Moylan v P and R Mitchell Contractors
[2009] VCC 580
•28 May 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
(Not) Restricted
AT MELBOURNE
CIVIL DIVISION
SERIOUS INJURY
Case No. CI-07-03753
| DENIS MOYLAN | Plaintiff |
| v | |
| P & R MITCHELL CONTRACTORS | Defendant |
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| JUDGE: | HER HONOUR JUDGE LAWSON |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 13 May 2009 |
| DATE OF JUDGMENT: | 28 May 2009 |
| CASE MAY BE CITED AS: | Moylan v P & R Mitchell Contractors |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 0580 |
REASONS FOR JUDGMENT
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Catchwords: Accident compensation – application under s.134AB(16B) Accident Compensation Act 1985 – serious injury claimed for the left upper limb in respect of pain and suffering and loss of earning capacity consequences – leave granted to plaintiff to bring proceeding for damages in respect of serious injury.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Mighell SC with | Maurice Blackburn |
| Mr D Purcell | ||
| For the Defendant | Mr N Chamings | Herbert Geer |
| HER HONOUR: |
1 Denis Moylan brings this application pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (the Act) for leave to issue a proceeding for the recovery of damages suffered during the course of his employment with the defendant on or about 2 May 2000.
2 Mr Moylan relies upon paragraph (a) of the definition of serious injury contained in s.134AB(37) of the Act. The paragraph (a) injury which he alleges is an injury to the left hand. The loss of body function is the left upper limb.
3 The plaintiff seeks a serious injury certificate with respect to both pain and suffering consequences and loss of earning capacity consequences.
4 The defendant accepts that Mr Moylan suffered a compensable injury at work to his left wrist on the 2 May 2000 but says that the consequences to the plaintiff do not satisfy the requirements of serious injury as defined.
5 The issues the defendant raises are whether the impairment consequences of the injury have been identified and disentangled from the impairment consequences of the injury to Mr Moylan’s right wrist sustained on 15 April 1999. If so, it says that assessing the impairment consequences of the left wrist alone, they do not satisfy the test in respect to both pain and suffering and loss of earning capacity consequences.
6 I am satisfied having considered the totality of the medical evidence and the plaintiff’s sworn evidence which I accept that the material does enable me to make findings concerning the injury to the left wrist that it is capable of being identified and that this is not a case where disentanglement is required. There is a clear pathway to assess the plaintiff’s injury when regard is had to his condition pre- and post injury. Mr Moylan demonstrated that he had a solid work history involving heavy manual work with no evident signs of disability or impairment of the function of the left upper limb until the incident on 2 May 2000.
7 Mr Moylan gave evidence and adopted his affidavits sworn 7 May 2007 and 27 April 2009. No further additional viva voce evidence was given. The reports and medical records of doctors of vocational assessment and a number of rehabilitation assessment reports were tendered by the parties in accordance with the attached schedule.
8 I find the plaintiff to be a credible, reliable and truthful witness. No attack was made in respect to his credibility in cross-examination. Video surveillance material is referred to in the index to the defendant’s court book. No surveillance material was shown to the court.
9 During the course of the hearing I viewed the plaintiff’s left wrist. He was wearing a well worn rigid splint to the left wrist. He stated that he wears it at all times. There was no wrist splint on the right wrist. He sat at all times nursing the left wrist cradled in his right hand.
10 Mr Moylan did not embellish his evidence. He was candid and expressed a strong motivation to work. I found him to be a stoic individual who despite injury endeavoured to work unsuccessfully within his capacity. I accept the plaintiff's evidence about his background, the injury suffered on 7 May 2000 and the nature and extent of his disability arising from that injury.
11 Mr Moylan is aged 57 years and was born on 6 March 1952. He lives in Coburg. He is a trade qualified electrical fitter and electrical linesman. P & R Mitchell Contractors Pty Ltd (P & R Mitchell Contractors) operate an electrical contracting business from 5 Trawall Avenue, Thomastown. Mr Moylan was employed by the company as an electrical contractor undertaking pole and electrical line repairs and installations. Mr Moylan is right hand dominant.
12 The plaintiff was educated to Year 11 level and after leaving school completed an apprenticeship with the Victorian Railways as an electrical fitter over a period of five years. He was employed in that capacity thereafter. In 1987 he obtained a further trade qualification as an electrical linesman and was employed by Coburg Electricity Supply. He has worked for several other employers including Solaris Power. In February 1999 he obtained his job with P & R Mitchell Contractors.
