistent with the stated cause.
71 When queried about the plaintiff’s then and future capacity for work, Mr Maloney stated:
“My estimate of your client’s present and future capacity to work is uncertain. It all depends on his recovery from the injury with simple non-operative measures. If these measures fail in a reasonably time frame, then consideration will be made to undertake any surgical management options. These management options often require a protracted period of recovery, involve bone and soft tissue healing and then subsequent strengthening exercise. I would expect this gentleman to be able to undertake lighter duties in the future, but whether he is able to undertake the full physical duties of his current employment would be uncertain and certainly not guaranteed with further surgery.”[31]
[31]See exhibit “A”, report of Mr Maloney dated 30 June 2015 at page 72 PCB
72 Mr Maloney was also of the view that the plaintiff would require further treatment to treat symptoms of his painful wrist, and that such future treatment would likely be surgical, involving consideration of a limited or total wrist fusion procedure.
73 The plaintiff also relies on medical reports from his general practitioners – namely reports from Dr Dayasagar dated 19 June 2015,[32] 18 July 2017[33] and, finally, 5 July 2018.[34]
[32]See exhibit “A” at pages 58-60 PCB
[33]See exhibit “A” at pages 61-63 PCB
[34]See exhibit “A” at pages 64-68 PCB
74 Dr Dayasagar reports that he first consulted with the plaintiff on 13 August 2014, when the plaintiff attended the Tristar Medical Group complaining of a left wrist injury which happened at work.
75 In particular, the plaintiff told Dr Dayasagar that when he was folding metal flooring, he accidently caught his hand between metal sheets, causing him to be in pain throughout the balance of the day. He also gave a history of a previous rotational injury to the left wrist about a month prior to that at work.
76 On examination at that time, the left wrist of the plaintiff was very tender around the radial styloid and the anatomical snuffbox. He had an x-ray of the left wrist which did show an old scaphoid fracture and a scapholunate ligament disruption. Dr Dayasagar also arranged for the plaintiff to undergo an MRI scan, which showed –
“… scapholunate ligament tear … also … other findings to suggest that he had tenyosinivitis (sic) of his extensor pollicus (sic) longus and extensor carpi radialis tendons.”[35]
[35]See exhibit “A” at page 58 PCB
77 As already recorded, Dr Dayasagar referred the plaintiff to hand surgeon, Mr Maloney, who suggested conservative treatment or the option of scaphoid excision and fusion of the wrist joint.
78 Dr Dayasagar reports that the plaintiff was not keen to undergo this surgical option and preferred conservative management. He was prescribed a wrist splint and referred to a hand specialist, during which time the plaintiff worked on modified duties, where it was recommended to limit the use of the left hand at work. Such work largely involved administrative duties and during this time, Dr Dayasagar reports that the psychological state of the plaintiff deteriorated. Dr Dayasagar referred the plaintiff to a psychologist, but ultimately such treatment was not available as the request had been declined by the defendant. Initially, he was prescribed Panadeine Forte but according to Dr Dayasagar, he had some side effects from this treatment so he was advised to continue simple analgesia for the time being.
79 When reporting on 18 July 2017, Dr Dayasagar confirmed his diagnosis that the plaintiff suffered from a SLAC (scapholunate advanced collapse) wrist on the left side, with severe muscle wasting in his left hand. Furthermore, Dr Dayasagar thought such condition is “directly related” to his employment with the defendant and in particular, repetitive handling of heavy metal sheets have led to the condition.
80 When queried as to the plaintiff’s current capacity for pre-injury duties or in the alternative suitable duties, Dr Dayasagar stated:
“I gave him a certificate of capacity recently on the 4/7/2017 as Darren hasn’t been working for almost a year now, he has severe muscle wasting in the left hand and his left hand has a very limited range of movements. The pain in his left hand has become chronic in nature [and] cold weather seems to be a constant aggravation on his left wrist. This has mentally affected him in that he has not been able to use his left hand for many of his daily activities. His mental health symptoms seem to coincide with days when his pain is severe, Darren does not want to take strong analgesics because of the risk of long term side effects.”[36]
[36]See exhibit “A”, report dated 18 July 2017, at page 62 PCB
81 Dr Dayasagar considered the plaintiff, although not having any capacity for work at that stage, can consider retraining in other forms of light employment where he does not have to use his left hand. This might also improve his mental health and would be a good distraction from the pain. However, Dr Dayasagar added “I am not very optimistic [about] this outcome”.[37]
[37]See exhibit “A” at page 62 PCB
82 The plaintiff also relies on a medical report dated 5 July 2018 from Dr Scott Tunaley, who was also one of the doctors at the Tristar Medical Group Epping.
83 Dr Tunaley reports that his report is generated from the clinical notes of Dr Dayasagar, as Dr Tunaley had only recently seen the plaintiff, as Dr Dayasagar had left for overseas.
84 Under the heading “Employability”, Dr Tunaley states, in part:
“In Dr Dayasagar’s [opinion] Darren will not be able to return to sheet metal work or pre-injury duties in view of the left hand and wrist pain, muscle wasting and loss of power. He will be better suited for other forms of light employment and re-training in a field of his choice where he is not required to use the left hand.
…
According to Dr Dayasagar Darren has come to terms with the disability and the deformity of his - left wrist; he has gross muscle wasting in the left wrist with reduced power. The cold weather does not help his arthritic pain. There were a few instances at work where he felt that his services could have been used in a better fashion given his expertise in the field and the duration of time he had been working for Fielders.”[38]
[38]See exhibit “A” at pages 65-66 PCB
85 Those acting for the plaintiff arranged for the plaintiff to be examined by the following:
(a)the plastic and reconstructive surgeon, Mr Damon Thomas, who examined the plaintiff on or about 8 October 2019;[39] and
(b)the occupational and environmental physician, Dr Robyn MacBeth, on 4 November 2019[40] and a supplementary report dated 11 September 2020.[41]
[39]See report of Mr Damon Thomas, dated 8 October 2019, exhibit “A” at pages 80-83 PCB
[40]See report of Dr Robyn MacBeth, dated 4 November 2019, exhibit “A” at pages 84-98 PCB
[41]See exhibit “A” at pages 90-106 PCB
86 When examined by Mr Damon Thomas, the plaintiff gave a history of suffering an injury to his left wrist on or about 13 August 2014, but also of earlier work activity involving repetitive activities eight hundred to one thousand times a day stacking sheet metal. Mr Thomas obtained the history that the plaintiff was under the care of hand surgeon, Mr Maloney, but no surgery had been performed, although that option had been given to the plaintiff.
87 At the time of consultation, the plaintiff complained of left wrist pain which is constant and is exacerbated by activities. Furthermore, he gets pain at night which occasionally wakes him up and he has some paraesthesia around the base of the thumb. He noted that the plaintiff did return to light duties after the incident on 13 August 2014 but could not work beyond 2015 due to ongoing symptoms of his left wrist.
88 At the time of the examination by Mr Thomas, the plaintiff was working as a volunteer with the Salvation Army and at that time, he was taking Advil for pain.
