McNeill v VWA

[2021] VCC 1797

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
 Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-20-05610

BEN McNEILL	Plaintiff
v
VICTORIAN WORKCOVER AUTHORITY	Defendant

---

JUDGE:	HIS HONOUR JUDGE PILLAY
WHERE HELD:	Melbourne
DATE OF HEARING:	28 October 2021
DATE OF JUDGMENT:	18 November 2021
CASE MAY BE CITED AS:	McNeill v VWA
MEDIUM NEUTRAL CITATION:	[2021] VCC 1797

REASONS FOR JUDGMENT
---

Subject:ACCIDENT COMPENSATION

Catchwords:              Serious injury – Left ankle injury – Whether injury “significant” or “marked” – Subsequent injuries – Plaintiff’s evidence inconsistent with previous evidence given to the Medical Panel – Conflicting medical evidence

Legislation Cited:      Workplace Injury Rehabilitation and Compensation Act 2013 (Vic)

Judgment:                  Application dismissed

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A Ingram QC with Mr J Valiotis	Arnold Thomas & Becker Lawyers
For the Defendant	Ms De Guio	Wisewould Mahony

HIS HONOUR:

1Mr Ben McNeill suffered injury to his left ankle on 4 March 2015. That this injury occurred during the course of his employment and is ongoing is not in dispute. What is in dispute is whether the impairment consequences of that injury to the left ankle rise to the level to be considered more than significant or marked.

2The Defendant argues that they do not, primarily because within a year Mr McNeill had returned to work and had reported to various doctors that his left ankle was causing him few problems. Additionally, the Defendant points to subsequent unrelated injuries to Mr McNeill’s back at work, and then further injuries to his right elbow and back in a motor vehicle accident in 2019, as being the real cause of the impairment consequences for Mr McNeill at the time of hearing.

3In contrast, Mr McNeill argues that he has developed a chronic pain syndrome arising in the left ankle which significantly impairs his ability to pursue his two great passions, being deer hunting and fishing in remote wilderness areas.

4For the reasons set out below, I do not find that Mr McNeill has sustained an injury with impairment consequences of the requisite level needed to satisfy the test set out in s 325 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic).

5Primarily, that is because I accept that within a year or so of the injury occurring, the left ankle injury had resolved predominantly, and caused him only minor inconvenience afterwards. While that is sufficient to demonstrate non-trivial impairment consequences, such consequences are not sufficient to satisfy the relevant statutory test of being a serious injury.

Relevant factual history

6Mr McNeill was born in March 1982. He completed schooling to Year 9 level and then began work. From about 2005 onwards, he began working as a floor covering installer as an independent contractor. Predominantly, he worked for a company called Balcat Grove Pty Ltd, installing floor coverings such as carpet and vinyl. He described this work in his affidavit as being heavy and physical work involving lifting, bending, kneeling and squatting.[1]

[1]Plaintiff’s Court Book (“PCB”) 10, at paragraph [7]

7He has no relevant past medical history.

8On 4 March 2015, he suffered injury to his left ankle while at work. There is no dispute regarding the sustaining of the above injury during the course of his employment, and his claim for compensation was accepted. The injury to the left ankle is broadly described as a musculoligamentous strain. He attended at the Alfred Hospital Emergency Department and was placed into a below knee cast and issued crutches. An x-ray and a CT scan revealed no abnormality.[2]

[2]Defendant’s Court Book (“DCB”) 28, 30 and 32

9He was off work from that time for a period of about 18 weeks.[3] During this time, he had an MRI which, once again, showed no abnormality.[4]

[3]DCB 53

[4]DCB 36

10He commenced having some physiotherapy with Ms Maddison Findlay but ceased that around 16 July 2015.[5] It is unclear, but it appears that he returned to work performing lighter duties in about early July 2015,[6] but managed to return to work on full duties on 27 July 2015.[7]

