Neeld v Victorian WorkCover Authority
[2017] VCC 616
•24 May 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-16-03577
| BENJAMIN TULLY NEELD | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE BOWMAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 May 2017 | |
DATE OF JUDGMENT: | 24 May 2017 | |
CASE MAY BE CITED AS: | Neeld v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 616 | |
REASONS FOR JUDGMENT
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Catchwords: Accident Compensation Act 1985 – s134AB – injury to the left thumb – application in respect of pain and suffering damages only – reliance upon paragraph (a) of the definition – plaintiff also suffering from mental health problems – interference with grip – whether statutory test satisfied – factors to be considered
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A D B Ingram | Verduci Lawyers |
| For the Defendant | Mr D R Myers | Russell Kennedy |
HIS HONOUR:
General background
1 This matter comes before me by way of an application pursuant to s134AB(16)(b) of the Accident Compensation Act 1985, hereinafter referred to as “the Act”. Leave is sought in relation to pain and suffering damages only. Reliance is placed solely upon paragraph (a) of the definition of serious injury. The injury is to the plaintiff’s left hand and, in particular, to his left thumb. The injury occurred on 20 May 2013. At the time, the plaintiff was employed as a mould fitter and labourer by an entity called Padman Stops Pty Ltd, hereinafter referred to as “Padman”. His employment was based in Cobram. He was injured on 20 May 2013, when his left thumb became entangled in a chain used for lifting weights and attached to and operated from a crane. This shall hereinafter be referred to as “the accident”. There is no issue concerning the occurrence of the accident or the fact that in it the plaintiff sustained injury to his left thumb. The sole issue is whether the requirements of the statutory test have been satisfied. I would refer to transcript (hereinafter referred to as “T”) 7–8. The plaintiff is right-handed, so that the injury is not to his dominant hand.
2 Mr A Ingram of counsel appeared on behalf of the plaintiff. Mr D Myers of counsel appeared on behalf of the defendant. The plaintiff gave oral evidence and adopted two affidavits as being true and correct. The balance of the evidence was documentary in nature, and was tendered either by consent or without objection.
Factual background
(a)The plaintiff’s background, education, training and employment prior to the injury
3 The plaintiff is 28 years of age, he having been born in 1988. As this is an application in respect of pain and suffering damages only, extensive details concerning the plaintiff’s employment history, rates of pay and the like are not required. Suffice to say that the plaintiff was educated to Year 11 level at Cobram Secondary College. He then was employed as a process worker with a baby-formula company for approximately six months. He worked as a labourer with a concreting company, and then carried out general labouring jobs on constructions sites with various employers. He also obtained some qualifications, such as a certificate in relation to food handling and the responsible serving of alcohol, along with a forklift driver’s licence and a card which enabled him to work on construction sites.
4 He commenced employment with Padman in late 2012, initially on a trial basis. On 20 February 2013 he became a full-time employee. His work involved the making of concrete moulds, the cutting of mesh, and generally the lifting of heavy objects. It was work of this type that he was performing when the accident occurred on 20 May 2013.
(b)The plaintiff as a witness
5 Whilst the plaintiff has had some difficulties over the years, including a mental health problem, essentially I found him to be a witness who did not attempt to mislead and who did his best to answer the questions put to him. In other words, he seemed to me to be an honest witness. Associate Professor Myron Goldwasser, orthopaedic surgeon, who examined the plaintiff at the request of the defendant, described him as friendly and cooperative. The overall impression made by him was a favourable one, and I have no reason to doubt that he was endeavouring to answer all questions accurately to the best of his ability.
(c)The state of the plaintiff’s health prior to the injury
6 The plaintiff is an asthmatic. Issues of his mental health have arisen, but it would appear that these have been first diagnosed with any accuracy subsequent to the injury. His mental health shall be discussed subsequently. The plaintiff was also involved in a motor vehicle accident in which he suffered some head injuries. The plaintiff also recounted that he had been assaulted and struck with a bottle a few years previously and thought he may have had a post-traumatic stress reaction following this. There is no suggestion that he had suffered any injury to the left thumb or hand prior to the accident.
(d)The injury, its treatment and diagnosis
7 As stated, the plaintiff’s left thumb was injured on 20 May 2013 when the plaintiff was attempting to untangle a chain hanging from a crane and attached to a weight. It is alleged that the driver activated the crane whilst this untangling was occurring, and the plaintiff’s left thumb was injured as a result.