89 Mr Thomas was posed various questions by those acting for the plaintiff and I refer to some of those questions and his answers thereto:
“The specific answers to your questions are as follows:
1 Diagnosis
The overriding diagnosis here is that of left wrist scapholunate ligament rupture with secondary degenerative changes consistent with scapholunate advance collapse. This is consistent with a combination of an overuse injury with a sudden exacerbation and ligament rupture either complete or exacerbation of an already complete rupture on the 13 August 2014. Subsequent pain and reduced function is directly related to the scapholunate ligament injury.
2 Whether the employment at BlueScope Steel was a cause of his upper limb injury;
Mr McDiarmid seems to suffer from a combination of an overuse attrition-type rupture of the left scapholunate ligament as well as that of a sudden episode potentially completing the ligament tear on 13 August 2014 or as a minimum exacerbating an already torn ligament.
Given his initial imaging which showed some degenerative change, it would indicate that the condition had been present for some time.
In my opinion, Mr McDiarmid did not have any symptoms prior to his employment in 2008 and due to his heavy occupation utilizing both hands with heavy manual and repetitive tasks, his employment at BlueScope Steel is directly the cause of the left upper limb injury.
3 Details of restrictions that are imposed upon Mr McDiarmid whether those restrictions can be considered as permanent;
Mr McDiarmid essentially cannot undertake any manual tasks with the left wrist or any repetitive activities. This would include anything involving lifting, strength, manipulating objects or repetitive activities. Therefore, he is relatively limited to light tasks only or those involving his right hand only.
In my opinion, these restrictions are permanent and ongoing.
4 Whether Mr McDiarmid can return to full time, unrestricted work in his pre-injury position of employment when considering his left upper limb injury alone;
In my opinion, Mr McDiarmid cannot return to his pre-injury position in any capacity including parttime due to the left upper limb injury.
5 Opinion with regards to Mr McDiarmid’s capacity for work
In my opinion, Mr McDiarmid’s capacity for work is limited. Due to his skill set and training he is really only suited to manual or repetitive tasks. His left wrist injury does not allow him to undertake any of these roles due to restricted manual use of the left hand and restricted capacity of anything repetitive. Therefore, his only real employability would be light non-manual, non-repetitive tasks which given his age of 57 and skill set of only undertaking manual jobs, I think he is unlikely to successfully achieve gainful employment.
6 Prognosis
The prognosis for Mr McDiarmid’s left wrist is poor. He has an established SLAC wrist where degenerative changes are already set in and will progress and deteriorate with time. Therefore, at some point he will need interventional surgery such as a scaphoidectomy and four-corner fusion.
The aim of this would be to reduce the pain that he is experiencing. He would lose a degree of function with loss of movement and potential for other secondary issues such as ongoing chronic pain. It is likely that with time he would need further procedures due to ongoing degenerative changes that occur.
In conjunction with any surgery, he would need hand therapy and medication to support his recovery.
As to when this would be required is not currently the case and essentially would be up to Darren as to at what point he felt the symptoms had deteriorated to a stage where a surgical procedure was worth exploring.”[42]
[42]See exhibit “A” at pages 81-83 PCB
90 When examined by Dr Robyn MacBeth on 4 November 2019, a detailed history was obtained of pre-injury employment, in particular, as to pre-injury duties with the defendant, physical demands of pre-injury duties, education and qualifications and occupation history, and furthermore, there was a detailed history of the presenting complaint, the plaintiff’s treatment and return to work.
91 In particular, the plaintiff informed Dr MacBeth that his current symptoms as a result of his second left wrist injury (that is in August 2014) consisted of:
·Constant aching pain involving the whole of his left wrist
·His left wrist pain radiates to the lateral aspect of his left elbow
·His wrist pain is sharp at times.
92 The plaintiff also informed Dr MacBeth that he had experienced left wrist pain since the first workplace injury in mid-July 2014.
93 Dr MacBeth also obtained a very thorough history of the effects of the injury involving impact on personal activities of daily living, household duties, hobbies, social life and relationships. In particular, when queried about the functional capacity of his left wrist, the plaintiff stated:
·Manual handling/lifting – his lifting limit is up to 5 kilograms
·Sitting – sitting tolerance no limit
·Standing – standing tolerance no limit
·Walking – walking tolerance no limit
·Driving – his driving tolerance is about one hour and then he needs to take a break
·Upper limit
ꟷpushing pulling – pushing and pulling limited to no greater than 2 kilograms. Pushing is more difficult than pulling.
ꟷgrip strength ꟷ reduced grip strength in his left hand compared to his right hand due to left wrist pain.
ꟷcomputer/mouse work – he is only able to use a mouse and type with his right hand, which limits his efficiency with computer-based work.
94 At the time of the examination, the plaintiff was attending his general practitioner, Dr Tunaley, at the Tristar Medical Group Epping (for about a year), who gave him regular WorkCover certificates:
·Hot water to relieve his left wrist pain
·Self-massage
·He wore a left wrist brace for around eighteen months, but no longer wears a brace
·Panadol – he takes two tablets when required to relieve his wrist pain. He prefers not to take analgesic medication, as he has experienced gastrointestinal side effects, especially disabling stomach pain.
95 When physically examined, Dr MacBeth noted that the plaintiff was pleasant and co-operative.
96 Dr MacBeth also had the imaging and reports in relation to the x-ray of the left wrist of 13 August 2014 and the MRI scan of the left wrist performed on 18 August 2014.
97 Again, those acting on behalf of the plaintiff posed various questions to Dr MacBeth. I refer to some of those questions and her answers thereto:
“1. Diagnosis of our client’s injury only and the sequelae.
In my clinical opinion, based on the history and physical examination findings, as well as the information available, including radiological evidence, Mr McDiarmid sustained an aggravation of pre-existing radio-left scaphoid joint osteoarthritis as a result of an acute soft tissue injury to his left wrist at work in mid-July 2014, when he was working with an inexperienced casual employee stacking heavy sheets of metal flooring, and the casual employee flipped the sheet too early and he jarred his left wrist.
In my clinical opinion, based on the history and physical examination findings, as well as the information available, including radiological evidence, Mr McDiarmid sustained a further aggravation of his pre-existing left radio-scaphoid joint osteoarthritis as a result of the following acute left wrist injury at work on 13 August 2014, when he was stacking metal sheets with a co-worker and he and his co-worker misjudged the timing of the flip, and the heavy metal sheet fell onto his left wrist crushing his wrist between the sheet and the top of the stack, and he subsequently twisted his left wrist when removing his left hand from the metal sheets:
•Tear of the scapholunate ligament and associated widening of the scapholunate joint.
•Tenosynovitis of the extensor pollicis longus and extensor carpi radialis tendons.
It is evident from my assessment and the information provided that Mr McDiarmid has developed the following as a secondary consequence of his second left wrist injury:
•Chronic left wrist pain.
• Left wrist dysfunction, deconditioning and associated disability.
2. Whether you consider our client’s employment with BlueScope Steel Limited was a cause of their left upper wrist injury.
In my clinical opinion, Mr McDiarmid’s employment with BlueScope Steel Limited was a cause of his left wrist injury at work in mid-July 2014, as well as his left wrist injury at work on 13 August 2014.
3. Details of what restrictions are imposed upon our client by reason of their left upper limb injury only and your views as to whether those restrictions can be considered as being permanent.
I recommend the following medical restrictions in relation to Mr McDiarmid’s left wrist injury only for the foreseeable future, in order to prevent re-injury and exacerbation or aggravation of his left wrist condition and chronic left wrist pain:
• Self-paced work duties with his dominant right hand.
