McKay v Victorian WorkCover Authority
[2022] VCC 983
•1 July 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-20-05565
| JASON MCKAY | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE PILLAY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 June 2022 | |
DATE OF JUDGMENT: | 1 July 2022 | |
CASE MAY BE CITED AS: | McKay v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 983 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – Pain and suffering – Loss of capacity to perform pre-injury work – Significant consequence – Impairment – Loss of function – Credibility of Plaintiff – Medical Panel opinion as evidence – Omissions in Affidavit
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited:Yirga-Denbu v Victorian WorkCover Authority [2018] VSCA 35; Peak Engineering v McKenzie [2014] VSCA 67
Judgment: Application granted
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | J Brett QC with L Allan | Shine Lawyers |
| For the Defendant | E Makowski | Russell Kennedy Lawyers |
HIS HONOUR:
1Mr McKay claims that the injury to his right elbow has consequences which constitute a “serious injury” within the meaning of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”). The Defendant denies that this is so. Many of the issues in this case have been resolved by a Medical Panel opinion, leaving only one question to be determined by the Court. That is, whether the impairment consequences of the right arm injury can be considered more than significant or marked or at least very considerable. Having considered all the evidence, I have concluded this question in Mr McKay’s favour. Any claims related to psychiatric injury or a loss of earnings certificate were abandoned.
Relevant history
2The relevant history can be set out briefly as it is non-contentious.
3Mr McKay was born in January 1974. He completed Year 11, then lost interest and moved into TAFE. He discontinued his TAFE and moved into a number of different casual factory jobs. At one point he began a fitter and turner’s apprenticeship, but he was made redundant and was unable to complete that apprenticeship at an alternative workplace. He then commenced working in factory roles. He obtained work with a company called Pro Packaging, and worked there between 2000 and 2012. In 2012 he began employment with a company called Corex Plastics. He started there as a casual through an employment agency in November 2012. His job at Corex was to feed plastic bumper bars into a shredding machine named an “AREMA”.
4On 7 June 2013, as he was throwing a plastic bumper bar into the AREMA, he felt something “pop” in his right arm. This was around his elbow. He had some time off work, but then returned to work on lighter duties. In his Affidavit he said that his work was “withdrawn” in about March 2014. He then gave evidence in his Affidavit that he has not been able to return to work since.[1] That proposition came under attack during the course of cross-examination.
[1]Plaintiff’s Court Book (“PCB”) 16, at paragraph [13]
5He was referred for scanning and expert opinion. That showed that there was damage to the ulnar nerve in the right arm, and a recommendation for surgery was made. That surgery was not performed as his WorkCover claim was denied on the basis that his injury was not work-related.
6In about 2015 he separated from his wife, left Melbourne and moved to Wycheproof to live with his parents.
7After moving to Wycheproof he was referred by his GP to Mr Patrikios, an orthopaedic surgeon as a public patient. On 2 May 2019, Mr Patrikios operated on his right elbow to transpose the ulnar nerve. He then underwent some physiotherapy, but all treatment seems to have ceased around September 2019 in respect of the right arm injury.
8His current situation is that he lives in Wycheproof with his father. He does not work. He is on a carer’s pension through Centrelink as the carer for his father.
The proceedings to date
9On 16 December 2020, Mr McKay lodged an Originating Motion in this Court seeking a determination that he had sustained a serious injury within the meaning of the Act.
10In October 2021 certain questions were referred to the Medical Panel. The Medical Panel provided its opinion (“opinion”) and accompanying reasons for opinion (“the reasons”) on 16 February 2022.
11As the questions and answers in the opinion are central to the resolution of this matter, I have set them out below.
“Question 1 What is the nature of the medical condition(s) of the Plaintiff’s –
a)right arm/elbow;
b)scarring;
c)mind?
Answer:a) mild residual pain, weakness and sensory change following a right elbow injury and right ulnar nerve injury treated surgically;
b)healed surgical scars;
c)Chronic Adjustment Disorder with depressed mood.
Question 2Was employment on or about 7 June 2013 and/or throughout the course of the Plaintiff’s employment from 2 November 2012 to July 2013 a significant contributing factor to any recurrence, aggravation, acceleration, exacerbation or deterioration of any pre‑existing injury or disease of the right arm/elbow?
Answer:In the Panel’s opinion the Plaintiff’s medical condition of the right arm/elbow is not a recurrence, aggravation, acceleration, exacerbation or deterioration of any pre‑existing injury or disease.
