Murphy v Frew Foods International Pty Ltd
[2021] VCC 774
•18 June 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-20-03960
| JAMIE MICHAEL JOHN MURPHY | Plaintiff |
| v | |
| FREW FOODS INTERNATIONAL PTY LTD (ABN 69 004 967 800) | Defendant |
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JUDGE: | HER HONOUR JUDGE CLAYTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 and 11 June 2021 | |
DATE OF RULING: | 18 June 2021 | |
CASE MAY BE CITED AS: | Murphy v Frew Foods International Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 774 | |
JUDGEMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – right elbow – pain and suffering – workplace injury
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s335
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181; Sabo v George Weston Foods [2009] VSCA 242; Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D Seeman | Robinson Gill |
| For the Defendant | Mr T Storey | Thomson Geer |
HER HONOUR:
1The plaintiff, Mr Murphy, is a 39 year old man. He makes this application for a serious injury certificate for injuries he sustained to his right elbow throughout the course of his employment and, in particular, in April 2016, pursuant to s335 of the Workplace Injury Rehabilitation and Compensation Act 2013.
2This case is about whether the consequences of the elbow injury may fairly be described as being “more than significant or marked”, and as being “at least very considerable”[1] when judged in comparison with other cases in the range of possible impairments or losses of a body function.
[1] Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622
Background
3Mr Murphy was born in June 1982 and received education until Year 11. After leaving school, he worked in Ararat as a cleaner, as a painter and decorator and at an abattoir, before commencing as a slaughterman at the defendant’s abattoir in Stawell on 11 June 2008. He worked fulltime until 2012, when he reduced his work to 24 hours a week in order to take care of his autistic son.
4His work at the abattoir involved heavy manual labour, including lifting and moving carcasses. In mid-2011, he experienced pain in his right elbow, wrist and shoulder, and numbness in his fingers while working on the skin stand.
5He had an ultrasound of his right elbow on 22 June 2011 which showed a 4‑millimetre long partial thickness tear in the deep fibres of the extensor carpi radialis brevis at the insertion point in the lateral epicondyle. He had some time off work and returned to light duties.
6In mid-2012, he had some back pain, caused by bending and lifting. He had a CT scan and a short period off work.
7In 2013, he had a return of some right elbow pain but this did not require any time off work.
8In 2015, he developed carpal tunnel syndrome in the right wrist which was treated.
9In April 2016, he suffered severe right elbow pain associated with significant swelling, over the course of three days whilst turning sheep stomachs in the tripe room. This was repetitive work, and required him to turn thousands of stomachs. He continued to work for a short period but then had two weeks off because of pain. He attended his general practitioner, who organised a brace and physiotherapy. He had a further six weeks off work.
10On 2 June 2016, he lodged a WorkCover claim, which was accepted. He returned to work on light duties, working in the laundry room at the abattoir with a limit on his lifting capacity of 2 kilograms. He continued to work 24 hours a week until December 2016, when he left his employment to relocate to Newcastle in New South Wales, to be closer to his wife’s family.
11He was unemployed for a period of about two and a half years. He says that during this time, he was seeking work but was unsuccessful. The sort of employment he sought included a job at a bottle shop and at Anaconda, a retail store. He says he applied for jobs online on many occasions but did not get an interview. The plaintiff agreed that during this time, he was able to work in employment similar to the work he was doing in the laundry for the defendant, but was unable to find such employment.
12In October 2019, he commenced full-time employment as a cleaner for Fairy Professional Cleaning Services, servicing two nineteen-storey residential apartment blocks. He works 5.00am to 1.00pm, Monday to Friday. The work requires him to vacuum the hallways on each level, clean the lift curtains and handrails, clean any obvious marks on windows, and mop the concierge and foyer area on the ground floors of each apartment building. He has a trolley on which he places his cleaning equipment, including his mop, bucket and the vacuum cleaner. He agreed that he can do this work without any difficulty, that he does not require any assistance, and that he enjoys his work. He says his boss has “been great” and very accommodating of his injury.