8 He was taken by ambulance to the Cobram Hospital where the hand was x‑rayed. The x‑ray revealed a comminuted fracture of the left first proximal phalanx noted distally, and a slight diastasis of fracture fragments was noted. It would seem that the plaintiff was also treated at Cobram Hospital with analgesics, before being transferred to Shepparton Hospital, where the wound was cleaned and dressed. It would also seem that, under local anaesthetic, the closure of the wound was completed. I would refer to the detailed report of Associate Professor Felix Behan, Clinical Associate Professor of Surgery at St Vincent’s Hospital, who examined the plaintiff at the request of his solicitors in January 2017.
9 It would seem that the plaintiff’s thumb was put in plaster – see the report of Mr M A Khan, orthopaedic surgeon, who also examined the plaintiff at the request of his solicitors, and who reported on 24 March 2017. The plaintiff attended some follow‑up appointments at the Shepparton Hospital. The plaster was removed one month after the injury, and he then underwent a course of physiotherapy. Subsequently, he was seen by a doctor at the Shepparton Hospital and told that nothing further could be done. A further x‑ray was performed on 24 July 2013 and this suggested that good bony union had occurred across the fracture site.
10 It would appear that the plaintiff has had little, if any, treatment since. Associate Professor Behan has suggested that, if further radiological investigation indicated arthritic changes, an arthrodesis would be an appropriate line of management. Associate Professor Goldwasser expressed the opinion in his report of 24 September 2014 that the plaintiff’s condition had largely stabilised and was likely to remain much the same in the foreseeable future. He considered that the plaintiff had been left with a decreased range of motion of the thumb and a partial sensory loss. He was prepared to make a Whole Person Impairment assessment pursuant to the AMA Guides, an ingredient of which is permanence.
11 As is evident, the plaintiff has been examined for medico-legal purposes. Dr James Rowe, specialist occupational physician, examined the plaintiff at the request of his solicitors on 15 November 2016. At this time, the plaintiff was living in Wodonga. Dr Rowe took an appropriate history. The current symptoms of which the plaintiff complained were that his left thumb was stiff and painful, and that sensation around the tip of it was not normal. Dr Rowe noted that the plaintiff was receiving a monthly injection for his psychological condition. The plaintiff was able to drive a car, but no longer played sport and tended not to socialise, partly because of the condition of his thumb and partly because of his psychological condition.
12 Upon physical examination, Dr Rowe noted that the plaintiff had limited movements of the thumb and could not fully extend it at the interphalangeal joint. There was also some restriction at the metacarpophalangeal joint. There was impaired sensation about the volar aspect of the thumb distal to the scar, and the plaintiff had difficulty opposing the thumb and the fifth finger. In short, Dr Rowe found that the plaintiff did have impairment and loss of range of movements of the thumb. He considered that the plaintiff had been left with a permanent long-term impairment. He also considered that, in the long term, the plaintiff will develop premature osteoarthritis in the thumb.
13 Mr M A Khan, orthopaedic surgeon, also examined the plaintiff at the request of his solicitors. He reported to them on 24 March 2017. In relation to the plaintiff’s past medical history, he noted that he had been seeing a psychiatrist in Cobram in 2013 before the injury. He also recorded that the plaintiff had been playing football prior to the accident. He also noted that the plaintiff had struggled to find a suitable job after the injury, and in fact had not worked since February 2015. The last work that he had done was described as a period of two years’ employment as a labourer using a forklift in a cool-room. Mr Khan also noted that the plaintiff had received psychiatric treatment, being diagnosed as having post-traumatic stress disorder with a previous history of schizophrenia.
14 The current symptoms complained of by the plaintiff were of pain and stiffness in the left thumb in the area of the interphalangeal joint, with pain on attempting to put pressure on the thumb and gripping objects. Active manual use of the thumb caused pain. The plaintiff had difficulty performing activities involving the pincer grip, the key-holding grip or tripod grip. He frequently dropped objects from his left hand on account of pain in the interphalangeal joints and the tip of the thumb. He had a constant ache down the whole length of the thumb, extending from the carpometacarpal joint area downwards. The plaintiff also stated that, on account of the pain in the left thumb, he had been getting nightmares for some time. In relation to medication, he was taking some anti-psychotic drugs, and Panadol for the pain as needed. As far as symptoms are concerned, the plaintiff told Mr Khan that he had a constant dull throbbing pain and stiffness around the left thumb area, particularly in the interphalangeal joint of the thumb, with some numbness in the dorsal aspect of the thumb and extending to the tip of the thumb in relation to the branch of the radial digital nerve of that thumb.