Question 3a) Does any medical condition of the right/elbow identified in answer to 1(a) continue to result from or be materially contributed to by injury sustained on or about 7 June 2013 and/or throughout the course of employment from 2 November 2012 to July 2013?
…Answer: a) In the Panel’s opinion the Plaintiff’s medical condition of mild residual pain, weakness and sensory change following a right elbow injury and right ulnar nerve injury treated surgically continues to result from and to be materially contributed to by the injury sustained on or about 7 June 2013.
…Question 4 If yes to 3(a) and/or 3(b) hereof, is any such condition “permanent”, meaning likely to last for, during or through the foreseeable future?
Answer:In the Panel’s opinion the Plaintiff’s conditions of mild residual pain, weakness and sensory change following a right elbow injury and right ulnar nerve injury treated surgically and Chronic Adjustment Disorder with depressed mood are permanent.
Question 5Is the Plaintiff incapacitated for his pre-injury employment?
Answer:Yes.
Question 6If yes to question 5 hereof, does any such incapacity result from or is materially contributed to by any and if so which medical condition identified in 3(a) and/or 3(b) above?
Answer:In the Panel’s opinion the Plaintiff’s incapacity for his pre-injury employment results from and is materially contributed to by his medical condition of mild residual pain, weakness and sensory change following a right elbow injury and right ulnar nerve injury treated surgically.
Question 7Does any medical condition identified in 3(a) (excluding the psychological or psychiatric consequences of such condition) result in or materially contribute to the Plaintiff having –
a)“current work capacity” within the meaning of the Workplace Injury Rehabilitation Compensation Act 2013 (“the Act”); or
b)“no current work capacity” within the meaning of the Act?
Answer:a) Yes.
b) No.
Question 8If yes to question 7(a) –
a)what employment would constitute suitable employment within the meaning of the Act;
b)in relation to any suitable employment identified by the Medical Panel in answer to question 8(a), how many hours and days per week does the Plaintiff have capacity to work;
c)would employment as a –
i.dispatch clerk/production clerk;
ii.facilities administrator;
iii.packer/product assembler;
iv.truck driver;
v.road traffic controller;
constitute suitable employment within the meaning of the Act, and if so, for how many hours and days per week;
Answer:a) In the Panel’s opinion dispatch clerk/production clerk and facilities administrator would constitute suitable employment.
b)In the Panel’s opinion the Plaintiff has the capacity to work as dispatch clerk/production clerk and facilities administrator for 8 hours per day for 5 days per week.
c)i – ii Yes for 8 hours 5 days per week.
iii, iv, v.No.
Question 9Is any capacity for suitable employment identified in response to question 8(b) and 8(c) “permanent”, meaning likely to last for, during or through the foreseeable future?
Answer:Yes.
Question 10 If yes to question 7(b), is this permanent, meaning likely to last for, during or through the foreseeable future?
Answer:Not applicable.
Assessment of the claimed consequences
Credit
12The Plaintiff swore two Affidavits and was cross-examined. He gave evidence in a manner which at times was combative, contradictory, and not plausible. Overall, I consider he was a poor witness. I accept his evidence with caution in respect of the matters he was cross-examined about.
13For example, as I have set out above, he gave evidence in his Affidavits that he had not worked since 2014. He was taken to the taxation summary which indicated that he had worked for a variety of different employment agencies in 2016 and 2017. These were small amounts of several hundred to several thousand dollars. His Affidavit was clearly wrong. He explained in re‑examination, however, that these were attempts to return to work which were unsuccessful and never lasted more than a few shifts.
14Secondly, his Affidavits did not mention that he had fallen from a roof in November 2019, fracturing several ribs and his right ankle. This is a significant omission. His evidence given regarding the fall from the roof was implausible in respect of how he described climbing up a ladder with no hands. When confronted with this implausibility, he then reversed course and suggested he was actually using his right hand to guide him. When it was put to him that he had not mentioned the fall from the ladder at all in his Affidavits, he simply had no answer. It is to be noted that the Medical Panel took such a history from him, and that this was prior to his second Affidavit – so I do not consider there was a deliberate attempt to suppress this matter.
15Thirdly, Mr McKay was taken to the impact of that fall and its consequences. For example, he was directed to treatment notes regarding his difficulty bowling with ankle pain. It was put to him that this was not mentioned as a reason he had difficulty with bowling in his Affidavit material, and the focus was rather on the problems posed by the right arm injury. His evidence in this regard I considered to be confused and clearly not accurate.