Medical evidence
13Following the injury, the plaintiff was referred for physiotherapy, massage, acupuncture and depot steroid injections, which provided minimal improvement in his pain.
14The plaintiff underwent an ultrasound in July 2017 which showed inflammation and a suspected small delamination tear involving the common flexor origin. He was referred to Dr Stephen Kemp, a hand surgeon, who diagnosed a combination of medial and lateral epicondylitis. Dr Kemp noted that the “fluctuating nature of Jamie’s trouble is consistent with him becoming frustrated with inactivity from time to time and using the arm too much”. Dr Kemp’s view was that the most appropriate treatment was conservative – that is, modification of activity to avoid loading the muscle groups and to allow the injury to repair. He referred the plaintiff to a “tennis elbow” program at Hunter Hand and Upper Limb Therapy.
15The plaintiff saw physiotherapist, Rod Millington, for a period of about six weeks from 18 September 2018. Mr Millington reports that the plaintiff was “somewhat unreliable only attending half his scheduled appointments”. Mr Millington formed the view that, whilst the plaintiff’s condition appeared to stabilise with physiotherapy, he would only get substantial improvement with surgery. Mr Millington suggested he seek a second opinion from another surgeon.
16The plaintiff sought a second opinion and consulted Dr Stephen Brindley, hand and upper limb surgeon, on 14 November 2018. At that appointment, the plaintiff reported an inability to carry shopping in his right hand because the traction on his arm caused pain. He reported that the pain woke him from his sleep most nights. Dr Brindley reported no swelling, a full range of flexion and rotation, normal forearm pronation and supination. Palpation elicited tenderness along the ulnar nerve behind the medial epicondyle and on the lateral side of the joint. Dr Brindley referred the plaintiff for an MRI scan, nerve conduction testing and an EMG with a view to investigating whether he should undergo surgical nerve decompression.
17MRI taken on 27 November 2018 demonstrated no tear but did show bony oedema and mild common extensor tendinosis. Further review with Dr Brindley on 19 December 2018 led to a diagnosis of a painful ulnar neuropathy of the right elbow with a recommendation of surgical transposition and neurolysis of the ulnar nerve around the medial site of his right elbow.
18The plaintiff proceeded to surgery on 11 March 2019. At post-operative review on 3 April 2019, the plaintiff was reported as showing normal sensation, normal ulnar motor power and a “quite good” grip. He reported improved pain in the medial elbow. Dr Brindley referred the plaintiff for an exercise program.
19Since late 2019, the plaintiff has had no medical treatment. He uses an over-the-counter skin based gel to alleviate pain, Rapigel, and takes Panadol for pain relief. Further surgery is not recommended.
Medico-legal opinion
20There is no significant dispute amongst the experts who have provided opinions and I deal only briefly with their opinions here.
21Occupational physician, Dr Michael Baynes, prepared a report dated 4 September 2019 in which he noted the plaintiff had normal range of movement of the right elbow with slight discomfort at full flexion over the medial aspect and slight tenderness over the medial elbow. Neurological examination was normal and grip strength was equal on both sides. He noted the plaintiff had undergone an ulnar nerve transposition with an excellent response. He considered that the plaintiff was unfit for pre-injury duties and had physical restrictions including no lifting greater than 10 kilograms with the right arm, and no repetitive forceful gripping or pulling with the right arm.
22Orthopaedic surgeon, Mr Rodney Simm, reported on 22 October 2020 that although the plaintiff was “much better” since his surgery, he had persistent elbow pain that limited a number of his activities. He concluded that he probably had a work-related medial and lateral epicondylitis which may have caused a local irritation of the ulnar nerve. This complaint was complicated by an adverse pain and injury response which has persisted. In his view, the plaintiff did not have capacity for his pre-injury employment or similar employment that required strenuous and repetitive use of his dominant right upper limb. He will be permanently unfit for heavy manual labour. Follow up review on 13 May 2021 did not change Mr Simm’s view as to his capacity for pre-injury employment.