13 The compensable injury occurred on or about 2 May 2000 whilst the plaintiff was assisting to install a power pole in a roundabout on Kings Road, Melton.
14 There is no dispute that the plaintiff had previously suffered a severe crush type injury to the right hand at work on 15 April 1999. On that occasion he was injured whilst assisting to install a large pole in the centre of a roundabout. Whilst disconnecting wires to remove the pole it fell over causing a severe crush injury to his right hand.
15 Mr Moylan suffered an open fracture of the right radius distal end, with scaphoid lunate bones of the wrist dissociation. The radius fracture was treated surgically by internal fixation and debridement of soft tissue of the right forearm. He received a degloving injury to the right forearm.[1]
[1] Dr Khan, report 14 June 200616 He remained off work for a few months and returned to work on modified duties on 25 June 1999. He was not doing any glove or pole work and was mainly working as a jockey on the cranes. It was his responsibility to keep a lookout. He started on reduced hours but returned to full hours with pain and restriction of use of his right hand. However, he was able to tolerate the pain.
17 On 2 May 2000 Mr Moylan was assisting to install a light pole to a roundabout. A crane was being used to lift the pole from an adjacent street. It is alleged that there was inadequate traffic control measures in place at the roundabout and therefore the job had to be rushed in bursts of traffic. There was a rope tied from the crane to the pole because the jib on the crane was not long enough to reach over the pole. When the crane operator began to lift the pole up it swung on the rope. It is alleged the crane driver lifted the pole too quickly and as it swung towards the plaintiff he was knocked over by the pole and fell onto his outstretched left hand suffering injury (the incident).
Medical treatment following injury
18 Following the incident Mr Moylan attended Dr Khan, his general practitioner. Dr Khan referred him for an x-ray, CT scan that showed mild osteoarthritic changes. He tried to remain at work notwithstanding pain and problems with use of the left hand.
19 The plaintiff was initially referred to Mr Rubenstein, a plastic surgeon who referred him to both a hand therapist and a Hand Specialist, Mr Stephen Tham. Mr Rubenstein last reviewed him on 4 April 2001 at which time Mr Moylan was still complaining of pain.
20 Mr Tham first saw Mr Moylan on 8 January 2001. He complained of persisting left wrist pain following the incident at work. The symptoms were localised to the dorsum of the left wrist which increased with use, particularly any activity requiring forced flexion. Despite the wrist discomfort he noted he continued to work as an electrical linesman.
21 His examination showed mild reduction in the motion of the left wrist with flexion to 75° and extension to 75°. The range of motion of the right dominant wrist was extension to 20° flexion to 20° extension which was markedly reduced and is claimed from an old crush injury. There was marked tenderness at the dorsal radial scaphoid joint in the left wrist with mild tenderness at the scapho lunate joint.
22 His x-ray and CT scans showed an avulsed fragment arising from the dorsum of the distal radius or from the scapho lunate joint which corresponded to the area of marked tenderness.
23 Because of the significant symptoms Mr Tham performed an arthroscopy on 19 February 2001. This showed exposed bone at the proximal pole of the scaphoid which extended into the scaphoid wrist area and an area of exposed bone on the dorsal rim of the scaphoid fossa of the distal radius. The scapho lunate interosseous ligament was completely ruptured from its scaphoid attachment. The lunate fossa was intact. There was marked fibrosis of the dorsal aspect with loose articular cartilage. A diagnosis of degenerative arthritis of the left wrist as a result of chronic scapho lunate disassociation was made. [2]
[2] PCB 1724 At review on 5 May 2001 there were no post-operative complications noted. A further review demonstrated ongoing pain in the left wrist caused by diagnosed wrist degenerative arthritis.
25 Mr Tham considered that the plaintiff suffered degenerative arthritis of the left wrist as a result of chronic scapholunate ligament disruption. The arthritis involves the scaphoid fossa of the distal radius in a corresponding area of the scaphoid carpal bone. Disruption of the scapholunate interosseous ligament requires a substantial force in the development of secondary degenerative arthritis as a result of the ligament disruption usually requires a period of approximately eight to ten years from injury.