16Similarly, the Plaintiff failed to mention in his Affidavits that he had fallen and broken his left tibia while climbing his neighbour’s fence on 26 November 2019.[2] The omission of this relevant injury, as it goes to issues of mobility and ability to pursue recreational pursuits, was not explained.
[2] Defendant’s Court Book (“DCB”) 258; 266
Pain
17In his evidence, the Plaintiff described his right arm pain as “some burning sensation in my right arm/elbow”.[3] He went on at paragraph [22]:
“I continue to suffer a constant low grade pain in my elbow/arm. It feels like a headache in the arm. If I increase my activity the pain can increase significantly.”
[3]PCB 18, at paragraph [21]
18He swore that things were much the same in his second Affidavit two years later,[4] of pain being at the level of 2 out of 10, which could increase. He told the Medical Panel that the pain only wakes him if he has overused his right arm.[5] The Medical Panel noted:
“He said he now generally only has pain when he uses his arm a lot and then the pain can wake him at night.”[6]
[4]PCB 25, at paragraph [8]
[5]DCB 78
[6]DCB 76
19While the Court is bound to adopt and apply the Medical Panel opinion, the reasons for opinion are simply another piece of evidence which the Court may have regard to.[7] It is salient to note that the Medical Panel in the reasons did not find any evidence of non-organic signs on examination.[8] I consider this finding of the Medical Panel to be important evidence. I prefer it to the evidence on clinical examination of Dr Buntine. His report is dated. I am performing an assessment at the date of trial, and I find that the more up-to-date reporting of the Medical Panel is much more informative. Further, the examination and reporting were done by a rehabilitation specialist and two orthopaedic surgeons who convened the Medical Panel. Their survey as to the presence of non-organic signs was far more comprehensive than that of Dr Buntine. I prefer the Medical Panel finding in this regard.
[7]Yirga-Denbu v Victorian WorkCover Authority [2018] VSCA 35
[8]DCB 86
20I must also find, as I am bound to do, that Mr McKay has “mild residual pain, weakness and sensory change” as set out by the Medical Panel.[9] I consider this is consistent with the Plaintiff’s Affidavits, and I find that his pain consequences are as I have set out from his Affidavit material above in the preceding paragraphs.
[9]DCB 68, at answer to Question 1
What does the Plaintiff do about his pain?
21It was accepted that Mr McKay had no ongoing course of prescription medication, did not have ongoing physiotherapy, and was not scheduled to see his specialist. The Defendant submitted this was good evidence that the consequences of the right arm injury were mild. The Plaintiff, however, gave evidence that his specialist had told him no further treatment would help him, and he simply had to live with his condition. He had accepted that, and resigned himself to doing daily stretching and flexion exercises. This evidence is consistent with there being a stable, permanent condition. It is also consistent with the note of the therapist in September 2019 recommending no further treatment despite residual problems.[10] I therefore consider that this lack of ongoing treatment in respect of a condition now of over nine years’ standing is unremarkable. It does not tell against there being an ongoing residual dysfunction.
[10]DCB 196
Impact on work
22Mr McKay relies on the fact that he cannot return to his former work as a significant consequence of his right arm injury. By reason of the Medical Panel opinion, the Court is bound to find that Mr McKay is unable to perform his pre-injury employment.[11] He gave evidence that he was a person who enjoyed his employment, as it had a physical component. He enjoyed the challenge of that work, and had hopes of becoming a manager.[12] The loss of such work on a long-term basis for a young man is a significant consequence I find.
[11]DCB 69, at Question 5
[12]PCB 26-27, at paragraph [15]
23It is true, and I am bound to find, that the Plaintiff has the capacity for alternative duties on a full-time basis. This is a retained capacity, and this must also weigh on the scales, but these are not jobs he has done, may not have an affinity for, nor give him the satisfaction of his old physical job. I find the loss of capacity to perform his pre-injury employment is a significant consequence.[13]
[13]Peak Engineering v McKenzie [2014] VSCA 67 at [38]
Physical limitations
24Mr McKay gave evidence that he has:
“... a big loss of sensation in my right hand. I can’t feel my little finger properly at all. And I feel like I can only feel about half of my ring finger. It’s like I only have 3.5 fingers on that hand.