[5]PCB 21

[6]DCB 9

[7]DCB 11

11Prior to his return to work, he had been sent by the WorkCover insurer to see Dr David Barton, an occupational physician. He recorded, in June 2015, that Mr McNeill’s condition was about 75% better and that, at that stage, he was attending physiotherapy and hydrotherapy, and was taking only three or four Nurofen and paracetamol tablets per week.[8]

[8]DCB 44

12Mr McNeill accepted in evidence that by late 2015 he had returned to work in his old position, working full duties and hours of work and earning more money than he had in the year previously.[9] Tellingly he accepted that since mid 2015 he had not been complaining to his treating doctor about any left ankle pain.[10]

[9]Transcript (“T”) 12, Line (“L”) 2-14

[10]        T13, L5

13At no stage after his ankle injury did Dr Evette Markos refer him to a specialist for ongoing left ankle dysfunction.

14It is to be noted that there are no treating doctor consultations referring to left ankle pain or treatment in the latter part of 2015 or during the first half of 2016.

15At that stage, he was walking with a slight limp.

16Almost a year passed. Then, on 1 July 2016, he was required to lay carpet tiles at a school. As he stood up at the end of the day, he felt stiffness in his lower back. That stiffness turned into pain and did not resolve over the weekend. Consequently, he went to see his local doctor, Dr Markos, who referred him for a CT scan. This was diagnostic for disc bulging in his lower back. He went off work for a period of about nine months.

17Mr McNeill made a WorkCover claim in respect of this back injury. This claim was accepted. MRI scanning of the lumbar spine showed that there was narrowing at the L5-S1 disc with a midline protrusion but no radicular compression.[11] He continued to see Dr Markos and was prescribed, in addition to Tramadol, OxyContin slow release.[12] He began gym, physiotherapy and hydrotherapy.[13]

[11]        DCB 39

[12]        DCB 115

[13]DCB 55

18When he saw Dr Ho in September 2016 for review, he was noticed to walk normally without a limp.[14] Relevantly, Dr David Ho, who is an occupational health consultant tasked with identifying whether Mr McNeill could return to work due to his back injury, recorded that there were no other factors affecting his recovery or return to work.[15] I consider this to mean that, in his opinion, as at September 2016 there was no issue with Mr McNeill’s left ankle injury that posed a difficulty with him returning to work as a carpet layer.

[14]        DCB 54

[15]        DCB 54

19In November 2016, Mr McNeill was examined by Dr David Elder, an occupational specialist. He was specifically examining the impairment of Mr McNeill’s left ankle. He considered that the left ankle injury had substantially resolved with only a mild wasting of the calf muscle of about 1.5 per centimetres difference to the right calf.[16] He also took a history that Mr McNeill confirmed his left ankle had improved sufficiently for him to return to work normally prior to suffering the low back injury in July 2016.[17]

[16]        DCB 66

[17]        DCB 65

20Relevantly, the Plaintiff was examined by members of the Medical Panel on 14 February 2017. There was great debate over the Medical Panel Opinion and Reasons for Opinion, and so I have set out in full the relevant sections of the Medical Panel Reasons for Opinion (“Reasons”):[18]

“The worker said that before his back problem, he was also fully functional outside work as well. He gave examples such as driving, running, walking on uneven ground, doing normal household chores and managing stairs. He said his ankle did not stop him doing his usual leisure activities of deer hunting in the bush and fishing.

…

The worker told the Panel that in relation to his left ankle injury, he currently suffers from some stiffness rather than pain; this is most noticeable after he has had his foot in an awkward spot for a period of time. He said he might feel ankle discomfort if he ‘over does it’; discomfort is situated in front of the ankle and just below it onto the top part of his foot He said he does not have any instability, giving way, fear of the ankle ‘rolling’ or creaking and he does not fall. He said he is fine on uneven ground but occasionally gets some ankle swelling if he’s been on his foot for too long. He said this goes away after a nights (sic) sleep. He said footwear is normal.