15 There was near ankylosis of the interphalangeal joint. The metacarpophalangeal joint had fixed flexion from 15o to 30o, and the plaintiff could not fully oppose the thumb to the tip of the little finger. Testing of grip strength revealed that, effectively, the grip strength of the left hand was in excess of 40 per cent weaker than that of the right. Mr Khan expressed the opinion that, as a result of the injury, the plaintiff developed post-traumatic stiffening and degenerative arthritis in the interphalangeal joint of the thumb, with soft-tissue scarring, resulting in pain, disability, numbness and some disfigurement.
16 Associate Professor Felix Behan saw the plaintiff in January 2017. The history taken by Associate Professor Behan is largely in line with that taken by other examiners and that advanced by the plaintiff. In relation to the plaintiff’s mental health prior to the accident, he did note that the plaintiff was taking Pristiq, an antidepressant. On examination, Associate Professor Behan noted that the plaintiff had effectively a fused left thumb at the interphalangeal joint. A limited capacity of range of movement was possible under direct manual pressure, but it caused the plaintiff to flinch with pain. The plaintiff also stated that active manual tasks caused pain in the thumb.
17 As did Mr Khan, Associate Professor Behan found a lack of hand function movements in relation to the tripod, pincer and key-holding grips. All were limited, with pain causing the plaintiff to flinch. Therefore, his grip was more of an adductor grip. The plaintiff said that he had a tendency to drop items because of the pain, and that his hand was worse in the winter months. There is an area of numbness on the dorsal surface of the thumb from the middle of the proximal phalanx almost to the eponychial area of the thumbnail.
18 Associate Professor Behan noted that the symptoms were influenced by the plaintiff’s psychiatric history, with diagnoses ranging from schizophrenia to post-traumatic stress disorder to anxiety and depression.
19 The diagnosis of Associate Professor Behan was of a crushing injury causing a fracture of the shaft of the proximal phalanx of the left thumb. He took a considerable number of digital photographs, which were attached to his report and thus placed in evidence. Some of these clearly demonstrate the poor pincer, tripod and adduction movement of the left thumb compared with the normal appearance of the right, and the unusual way in which, for example, the plaintiff attempted to turn the door handle when leaving. Associate Professor Behan suggested further radiological investigation, along with more physiotherapy. If the radiology indicated arthritic change, an arthrodesis might be considered.
20 One report apparently provided to the defendant was put before me, it in fact being contained in the Plaintiff’s Court Book. That is the report from Associate Professor Myron Goldwasser, orthopaedic surgeon, and seems to have been provided in the context of an impairment benefit assessment. In any event, a considerable part of the ultimate findings of Associate Professor Goldwasser relates to the AMA Guides and an Impairment Assessment.
21 Associate Professor Goldwasser took a detailed history of the incident. He recorded that the plaintiff’s thumb was immobilised in plaster for about a month. Physiotherapy treatment resulted in some improvement in function, but the thumb never returned to normality. As at the time of seeing Associate Professor Goldwasser, the plaintiff’s condition was comparatively stable. The plaintiff had limitations of function in his left thumb and hand. He could not move the thumb well, and could not actively straighten it. With activity, the entire thumb, but mainly the proximal phalanx, felt uncomfortable. There was altered sensation involving some 8 centimetres of the full length of the thumb, which was 10 centimetres. This caused awkwardness and clumsiness in relation to its use. The plaintiff was not currently taking any medication for the thumb. Associate Professor Goldwasser was also advised of the presumptive diagnosis of schizophrenia that had been made approximately a year before the interview. The plaintiff told Associate Professor Goldwasser that he could no longer play football, and he used to enjoy doing this on a weekly basis.
22 Examination of the left thumb revealed that it was held in a posture of semi-flexion. The plaintiff could not actively straighten it. There was diminished sensation in the whole length of the thumb.