• Mr McDiarmid to predominantly use his right hand to perform his work duties, including computer-based duties.
• No repetitive gripping and use of his left hand and wrist.
• No forceful gripping with his left hand greater than 500 grams.• No work duties that require manual handling and lifting greater than 5kg.
• No pushing and pulling greater than 2kg.
• No repetitive duties including manual handling, lifting, pushing and pulling.
• Desk-based duties to be performed at an ergonomic workstation.
• Driving duties should not be an inherent requirement of the job.• Rest breaks as often as needed to enable Mr McDiarmid to self-manage his pain level, and prevent exacerbations of pain.
4 Your views as to whether our client can return to full time, unrestricted work in their preinjury position of employment when considering their left upper limb injury alone.
In my opinion, Mr McDiarmid is very unlikely to ever have the requisite capacity to return to full-time, unrestricted work in his pre-injury position of employment, based on the nature, extent and severity of his left wrist injuries, sequelae and residual left wrist pain and functional limitations, which renders him unlikely to ever return to his pre-injury level of function required to safely and efficiently perform the inherent physical requirements of his pre-injury role.
In addition, it is likely that Mr McDiarmid would be at risk of re-injury, exacerbation or aggravation of his left wrist condition if he was to return to his physically demanding pre-injury duties.
5. Your opinion of our client’s realistic capacity for work (if any), including the number of hours per week our client could work on a consistent, reliable and permanent basis without the risk of re-injury when considering age, education, skills and work experience, place of residence, medical information, any occupational rehabilitation services provided, any effects of medication and incapacity and restrictions arising from their left upper limb injury alone.
It is evident that Mr McDiarmid has a current work capacity, given he has been performing part-time voluntary work at the Salvation Army since May 2019.
However, in my opinion, when considering Mr McDiarmid’s left wrist injury, residual left wrist pain and functional limitations restricting his work capacity, medical restrictions in relation to his left wrist injury, his risk of re-injury, exacerbation or aggravation of his left wrist condition and left wrist pain, lack of rehabilitation, age, level of education, limited transferable vocational skills and qualifications, and medical information, he does not have a realistic capacity for suitable alternate employment, particularly considering the realities of the open labour market.
6. Our client’s prognosis, including your view as to whether our client will require future treatment and/or surgery and if so, the nature of that treatment and/or surgery.
Prognosis
Mr McDiarmid’s chronic left wrist pain and dysfunction have failed to resolve to date with conservative treatment.
In my clinical opinion, given the chronicity of Mr McDiarmid’s residual chronic left wrist pain and dysfunction, it is likely that he will continue to experience ongoing left wrist pain and dysfunction for the foreseeable future.
Future treatment
Mr McDiarmid will require long-term periodic reviews by his general practitioner for his chronic wrist pain.
He will require ongoing pain medication.
In view of Mr McDiarmid’s ongoing left wrist pain and dysfunction, and given the last imaging of his left wrist was back in August 2014, I would recommend up-to-date imaging of his left wrist, and then review by a Hand Surgeon following repeat imaging.
In my opinion, the specific nature of Mr McDiarmid’s future treatment requirements will need to be determined once he has undergone up-to-date imaging of his left wrist and review by a Hand Surgeon following repeat imaging.”[43]
[43]See report of Dr MacBeth dated 4 November 2019, exhibit “A” at pages 84-98 PCB
98 The supplementary report of Dr Robyn MacBeth dated 11 September 2020 is effectively her comments on various reports obtained by the defendant in this matter. I shall return to this report later.
99 It is convenient to note the medico-legal examinations relied on by the defendant. They consist of the following examinations:
(a)by the orthopaedic surgeon, Mr Damian Ireland, who specialises in hand surgery, on 29 April 2015;[44] 30 September 2015;[45] 11 January 2017;[46] a supplementary report dated 4 April 2017[47] and on 10 June 2020;[48]
(b)by the consultant occupational physician, Dr David Barton, on 18 January 2018;[49] a supplementary report dated 23 February 2018;[50] a further supplementary report dated 28 February 2018[51] and 24 June 2020;[52] and a supplementary report dated 17 July 2020.[53]
[44]See report of same date, exhibit 1, at pages 5-9 DCB
[45]See report dated 5 October 2015, exhibit 1, at pages 10-13 DCB
[46]See report dated 13 January 2017, exhibit 1, at pages 14-19 DCB
[47]See report of same date, exhibit 1, at pages 20-21 DCB
[48]See report of same date, exhibit 1, at pages 22-28 DCB
[49]See report dated 19 January 2018, exhibit 2, at pages 28-32 DCB
[50]See report of same date, exhibit 2, at pages 33-34 DCB
[51]See report of same date, exhibit 2, at pages 35-36 DCB
[52]See report dated 25 June 2020, exhibit 2, at pages 37-43 DCB
[53]See report of same date, exhibit 1, at pages 44-45 DCB
100 When the plaintiff was first examined by Mr Damian Ireland, the hand surgeon, on 29 April 2015, he obtained details of the current complaints of the plaintiff which consisted of pain in the left wrist on both the dorsal and palmar aspects, which was aggravated by any gripping movement with the left hand. Such aggravation lasted for approximately thirty minutes after refraining from gripping. The complaints were restricted motion at the wrist, and the symptoms caused loss of function in the left hand. At that time, he was no longer able to open his garage door, he could not do vacuuming, hang out washing, climb a ladder, do his usual job as a machine operator or drive a forklift. He has difficulty with the normal activities of daily living, including washing his hair, dressing and opening jars.
101 In particular, the plaintiff informed Mr Ireland that he had no recollection of any prior injury to his left wrist, but gave a history of injury on 13 August 2014 and an incident of injury approximately one month prior to that.
102 At that time, the plaintiff was wearing a customised moulded plastic splint, which he wears during his working hours, and was taking Panadol Osteo, four to six per day. He had no plans to undergo surgical treatment presently.
103 On examination, Mr Ireland found the plaintiff to be “an honest reporter of historical facts and showed no tendency to exaggerate his symptoms”.[54] Those acting for the defendant posed various questions to be answered by Mr Ireland and I set out some of those questions and answers thereto:
[54]See reported dated 29 April 2015, exhibit 1, at page 5 DCB
“a. Do you consider that Hits condition diagnosed has arisen out of or occurred in the course of the claimant’s employment in the circumstances alleged in the claim form
i) can you please indicate the precise injury sustained on 13 August 2014
Tire imaging studies taken on the day of injury indicate a pre-existing condition which according to the patient was symptom free. The twisting and crushing nature of the injury on 13 August 2014 has rendered this previously symptom free condition, symptomatic.
ii) can you please indicate what pre existing condttionk (sic) if any, the claimant was suffering from prior to 13 August 2014?
Prior to 13 August 2014, the claimant was not suffering from any condition. He did however, have a pre-existing symptom free scapho lunate advance collapse deformity caused by a prior injury rupturing the scapho lunate ligament at the left wrist.
iii) is the claimant suffering from two separate and distinct conditions in his left wrist that has two separate and distinct causes and symptoms?