He said he still has an intermittent numb feeling on the outside of his left foot, which comes and goes but is better than it was. He said he thought this numb foot feeling has been there since his back pain.

He said he is currently able to do all his usual leisure activities including fishing hunting over rough ground with his son, running, household chores and gardening. He said he is currently working normal duties but on reduced hours 4 hours per day totalling 20 per week (on account of his back). He said this includes driving to sites for 1 to 2 hours per day. He said he does not need a gait aid, ankle brace or specific shoe insoles but said has noticed a slightly different wearing pattern over the left sole.

[18]        DCB 83-84

21The above passages were put to Mr McNeill during cross examination, and he agreed that they were an accurate summation of the history that he had given to the Medical Panel. He agreed with their recording of his situation as at the start of 2017.[19]

[19]T42, L30 – T44, L23

22In about March 2017, he returned to full duties.[20]

[20]DCB 121

23From that time onward throughout 2017, the treating doctor’s notes do not reveal any attendances for left ankle pain. Throughout 2018, there are similarly no records of ongoing pain in the left ankle or attendances for same. Then, on 26 March 2019, the Plaintiff was involved in a motorbike accident. He gave evidence that this occurred when the motorbike that he had purchased in 2018 had slid from under him as he attempted to turn onto the highway. He aggravated his back injury and suffered a right elbow injury. He has not returned to work since this time. He is currently retraining to be a drug and alcohol counsellor through Odyssey House.

24Ultimately, his treating doctor referred him to Mr Tony Dunin, an orthopaedic consultant, in relation to his right elbow tendon problems. He performed surgery on 11 March 2020, performing a release of the right elbow tendons.[21]

[21]        DCB 42

25Prior to this, Mr McNeill had been sent by his solicitors to see Mr Russell Miller, an orthopaedic surgeon, in September 2019. He recorded that there was ongoing ache, discomfort and pain in the left foot and ankle which was causing problems with kneeling, squatting, stairs and uneven ground. He recorded that the Plaintiff at this time walked with a limp.[22] He considered that the Plaintiff might have developed a chronic regional pain syndrome.

[22]PCB 27

26However, at the time of providing that opinion, he had not been provided with x-ray and radiological material. Subsequently, these were provided to him and, on 27 November 2019, he opined in the following terms: [23]

“The current imaging has not identified further ongoing roblems in the left ankle and foot or evidence of additional injury. Taking into account this information it is now my view the prognosis for the left ankle and foot itself is likely to be good and that the ongoing symptoms in the left ankle and foot reflect predominantly to the ongoing effects of a subsequent development of a chronic regional pain syndrome.”

[23]PCB 35

27The Plaintiff was then sent by his solicitors to see Dr Peter Blombery, and saw him for the first time in March 2020. Unfortunately, his factual history is recorded incorrectly. He took a history that after the left ankle injury on 4 March 2015, in that same year, there was the school carpet tile work incident, resulting in low back pain.[24] Then, almost immediately, he further recorded there was nine months off work.[25] Relevantly he did not have the correct history of essentially normal work from about August 2015 to July 2016. He took a history of ongoing pain in the left foot and ankle.[26] He diagnosed a central sensitisation process at work arising from the left ankle and foot.[27] He opined that the fall on 4 March 2015 caused injury to the left ankle, and that was exacerbated by the heavy lifting that was being done in 2015, and also the subsequent motorcycle accident in March 2019.[28]

[24]        PCB 45

[25]        PCB 45

[26]        PCB 45

[27]        PCB 46

[28]        PCB 46

28Turning to the reporting from this year, Mr McNeill was seen by Mr Rodney Simm in May 2021. He took a history that there had been persistent symptoms into the left ankle since the injury.[29] He considered that Mr McNeill was displaying no signs of embellishment. His report, under the heading of “Current Symptoms”, essentially record’s Mr McNeill reported limitations in walking and inability to run, stand for prolonged periods and occasional limping.[30] He noted that this was substantially different to the history contained in the Reasons which are set out above.[31]

[29]        DCB 90

[30]        DCB 90

[31]        DCB 92

29Mr McNeill returned to see Mr Miller in June 2021, He modified his opinion significantly. He stated: [32]

“It remains my view that the ongoing symptoms in the left ankle and foot reflect predominantly referred pain from the lumbar spine, manifestation of a chronic pain syndrome. I am now of the view, the prognosis for the ankle and foot themselves is good.”