23 Associate Professor Goldwasser provided an analysis of his findings. He was of the view that the plaintiff suffered a compound fracture, comminuted, of the distal shaft of the proximal phalanx. The fracture had healed, but the plaintiff was left with a decreased range of motion of the thumb and a partial sensory loss of it. He considered the plaintiff’s condition to be largely stabilised, with the prognosis remaining much the same for the foreseeable future. Associate Professor Goldwasser was prepared to make a Whole Person Impairment, an ingredient of which is permanence.
24 As stated, the report of Associate Professor Goldwasser was in fact placed in evidence in the Plaintiff’s Court Book. No other medico-legal report of an examination carried out on its behalf was place in evidence by the defendant.
25 There is no great dispute concerning the diagnosis in this matter. As stated by Associate Professor Goldwasser, the plaintiff suffered a compound fracture, comminuted, of the distal shaft of the proximal phalanx, and has been left with a decreased range of motion of the thumb and a partial sensory loss of it. As stated by Mr Khan, this has resulted in pain, disability, numbness and some disfigurement of the left thumb.
26 There is no suggestion that the plaintiff suffered from any prior condition of, or had any previous injury to, that thumb or that hand. Thus, this is not a case which concerns aggravation of a pre-existing condition and this was not argued.
27 There was also no argument but that the consequences of the plaintiff’s injury are permanent within the meaning of the Act, in that they will persist for the foreseeable future. This seems to be the unanimous opinion of the medical examiners. Both Associate Professor Behan and Associate Professor Goldwasser were prepared to make assessments of Whole Person Impairment, an ingredient of which is permanence.
28 Pursuant to s134AB(38)(h) of the Act, psychological or psychiatric consequences of a physical injury are only to be taken into account in cases where reliance is placed upon paragraph (c) of the definition of serious injury. Accordingly, in the present case they are not to be taken into account. That the plaintiff has had mental health issues would appear to be beyond dispute. As has been sworn to by his mother, Ms Glenda Blake, in her affidavit of 27 January 2017, prior to the plaintiff’s employment with Padman he had voluntarily admitted himself to hospital, where he had been diagnosed with an unidentified psychological disorder. Apparently blood tests were negative for illicit drugs. This mental illness appeared again some considerable time after the accident. The plaintiff was again hospitalised, and it would seem that blood tests were again negative for illicit drugs. This admission to the Goulburn Valley Hospital seems to have occurred on 14 February 2014, the plaintiff having been involved in a siege. Whilst it would appear that he may have engaged in some illicit drug use earlier in his life (see the affidavit of his mother), it would appear that the diagnosis that has ultimately been made is one of post-traumatic stress disorder against a background of a history of schizophrenia. I would refer to the histories taken by Mr Khan and Associate Professor Behan, as well as that taken by Associate Professor Goldwasser. The plaintiff now has a monthly injection in relation to his mental health condition.
29 It is a little difficult to assess whether the plaintiff’s pre-existing and ongoing mental health condition plays any, and if so what, role in the consequences of the injury. On the one hand, it might be argued that the defendant must take the plaintiff as it finds him, and that an injury of this nature to someone already suffering from a mental illness may result in consequences that are more dire than would otherwise be the case. On the other hand, there are the references by Associate Professor Behan to the plaintiff’s psychiatric state clouding the issue of an assessment of a permanent impairment (admittedly a different issue to that which is to be determined in the present case) and to a psychiatric overlay. The situation is not assisted by the complete absence of any reports from a treating psychiatric practitioner or from other treating medical practitioners.
30 On balance, it seems to me that the issue of the plaintiff’s mental health is not a major one and may well be something of a red herring. Whatever its precise diagnosis and whether or not at some stage, which seems to have been prior to the accident, illicit drugs were involved, I accept that, when he commenced employment with Padman, the plaintiff was living a normal life – see, for example, the unchallenged evidence of his mother, Ms Glenda Blake, as sworn to in her affidavit of 27 January 2017.
31 Further, whilst there was a flare-up in his mental condition some months after the accident (and he was involved in a siege on 14 February 2014, following which he was an inpatient at the Goulburn Valley Hospital for three weeks), his schizophrenia was then at least provisionally diagnosed. (I might add that it is not entirely clear to me as to whether this siege occurred in February 2014 or October 2013 – see T25.) That the plaintiff at one stage used drugs is not contentious, but it is now approximately three years, and following the siege, that he used any – see T30. The plaintiff’s mental health problems would seem to be under control. He has a monthly injection.