23Orthopaedic surgeon, Mr David Slattery, prepared a report dated 24 June 2020 in which he considered the plaintiff’s prognosis is guarded and his prognosis for a return to his pre-injury status is poor. He noted ongoing pain and weakness and considered that he was likely to continue to experience pain and functional limitation for the foreseeable future. Mr Slattery noted the limitation of his examination as a telehealth appointment rather than in person. Mr Slattery’s opinion was not altered by his review of other expert reports or review of the surveillance footage and subsequent reports dated 1 September 2019 and 31 July 2020.
24Associate Professor Steadman’s report of 4 February 2019 predates the plaintiff’s surgery and is of limited assistance in determining the plaintiff’s current condition.
Consequences for the Plaintiff
25The plaintiff submits that the most significant consequence of his injury is his permanent incapacity for pre-injury employment, or any other employment that would require heavy and repetitive physical work. He has a Year 11 education and other than a brief stint working for his father as a painter and decorator immediately after school, he has experience only in cleaning and as an abattoir worker.
26In his affidavit dated 12 May 2020 (“the first affidavit”), the plaintiff says he currently suffers pain in his elbow which “comes and goes depending on how much activity I engage in”. He wears a brace if he has to, which seems to assist. He tries to avoid medication, and only occasionally takes Panadol. He says he lives with the pain as best he can and deals with the pain throughout the day. It tends to be worse as the day progresses. He says he wakes from sleep once or twice a week and is fatigued in the morning. He has numbness in his right arm if he is particularly active and has “continuous loss of strength” in his right arm. In cross-examination, he explained what he meant by that was his arm “just feels weaker than what it should“. He says his elbow affects his ability to engage in his work and do tasks like putting washing on the line or lifting his arm, and that he struggles with fishing and shopping. He says he also used to enjoy drawing tattoos and occasionally sold his drawings to tattoo parlours but is no longer able to do this. In cross-examination, he said the last time he sold a tattoo was probably in about 2016 in Ararat but he is now unable to hold a pen for too long and a tattoo drawing could sometimes take days at a time.
27He says he now struggles with tasks such as mowing the lawns, gardening, using a Whipper Snipper or anything that requires him to hold heavy items. He cannot play cricket anymore, which he used to do socially.
28In his second affidavit dated 10 May 2021, the plaintiff says he is limited to lifting 5 kilograms or less on the right side and as a result, he tends to favour his left side. He says when he does lift heavy things, he gets severe elbow pain which can last one to two days. He says he uses Panadol when he gets severe pain and takes Panadol two to three times a week and uses Rapigel daily and sometimes twice daily. He says he wears a brace for his elbow when he is in pain, and wears it most days at work. He says he has a bulge at the elbow and the bulge and elbow tip are painful. Straightening his arm causes him “significant pain” and he tries to avoid this if possible. He still wakes once or twice a week with “severe right elbow pain”. He says he tries to limit lifting shopping, clothes and other things but tries to live as normally as possible so he will sometimes endure pain rather than avoid the activity. He says the bulge at his elbow is tender and if he bumps or leans on it, it causes him severe pain. The pain feels like a shooting pain. He says he has some difficulty gripping with his right hand, and it is difficult to hang out the washing or work over shoulder height. He says fishing causes him significant pain and he now uses a rod holder and goes fishing much less frequently. He plays football with his son, as his son is “obsessed” with football, but this can increase his pain.