26 Mr Tham considered that the symptoms of wrist pain developed after the fall in May 1999 (the parties agree this is likely to be a typographical error and it should read 2000) and has persisted. He states that it is likely that a more significant injury occurred several years earlier which did not produce any significant wrist symptoms until this injury which occurred in May 2000.
27 He opines that it is likely that the symptoms and wrist pain will be ongoing and may even exacerbate because of the underlying degenerative arthritis resulting in a reduced functional capacity to the non-dominant left wrist particularly in activities which require heavy lifting or flexion and extension of the wrist.
28 Further surgical options proposed were proximal row carpectomy or scaphoid excision and four corner fusion. However, if progressive degenerative arthritis occurs at the mid-carpal joint then the only surgical option would be scaphoid excision and four corner fusion.
29 In the long-term he postulated Mr Moylan may require a left wrist fusion. He stated he had undergone diagnostic arthroscopy to the left wrist but it is likely Mr Moylan will require more definitive surgery for symptom relief. To date Mr Moylan has declined surgery.
30 Mr Moylan was reviewed on 4 May 2005 by Mr Damian Ireland, Hand Specialist for evaluation of the symptoms affecting his right forearm. Mr Ireland also noted the history of the left wrist injury and treatment from Mr Tham.
31 He confirmed that the radiographs revealed a healed intra-articular fracture involving the right wrist with possible narrowing of the articular margins of the radio scaphoid joint. Radiographs of the left wrist revealed a mild widening of the scapholunate joint with rotary subluxation of the scaphoid.
32 Mr Ireland continued to treat Mr Moylan. At his last review on 7 January 2009 he recommended further operative treatment which Mr Moylan declined.
33 On examination of the right wrist, he had a restricted motion to about 20 per cent of normal and grip strength of 17 kilograms. On the left he has marginally more motion counting for about 40 per cent of normal and grip strength of 24 kilograms.
34 Mr Ireland took some radiographs which showed more severe changes on the right than the left. He injected the more symptomatic left wrist with cortisone and local anaesthetic. He explained to Mr Moylan that he will require surgical treatment to both wrists sooner or later if he has any chance to return to return to the workforce in any form of manual capacity.
35 Mr Ireland’s view is that the left wrist would benefit either from a proximal row carpectomy or a limited wrist arthrodesis preserving motion at the radiolunate joint. This could expect to give him the same range of motion that he currently has. On the right side he will most likely require radiocarpal fusion which could lose him approximately 50 per cent of the current range of motion.
36 Mr Moylan has elected to continue conservative treatment.
37 Mr Ireland’s expressed opinion is that the plaintiff suffers from a separate injury and condition affecting the left wrist, namely, scapho lunate advanced collapse deformity due to a separate traumatic injury at work occurring on 2 May 2000. He also suffers from traumatic arthritis of the left wrist due to a ligamentous injury rather than a fracture which occurred on the right side.[3]
[3] PCB 23B38 He opines that Mr Moylan’s prognosis for any further relief of symptoms without surgical treatment is extremely poor and it is likely that wrist pain with diminishing movement and grip strength will follow.
39 He considers that the condition of both wrists is a direct consequence of the single injury to the right wrist on 15 April 1999 and to the left wrist on 2 May 2000. There have been no predisposing factors. The patient suffers from traumatic arthritis rather than osteoarthritis.
40 Dr M Khan, general practitioner, continues to review Mr Moylan on a monthly basis to give him WorkCover certificates for modified duties. He notes some pain in both hands and spasms in the hands and forearm muscles. Examination of the hands and forearms shows that there is a wasting of muscle in both hands and forearms with poor gripping power. Mr Moylan takes pain analgesia for management of pain and expresses a desire to return to work.
41 Dr Clayton Thomas, consultant rehabilitation and pain medicine specialist, reviewed Mr Moylan on 3 September 2008. He noted he had bilateral injury to the distal right forearm and left wrist. He considers that to the left wrist he sustained cartilage damage to the distal radius proximal scaphoid that occurred as a result of the fall on 2 May 2000. He considers that Mr Moylan has a level of incapacity which is significant. He has effectively had problems with both wrists. He is not fit for pre-injury work. Any repetitive movements and firm gripping or heavy lifting will aggravate his condition. His condition is permanent.
42 He postulated from the point of view of restrictions, he could perform light process work for four hours per day four times a week. Anything beyond this is likely to lead to decreased efficiency and aggravation of his pain. He would not be able to perform purely sedentary type duties as writing is also problematic for him. He postulates further degenerative changes will develop and that his condition is likely to worsen and not improve.