[32]PCB 41

30Mr McNeill confirmed that at the time of this appointment there was very little wrong with his left ankle that would cause a limp.[33]

[33]        T35, L26

31The last medico-legal report is that of Mr Blombery in his report of July 2021, where he considered that there had been a central sensitisation syndrome arising in the left ankle.[34]

[34]        PCB 50

Impairment consequences

32The primary impairment consequences that Mr McNeill relies on in support of his application for a serious injury certificate arise in relation to his inability to perform deer hunting and fishing where he has to walk into remote locations. It is accepted that he can continue to fish from boats or the bank, but what is deprived to him is the ability to access remote fishing spots which require walking over significant, uneven terrain. The same is the case in relation to deer hunting.

33Mr McNeill gave evidence that during the winter season he would hunt regularly.[35] He gave evidence that he now goes only half as many times.  By this he meant hiking in through rugged terrain to shoot deer. Now he is reduced to driving along tracks and releasing his dogs from the road and hoping to get a shot from that position. As to fishing he gave evidence that prior to the left ankle injury he fished 10 times a year.[36]

[35]        T47, L10-17

[36]        T49, L7-8

34He also complains of ongoing constant pain. He gave evidence that medication for his back injury helps alleviate this pain.

35The material clearly shows that the Plaintiff can continue to hunt in this fashion and does so with his children, which was a family pursuit that they all enjoyed.[37] He also admits to still fishing a few times a year still and only recently sold his boat.

[37]        DCB 161-164

Findings as to impairment consequences

36I do not accept that the Plaintiff’s impairment consequences are as has been deposed to. This is for a number of reasons. Primarily, it begins with the reporting to medical practitioners during 2016 and the Medical Panel in 2017 set out above. That is, by the time of the Reasons, in February 2017 Mr McNeill was not experiencing ongoing pain or limitation caused by injury to the left ankle. He accepted as much in evidence.[38] He was not seeing his treating doctor or requiring any pain medication for the left ankle at that stage. This is very strong contemporaneous evidence which supports the proposition that he had achieved very good function in the left ankle as at that time. There was some degree of wasting, but it was extremely mild.

[38]        T43, L10-27

37Secondly, he had returned to work in a heavy, physical job and was able to perform that work consistently since his return to work, perhaps, 18 weeks after the left ankle injury. This means that there was almost nine months of such heavy work with the left ankle without complaint to the treating doctor or his employer, who had accepted his WorkCover claim in respect of the left ankle injury.

38Associated with that is the fact that he had ceased physiotherapy, which was being paid for by the insurer, at this time. In fact, this had ceased in July 2015.[39] There was no ongoing physiotherapy. Taken together, the lack of ongoing treatment from the treating doctor, the lack of any medication being prescribed, and the fact the Plaintiff was completing work as per normal for a considerable number of months prior to the back injury, all support a finding that there was very little wrong with the left ankle by the time of the back injury. This supports the history in the Reasons and, in addition, Mr McNeill accepted this to be an accurate reflection of his state as at February 2017, when it was put to him in cross examination.

[39]        PCB 21

39Further to this, the reporting of Mr Miller quite clearly opines that the left ankle prognosis is good. His opinion most recently is that the left ankle dysfunction extends from the lumbar pain sensitising the area. It is not, in his opinion, the left ankle injury per se that is causing any difficulties with his function. I accept this evidence.