29In cross-examination, it was put to the plaintiff that video surveillance footage of him playing football showed him to be “pain free”. The plaintiff did not agree and said that “I live with pain every day. I just – I just bear with the pain.” The plaintiff agreed he could reach out in front, down below his feet and above his head, but said that although he could do this freely, he does think about it, it is painful and if it is not painful at the time, for a day or two later it is painful. He said that pain did not interfere with his ability to work but that “I deal with the pain afterwards”. He maintained that knocking his elbow caused severe pain and leaning on his elbow, whilst not necessarily painful at the time, caused pain the next day which felt was a stabbing pain “like needles”. He said the slightest knock, on a “door handle or anything” could bring on severe pain and that he just lives with it. He said putting things in a cupboard above his head, “at times” caused pain but not “severe” pain.
30The plaintiff was shown video surveillance footage of him picking up his dog, walking his dog with the lead in his right hand, restraining his dog with his right hand, leaning on his right elbow and levering himself up and down from the ground, using only his right arm and bearing his bodyweight on his right arm. He maintained those actions all caused him pain in his elbow that he had learned to bear with, though he accepted there was no effort on his part to avoid contact with his elbow, to avoid leaning on his elbow, and there was no sign in the film viewed that he was in any pain at all. He disagreed there was no sign of any discomfort, although when asked to elaborate, he said he felt discomfort doing it, rather than suggesting there was any evidence in the footage that demonstrated he was experiencing discomfort.
Findings
31There is little disagreement between the parties as to the cause of the injury, or the injury itself. The plaintiff has sustained a work-related injury to his right elbow, caused by the heavy and repetitive nature of that work, which was most likely a mixed medial and lateral epicondylitis with some ulnar nerve involvement.
32His injury caused pain, and did not respond particularly well to conservative treatment, but was significantly improved by surgery he underwent with Dr Brindley in March 2019.
33I accept that, since then, the plaintiff has an ongoing injury which is most likely permanent, and is unlikely to improve in any significant way in the future. There is no obvious further treatment available and I accept that, in those circumstances, there is no adverse inference to be drawn from the plaintiff’s lack of attendance on medical practitioners for his elbow since 2019.
34I accept that the injury the plaintiff has suffered causes him some degree of pain, some restriction in the use of his elbow, and has rendered him unfit for his pre-injury duties and any heavy or repetitive work of the kind he performed prior to his injury.
35Plaintiff’s counsel submitted that the plaintiff was straightforward and could not be considered to be exaggerating his symptoms. My assessment was that, whilst the plaintiff was straightforward in his answers to the questions posed by defendant’s counsel, he did not make concessions that were clearly appropriate based on the material, including in relation to his non-attendance at medical appointments. There may be many good reasons why the plaintiff missed medical appointments and I make no finding that his non-attendance demonstrated an unwillingness to pursue treatment or an unwillingness to mitigate his injury. However, I formed the impression that he was unwilling to agree with a proposition put to him that he perceived as being damaging to his case, even where, as in the case of the medical reports attesting to his non-attendance, the evidence was strongly supportive of that proposition. Four different medical professionals had recorded that he had missed appointments, but the plaintiff maintained that the professionals were wrong and that he had attended all his medical appointments. This goes to the reliability of the plaintiff’s evidence. Consequently, I must examine closely his evidence about his degree and level of pain.
36I do not accept that the plaintiff is in constant or daily pain. I find that paragraph 23 of his first affidavit is the most accurate representation of his pain, and that is the pain comes and goes depending on his activity and he only occasionally takes Panadol. It was clear on viewing the surveillance footage from July 2020 that the plaintiff can play football in a free and unimpeded manner. Whilst this does not preclude him suffering pain as he describes, there was no attempt by the plaintiff to avoid using his right arm, to avoid straightening his right arm or to avoid raising his right arm overhead. I do not accept the plaintiff’s evidence that he can do these things, but he “pays” for it later, with pain for a day or two afterwards. If he was indeed in pain after undertaking those activities, I would expect to see him favouring his left side and minimising the use of his right arm where possible.