43 Mr Kevin King, medico-legal specialist, reviewed Mr Moylan on 25 July 2008 at the request of the plaintiff’s solicitors. He noted a history of injury to both right and left wrists which occurred in the course of his employment with the defendant.
44 He noted that Mr Moylan is severely disabled by pain, weakness and stiffness in both wrists and hands aggravated by any sort of use of the hands such as significant gripping, pushing or lifting. He complained of the following residual symptoms:
1.
constant generalised aching in the right wrist, always present, fluctuating in intensity, always of at least moderate severity and aggravated by use of the hand. The right wrist is stiff and weak as is the hand itself.
2. similar but slightly milder symptoms in the left wrist. The combination of similar symptoms mean he can only do very light tasks around the house. He can use a knife and fork but cannot use the heavier tools of his trade such as hammers, spanners and large pliers and wire cutters.
45 Mr King noted in his report that Mr Moylan undressed with some difficulty as his hands were obviously very clumsy and he had difficulty undoing the buttons on his shirt with both hands.
46 He noted no deformity in the left forearm, wrist and hand but he has a stiff painful left wrist.
47 Range of movement, left wrist:
Dorsi flexion 0-20° (expected range 0-70°)
Palmar flexion 0-20° (expected range 0-60°)
Pronation 0-70° (expected range 0-90°)
Supination 0-80° (expected range 0-90°)
Radial and ulnar deviation 0-30° degrees (full range).
There was pain at the extreme of all movements in both wrist joints noted. The strength of grip was approximately one-third of normal strength noted. The mean strength grip for the left hand noted at approximately nine kilograms. Expected grip strength in a man of his age and special skills would normally be at least 40 kilograms in each hand. Mr King notes, therefore, he has marked weakness of grip in both hands.
48 Mr King states as a result of the incident the plaintiff suffered an injury to the left wrist with severe dorsi flexion being applied to the left wrist and hand which has resulted in very significant damage to the articular surface of the wrist joint as found by Dr Tham, treating surgeon on arthroscopy of the left wrist. He now has a stiff painful osteoarthritic left wrist.
49 He states the plaintiff has major impairment of function of the upper limbs. He said the plaintiff is unfit to return to the work he had done during his adult life or to any other sort of work that involved any sort of use of the right hand for skilled or refined work or for gripping, twisting and using tools in the other hand. He assessed the loss of function of each upper limb as being 40 per cent with the probability that both wrists would continue to deteriorate slowly.
50 Ms Katrine M Green, psychologist, reviewed Mr Moylan for the purposes of a vocational assessment on 23 September 2008. Following her review of the material supplied including medical opinions from the treating specialists and discussions with the plaintiff, she considered that he is not fit for any suitable employment due to his current physical condition. [4]
[4] PCB 47-60
Defendant’s evidence
51 The plaintiff has been reviewed for medico legal purposes by a number of doctors. Mr Robert D Marshall, surgeon, reviewed Mr Moylan on 29 May 2002. His report is somewhat dated. His examination of the left hand revealed his only one positive finding that he was tender over the dorsal of the wrist and had slight limitation of flexion extension movement with pain in his wrists.
52 A CT and ultrasound examination of the left wrist show two tiny bone fragments involving the radioscaphoid joint. The ultrasound of the left wrist and isotope bone scan is consistent with minor bony injury over the lower end of the left radius. He considered Mr Moylan has two quite separate injuries which evolved firstly, in his right wrist and then his left wrist.
53 He did not consider he was incapacitated by reason of the left wrist injury and had a capacity to undertake his pre-injury employment although somewhat limited by pain in the wrists. He noted the left wrist was painful and indeed a little stiff. He did not agree that any surgery was indicated. Given the passage of time and the clinical progression of the plaintiff‘s symptoms in the left wrist little weight can be placed on this report.
54 Mr Buzzard, surgeon, reviewed Mr Moylan on 7 June 2006. He noted the plaintiff’s history of left hand pain evident following the injury on 2 May 2000. There was no pre-history of problems with the left hand.
55 His examination of the left wrist showed that there was restriction of function, such that dorsi flexion and volar flexion were each at 30°. No other restriction was noted in the left wrist.
