Middlecoat v VWA
[2019] VCC 369
•12 April 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-14-02559
| TIMOTHY MIDDLECOAT | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE P GINNANE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 February 2019 | |
DATE OF JUDGMENT: | 12 April 2019 | |
CASE MAY BE CITED AS: | Middlecoat v VWA | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 369 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to the right little finger, reliance on subsequent right shoulder- whether subsequent injury compensable - resolution of fact – other non-work related events and injuries - mental type injury – whether serious mental disorder – diagnosis of mental disorders - significant ongoing mental intrusions and consequences to emotional and family life referrable to original injury
Legislation Cited: Accident Compensation Act 1985, ss 83, 134AB(37)(a) and (c)
Cases Cited: Humphries v Poljak [1992] 2 VR 129; TAC v Florrimell [2013] VSCA 247; TAC v Katanas [2017] HCA 32.
Judgment: Application successful.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R McGarvie QC with Mr T Nathanielsz | Maurice Blackburn |
| For the Defendant | Mr G Coldwell | Russell Kennedy |
HIS HONOUR:
Introduction
1 The plaintiff commenced work with the defendant in 2007 as a cabinet maker. On 17 February 2009 he suffered an injury to his right hand in his employment when he sustained a severe laceration over the dorsum of the right fifth finger. This was a compensable injury. It was not suggested otherwise. The plaintiff argued it is a serious injury and he sought leave to commence common law proceedings pursuant to s134AB(37)(a) of the Accident Compensation Act 1985 as well as for a subsequent injury he suffered to his right shoulder at a gym in November 2009 which he claimed he was attending to improve a weakness in his upper body that had developed as a consequence of the right hand injury. The plaintiff also said that he suffers a psychological injury that constitutes a “permanent severe mental or permanent severe behavioural disturbance or disorder” for which he is also entitled for leave to commence common law proceedings.
2 I am satisfied that the plaintiff has suffered a severe mental disorder or disturbance that is attributable to the injury of February 2009 under paragraph (c) of s134AB(37). In light of my conclusion under paragraph (c) it is unnecessary for me to make findings in regard to the claims under paragraph (a) but had it been necessary for me to do so, I would not have been satisfied that the plaintiff’s injury to his right hand is a serious injury because it does not constitute a “permanent serious impairment or loss of a body function”. I also would not have been satisfied the injury the plaintiff suffered to the right shoulder is a serious injury because I was not satisfied by his evidence that he was recommended or advised to undertake the gym program as a result of a developing weakness to his upper limb caused by his right hand injury.
3 The plaintiff’s application was pursued for pain and suffering damages only.
4 My assessment of serious injury (for both the physical and the psychological injuries) was made at the time that the application was heard.[1]
[1] Section 134AB(38)(j) Accident Compensation Act 1985
The plaintiff’s pre-injury life
5 The plaintiff is 47 years of age. He completed Year 11. Following his schooling he undertook a variety of work including sales, forklift driver, security officer, property developer, labourer and cabinet maker. The plaintiff’s employment with the defendant as a cabinet maker was not the career he had hoped for but unfortunately his desire to become a pilot was thwarted by a diagnosis of Deep Vein Thrombosis (DVT). Separately, and in 2008, he developed features of left-sided carpal tunnel syndrome. He had a carpal tunnel decompression performed. The symptoms resolved.
The right hand injury
6 Although I am not satisfied of the plaintiff’s claim under paragraph (a), for his benefit, it is appropriate that I explain why. In February 2009 the plaintiff was operating a banding machine used to put edging on cupboard doors, when he sustained a severe laceration over the dorsum of the right fifth finger (the little finger). The ulnar digital nerve was contused over the distal interphalangeal joint, and the ulnar digital artery was divided 100 per cent.[2] The area bled heavily. The plaintiff was hospitalised for two days at the Western Hospital. He had his wound surgically repaired. He was found to have an ulnar digital nerve contusion as well as division of the ulnar digital artery. The artery was also repaired.
[2] Plaintiff’s Court Book (“PCB”) 45
7 The plaintiff was readmitted to hospital on 16 March 2009 and underwent a debridement, followed by another surgery on 21 March 2009, and a skin graft on 23 March 2009. He was reviewed on 14 April 2009. By then the graft had taken 100 per cent and he was referred for hand therapy.[3] In May 2009, the plaintiff was reported as unable to hold a nail gun at work. Sutures that had not dissolved were removed.[4]
[3] PCB 45
[4] Ibid
8 Sometime in 2009, the precise date being unspecified from the materials, the plaintiff commenced to receive treatment from Lauren Morrison, a hand therapist. In a report dated 22 October 2009, she noted the plaintiff had “mildly reduced” movement of the little finger and “tightness” when making a fist, and pain and stiffness when the finger is cold. The use of a “Thermoskin” glove in cold weather helped reduce these symptoms. She wrote that the plaintiff had reduced grip strength in his right hand.[5]
[5] Ibid
9 The plaintiff was referred to “Resolve Hand Therapy Specialist” on 19 May 2009. In a report dated 3 May 2010 to the plaintiff’s solicitors, Melanie McCulloch, an occupational/hand therapist, furnished a report that stated that numbness at the skin graft continued to be problematic for the plaintiff and that he continued to experience increased stiffness when the finger was cold but the ongoing use of a “thermo skin glove” successfully reduced these symptoms.[6] Ms McCulloch wrote that in the period the plaintiff had been in receipt of therapy he had made “significant clinical gains” and had achieved “full active range of motion, reduced hypersensitivity, softened scar tissue and grip strength of 29kg (right dominant, injured) in comparison to 49kg on Left (non-dominant)”. The report further stated:
“Clinically, Mr Middlecoat has achieved a highly functional state with his hand, however was experiencing high levels of stress and anxiety when returning to the workplace. He has reported that he was seeking professional assistance from a Psychologist to address this issue.