There is imaging study evidence of a bone fragment from the scaphoid. I cannot reconcile this with the work injury on 13 August 2014, although it could be argued that the twisting and crushing nature of this injury caused the scaphoid fracture fragment The current symptoms however relate to the scapho lunate advance collapse deformity.
iv) could the tear of the scapho lunate ligament with mild widening of the joint occur prior to 13 August 2014 and as a consequence of die old scaphoid injury?
The scapho lunate advance collapse condition at the left wrist preceded the injury on 13 August 2014 and was caused by a prior injury causing rupture of the scapho lunate ligament. As stated above, I’m not sure of the relevance of the alleged scaphoid fracture.
b. Would the claimant have suffered the presenting symptoms as a normal progression of any pre existing condition?
Yes. Any similar minor injury would most likely have caused aggravation of the underlying but previously symptom flee condition.
3.5 Other factors
a. Voluntarily exaggerated symptoms
There is no exaggeration of symptoms.
b. Involuntarily exaggerated symptoms
There is no non physical component to the current symptom complex.
3.6 Work capacity
a. Is the claimant currently capable of full time work in their normal duties?
The worker is not able to return to heavy manual work in his current symptomatic state. This situation is permanent.
b. If not lit for full time normal duties, is the claimant currently capable of full time work in alternative duties?
The worker is currently working at alternate duties as an office worker. In my opinion he would be able to do this on a full-time basis permanently. The restrictions include the full-time use of a moulded plastic splint to the left wrist when working and a weight lifting restriction of 2 kg.
c. If not, is die claimant currently capable of doing part time work in alternative duties?
Please refer to b. above.
d. Alternatively, is the claimant currently totally Incapacitated for all work?
Please refer to b. above.
e. In your opinion, will the claimant be capable of returning to full time work in their pre injury employment?
The worker is currently unable to return to his pre injury job description. This situation is indefinite. Should he undergo surgical treatment with an anticipated successful outcome, then he may be able to return to his pre injury job description.
d. Mr Maloney is suggesting a fusion surgery. Would this surgery relate to the treatment of a pre existing condition?
The suggested fusion surgery is related to the significant work contribution injury aggravating the underlying pre-existing condition.
3.8 Prognosis
a. What is the prognosis?
The prognosis for any further improvement without surgical treatment is poor.
b. Should the claimant be examined by a practitioner in any other field of medicine?
No.”[55]
[55]See DCB pages 8-9
104 Mr Ireland re-examined the plaintiff on 30 September 2015, at which time the plaintiff made similar complaints to those recorded at the earlier examination. In particular, he complained of a constant dull aching pain in the left wrist which he locates at the radial aspect, which is eased by the use of a splint, but aggravated by any gripping or movement of the wrist out of the splint. The plaintiff also complained of tenderness if the wrist is bumped, particularly if it is forced into extension, and the plaintiff complained of a weak grip. Mr Ireland notes that this combination of symptoms causes diminished function, such that he cannot ride a motorbike, clap hands, lift the roller door on his shed or lift up infant relatives. He is not able to hang out washing.[56]
[56]See report dated 5 October 2015, exhibit 1, at page 11 DCB
105 Mr Ireland again made an examination of the left wrist and again, was asked various questions by those acting for the defendant. I set out some of those questions and his answers thereto:
“Based on the: worker’s description of the nature of his work including the weight lifting capacity and the repetitious nature of the work involving constant forearm rotation and wrist motions, it is my opinion, that the work has been a significant contributing factor to his present clinical state.
c. Have the effects of the pre existing condition overtaken the effects of any work related aggravation?
The effect of the work injury on the current symptoms is now minor compared with the effect of die pre-existing but previously symptom free condition, namely, scapho lunate advanced collapse deformity.
d. Has there been any change since your last examination, in the claimant’s condition?
The examination findings are essentially the. same. On a subjective symptomatic consideration the worker appears marginally worse.
3.3 …
3.4 Work capacity
a. Is the claimant currently capable of full time work in their normal duties?
The worker is incapable pf returning to his preinjury job description add this situation is permanent.
b. If not fit for full time duties, is the claimant currently capable: of full time Work in alternative duties?
The worker is incapable of returning to his pre injury job description on either a full-time or part-time basis.
c. If not, is the claimant currently capable of doing part time work in alternative duties?
The worker is capable of returning to appropriate work on a full-time basis. Such work would be non-manual and his lifting capacity would be limited to 2 kg. He would be suited to many forms of machine operator work (which he describes as his initial job description with the current employer).”[57]
[57]See report dated 5 October 2015, exhibit 1, at page 11 DCB
106 The plaintiff next attended Mr Ireland on 11 January 2017 and at that time, it was noted by Mr Ireland that the plaintiff had remained unemployed since June 2015, at which time he was working on alternative duties and doing “perfunctory” office work for the defendant.
107 Mr Ireland noted also that the plaintiff was “essentially unchanged” since the last review but for his description of “increasing pain”. The plaintiff described constant pain circumferentially involving the wrist which descends circumferentially in the forearm to the lateral and posterior aspects of the elbow. The constant pain is aggravated by left hand use and cold temperature.
108 At that time, the plaintiff was essentially undergoing no further treatment for the symptoms and he had stopped taking Advil due to gastrointestinal complications and was taking no medications currently. The plaintiff informed Mr Ireland at that time that he had no intention of undergoing surgical treatment of the left wrist in the absence of a guaranteed outcome with no loss of motion to the wrist, which is clearly an impossibility.
109 The plaintiff made an examination of the left wrist and the left arm and also had available x-rays of the left wrist dated 30 August 2014, which according to Mr Ireland revealed scapholunate advanced collapse deformity with a very wide scapholunate joint, dorsiflexion intercollated segment instability of the lunate and radial scaphoid arthritis.
110 Again, various questions were posed to Mr Ireland by those acting for the defendant. I refer to some of those questions and his answers thereto:
“5.1 Current diagnosis and causation
a. Do you maintain your previous diagnosis?
Yes.
b. Do you now consider that the effects of any work related aggravation have ceased and/or been overtaken by the effects of any pre existing/underlying condition?
Yes.
c. If no to 5.1b, when do you expect the effects of any work related aggravation to cease?
The work-related contribution to the injury has ceased.
d. …
5.2 Work capacity
a. Do you maintain this view or is the claimant now capable of full time work in his normal duties?
In my opinion the worker is not able to return to any form of manual work even in a part-time capacity.
b. Do you maintain that the claimant is capable of suitable alternative work on a full time basis?
I maintain this opinion.
c. Is the claimant’s current physical incapacity due solely to the effects of his pre existing left wrist/hand condition or does the work related injury on 13 August 2014 materially, contribute to the incapacity?
In. my opinion the work injury on 13 August 2014 is no longer a ‘material contributing injury.