40Mr Simm’s opinion is of very limited use because it is simply a recording of what Mr McNeill has told him. It makes no real attempt to provide an analysis of what the structural dysfunction currently is and what consequences it has led to.

41He does note very significant differences in the history given to him than that given to the Medical Panel. For example, he notes that Mr McNeill manages his symptoms with Voltaren Emulgel, an elastic ankle brace, and over-the-counter medication such as Nurofen and Panadol. This does not appear in any of the treating doctors’ notes.

42The report of Dr Markos dated 8 October 2021 is the first real reporting by the treating doctor of the left ankle injury. Unfortunately, while it is dated for October 2021, it reads as if it were written at a time very close to the date of the actual injury. It is also completely inconsistent with the notes which do not show any worsening of the pain necessitating any treatment from 2016 onwards, as set out above. It is inconsistent with the Plaintiff’s evidence that he did not really complain to Dr Markos of left ankle pain since mid 2015.[40] I do not accept this report as I find it is unreliable and inconsistent with other evidence, particularly of Mr McNeill.

[40]        T13, L3-5; T16, L7-11

43The examination findings of Mr Miller regarding muscle wasting about the left ankle are consistent between the Medical Panel’s finding at 1.5 centimetre and Mr Miller’s at 1 centimetre. The differences are miniscule and not too much can be read into them. However, they do paint a reasonably consistent picture of a stable situation from 2017 onwards.

44Plaintiff’s Counsel argued that while the situation in February 2017 was benign Mr McNeill had gone on to develop a new condition of chronic pain syndrome which was the basis for his impairment consequences. He relied primarily on the opinion of Mr Blombery to support this admission, given Mr Miller’s later opinion that the pain syndrome emanated from the back injury.

45I do not accept that submission because I find that Mr Blombery’s opinion is not soundly based in fact. The first significant factual error is that he did not appreciate that after the left ankle injury Mr McNeill returned to work on full duties from about August 2015 until July 2016 when he sustained the back injury. This is significant because the work being done was heavy, physical work that involved bending, kneeling and squatting to lay carpet. This is a demonstration of the return of good function in the left ankle over a significant period. The second factual error relates to Mr Blombery’s recording that from March 2015 onwards there was ongoing left foot pain. This is directly contradicted by the history recorded in the Reasons and accepted by Mr McNeill as being an accurate history of his condition.

46I consider the Plaintiff in this case to have given straightforward evidence in which he made appropriate concessions. I accept his evidence generally, but I do not accept his affidavit evidence of constant pain and limitation of function in the left ankle since 2015. This is inconsistent with the Reasons, his return to work and the medical materials I have set out above. Rather, I accept his evidence in cross examination that his situation was accurately depicted by the Reasons. This was of minimal pain and limitation. I do not accept a chronic pain syndrome arose from the left ankle injury as Mr Blombery opines. I find that he has by and large retained the ability to engage as he did in most activities. Consequently, I do not accept he is limited in his hunting or fishing activities as he has disposed to. I find he has the ability to walk over uneven terrain as the Reasons record.

47I consider that he is still able to participate in fishing and hunting but not quite in the way that he used to. While I consider this not to be a trivial result of his left ankle injury, I do not consider that it rises to the level of being considered more than significant or marked.

48In coming to this conclusion, I am also aware of those other significant capacities which he has retained. For example, he was able to work full-time in a heavy, physical job and, according to the Reasons, had normal range of motion with his left ankle. He has not been troubled by an ongoing need for prescription medication and only occasionally takes over-the-counter medication. While he wears an orthotic at times, being an ankle brace, it is not worn all the time and is only of a soft type. He has not been limited in his work capacity or driving capacity as a result of the left ankle injury. The pain does not wake him at night and, at times, it is of a low level of perhaps 1 to 2 out of 10, and only occasionally spiking higher than that.

49Weighing all these matters, I am unable to find that Mr McNeill has sustained a serious injury.