56 Mr Buzzard considered the left wrist injury of 2 May 2000 was a soft tissue type injury but there was evidence of some bony fragments in some of the radiological investigations. He considered it reasonable to accept that as a result of the left wrist injury Mr Moylan does have some limitation with movement in the left wrist secondary to capsular contraction of left wrist and that it is unlikely to change.
57 At that stage Mr Buzzard considered that as a result of the right wrist injury and to a much lesser degree the left wrist injury Mr Moylan did have a problem with employment such that he could not work in a job requiring a full range of movement of the right wrist and a lot of gripping and lifting of the right wrist and that would preclude him from carrying out pre-injury duties.
58 Mr Buzzard undertook another examination on 1 April 2009 at which time Mr Moylan complained of ongoing left wrist pain of chronic nature. The left wrist pain was described as getting slowly worse. He noted that Mr Moylan took Panadeine Forte (4-6 per day) and has had cortisone injections into left wrist given by Mr Damian Ireland once every six months and sleeping tablets because of the left wrist pain. By contrast the right wrist pain was continuing but was noted as static. Mr Moylan does not have cortisone injections into the right wrist.[5]
[5] DCB 44B
59 Mr Buzzard considered that the plaintiff’s major problem was the left wrist with pain limitation and movement. He considered it reasonable that Mr Moylan undergo a left wrist fusion operation suggested by Mr Tham. His condition is unlikely to change long term.
60 He considered as a consequence of both injuries to each wrist he cannot work in a job requiring full range of movement of the wrist or range of movement greater than that which was demonstrated on examination. He could not work in a job requiring significant gripping movements that precludes pre-injury employment including the modified duties.
61 Dr David Fish, consultant occupational physician, undertook an impairment assessment on the 17 January 2007 pursuant to s.91 of the Act. He noted continuing complaints of pain over the left dorsoradial wrist and moderate strength in the left wrist with good movement. Flexion/extension movements caused pain as did ulnar and radial deviation. On examination, he noted that there was tenderness over the dorsoradial wrist with reduced motion in the thumb, wrist and pronation and supination.
62 Dr Fish noted the left wrist injury with no evidence of fracture but he suffered a scapho lunate ligament rupture with subsequent development of degenerative change in the wrist. He considered that he had a 10% whole person impairment and the degree of impairment is permanent.
63 Mr Anstee, plastic and reconstructive surgeon, reviewed Mr Moylan on 26 June 2007. His opinion was that he may have been injured in the fall of 2 May 2000 and that it is likely degenerative arthritis in the left wrist due to scapholunate ligament rupture began with an injury years before.
64 He re-examined Mr Moylan on 3 October 2008. When asked to describe the nature of any injury he said:
“I believe Mr Moylan has probably had an old injury to the left wrist and problems associated with that may have been worsened by the fall in question. I believe that he has post traumatic arthritis in the left wrist and that this is relatively early and reasonably minor. It may well have followed a disruption of the scapholunate ligament some 10 years earlier.”
He said:
“From reading the arthroscopy report by Mr Tham, Mr Moylan has a significant problem with the scapholunate ligament rupture. This will produce further pain, discomfort and arthritis as time wears on and the only treatment for this will be a degree of fusion. Whilst this may decrease the pain it will also decrease the already significant limited range of motion.”[6]
[6] DCB 59B
65 He accepts that the left wrist problems may well have been aggravated by the fall in May 2000.
66 Mr Anstee considers that Mr Moylan is capable of working and noted that he had been trained in tagging and testing portable electrical devices. Mr Anstee considered that Mr Moylan would be capable of carrying out the task of tagging and testing devices. He doubted he could return to his pre-injury duties as a linesman.
67 He postulated that insofar as the left wrist is concerned he may well require a full wrist fusion. The likely consequence of the fusion of the left wrist included gross decrease in range of movement and possibly the pain will be reduced.
Work History Post Injury
68 Mr Moylan continued working with the defendant following the incident. He ceased work with the defendant in June 2001 and was unemployed until February 2002. At that time he obtained alternative employment undertaking light factory work through a friend, Gary Murphy. He ceased all work in May 2006. The uncontested evidence of Mr Murphy was that the plaintiff struggled to keep up with his duties and the work involved because of the difficulties he had with pain.[7] The plaintiff has not returned to work since that time.
[7] Affidavit of Gary Murphy sworn 6 March 2009, PCB 15F69 He is in receipt of Workcover payments related to the right wrist injury.