….
Mr Middlecoat has expressed a strong desire to return to work, and has been able to successfully manage using his hand for several Activities of Daily Living tasks at home. I see no physical reason why he would not be able to return to work at full capacity.” [7]
[6] PCB 69
[7]PCB 69
10 In answer to a request to offer opinion on the plaintiff’s present and future capacity for work, Ms McCulloch wrote:
“In relation to his hand injury, Mr Middlecoat has made an excellent recovery. In my opinion he has no permanent incapacity and there is no reason to believe he will have any future incapacity. Mr Middlecoat is able to manage any pain or stiffness independently with self-management strategies.”[8]
[8]PCB 69
11 The plaintiff made four affidavits in support of his application. In the first affidavit dated 4 December 2013, he said that he had experienced pain in the right hand a couple of times per week which lasted half an hour or longer. He said that he took Panadol to alleviate the pain. He said that he found it hard to grip and handle things, and would avoid knocking or bumping his hand due to the pain it caused.[9] He said he was not as “hands on” with his carpentry work and cabinet making as he had been before the accident and he did not believe he could “realise his ambition to be a tradesman”.
[9] PCB 24
12 In his second affidavit of 10 December 2015, he deposed that he had “made a good recovery to the right finger injury” but that he experienced reduced sensation in his right hand and little finger and had little strength in it, with the result that he had, on occasion, burnt himself due to diminished sensation. He deposed as well to difficulties with fine motor skills in the use of his right hand and that he had dropped cups and cutlery. He said that he was very concerned by the lack of strength in his right hand.
13 In his third affidavit dated 16 January 2019, he said that he was continuing to experience numbness and weakness in his right little finger which was made worse in cold weather and that he continued to experience difficulty with being able to grab and hold items without dropping them.
The contrary evaluation
14 I am satisfied that the preponderance of evidence is that the physical consequences to the plaintiff from the right finger injury had substantially resolved within a year of him having commenced hand therapy in May 2009. The fact that the plaintiff presents with some remaining physical effects from the 2009 injury will not be sufficient to justify a finding that the injury is a serious injury under paragraph (a) unless the consequences to him warrant it, and that includes lifestyle consequences occasioned by pain and suffering. I am not persuaded that Ms McCulloch’s hand therapy report dated 3 May 2010 supports a finding that the injury is a serious injury. The plaintiff did not receive any treatment for the right little finger for a period in excess of eight years.
15 In considering the effects to the plaintiff of the injury, I have had regard to the medico-legal report obtained by Mr Simm, orthopaedic surgeon, dated 14 April 2015. He noted a number of diminished effects experienced by the plaintiff. He reported that the plaintiff continued to experience numbness in his right little finger as well as numbness in all digits of the right hand, but particularly the little finger. He recorded that the plaintiff’s fingers felt stiff and it was difficult for him to make a fist. He had a scar over the dorsum of the right little finger and a more recent scar over the dorsum of the midsection of the right middle finger (from an unrelated incident that occurred when injured refuelling an aircraft). Mr Simm reported that the plaintiff had a good range of motion of the digits. He said there was diminished sensation involving the entire little finger, but the loss of pinprick sensation was more pronounced on the ulnar side of the digit. Mr Simm assessed grip strength with a Jamiynamometer and it registered 44 kilograms with the left hand and 12 kilograms with the right hand (this represented a reduction in strength since the report from the hand therapist in May 2010). He wrote that the plaintiff had
“mild residual signs and symptoms in relation to the laceration over the dorsum of the right finger, which occurred when his hand was caught in the machine at work on 18 February 2009. He has some altered sensation, consistent with the reported damage to the ulnar digital nerve to the little finger. When re-examined today, he reported episodic numbness of the entire right hand and sensations of tightness and difficulty clenching his fist. There were no objective neurological clinical signs, other than the diminished sensation in the little finger, and no cause for the more recent hand symptoms was diagnosed”.
16 However, more than three years later in a further report to the plaintiff’s solicitors dated 28 August 2018, and following a re-examination of the plaintiff, Mr Simm wrote that the plaintiff has numbness mostly in the right little finger with some associated minor numbness in the adjacent side of the ring finger, but he had no residual numbness in the remaining digits of the right hand. His right little finger movements proved satisfactory. He had no significant symptoms in the right middle finger, this being a reference to a later and separate and non-compensable injury the plaintiff suffered.
17 Of the right hand, Mr Simm noted the presence of a scar over the dorsum of the right little finger and movements were essentially normal. There was diminished pinprick sensation along the ulnar side of the right little finger along with minimal loss of pinprick sensation on the contiguous sides of the little and ring fingers. There was no small muscle wasting. On testing, resisted abduction of the little finger was normal in strength. Resisted abduction in strength of the index finger was also recorded as being normal. Grip strength was assessed and the plaintiff registered 22 kilograms with the left hand and 28 kilograms with the right hand and Mr Simm noted that the right hand measurement represented “considerable improvement” over his examination conducted in 2015. He reported that there were no constraints by way of restrictions that needed to be imposed on the plaintiff arising from the right hand injury. The effects on the plaintiff from the injury were few and his grip strength had markedly improved over the three year period separating Mr Simm’s two examinations.