5.3 Treatment
a. Obtain a detailed account of any current treatment
The worker no longer takes any form of medication or splinting and in fact other than self massage treatment under warm water, receives no treatment for the left wrist symptoms outlined above.
b. …
c. …
5.4 Prognosis
The prognosis for the worker’s current condition is poor and moreover is likely to deteriorate. Although the most recent radiographs taken two years ago show no involvement of the mid carpal joint, this is likely to become involved with the passage of time necessitating pan arthrodesis of the wrist rather than limited wrist arthrodesis, if indeed the worker ascribes to surgical treatment.”[58]
[58]See report dated 13 January 2017, exhibit 1, at pages 16-18 DCB
111 In a supplementary report dated 4 April 2017,[59] Mr Ireland, in response to the question for those acting for the defendant as to why he considered the work-related exacerbation had ceased, answered:
“I have stated that the effect of both of these work injuries has ceased because they represented a minor aggravation of the underlying more serious pre-existing condition. The natural history of scapho lunate advance collapse deformity is progressive pain, restricted motion and weakness of grip strength on the affected side. In my opinion this would have occurred sooner or later regardless of whether or not he was working.”[60]
[59]See exhibit 1, at pages 19-20 DCB
[60]See report dated 4 April 2017, exhibit 1, at pages 19-20 DCB
112 Mr Ireland last examined the plaintiff on 10 June 2020, at which time the plaintiff informed Mr Ireland that he considered that his symptoms with regard to the left wrist had changed little. The plaintiff did note that prior to 2015, when he was working, his symptoms of pain in the left wrist were constant, whereas they were now episodic and provoked by use. Furthermore, Mr Ireland noted that the plaintiff had not sought any further treatment for his left wrist symptoms and has not sought the opinions of any further specialists as to whether he would continue with conservative treatment or turn to surgery. His present treatment at that time consisted of self-administered analgesics in the form of Panadol, approximately two per day, and Advil, approximately two per week.
113 At the time of the examination, the plaintiff was performing voluntary work with the Salvation Army sorting clothing and shoes, working three days a week. The plaintiff informed Mr Ireland that after three days of work he has pain in the left wrist in the evening and this settles after two to three hours, such that he is pain free the following morning.
114 The plaintiff also informed Mr Ireland that he hoped to obtain paid employment with the Salvation Army performing data entry and clerical work.
115 Mr Ireland made a further examination, and in particular noted there was swelling over the dorso radial aspect at the radio scaphoid joint and tenderness over the scapholunate area, and over the dorsal scaphoid joint. The palm of the left hand was soft and devoid of work stain and work callous. Grip strength was measured with the Jamar dynamometer and averaged 38 kilograms on the right and 30 kilograms on the left.
116 Mr Ireland confirmed his diagnosis to be a left wrist scapholunate advanced collapsed deformity causing diminished left wrist function.
117 Again, solicitors for the defendant posed various questions to Mr Ireland. I refer to some of those questions and his answers thereto:
“5. Does employment continue to materially contribute to the injury or have the effects of the pre existing condition taken over?
Notwithstanding my response to question 4 above, it is my opinion that the heavy nature of the work between 2008 and 2015 has been a significant contributing factor to the condition, and has in all probability rendered the condition prematurely symptomatic and more symptomatic than it might otherwise have been.
6. Please provide your assessment of the plaintiffs physical restrictions
The worker is not able to engage in heavy manual work that requires the use of both hands. He is not able to lift weights in excess of 10 kg. He is not able to do work that requires a sustained extended position of the left wrist such as sustained power gripping or leaning on the left wrist to support activities being undertaken with the right dominant hand. He is not able to engage in heavy repetitious work that requires simultaneous use of both hands.
…
9. Prognosis
The prognosis for any improvement is poor. There is no current indication for surgical treatment or indeed any treatment other than the mild non-prescription strength analgesics the worker currently takes, however if the condition progresses as I expect it will, the plaintiff may require surgical treatment in the form of limited wrist arthrodesis. The price to pay for surgical treatment for pain relief is restricted motion. Such treatment could expect to reduce the current range of motion by at least 50%. The worker’s symptoms currently do not warrant this consideration.”[61]
[61]See report dated 10 June 2020, exhibit 1, at pages 25-27 DCB
118 When Dr Barton initially saw the plaintiff on 18 January 2018, he obtained a history relevant to the injury and subsequent work history, noting that the plaintiff had not worked since June 2015. At the time of that examination, the plaintiff was complaining that his hand was getting worse and that he experienced generalised pain circumferentially around the wrist and such pain is made worse with ulnar and radial deviation of the hand. The plaintiff also stated that the wrist was very tender to knocks, and that his pain was present all the time and made worse by colder weather, and in the morning there was some general stiffness and soreness causing him trouble sleeping.
119 Dr Barton noted that the plaintiff entered the surgery holding his left arm horizontally against his lower chest and “clearly was reluctant to ‘expose’ the wrist to any particular knocking or injury”.[62] Dr Barton made an examination of the left wrist and lower arm and under a heading “Medical Summary”, stated:
“The worker described the onset of some left wrist symptoms following two episodes that occurred at work in July and August 2014. He subsequently had some investigations performed which showed a pre-existing problem with the scaphoid bone area, presumably related to a previous scaphoid fracture.
It was concluded that the worker had sustained a new injury in the setting of a pre-existing degenerative problem.”[63]
[62]See report dated 9 January 2018, exhibit 2, at page 31 DCB
[63]See exhibit 2, at page 30 DCB
120 Dr Barton notes the plaintiff has attended Medical Panels in 2016 and also in late 2017. On each occasion, Dr Barton notes that the Medical Panel made an impairment assessment where they described a 5 per cent impairment for reduced range of motion with a diagnosis of “persisting left wrist dysfunction following an unresolved soft-tissue injury on a background of a scapholunate advanced collapsed deformity”.[64]
[64]See exhibit 2, at page 32 DCB
121 Dr Barton notes that the plaintiff could not recall any previous wrist injury and had no symptoms at all prior to 2014.
122 Dr Barton also notes that the second Panel which was assessing the capacity of the worker provided the same diagnosis and also identified a range of chronic psychiatric issues that were also considered relevant to his ongoing capacity.
123 Dr Barton put forward the view that he believed there was a degree of inconsistency between the level of reported symptoms and the problems of the left wrist compared to the examination findings. There were several features which he believed pointed towards a non-physical component to his complaints, included the generalised weakness throughout the left arm and the strong symptom and disability focus. Ultimately, Mr Barton was of the view that the Panel’s opinion had “overestimated” the physical component of the plaintiff’s complaints. Like previous doctors, Dr Barton was posed various questions by the solicitors acting on behalf of the defendant and most of those questions were answered by Dr Barton on the basis that he was “bound” by findings of the Medical Panel.
124 In a subsequent letter dated 23 February 2018,[65] Dr Barton was forwarded a vocational assessment report from IPAR dated 13 February 2018, and was requested to give an opinion as to the capacity of the plaintiff.
[65]See exhibit 2, at page 34 DCB
125 In essence, Dr Barton said the plaintiff could work “theoretically” full time, subject to some minor weight-lifting limits and avoidance of forceful or repetitive movements with the left hand.
126 Dr Barton re-examined the plaintiff on 24 June 2020.[66] At that time, Dr Barton obtained a history that the plaintiff had commenced volunteer work at the Salvation Army store, working four hours a day three days a week performing a variety of lighter tasks, including sorting clothes, pairing shoes, preparing items and putting paper into handbags – such job ceased in March 2020 due to the COVID-19 virus. At that time, the plaintiff said he hoped to return to work later in the year and also had the hope that he could commence working on wages at the Salvation Army shop.
[66]See report dated 25 June 2020, exhibit 2, at pages 38-43 DCB
127 At that time, the plaintiff also complained that he was having some difficulties with his right wrist which he considers as being overused because of his left wrist problems.