My hand often gets ‘lost’ on me. ... I will get my fingers caught in things a lot, like in my pants or in something at home. Sometimes I twist or jam them as a result which is painful.
I don’t have good grip on my right hand at all now. I have trouble carrying things like pots and pans. I drop and spill things in the kitchen once or twice a week because of this. I also drop small things like soap and coins, because I have trouble with the delicate movements of my fingers.”[14]
[14]PCB 25, at paragraphs [5]-[7]
25I repeat my findings above that this is consistent with the Medical Panel opinion of “mild residual pain, weakness and sensory change”, in a setting where there are no findings of non-organic signs. As to these matters, I then accept Mr McKay’s evidence despite my overall findings on credit as there is corroborative, consistent evidence from the Medical Panel opinion and reasons. I consider this to be a significant ongoing consequence. I note that such symptoms have been present from 2013 to date, a period of nine years already, which is longstanding. On the history taken by the Medical Panel, the symptoms now are an improvement on the situation prior to the 2019 surgery. The Plaintiff freely concedes that he has had an improvement in his symptoms after the surgery. This is to his credit, but this does not undermine the Medical Panel’s finding.
26The injury also impacts on the Plaintiff’s sleep. Though it does not appear this is a daily matter, it does disrupt his sleep if he has overused his arm. I find this occurs perhaps a few times a month.[15] He indicated that he has been offered sleeping tablets by his treating doctor, but has refused them.[16]
[15]DCB 78, for example after mowing the lawn
[16]Transcript (“T”) 54, Line (“L”) 27-30
27Mr McKay also claims that his right arm injury has affected his long term relationship.[17] The Plaintiff described that his relationship deteriorated after his right elbow injury, and ultimately ended. On his evidence this was because he was unable to return to work in his old position, had no income as his WorkCover claim had not been accepted, and he was not able to have surgery. He remains separated from his wife and children, who live in Melbourne. He now lives in Wycheproof. This evidence was not contested strongly by the Defendant, save for its general attack on the Plaintiff’s credit. The loss of his relationship was not the subject of any corroborative evidence from either treating doctor notes or other Affidavit evidence. Given my assessment of the veracity of McKay’s evidence I am not in a position to consider this a factor in the overall assessment of his impairment consequences.
[17]PCB 20, at paragraph [31]
28I find also that the mild residual pain, weakness, and sensory change, has led to an impact on his capacity for self-care. His evidence as to the inability to hold soap, wash his hair easily, or do up buttons, are examples of this. However, these are matters he is able to adjust for by the use of his other hand, and can cope with. In fact, the Defendant made the point, which I accept, that implicit in the Medical Panel opinion as to his ability to do full-time alternative work duties, he retains significant capacity to function in a workplace. That must be accepted. I find consequently that these are mild impairment consequences only.
29Similarly, in relation to Mr McKay’s alleged impairment of his sporting and recreational consequences, I find these are only minimally impacted. Prior to the injury in 2013 he played some indoor cricket and had a social kick of the football.[18] No detail as to the frequency or intensity of these pursuits was given in his Affidavit. He says he can no longer do these things. Even if I were to accept this evidence, I find it is not a significant loss of a recreational sporting pastime, as I am unable to establish exactly what has been lost.
[18]PCB 20, at paragraph [32]
30I accept the Defendant’s submission that Mr McKay has the ability to bowl in pennant during the two-month-long season, and has been doing so for several years (save for COVID interruptions). This is a social pastime he enjoys, and it allows him to socialise. I also accept that he is able to go out to the local pub and local football and be with friends. He has retained a capacity to care for his father, shop with some limitations on carrying, drive, garden, and do home maintenance. As I have set out, I find that these retained capacities are greater than he has set out in his Affidavit, and he is mildly impaired in each of these areas.
31On balance weighing my findings on credit matters with my findings as to the other impairment consequences, I find that Mr McKay satisfies the test set out in the Act, given:
(a) the presence of injury to the right dominant hand for a manual worker;
(b) the young age at which the injury was sustained, weighing more heavily than on an elderly worker;
(c) the fact that it has resulted in the loss of his capacity to perform his pre-injury work, which he enjoyed and hoped to be promoted in;
(d) the presence of constant mild residual pain, worse with activity;
(e) persistent weakness and sensory loss having a mild impact on his self-care, sleep and household duties.
32For the above reasons I will grant Mr McKay a serious injury certificate in respect of pain and suffering arising from his workplace injury on 7 June 2013.
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