Findings and conclusions
70 Mr Chamings, on behalf of the defendant, submitted that the Court ought to find that the plaintiff suffered a pre-existing injury to the left wrist. This is evidenced by the findings of Mr Tham at arthroscopy, that is, advanced degenerative arthritis of the radio scaphoid joint. Further he relied on the expressed opinion of Mr Anstee who states that it is likely that the degenerative arthritis in the left wrist due to a scapho lunate ligament rupture began with an injury years before 2 May 2000. He also relied on the CT scan findings of the 10 July 2000 as not demonstrating any other significant pathology in the plaintiff’s left wrist.
71 He submitted on the basis of that evidence that the more significant injury occurred in the years before 2 May 2000 and the plaintiff could not demonstrate that the aggravation following the incident, of itself, satisfies the test for serious injury. He referred to a 1997 Minor Claim form. That form records that Mr Moylan had bilateral median nerve injury affecting the wrists[8]. In cross-examination, Mr Moylan recalled that claim related to pins and needles in his hands that came on after working over a weekend with sledge hammers.[9] He could not recall the name of the doctor he attended nor does it appear that the plaintiff had any time off work due to this injury.
[8] DCB 10
[9] T15, L18-27
72 On balance, I am not satisfied that the injury recorded in the Minor Claim form dated 27 June 1997 relates to the plaintiff’s present condition.
73 I do consider that this is a Petkovski v Galletti[10] situation. I note that notwithstanding the findings at operation Mr Moylan did not suffer any level of restriction or disability prior to the incident. It is clear the fall did not cause the advanced degenerative arthritis of the radio scaphoid joint or the scapho lunate ligament rupture.
[10] [1994] 1 V R 436
74 Having regard to the expressed opinions of Mr Tham, Mr Ireland, Mr King and Mr Anstee I am satisfied that as a consequence of the 2 May 2000 incident that occurred in the course of the plaintiff’s employment Mr Moylan sustained a traumatic injury to his left wrist that involved aggravation of the ruptured scapho lunate ligament and aggravation of the underlying arthritic condition rendering it symptomatic.
75 Mr Buzzard characterises the injury as a soft tissue type injury but nonetheless he postulates that Mr Moylan has suffered a major problem with his left wrist with associated pain and limitation of movement following injury. This is consistent with the expressed opinion of Dr Clayton Thomas.
76 I am further satisfied that the plaintiff did not exhibit any symptoms in the left wrist prior to the incident at work and that the incident caused his underlying condition to become symptomatic.
77 I reject the opinion of Mr Robert Marshall in the light of the expressed opinions of the other consultants whose opinions I have already referred to.
78 I am satisfied that prior to the injury the plaintiff did not suffer any impairment or loss of the function of the left upper limb. This contrasts starkly with his post injury impairment of the left upper body function. Mr Moylan has demonstrable problems with pain, disability and stiffness in the left wrist and there are objective clinical signs of his ongoing condition, namely, restricted range of motion and marked weakness of grip strength.
79 I have had regard to the plaintiff’s evidence regarding the difficulties in relation to his left wrist condition that he has experienced following the incident.
80 Mr Moylan has since 2 May 2000 suffered considerable pain, weakness and stiffness in the left wrist notwithstanding the arthroscopy. He has undergone hand therapy, physiotherapy and has had a series of corticosteroid injections for pain relief. Surgical treatment is postulated as a means of possibly controlling the pain. He is reliant on pain relief medication which I am satisfied he takes primarily for the left wrist.
81 Mr Moylan’s left upper limb function is significantly limited by reason of the injury. He constantly wears the rigid wrist splint on the left wrist which in has the same effect as a wrist arthrodesis[11]. The consequences of his impaired left upper limb are exacerbated in circumstances such as this where the plaintiff suffers from a pre-existing disability to the right dominant hand.
[11] D Ireland letter to Dr Khan 28/5/08 PCB 2282 I accept that Mr Moylan is limited in his activities of daily living. All tasks involving fine manipulative movement are awkward such as dressing and undressing. He cannot deal with the heavier aspects of housework and cannot play guitar and the piano. He is no longer able to play golf. His ability to undertake manual work has been destroyed.
83 I am satisfied that the impairment to the left wrist or loss of body function of the upper left limb caused by the injury is permanent in the sense that it is likely to last into the foreseeable future.