128 At that time, he was having “occasional contact” with his doctor, was taking a packet of Advil tablets each month and about twelve high-dose paracetamol tablets each week.
129 The plaintiff did not feel that he was any better, although he feels he might be coping better with the problem. He was able to drive a car for up to an hour a day, could not play video games at home and shared the cooking, but did not wash and dry the dishes, all of which was too difficult. He vacuumed and swept mostly one handed and needed to have his car washed at an external facility rather than he perform the task. The plaintiff said he was capable of doing some light weeding, but does not mow the lawns.
130 In his medical summary, Dr Barton considered that there were several findings which did not fit with a straightforward physical problem and suggested a degree of overlay playing a part in his presentation. Dr Barton expressed the view that it was “medically inconceivable” that such a level of activity as described by the plaintiff could lead to musculoskeletal deterioration of his right wrist.
131 Again, Dr Barton was posed various questions by the solicitors acting on behalf of the defendant. I refer to some of those questions and the answers thereto:
“1. …
2. …
3. The plaintiff’s diagnosis;
I believe the Medical Panel’s diagnosis is becoming more questionable as time goes on. The notion that the work episodes contributed to some ‘persisting left wrist dysfunction following an unresolved soft tissue injury’ loses credibility now that it is more than five years since these episodes. To subscribe to this belief would suggest that anyone who might sustain a particular sports injury or injury at home is destined to have persistent dysfunction following unresolved soft tissue injuries, makes no medical sense and is not a diagnosis seen outside the compensation arena. I believe the worker could be considered to have recovered from any workrelated (sic) highlighting of this pre-existing left wrist injury. I do not believe there is any right wrist injury either related to the claimed "overuse" either at work or since he ceased work.
4. Do you consider that at any time during the examination the plaintiff exaggerated their symptoms and restrictions?
I believe there is a degree of exaggeration and overlay.
5. From a physical perspective and noting the Panel decision was over 2 years ago, can the plaintiff complete their normal pre-injury duties with the employer, or another employer, now or in the future? Please provide a detailed answer;
I see no particular reason why the worker could not complete normal preinjury duties with this employer or another one, although having said that he clearly has no interest in doing such work and would protest strongly if required to do it.
A:Yes, yes.
Q:Do you operate the cash register ever?---
A:No, no, that’s – that’s one of the – the issues we’ve got.
Q:And what’s the issue about that?---
A:When – at the Salvos, a lot of – we get a lot of elderly customers and a lot of single mums and, you know, like - so they need a hand to get their goods, mainly bric-a-brac and the bowls and heavier things that have to be taken out to their car and things like that which all the other volunteers do. I can’t do that and I have a problem with people not believing I can’t lift things and it’s very frustrating when you’ve got someone who asks you to help them at the front of the shop and when I try to explain to them that I can’t do it, you know, my reasons, they tend not to believe me and get a little bit upset with me so I found that was hard to live with, trying to explain to people, strangers, okay, ‘I’ve got a broken wrist, I can’t lift that for you, I’ll get someone to help you,’ they’ll get a bit indignant and say, ‘I’ll get someone else,’ so I’m trying to get past these issues. I’ll still do things but I know I will still be able to carry things but Tina was going to work with me on that.
Q:The cash register, is it like a computer cash register or how do people make payment?---
A:There’s a scanning – there’s a computer register, they’ve got the whole credit card thing set up just like a normal shop.
Q:You actually use the scanning thing you use with the computer –usually when you’re putting cash into something, is that something you believe you can do?---
A:I think I can do it, yes.”
MR HARRISON:
Q:“How are you going to get around the obstacle of not being able to help people out to their cars (indistinct)?---
A:That’s what I don’t know and that’s the issue. I mean I’m going to – basically, I won’t be leaving the front of the counter like the other employees do. So unless I work with another person up there – the problem is, if I’m in the shop on my own, which would be the case if I was a full time employee, at some times, I won’t be able to help certain people.
Q:So how does that impact on, as you understand it, on your prospects of ever getting paid work?---
A:It’s hurting my prospects, yes, and - - -.”[109]
[109]See T66, L20 ꟷ T69, L27
186 When queried as to how long the plaintiff was off work after the incident in August 2014 to when he came back on light duties, the plaintiff gave evidence that he went back to work on the same day with his wrist bandaged up; that is, when he commenced standing next to the machine while others operated it.
187 Furthermore, when queried about the type of work he did in the office after the advent of the injury – such work involving sorting mail and pulling out staples ꟷ and whether such work was an actual job or was it just created for him, the plaintiff gave the following evidence:
“That was made for me because at the time when I was doing it, one of the other employees actually brought there (sic) daughter who was underage who was doing the same job at the same time, it wasn’t a normal everyday job.”[110]
[110]See T70, L17-20
Analysis
188 Before determining the issues in this matter, it is apposite to make a finding on the credibility of the plaintiff. As in many serious injury applications, the credit of a plaintiff is of significant importance, as it is generally the plaintiff who describes in detail the pain he may suffer, the limitations he may endure and the difficulties he may experience in respect to the consequences of any particular injury. Although it is incumbent on any court to make an objective analysis of the subjective complaints made by any particular complainant, the starting point of course has to be the evidence of the plaintiff.
189 Counsel for the plaintiff, in her succinct submissions made at the close of evidence, submitted that there were “no issues of credit from the defence perspective”.[111] Senior Counsel for the plaintiff submitted that the plaintiff was “very straightforward” and who you can accept at face value, with no evidence of exaggeration. I accept these submissions and also refer to the comment of the specialist hand surgeon retained by the defendant – Mr Ireland – when he states in his report dated 29 April 2015[112] ꟷ that the plaintiff presented as an honest reporter of historical facts and showed “no tendency to exaggerate his symptoms”. I consider the comments of Mr Ireland to be apt and well justified.
[111]See T75, L12-13
[112]See exhibit 1 at page 6 PCB
190 Consistent with her opening remarks in this proceeding, and what was submitted by her closing address, there was no issue that there was “an incident at work in 2014 which aggravated a pre-existing injury to the plaintiff’s left wrist”.[113] From a medical perspective, this is probably best described by the treating surgeon, Mr Maloney, who diagnosed the plaintiff to have pre-existing wrist osteoarthritis with a Grade 2 SLAC (scaphoid lunate advanced collapse) aetiology. Mr Maloney was of the opinion that although the plaintiff had pre-existing wrist arthritis, the plaintiff was not aware of this until the twisting of his wrist at work and a plain x-ray was organised.
[113]See T75, L15-17
191 Mr Maloney considered the wrist arthritis had “flared” as a result of the twisting and crush injury in the workplace injury. Consistent with the plaintiff of the evidence, all doctors obtained a history that the plaintiff had suffered no symptoms prior to July 2014 and then had the two episodes of wrist injury in July/August 2014 and on 13 August 2014.
192 The radiology would suggest that prior to the advent of symptoms, it was clear that the plaintiff had suffered from a scaphoid lunate advanced collapse deformity caused by some prior events, rupturing the scaphoid ligament at the left wrist.