Assessment of the evidence
18 Further to the medico-legal opinions from Mr Simm, and the hand therapist reports, I have also considered the plaintiff’s evidence that he believed he had made a “good recovery…” in relation to the finger[10] and when he was cross-examined about this said: “Yes, I guess you could say that”.[11] However, in the context of that statement of evidence contained in his affidavit, he went on to say that he experienced reduced sensation in his right hand and little finger and had burnt himself in the past because of that and also that he had little strength in the little finger. Thus I have assessed the plaintiff’s evidence that he believed that he had made “a good recovery” on an “all things being considered” basis.
[10]PCB 29, para 7
[11]Transcript (“T”) 35
19 In his third affidavit of 16 January 2019, the plaintiff said that he continues to experience numbness and weakness in the his right little finger. Whilst Mr Simm had been provided the plaintiff’s first and second affidavits of 2013 and 2015 for the purposes of preparing his opinion of August 2018, it predates the plaintiff’s January 2019 affidavit. Although the plaintiff was examined by Mr Simm for his August 2018 report, in which was recounted the plaintiff’s account of the effects on him of the later shoulder injury, there is no record that the plaintiff reported the problems he subsequently expressed in his January 2019 affidavit of continuing difficulties with grip and of dropping items. The plaintiff’s affidavit of January 2019 did mention that he continued to experience swelling in both hands and it being worse on the right hand than the left, such that when the swelling is bad, he finds it difficult to clench a fist.
Consequences from February 2009 injury
20 I accept that the because of the right finger hand injury the plaintiff was unable to continue as a cabinet maker because of difficulty with gripping and holding items. I accept that a loss of an ability to work in one’s chosen trade is properly to be regarded as a “very considerable” consequence in respect of pain and suffering and loss of enjoyment of life: Humphries v Poljak[12] However, I have not approached the consideration of this factor uncritically. The assessment of the loss of an ability to work in a chosen field requires some discernment and not a sterile adoption of principle. The consequence and its significance to the plaintiff needs to be considered in light of all the evidence peculiar to his case. I am satisfied that the reliance placed on the plaintiff’s loss of his career as a tradesman is an exaggerated characterisation of the consequence to him of such loss
[12] [1992] 2 VR 129 at 151
21 It is correct, as the defendant submitted, that the evidence did not support that cabinet making as a trade was the plaintiff’s first choice in life. He had been a man of many different pursuits and he had also proved himself admirably adept at undertaking other employment opportunities before working as a cabinet maker. More importantly, the plaintiff said that his current employment is work that he enjoys and finds mentally beneficial. The fact that the plaintiff lost his employment as a tradesman cabinet maker is a factor I have considered, but I do not regard it as very considerable in my assessment of his overall loss of enjoyment of life and pain and suffering consequences caused by the right hand injury.
22 In arriving at my conclusion I have had regard to the statement made in the plaintiff’s first affidavit that he cannot do the “kind of home renovation and maintenance work that I used to do so easily”.[13] The plaintiff was not challenged about this evidence. I accept that fine and dexterous work requiring the use of the right little finger of the non-dominant hand is beyond the plaintiff’s capacity, but I am not satisfied the consequence as very considerable. At paragraph 12 of the plaintiff’s affidavit he deposed to being limited to undertaking only small repairs at home and that anything heavy or any overhead activities aggravate his hand and shoulder.
[13] PCB 24-25, para 20
23 Hence, against the narrative of evidence of the limited consequences of the injury to the plaintiff in terms of his loss of enjoyment of life, I am not satisfied that in the circumstances of this case these restrictions imposed on the plaintiff from the injury are very considerable and hence represent serious consequences to him by way of pain and suffering. In arriving at my conclusion, I have excluded from consideration pain and suffering consequences that do not have an organic basis, as I am required to do.
The right shoulder injury
24 The plaintiff sustained an injury to his right shoulder in late 2009. I have not aggregated this latter injury it as it occurred many months after the right hand injury. It was not put to me on behalf of the plaintiff that the injuries affected the one body function in any event. However, the plaintiff argued that the right shoulder injury occurred during a rehabilitation program he was undertaking as a result of the effects he suffered and stemming from the compensable right finger injury of February 2009.
The right shoulder injury argument
25 The plaintiff argued that the right shoulder injury occurred whilst he was undertaking a recommended rehabilitation program to aid in the further recovery of his compensable right finger work injury. The plaintiff said that following on from the laceration injury to his right finger and hand he developed weakness in his right upper limb. He said that he was performing exercises on a rowing machine with weights at a Kieser gymnasium when he suffered injury to his right shoulder. He said that he suddenly felt his right shoulder “pop”.
26 The plaintiff said that he had been “…advised to go to a rehabilitation gym to build upper body strength”.[14] However, the plaintiff’s evidence was very sketchy and his memory proved unreliable on the events of some years past, which led me to consider the extent of corroborative evidence to resolve an important question of fact. The plaintiff could not remember whether the advice was given to him by his general practitioner, or from Dr Asthana, or from a specialist. There is no mention made in the plaintiff’s affidavits of a recommendation to commence gym work as part of a rehabilitation program to strengthen his upper shoulder for weakness arising from his right hand injury.
[14] T44
27 Dr Asthana’s report dated 16 June 2010 does not address the matter. Dr Asthana recorded that:
“[as] far as his right hand injury went he was doing quite well there with regular physiotherapy and the movements of his little finger were getting better all the time. He also had to see the hand specialist regularly for follow ups.”
28 That statement does not address the claim for the right shoulder in the context of the plaintiff’s evidence and his submissions which was that the gym work had nothing to do with his hand but rather was because of upper limb weakness. Dr Asthana also wrote that when he saw the plaintiff in March 2010 “his right hand I feel has recovered completely the wound has healed quite well and the movement of the right finger are nearly back to normal”. No clinical note was produced to address the need for any program to address weakness caused by the hand injury. Accordingly I do not accept that the plaintiff received such advice.