84 I am satisfied that the impairment and its consequences meet the statutory requirement of serious injury.
85 In summary, the pain and suffering consequences of the plaintiff’s impairment or loss or body function of his left wrist when judged by comparison with other cases in the range of possible impairments or losses of body function could fairly be described as being more than significant or marked and as being at least very considerable.
Loss of earning capacity
86 I am also satisfied that the plaintiff has discharged the burden of proof in this regard both in relation to the very considerable test and in relation to the additional stringent tests contained in s.134AB(38)(e)-(g).
87 I have had regard to s.134AB(19)(b) which provides that the plaintiff, for the purposes of proving a relevant loss of earning capacity, bears the onus of proving any inability to be retrained or rehabilitated or to undertake suitable employment or any employment including alternative or further or additional employment and the extent of such inability. I am satisfied the plaintiff has satisfied this onus.
88 It is evident from the material that the plaintiff did unsuccessfully attempt to return to work on light duties following his cessation of employment with the defendant. That was not successful and the undisputed evidence is notwithstanding he was working in a supportive environment he had to leave that job because of the pain in the left wrist.
89 The documentation reveals that Mr Moylan also cooperated with STEPS, the rehabilitation provider. He was assessed on 24 November 2006 by Ms A Elbelli-Roos for the purpose of identifying potential vocational options[12]. A small selection of the medical material was provided to Ms Elbelli-Roos. I note that no treating surgeon’s reports were provided.
[12] DCB 6090 Ms Elbelli-Roos identified a number of jobs that she considered were suitable. I am not satisfied that any of the jobs suggested are suitable. Fork lift driving was suggested. Given the significant limitations associated with Mr Moylan’s marked reduction in grip strength, severe pain and stiffness to the left wrist this is not suitable and would be highly dangerous for Mr Moylan to engage in from a health and safety perspective. The same considerations apply to a crane operator safety observer and delivery driver.
91 Mr Moylan did concede in cross-examination that he could “lookout” for a crane driver. That presupposes that the job is static and requires no manual handling or ability to work manually. It is not evident from the material what else would be required in such a role. Given the chronic nature of the plaintiff’s left wrist pain and weakness of grip and associated stiffness in the left wrist this job would in my assessment be problematic and not suitable.
92 Tourist information officer/ tour guide is not suitable given he has no demonstrated competency in this field. The job would require an ability to use a computer and Mr Moylan does not have those skills and his left wrist pain and stiffness would be a barrier to him working in this role.
93 Following Mr Moylan’s vocational assessment performed on 4 December 2006 a worksite assessment was undertaken on 7 August 2007. It was recommended that testing and tagging of appliances was a suitable employment option for Mr Moylan. A job placement was secured with a company called Test and Tag commencing 31 August 2007. He undertook that for three or four days but ultimately was not successful in securing employment in that field. [13]
[13] T25, L3-31, T26 L1-15
94 In re-examination, he confirmed that he relied upon the other worker during the placement to manoeuvre the portable tag and testing unit that is required to perform the testing of the electrical equipment to and from the worksite. He confirmed that he would not be able to lift and manoeuvre the machine in and out of a car.[14] I accept that evidence.
[14] T26, 1-13
95 I have had regard to the plaintiff’s own efforts in relation to retraining. I consider that he has made all reasonable efforts to undertake rehabilitation and retraining.
96 Having regard to all those factors, combined with his pain and restriction levels from which he suffers due to the compensable injury, I find that the plaintiff has no capacity for suitable employment.
97 I find that the plaintiff’s pre-injury without injury earnings are $44,233 gross per annum. I am not satisfied that the plaintiff has a current work capacity for suitable duties within the meaning of s.5 of the Act and consider that his after injury earnings are nil.
98 I am satisfied that he has discharged the burden pursuant to s.134AB(19)(b) and that he thereby has satisfied the statutory tests including the other binding tests set out in s.134AB(38)(e)-(g).
99 When the requisite comparison is made with other cases in the range of possible impairments and losses of a body function is made, the loss of earning capacity consequences may be described as being more than significant or marked and as being at least very considerable.
100 The plaintiff has discharged the burden of proof in relation to injury to his left wrist or left upper limb function in respect to both pain and suffering consequences and pecuniary loss consequences.
101 Leave is granted to bring proceedings for recovery of damages accordingly.
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