193 All doctors are of the opinion that the two work episodes, at least, caused an aggravation of such pre-existing condition and rendered a left wrist which was asymptomatic to be symptomatic. Although Mr Ireland and Dr Barton state that the “aggravation” had ceased, such is true as far as it goes, in that there had been no further wrist events, it must be borne in mind that the defendant takes the plaintiff as he is, and on the evidence available, the plaintiff suffered an aggravation of a pre-existing condition during the course of his employment. Consistent with the principles set out in Petkovski v Galletti,[114] the work aggravation gave rise to the advent of significant symptoms in the left wrist area, limited mobility and impairment of movement.
[114][1994] 1 VR 436
194 It is convenient to analyse the issue as to whether or not the plaintiff has discharged his onus in establishing the requirements under the Act to have leave to bring a claim for pecuniary loss damages.
195 Whereas counsel for the defendant submitted, with some force, that the plaintiff failed to discharge his onus, those acting for the plaintiff submitted, with equal force, that he was neither fit for pre-injury work or “suitable employment” within the meaning of the Act or, alternatively, if fit for “suitable employment”, such employment was limited to a relatively short number of hours at work.
196 In support of her position, counsel for the defendant submitted:
(a)That the appropriate “without injury earnings” within the meaning of the Act is $41,029. In this respect, counsel referred to the Taxation Summary pertaining to the plaintiff for the year financial years ending 30 June 2010 to 30 June 2019.[115] The sum of $41,029 represents the annual gross earnings of the plaintiff for the financial year ending 30 June 2014, when employed by the defendant. Counsel notes that the incident injury occurred in August 2014 and there is also discussion about another incident in July 2014, so the figure nominated by the defendant is “the closest figures at the time that represents a full taxation year immediately prior to the plaintiff sustaining injury”.
[115]See exhibit “A” at page 192 PCB
An annual sum of $41,029 translates to $789 gross per week, of which 60 per cent amounts to $473 gross per week;
(b)the defendant submits that when the evidence is viewed objectively, it would be appropriate to allow three days of work; eight hours on one day, a break the next day, eight hours the next, a break, and then six hours on a third day, a total of twenty-two hours making up the “suitable employment”. In support of such a submission, counsel submits:
(i)such number of hours would constitute “suitable employment” based on the nature of his incapacity, geographical location, his age, education and experience;
(ii)given the day between each day of paid employment, the worker could recover from any persisting issues from the day before. On the plaintiff’s evidence, such a day made him available to work the day after;
(iii)the work that he was doing was something he knew, enjoyed and largely felt capable of performing.
(c)if one accepted that the number of hours that the plaintiff was comfortable performing suitable work is twenty-two hours, then, on the basis of the calculation put forward, that would render the plaintiff earning $620.62 per week. Of course, in such circumstances, the plaintiff would have failed to discharge his onus in establishing that he cannot earn more than 60 per cent of his pre-injury earnings which, on the calculations of the defendant, amount to $473 per week.
197 Initially, the plaintiff submitted that there are significant issues in distinguishing the type of work that he has undertaken as a volunteer – that being three days of four hours per day – and the work he would have to undertake as a paid employee.
198 Senior Counsel for the plaintiff highlighted that when he has been working as a volunteer with the Salvation Army, the plaintiff made clear that there was no rush in the work, and he could work at his own pace. As he noted, “it’s one of the first places I’ve worked … where there is literally no anger. It’s very relaxed.”[116] He notes it is an enjoyable place to work and it is social as well.[117]
[116]See T38, L22-25
[117]See T38, L25-26
199 Furthermore, Senior Counsel highlighted that the role involved sorting shoes and helping with the clothes and putting DVDs and books on the shelf, all of which he largely did with his good hand, assisted by a very close-knitted community, most of whom were retirees.
200 Senior Counsel also referred to the evidence of the plaintiff in cross-examination, when the Court enquired as to whether the plaintiff ever had the option of increasing his three days, four hours a week volunteer duties, to which the plaintiff answered:
“They asked me if I wanted to either increase or reduce. I was struggling (indistinct) like most days, like doing the four but, yeah, it was only three days a week.”[118]
[118]See T28, L27-30
201 The plaintiff was also asked at that time what did he mean that he was “struggling”, to which he answered:
“Just with the pain. Sometimes I’d only be there may be one hour, half an hour, and I might jar it or hurt it and I would want to go home straight away but I would just see it through.”[119]
[119]See T29, L2-5
202 Senior Counsel for the plaintiff submitted that even doing the twelve hours per week volunteer work, the plaintiff struggled in circumstances where he enjoyed what Senior Counsel referred to as “ various indulgences” on the part of the Salvation Army to allow him to continue doing volunteer work.
203 Senior Counsel for the plaintiff then submitted that, in truth, the plaintiff could never move into a paid position because of the particular hurdles he had identified – for example his inability to wrap goods and his inability to help people carry goods to their car – this all occurring on some occasions when he would be employed on his own.
204 It was further submitted in the alternative, that in the event the Court considered the plaintiff was capable of performing “suitable employment” with the Salvation Army, the following submissions were made:
(a)It was submitted that the appropriate “without injury earnings” were for the financial period ending 30 June 2013, which amounted to $43,710, which translates to $840 gross per week. Sixty per cent of that sum is $504 per week;
(b)In the same way as counsel for the defendant, reference was then made to the rate of pay of a trade’s counter sales assistant/customer service,[120] wherein, as already recorded, the gross weekly earnings for a fifty-seven year old is $1,072 per week, or more particularly, $28.21 per hour. If the plaintiff is found capable of working twelve hours in “suitable employment”, his earnings would be $338.52 per week – well below the sum of $504.
Furthermore, if one applied the relevant rates of pay of a cashier,[121] the full-time gross wage is $23.67 per hour ($47,860 gross per annum), if the plaintiff worked twelve hours per week in “suitable employment”, his gross weekly earnings would be $284 per week, again, well under the sum of $504 representing 60 per cent of the “without injury” gross weekly earnings.
[120]See exhibit “A” at page 126 PCB
[121]See exhibit 3 at page 132 DCB
205 After a consideration of all of the evidence, I do consider that the plaintiff is fit for “suitable employment”. In this respect, although not free of difficulty, I do find that the plaintiff is capable of performing “suitable employment” for a period of twelve hours per week, based on four hours each alternate day. Obviously enough, the plaintiff cannot perform his pre-injury employment or indeed, most of the jobs he performed prior to that involving bilateral manual handling. Consistent with my findings in respect to the credibility of the plaintiff, I accept the various complaints, difficulty and pain that the plaintiff has described in performing his volunteer work. I do believe that if he was capable of doing more hours per week, he would have commenced to have done that prior to the COVID pandemic.
206 I am particularly conscious that prior to COVID – which caused the Salvation Army shops to close – the plaintiff’s volunteer activities in what may be referred to as a “protective environment”, allowing him to work at his own pace, take time when necessary and avoid duties which would impact on his left wrist injury. Although I accept that working as a paid employee will, to a degree be more onerous, I consider that the plaintiff is desirous of finding ways to adapt to be a paid employee for those twelve hours.
207 However, to his credit, I form the view that this man wants to work and will make every endeavour to work – but one has to be careful that expectation may be greater than reality.