29 I have considered the plaintiff’s evidence at paragraph 17 of his first affidavit that it was part of his rehabilitation to participate in a gym program. Even if that was so, it does not amount to evidence that his rehabilitation included gym work directed at increasing strength in his right upper limb as a result of weakness caused because of the right finger hand injury. That was the central submission relied on by the plaintiff to found the right shoulder injury as part of the accepted right hand injury.
30 The evidence, as far as it exists, is contained in the extract from the report of Dr Asthana that I referred to but which, as I have said, is related to physiotherapy the plaintiff had undertaken because of his right hand injury. That is of no probative worth because the plaintiff’s evidence expressly disavowed that the gym program was aimed at improving his right finger hand injury and he said that the program was recommended specifically because of weakness that had developed in his upper body. As I have said, the plaintiff’s affidavit did not say that this was the reason for it and there is nothing from the plaintiff’s general practitioner to support the claim of developing weakness or from any other medical specialist or opinion writer relied on by the plaintiff.
31 The matter was not any better addressed in the supplementary affidavits made by the plaintiff or by the medical evidence relied on by him at the hearing. In fact the evidence was no greater than in the plaintiff’s answer to me when asked what the recommendation to attend the gym related to, said in response:
“Your Honour, because I had four consecutive surgeries on the little finger and my arm in a sling there was weakness in the arm. So I was advised to go to gym to build up my upper body strength again”.[15]
[15] T44
32 Taking the evidence as a whole, I was left with an important evidentiary gap in linking the right shoulder injury to the right little finger/hand injury and the consequent surgeries the plaintiff underwent.
33 Furthermore, I found the plaintiff’s evidence about the rehabilitation program by way of gym work unpersuasive. For example, the plaintiff said that Tim Dettmann, a physiotherapist, undertook the “initial consultation for the training program”. There was no affidavit from Mr Dettmann. No reason was offered why not. I think it was reasonable to have expected the provision of evidence from someone, about whom the plaintiff testified, was engaged in consultation when the gym program commenced, and whom I would reasonably have expected to throw light on the aims the program was directed at achieving by way of betterment. The plaintiff also said that Mr Dettmann was the “physio on duty at the training facility”.[16] The plaintiff’s oral evidence included that he was being “overseen” by either a physiotherapist or a trainer who was standing behind him when he suffered the injury but he could not identify the person. Despite making allowance for the passage of time and the plaintiff’s reliance on a poor memory, it nonetheless renders the reliability of the account problematic. I point out that my criticism of the plaintiff is based on reliability of his account based on his memory of events as opposed to his credit. I formed the opinion the plaintiff did his best to account for the history of the many and varied events that have befallen him over the space of many years.
[16] T60
34 I accept the plaintiff suffered a right shoulder injury. I see no reason to doubt that he suffered the shoulder injury whilst performing a rowing machine exercise at the gym but I am not satisfied that the fact of the injury itself equates to a sufficiency of evidence for a finding that the right shoulder is therefore a compensable injury arising from or in consequence of the right finger/ hand injury. I am not persuaded by the plaintiff’s evidence that he has proved, on the balance of probabilities, that he was participating in a gym program by way rehabilitation because of weakness in his upper limb that developed as a result of his right finger injury and on the advice of his doctor or that of a physiotherapist. There is no corroborative medical evidence to support the contention and I am not persuaded to accept the plaintiff’s account in oral evidence that he was directed by his doctor or a specialist to undertake a gym program for this reason. Satisfaction by me that the plaintiff was directed to undertake such a program in connection with the development of secondary consequences to his upper limb from right hand injury is a necessary requirement in the absence of an aggravation-type injury.
35 In rejecting the plaintiff’s evidence on this aspect of his claim, I do so conscious of his evidence that he “hated gyms”[17] and therefore, but for the need to attend one, he would not have. I find nonetheless that this justification sits oddly with the plaintiff having committed to a 12 month gym membership at a cost of $1,430 paid for out of his own pocket by way of automatic deductions. Why that occurred was not explored or explained in the plaintiff’s evidence, but I found it peculiar in the circumstances.
[17] T60
36 The records obtained from the gym note the plaintiff’s stated goals were “to firm up, get fit, lose weight” and are absent a reference to building strength in his upper limb. The records are no more than a written account of something recorded by a third person and is not evidence that anything more was said but not recorded. I was left with the extent of the evidence as it was presented. I accept that the plaintiff disputed that he joined the Kieser gym for general fitness.[18] However, for the reasons I have explained, I was not persuaded by the written submission on behalf of the plaintiff that “[B]ut for the Plaintiff’s accepted hand injury, he would not have been undertaking the exercise on the C7 apparatus at the gym that caused the right shoulder injury”.
[18] T52
37 For completeness, I do not accept the plaintiff’s written submission that after he sustained the laceration injury in February 2009 he developed weakness in his upper limb, and it was recommended by his doctor that he engage in a gym program to strengthen his upper limb for the reasons I have expressed.
38 I note one further aspect of contest on the evidence about the right shoulder injury and the value of a gym program concerned the opinion of Murray Stapleton, plastic and hand surgeon and a medico-legal consultant, who, in a report dated 28 July 2015, addressed to the solicitors for the defendant wrote:[19]
“1. A gym program is absolutely unnecessary for this injury, which was reported in 2009.
2. Any such exercise would be of no benefit so far as the injury is concerned; it may be beneficial to the man himself, to keep himself fit, but it has nothing whatever do with his work related injury.