37The video footage of October 2020 whilst he was walking his dog again showed no attempt by the plaintiff to restrict or reduce the strain or load on his right arm. To the contrary, he favoured his right arm, leaned directly on his right elbow, used only his right arm to lever himself off the ground, and restrained his dog with his right arm. His dog was not a small dog and would likely weigh in excess of 15 kilograms. He picked up his dog with both hands, but did not hesitate, nor show by any expression on his face or movement of his body, that this was in anyway difficult or painful. If these activities invariably had to be paid for later, as the plaintiff asserts, I would expect him to minimise those activities, or at the very least favour his left arm when leaning on one side, or levering himself up and down from the ground. This is not a finding that the plaintiff could not, or should not, engage in the normal activities of daily living. I accept that a stoic plaintiff should not be judged more harshly, merely because of his stoicism. That is not the impression I obtained of the plaintiff. I considered, based on the plaintiff’s presentation in both those videos, that he was not in pain undertaking those activities and was not anticipating that his actions would cause him significant or severe pain in the following days.
38I note that the footage on both occasions was taken on a Friday, after the end of the plaintiff’s working week when he says his pain is at its worst.
39I find that the pain he experiences is unlikely to be severe or significant on a regular basis, though I accept that from time to time it could be. He described the pain he felt after playing football as “it just feels like tension in my elbow” and I accept that as an accurate description.
40I accept the plaintiff’s evidence that when fishing he uses a rod holder as the position required to hold a fishing rod for an extended period is likely to exacerbate his elbow. I accept that this likely means he finds fishing less enjoyable than he previously did.
41I accept that the plaintiff may wake in the night occasionally because of pain, though I do not accept that leaning on or bumping his elbow causes the sort of severe pain he suggests.
Does the Plaintiff satisfy the test?
42I must consider whether the plaintiff satisfied the “very considerable” test I am required to apply. This analysis requires a value judgment in which matters of fact and degree and of impression are operative.[2] I must consider the consequences of his impairment compared with the range of other possible impairments.[3]
[2] Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181 (“Stijepic”) at paragraph [41]
[3] Sabo v George Weston Foods [2009] VSCA 242 at paragraph [66]
43I agree with the plaintiff that the main consequence of his injury is his inability to engage in the sort of heavy manual labour he was able to undertake prior to his injury. The defendant points to the case of Stijepic[4] in which the Court cited with approval the proposition advanced by Chernov JA in Sumbul v Melbourne All Toya Wreckers Pty Ltd[5] that, if a worker successfully returns to alternative duties, it will tend, in the absence of other relevant evidence, against a conclusion that the pain and suffering consequences of the compensable injury are serious. This does not mean that a worker cannot have suffered a serious injury if they have found alternative employment. In Stijepic[6] the worker had failed to establish the loss of his prior occupation was a serious consequence for him. Whilst the resumption of full-time employment in alternative duties might tend against a finding that the consequences of the injury are serious, I accept that it is significant for this plaintiff to be precluded from one of the only kinds of work with which he has experience and for which he would be qualified; that is, work in an abattoir, or other heavy physical work. However, he has not established, on the evidence, that it is a serious consequence for him. He enjoys his current occupation, his boss is understanding and accommodating and there was no evidence that, but for his injury, he intended to pursue any particular career path, or preferred a heavy manual career over the somewhat lighter duties involved in cleaning.
[4] (Supra) at paragraph [47]
[5] [2006] VSCA 292
[6] Supra
44In Stijepic,[7] the Court also found that the plaintiff did not suffer a continuous substantial level of pain and that his pain was controlled by moderate strength, non-prescription medication. The plaintiff has likewise not established that he is in severe or significant pain such as to render the consequences of his injury sufficiently serious to meet the test.
[7] Ibid
45Similarly, having regard to what he has lost, and what he has retained, I am not satisfied that the modification to his manner of fishing and the relatively minor limits he experiences undertaking shopping, housework and gardening, amount to consequences which are more than significant or marked and at least very considerable.
46For these reasons, the application is dismissed.
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