208 In the circumstances of this matter, it does not matter whether one employs the sum of $41,029 (as the plaintiff submits) or $43,710 (as the defendant submits), to be the “without injury earnings” within the meaning of the Act. However, for the completeness, I do consider that the sum proffered by the plaintiff is preferable and consistent with relevant legal principles. In determining pre-injury earning capacity, the Court is required to choose from one of the following four scenarios, as most fairly reflects the plaintiff’s earning capacity, if the injury had not occurred:
(a)the gross income that the worker was earning during the period of three years before the injury;
(b)the gross income the plaintiff was capable of earning from personal exertion in the three years before the injury;
(c)the gross income the plaintiff would have earned in the three years after the injury if the injury did not occur;
(d)the gross income the plaintiff would have been capable of earning from personal exertion in the three years after the injury if the injury did not occur.
209 Of course, in most cases, the Court will look at scenario (a), based on the pay records of the worker, and consider whether these would have increased or decreased over the years following the accident (see scenario (b)). Scenarios (c) and (d) may be relevant if a worker is working part time and additional work was available.[122]
[122]See Acir v Frosster Pty Ltd (op cit) at paragraph [166]
210 In particular, I refer to the Court of Appeal decision of Herald & Weekly Times Ltd and Victorian WorkCover Authority v Jessop,[123] wherein it is stated:
“… a worker’s earning capacity represents a capital asset which, when exercised, produces income from personal exertion. It follows that a worker’s ability to earn income through personal exertion depends on the nature and quality of the worker’s capital asset and his or her capacity and willingness to use it to earn income. Thus, the worker’s physical and mental capacities to work are relevant, as are the type of work the worker is able to perform, the remuneration for that work and the hours that the worker is willing to work.”
[123][2014] VSCA 292 at paragraph [53]
211 Clearly, the tax records show that the plaintiff was willing to work and did earn a gross sum of $43,710, which is one of the financial years three years before or three years after the relevant injury. There was no suggestion in the evidence that his earnings would have lessened due to lack of work or matters of that type.
212 Similarly, for completion, I refer to the well-known decision of Harris v DJD Earthmoving Pty Ltd,[124] which was an appeal by a worker following a dismissal by the trial judge of his application for leave to commence proceedings and recover pecuniary loss damages. Factual issues raised at the instance involved “suitable employment” and permanency of loss of earning capacity. The worker was successful in the appeal and the matter was ultimately admitted to the County Court for hearing.
[124][2016] VSCA 188
213 In talking about “suitable employment”, the Court of Appeal stated:
“Rather, in the particular circumstances of this case, it was incumbent on the judge to demonstrate by his statement of reasons that he had considered in detail what, if any, specific job or jobs Mr Harris might, in the foreseeable future, be able to do on a regular and consistent basis, allowing for such an improvement as might be likely or possible after a pain management program and/or a drug treatment program and/or the undertaking of vocational education.”[125]
[125](op cit) at paragraph [49]
214 It is important to bear in mind that any suitable employment must be something that the plaintiff was able to do on a regular consistent basis. On balance, I do consider that, given the attitude of the plaintiff and his desire to keep working at the Salvation Army shop, he is capable of doing that type of work for approximately twelve hours a week on the basis of four hours one day, one day off; four hours the next day and one day off, and, finally, four hours on the third day.
215 It was also submitted by counsel for the defendant that an issue of permanency may well arise given that the plaintiff may one day in the future come to surgery of his left wrist which, indeed, most of the doctors recommend he should undergo. The attitude of the plaintiff has been that he does not want to risk any surgical risks and that he will only contemplate having surgery to his left wrist when the pain becomes totally unbearable. As the matter now stands, I have no hesitation in finding that in the foreseeable future, the situation will continue as it now stands. It is a matter of speculation if and when that situation may change, bearing in mind the attitude of the plaintiff.
216 Of course, it must also be borne in mind that the plaintiff, if he does undergo surgery to the left wrist involving some type of fusion, there are, as he made quite clear in his evidence, pros and cons – the cons may give rise to significant issues. Again, this is a matter of speculation.
217 After a consideration of all these matters, I am satisfied that the plaintiff has discharged his onus in satisfying the following matters:
(a)that his loss of earning capacity consequences are “serious” within the meaning of the Act and judged by comparison with other cases in the range of possible impairments and loss of body function;[126] and
(b)that the plaintiff has suffered a loss of earning capacity of 40 per cent or more at the date of hearing;[127] and
(c)that he will, after the date of the decision, continue permanently to have a loss of earning capacity which will be productive of a financial loss of 40 per cent or more.[128]
[126]See s125(2)(b)(ii) of the Act
[127]See s325(2)(e)(i) of the Act
[128]See s225(2)(e)(ii) of the Act
218 I also note that in determining what the plaintiff would earn if engaged in suitable employment was based on material contained within the Court Books, it is unclear whether that award would directly relate to the activities the plaintiff would perform if employed for twelve hours per week in a Salvation Army shop. I accept that as a matter of probability, such figures give a reasonably clear indication as to the potential earnings for that type of work. In any event, given the number of hours which I have found the plaintiff can perform suitable employment, it is highly unlikely the twelve hours doing that work would generate income more than 60 per cent of the plaintiff’s “without injury earnings”.
219 As I pointed out at the commencement of this judgment, a worker who satisfies the loss of earning requirements of s325 of the Act is entitled as a “matter of statutory construction” to have leave to bring proceedings for “pain and suffering damages” and “pecuniary loss damages”.[129]
[129]See Advanced Wire & Cable Pty Ltd v Abdulle (op cit)
220 I should add, for completeness – although not necessary – that I am satisfied, as a matter of probability, that the plaintiff discharged the narrative test in relation to the pain and suffering consequences that he has suffered as a result of his left wrist injury. That injury has impacted not only on his capacity to do the type of work that he has done for many years and enjoyed, but also very much so in relation to day-to-day activities and in particular recreational activities involving woodwork and dancing, both of which he enjoyed very much.
Conclusion
221 Accordingly, I find for the plaintiff and grant leave to the plaintiff to bring common law proceedings for both pain and suffering damages and pecuniary loss damages in respect of the left wrist injury suffered by him during the course of his employment with the defendant in July 2014 and on 13 August 2014.
222 I will hear the parties on the question of costs.
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Annexure “A”
1 The plaintiff tendered the following material:
Exhibit “A”
ꟷ the Plaintiff’s Court Book (“PCB”), consisting of pages 1 to 192
2 The Defendant tendered the following material:
Exhibit 1
ꟷ medical reports of Mr Damian Ireland dated 29 April 2015; 5 October 2015; 13 January 2017; 4 April 2017 and 10 June 2020
(All such material found at pages 5 to 21 of the Defendant’s Court Book (“DCB”))
Exhibit 2
ꟷmedical reports of Dr David Barton dated 9 January 2018; 23 February 2018; 28 February 2018; 25 June 2020 and 17 July 2020
(All such material found at pages 22 to 45 of the DCB)
Exhibit 3
ꟷIPAR Job Seeking Services Report dated 9 February 2018
ꟷIPAR Joint Return to Work Job Seeking Plan dated 14 June 2018
ꟷIPAR Job Seeking Review (8-Weekly) Report dated 7 August 2018
ꟷIPAR 130 Week Vocational Assessment dated 13 February 2018
ꟷRecovre Vocational Assessment Report dated 11 April 2019
(All such material found at pages 78 to 146 of the DCB)
Exhibit 4
ꟷ clinical notes of the St John of God Accord Disability Services
(All such material found at pages 185 to 186 of the DCB).
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