3. Given the date of injury, he needs no rehabilitation at this time because sufficient time has passed, with or without exercise, that would see him reach maximum medical improvement.”
[19] Defendant’s Court Book (“DCB”) 21
39 The plaintiff argued that Mr Stapleton’s opinion is not relevant because he was asked whether an exercise regime was relevant to the plaintiff’s right hand work injury and not whether a consequence of that work injury might include right upper limb weakness for which a gym program might be worthwhile. With respect to the submission by the plaintiff, that this was the predication for the request for the opinion from Mr Stapleton is not surprising because at the date of the request for the same there was no other basis for it. The plaintiff’s contention would have perhaps held greater weight had there been a reason for Mr Stapleton to have been asked the question that the plaintiff posed in the hearing, but ultimately, it does not advance the deficiencies in the unsatisfactory state of the evidence.
40 The defendant advanced a number of other grounds in support of its contention that the plaintiff’s participation in the gym program did not meet the requirements of the Act. Because of my primary finding of fact it is not necessary to make findings about them. However, I note that the defendant’s written submission included that even had the plaintiff’s attendance at the gym been on the recommendation of his doctor and/or that his participation in activities at the gym, including the activity on the rowing machine on which he sustained the right shoulder injury, was undertaken at the direction or request of and overseen by the physiotherapist, Tim Dettmann, this would not meet the deeming provisions, specifically, s 83(1)(d) of the Act.[20] Because I am not satisfied by the plaintiff’s evidence, the question of the effect of the provision is moot.
[20]while the worker is in attendance at any place for the purpose of obtaining a medical certificate, receiving medical, surgical or hospital advice, attention or treatment, receiving a personal and household service or an occupational rehabilitation service or receiving a payment of compensation in connection with any injury for which the worker is entitled to receive compensation or for the purpose of submitting to a medical examination required by or under this Act.
Has the defendant admitted the compensability of the right shoulder injury in any event?
41 The plaintiff advanced a further ground in support of the right shoulder injury being a compensable injury and therefore one I should then proceed to asses as a serious injury. The plaintiff submitted that it is now too late for the defendant to disavow that the right shoulder injury arises from the accepted right finger work injury because the defendant accepted liability, and paid for surgeries associated with it. I do not agree with this submission for the reasons that follow.
42 The acceptance of the right finger work injury had its genesis in the report of Associate Professor Marshall whom the plaintiff saw as part of an Independent Medical Examination on 6 July 2010. The history he obtained from the plaintiff included the following:[21]
“Mr Middlecoat gave me a history that he suffered the injury to his right shoulder at a gymnasium when he was pulling on a machine to increase the strength of his hands and arms. It was unclear whether this had been approved by WorkCover as part of the treatment for his hand injury.
In my clinical opinion if the shoulder injury occurred while he was having therapy which was authorised by WorkCover, then it would be related to his accepted WorkCover claim.”
[21] DCB10, Marshall report 27 July 2010
43 On 3 August 2010, Allianz, the authorised WorkCover agent, accepted funding of treatment for the plaintiff’s right shoulder. Allianz says that after it reviewed the progress notes of Resolve Hand Therapy, it discerned that the mechanism of the right shoulder injury and the exercise performed at the time of the injury was not one performed under the guidance, direction or instruction of a physiotherapist. Therefore, it submitted, the plaintiff was not performing the exercises as part of rehabilitation of his right hand, and that the gym did not appear to have been funded by the insurer as part of the plaintiff’s accepted claim for the right shoulder injury. However, because the insurer had approved the plaintiff’s right shoulder claim, it approved as well the request by the orthopaedic surgeon, Mr Douglas Li, for a right shoulder arthroscopic synovectomy and capsular release followed by manipulation under anaesthesia.[22]
[22] PCB 49, Li report 23 November 2010.
44 The defendant contended that, had it not proceeded under its misapprehension about the work relatedness of the right shoulder injury, it would not have approved the right shoulder procedure requested and performed by Mr Li.[23]
[23] See PCB 106, Affidavit Warren Orloff 18 January 2017
45 I do not accept that the defendant is bound by the administrative decision it made to accept the right shoulder as an injury arising out of or in the course of employment. The plaintiff argued that the defendant’s conduct amounts to an admission and one that is very significant. I do not agree. In TAC v Florrimell [2013] VSCA 247, Tate JA said at [45]:
“In my view, those circumstances are far removed from the proposition that a payment by TAC for various procedures is to treated as evidence of an admission on the subject of causation. The issue of causation may well be a complex one and, as here, may be one on which medical opinions conflict. It may also be an issue in relation to which, as here, relevant information is not available until surgery or other forms of medical procedure are performed. For the TAC to accept to pay for the cost of a procedure cannot have the effect of precluding them from later contesting the issue of causation, perhaps on the basis of the information obtained from the very procedure that it paid for. Nor, for similar reasons, ought such payment be treated as having the evidentiary value of an admission because the question of causation may well be a live one until all the procedures have been completed. It would be contrary to the efficient administration of the compensation scheme as a whole if the TAC resisted paying for medical procedures that might reduce the pain and suffering of someone injured in a transport accident on the basis that if it did so it would be regarded, at law, as having made an admission.”
46 The decision of the Court of Appeal in Florrimell addressed the integrity of a statutory managed scheme designed for compensation (the TAC Scheme) and the interplay between the payment for various procedures and whether the same is to be treated as evidence of an admission on the subject of causation, which finding may very well be, as Tate JA said, a complex one. Here the payment was not made on any assumption concerning causation of the right shoulder, but rather as a result of a request for surgery by Mr Li, and the opinion from Associate Professor Marshall, the latter of whom, whose opinion was based on the history he was provided by the plaintiff which was that he was pulling on a machine to increase the strength of his hands and arms with the result that in his clinical opinion “…if the shoulder injury occurred while he was having therapy which was authorised by WorkCover, then it would be related to his accepted WorkCover claim”.
47 Thus, Associate Professor Marshall’s opinion, was predicated on a factual and administrative basis and not diagnostic matters, that is to say, his opinion was expressed as no more than this: if the approval for the therapy had been approved by WorkCover (which it had) then it followed that the right shoulder injury would be “related” (as opposed to being caused in the sense of the exercise being undertaken to strengthen the upper body as a result of weakness caused as a consequence of the injured right hand) to the plaintiff’s “accepted WorkCover claim”.
48 In accordance with Florrimell, as explained by Tate AJ, the decision by the WorkCover agent, Allianz, to pay medical expenses in relation to the plaintiff’s right shoulder injury including the costs of surgery on 23 August 2010 and 7 September 2012, are not matters that stand as irrefutable admissions on proper evidence. I am satisfied by the evidence expressed in the two affidavits of Ante Razov and Warren Orloff. The latter deponent, however, said that he would not consider the plaintiff as having been injured when performing the exercise as part of rehabilitation of his right hand for reasons that relate to the definition of certain provisions in the Act and that for the reasons I have already expressed I have not been required to decide.
49 The plaintiff further argued that the statement by Mr Orloff is evidence of the ongoing confusion by the defendant in its persistent view that the gym program was directed at rehabilitation of the plaintiff’s hand, when in fact the purpose was directed at a consequence of weakness in the right upper limb because of the right hand. The problem with this analysis by the plaintiff is that it depends on an assertion unsupported by evidence that the onset of right upper weakness was caused by the right hand. I reiterate that I was not satisfied by the plaintiff’s evidence that such advice or recommendation occurred.
The genesis of a mental response to the injury
50 Following his injury the plaintiff returned to work in June 2009 and he said he became aware that the safety switch on the machine that had inflicted his finger injury in February 2009 had been disabled at the time of the accident. He said this triggered a panic attack and that he subsequently became depressed. The plaintiff did not return to his employment with the defendant.
51 The plaintiff argued that his mental state satisfies paragraph (c). I am satisfied that the plaintiff suffers from a permanent severe mental or behavioural disturbance or disorder in compensable circumstances.
Discussion of the mental condition
52 Since the accident in February 2009 the plaintiff tried various odd jobs and then obtained full-time employment with “Barkly Driving” as a heavy vehicle driving instructor in about late 2017. The defendant contends that this capacity sits at odds with a person who contends he suffers a severe mental disturbance. Furthermore, the plaintiff said he enjoys his job and, moreover, that it assists him mentally. He said that he gets on well with people and that his psychological symptoms do not impact on his work performance.[24] That self-assessment coincides with the history recorded by Dr White, consultant psychiatrist in his medico-legal report provided to the plaintiff’s solicitors dated 22 October 2018.[25]
[24] T52
[25] PCB 167
53 I have considered the fact that the defendant points to an absence by the plaintiff in obtaining psychiatric treatment and, as far as psychological treatment is concerned, there was a gap in treatment by the plaintiff’s psychologist Christine Ellingworth, of approximately seven years from September 2011 until late 2018 when the plaintiff resumed seeing her. I found no reason to question the integrity of the plaintiff in relatively recent times attending again on Ms Ellingworth and indeed I am satisfied it is indicative of a need to do so.
54 Ms Ellingworth’s only report however that I had was dated 29 July 2011. It noted that the plaintiff had attended 19 sessions with her from 30 June to 21 July 2011. She said more sessions had been booked but the plaintiff said he did not attend them. She wrote that the plaintiff had suffered intense fear and horror in response to the February 2009 injury and, on his attendance on 20 October 2010, he continued to have recurrent and intrusive distressing recollections of the event and recurrent distressing dream and that he had an intense psychological and physiological reactivity on exposure to internal or external cues that symbolise or represent the traumatic event of the machine accident in 2009. This reporting of traumatic consequences is also reflected in the medical report of the plaintiff’s general practitioner, Dr Asthana.[26] Ms Ellingworth reported that in June 2011 the plaintiff had driven past his old work site and this had escalated his trauma symptoms. That he had begun to sleep poorly, experienced flashbacks and night sweats.
[26] PCB 71
55 I have considered the plaintiff’s evidence that due to his limited financial means he could not afford to obtain further treatment in the intervening years. He said in re-examination that:
“I was unemployed and unable to gain employment. I was selling household items of mine to support myself, support my family, and it come down to costs, I just couldn’t afford it”[27].
[27] T 61
56 Therefore, the plaintiff said his financial circumstances were dire and I accept his explanation. I do not accept the implication urged on me that had the plaintiff’s condition been as serious as he contends he would have somehow been able to find a means to obtain appropriate treatment.
57 Dr White’s report which I have already noted said that that the plaintiff was likely to suffer from residual psychiatric symptoms even with robust and psychological treatments but that he would likely receive some benefit from treatment and medication.[28] Dr White’s opinion pre-dates the plaintiff’s recent commencement of anti-depressant medication. The plaintiff said that he has “experienced some improvement” in his psychological symptoms since recently commencing the anti-depressant medication, Eleva.[29]
[28] PCB 173
[29] PCB 36 and T55
58 Despite some evidentiary limitations Dr White’s opinion paints a very serious picture of the plaintiff’s mental condition. The plaintiff’s evidentiary account is also very important. The plaintiff said that he is severely depressed due to the effects on him of the work injury of February 2009. He said he became a very unpleasant person to be around and this unpleasantness was visited upon his former partner and children and that the injury gets him down:
“particularly when I think about the impact of my injury, the time I have lost when I have not been able to work, and the impact that my injury has had on my family and my marriage".[30]
[30] Plaintiff’s affidavit 16/1/2019 PCB 36
59 The plaintiff’s recent breakdown of his relationship with his partner in August 2018 is no doubt a factor to consider in his current treatment for depression but it must be borne in mind that the plaintiff’s evidence was that his relationship ended because of the effects on him of the 2009 injury. I accept his evidence.
60 The plaintiff was re-examined by his counsel about his evidence that it was only recently that he intended to seek a referral from Ms Ellingworth to a psychiatrist and he said:
“I thought I was okay, never realised – my marriage broke down less than six months ago. My wife left me. I didn’t know why and we sat and had a discussion, she explained, the anger, the way I was addressing my kids, the way I spoke to her”.[31]
[31] T61
61 The affidavit of the plaintiff’s former partner painted a portrait of a very depressed man who would ruminate about the accident of February 2009 and continued to do so and the effects on her and the family dynamic.
62 The plaintiff deposed that he continues to “experience nightmares almost every night. It is usually the same nightmare, effectively playing back my workplace accident like a tape recording”.[32] His evidence was unchallenged. I accept that the effect on the plaintiff of the same is considerable and that the constancy of it that is, to disruption to sleep and to mood is profound, and that it has its roots and ongoing operative cause in the February 2009 injury.
[32] PCB 35, para 19
63 I have had regard to the evidence adduced by the defendant of the myriad of other facts that have impacted the plaintiff’s mental wellbeing but I am not satisfied that they satisfactorily account for the onset of his psychological condition as secondary to the February 2009 injury and that continues to be the anchor to his mental disturbance. The other factors identified by the defendant included:
(i) The plaintiff suffered a physical assault at the hands of an ice affected individual in December 2017 in the course of which his eyes were clawed at and he was hospitalised for two days. He said that he had been concerned about scarring but since seeing Ms Ellingworh was now less so. The assault was not disclosed to Dr White. The plaintiff did, however, refer to it in his third affidavit of 23 January 2019. In cross-examination, he made little of the effects on him of the assault as opposed to the mental consequences he attributed to his work injuries. I am satisfied the incident has receded unlike the event at work and that it does not present and confront the plaintiff’s mental wellbeing in the manner and to the very considerable extent I am satisfied does the February 2009 machine injury incident.
(ii) The plaintiff’s other non-compensable physical conditions and the effect they have had on his enjoyment of life, his employment and earning capacity.
The other non-compensable injuries suffered by the plaintiff and their effect
64 The plaintiff has been exposed to a significant number of unrelated incidents causing him injury in addition to the right hand injury and the right shoulder These have included:
(i) On 2 February 2012 he slipped on tiles at his home and injured his right shoulder. An ultrasound was undertaken and confirmed a diagnosis of bursitis.
(ii) In August 2013 he sustained a further injury to his right hand when he fractured the middle finger of his right hand when refuelling an aircraft with the RAAF cadets where he was employed as an instructor. He underwent open reduction internal fixation surgery on 2 September 2013 and subsequent hand therapy. The plaintiff’s treating surgeon, Mr Grinsell, on 19 November 2013 considered that the plaintiff’s future capacity for work would be unlimited.[33]
[33] PCB 211
(iii) On 22 May 2014 he presented to his general practitioner, Dr Gangodagama, for the first time after hyperextending his right shoulder as a result of lifting a heavy basket.[34] An ultrasound apparently showed subdeltoid bursitis for which the he does not appear to have received any treatment.
[34] PCB 98
(iv) Between April 2015 and January 2016 he worked with "Thrifty” driving trucks and other vehicles from interstate back to Melbourne and, in about April/May 2015, he was diagnosed with an umbilical hernia after driving from Coolangatta to Melbourne.[35] That led to surgery being performed on 13 August 2015 at Sunshine Hospital.
[35] PCB 28
(v) On 25 April 2015 he was hospitalised with a recurrence of DVT.[36]
[36] PCB 29
(vi) On 11 January 2016 he was involved in a motor vehicle accident whilst working for “Thrifty” and, according to the records of the University Hospital Geelong, he suffered injury (right shoulder and low lumbar pain,[37] severe neck and back pain) according to Dr Gangodagama[38] and neck and left shoulder pain according to the plaintiff’s affidavit.[39] He does not appear to have returned to work with “Thrifty” after this accident.
(vii) During 2016 he did odd jobs before finding full-time employment with Peter Sadler Transport driving a 14‑tonne heavy rigid truck. This work involved both truck driving and heavy manual loading and unloading.[40] He ceased work for Peter Sadler Transport in January 2017 after injuring his dominant left shoulder lifting heavy beer kegs.
[37] PCB 108
[38] PCB 103
[39] PCB 33
[40] T28
65 In regard to these other events the plaintiff said that he had made a good recovery from the DVT;[41] and from his hernia repair.[42] His neck injury resolved, and there were no residual neck symptoms.[43] His right middle finger injury resolved following surgery and rehabilitation[44] He continues to experience very little pain in the left shoulder but it had mostly resolved following surgery.[45]
[41] PCB 29, 203, 183
[42] PCB 29
[43] PCB 33, 124, T58:26
[44] PCB 33, 125, 134, 182
[45] PCB 36, T58:12, 58:17
66 I am satisfied that these other injuries have either resolved or reduced and are significantly removed from affecting the plaintiff’s mental condition and do not account for Dr White’s diagnosis that the plaintiff suffers depression and PTSD. I accept the evidence from Dr White that the plaintiff has suffered a severe long-term mental disturbance or disorder diagnosed as Major Depression Disorder, single episode (the February 2009 injury) and PTSD.
67 Dr White provided a report dated 8 July 2015 in which he noted that the plaintiff said that he was having some nasty dreams and his psychological condition had affected his family. He described his sex life as ‘in the toilet’. He said he was verbally aggressive and had been for the past six or seven years, that is to say, since the accident in 2009 and the surgeries that followed. Dr White described the plaintiff as persistently low in mood.[46]
[46] PCB 144
68 Dr White’s diagnosis of PTSD is one characterised by intrusive nightmares regarding the accident on the band saw, as well as avoidance and hyperarousal. Dr White considered it very likely that the plaintiff would continue to experience significant psychiatric symptomatology and distress into the foreseeable future.
69 Dr White provided a further report dated 22 November 2016 in which he reported that the plaintiff continued to experience nightmares. While he had some good days, on most days the plaintiff was “not okay”. The plaintiff tended to be very tired and he continued to experience persistent feelings of worthlessness, without suicidal ideation.[47] The plaintiff stated that he was very angry and anxious when reminded about the original trauma. He continued to feel distant from other people, and had lost a lot of friends.[48] Dr White observed the plaintiff to be tired, depressed and tense.[49]
[47] PCB 160
[48] PCB 161
[49] PCB 163
70 Dr White provided a final report dated 19 October 2018. In this report he recorded that the plaintiff had mentioned that his marriage was in turmoil because of the way he was. He had continued to be short-fused with his family.[50] He had continued to ruminate about the workplace injury, and had ongoing feelings of worthlessness. He was tired all the time and lacked motivation.[51] Dr White confirmed his previous diagnosis of a Major Depressive Disorder, single episode, and PTSD precipitated by the workplace accident on the band saw.[52] The plaintiff was noted to be restricted in his activities of daily living, including relationships.[53]
[50] PCB 169
[51] PCB 170
[52] PCB 172
[53] PCB 174
71 The plaintiff’s evidence contained in his third affidavit of 16 January 2019 was that he continued to experience nightmares almost every night, effectively playing back the accident like it was a tape recording.[54] He continued to experience depression. He had little interest in doing anything and felt lethargic most of the time, notwithstanding he had some improvement after changing his medication. He had not been able to maintain his friendships due to his lethargy and lack of motivation, and had lost most of his friends. In self-reflection, he described himself as an unpleasant person to be around, and as resentful, impatient and less caring since the development of his psychological condition. He felt awful about having put his family through this stress, because of his injury.[55]
[54] PCB 35
[55] PCB 36
72 Dr White has diagnosed mental conditions as appearing to have been precipitated by the February 2009 accident.
73 The plaintiff was not challenged in his evidence regarding his symptoms or those he recounted to Dr White and that are recorded by him. They are severe consequences and have been long lasting and continuing. His mental state has been ongoing, intrusive disruptive and has impacted adversely on the plaintiff’s personality and his family life from what they had been before the 2009 accident.
Conclusion
74 Having considered all of the evidence I am satisfied that the plaintiff has met and discharged his obligation to identify that his current mental state is attributable to the workplace traumatic injury he suffered on 18 February 2009 and has not sought to do so impermissibly by aggregating unrelated psychological injury arising from his work injury.
75 Consequently, I am satisfied that the plaintiff has met and discharged his burden of proof to identify that his current mental state is attributable to the right finger injury he suffered on 18 February 2009. Moreover, I am satisfied by the plaintiff’s evidence and by the opinions of Dr White, that his mental state meets the legal test as required under s134AB(37)(c) of the Act, that is to say, when it is judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders, as the case may be, such that it may fairly be described as more than serious and to the extent of being severe. There can be hardly a contest that the plaintiff’s mental state is severe based on the diagnosis and the plaintiff’s evidence and that of his former partner, such being evidence that I have accepted. The consequences on the plaintiff’s daily life are clear. The absence of much psychological or psychiatric treatment is not an answer to his claim under paragraph (c) and my finding that the plaintiff’s mental disturbance is severe has not been disturbed by the absence of the same.[56]
[56] TAC v Katanas [2017] HCA 32, [23]
76 The fact that the plaintiff is managing full time employment and it is not impacted by his mental state and that he finds some benefit from it, has not in my overall assessment, caused me to change my opinion that he suffers from a permanent severe mental disturbance. In his October 2018 report Dr White recorded that the plaintiff told him that:
“When I get into my car, after work, I hit rock bottom …I think about the impact [of the original injury]…being out of work for seven or eight years…the financial impact on my family…my anger…yelling at the kids”.[57]
[57]PCB 167
77 I am satisfied the plaintiff’s mental state is permanent despite him indicating some improvement as a result of recent medication and returning to see Ms Ellingworth. He has laboured from his mental condition since soon after the 2009 injury and the extent of it is now such that he said he intends to pursue a referral to a psychiatrist. I am satisfied that the plaintiff’s mental injury will persist through the foreseeable future and the conditions diagnosed and reaffirmed in subsequent reports by Dr White provides a reasonable basis for such a finding. I am satisfied of my conclusions as a matter of both common sense and the medicine relied on by the plaintiff.
78 I am satisfied that the plaintiff should be granted a certificate to commence common law proceedings for the reasons expressed.
79 I shall make the appropriate orders
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