32 I appreciate what has been said by Associate Professor Behan, but I find it difficult to conclude with any confidence that the plaintiff suffers from any psychological or psychiatric consequences of the injury that are of any real moment. That he has had mental health issues which are now controlled by means of a monthly injection is evident. Any psychological or psychiatric consequences of the injury which he does have shall not be taken into account, but, against a somewhat complicated background, I am not of the view that they play any significant role in the plaintiff’s symptomatology or in some way add to or become confused with the physical consequences.
(e) Other developments since the injury
33 It would appear that, after the accident, the plaintiff performed light duties for Padman for a couple of days. He has sworn that he could not perform his work. His employment ceased. The plaintiff obtained a Certificate III in Pathology in the hope that he may be able to find employment obtaining blood samples, but found that it involved the use of both hands and he could not do it continuously. He also attempted, but did not complete, an online business management course.
34 In November 2014, he commenced working as a factory hand at Pullar’s Cold Storage, apparently in Cobram. There, he was packing pallets and doing some maintenance work. He found this work difficult, because of the problems with his left thumb and hand. He ceased this work in March 2015 and moved for a period to Birchip to be of assistance to his father. In July 2015, he worked for one month as a picker and packer, and again found the work difficult and painful. He found that he would drop boxes. In approximately September 2015 he found work with an employment agency called Ranstead, which entity sent him to different factories. The type of work included being on a production line, restoring machines, packing and the like. The plaintiff has sworn that he found this type of work difficult. In early 2016, he did some carpet laying for a short period. He had problems in lifting and stretching carpet and in using tools. He in fact registered a carpet laying business, but only seems to have worked at this for a few days. He is not currently working.
35 Developments in relation to the state of the plaintiff’s mental health have already been discussed.
Ruling
36 As is evident, whilst the injury to the plaintiff’s left thumb is a comparatively simple one, he has led a somewhat complicated life. On balance, I find that he has discharged the burden of proof. I have come to that conclusion for the following reasons, which are not listed in order of importance or significance.
(i) In applications of this nature, the credit of the plaintiff is usually important. As was said by Brooking JA in Palmer Tube Mills (Aust) Pty Ltd & Anor v Semi (1998) 4 VR 439 at 448:
“Moreover, in ‘serious injury’ applications the credit of the applicant is of great importance …”
This observation was referred to by the Court of Appeal in Papamanos v Commonwealth Bank of Australia [2014] VSCA 167 and more recently in Haidar v Transport Accident Commission [2016] VSCA 182.
As I have stated, I find the plaintiff to be an honest witness, who was endeavouring to answer all questions accurately and to the best of his ability.
(ii) The age of the plaintiff is an important factor. He was 24 years of age when the accident happened. He is now 28 years of age. Whilst he has had some problems, there is no reason to believe that he will have anything other than a normal life expectancy. The pain and suffering consequences from which he suffers could well persist for many decades to come.
The injury may not be to his dominant hand, but the plaintiff, probably for many decades to come, will have a constantly painful left thumb and the lack of hand function movements referred to by Associate Professor Behan – limitation and pain associated with the tripod, pincer and key holding grips.
(iii) In relation to the loss of utility and dexterity in the hand, it is to be remembered that the plaintiff is, in essence, a manual worker of limited education, who has lived, and continues to live, in rural Victoria. Whilst he currently resides with his mother in Wodonga, he has lived in considerably smaller towns. In performing the type of work to which he is accustomed, there exists the risk of extra pain, exceeding the underlying pain, caused by contact with the injured thumb.
(iv) In relation to that pain, the plaintiff has sworn that it is constant – see, for example, T31. I accept his evidence in this regard. His description to Mr Khan of the symptoms from which he suffers include pain on attempting to put pressure on the thumb and gripping objects; active manual use of the thumb caused pain; he has difficulty with various grips, as described above; he frequently drops objects from his left hand on account of pain in the interphalangeal joint and the tip of the thumb; and he has a constant ache along the whole length of the thumb, extending from the carpometacarpal joint area downwards. He also told Mr Khan that, on account of the pain, he has been getting nightmares for some time.
As was said by Dodds-Streeton JA in Kelso v Tatiara Meat Co PtyLtd (2007) 17 VR 592:
“The endurance of permanent daily pain requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence.”
To have pain at this level constantly, and with frequent aggravations of it arising from the use of the thumb, on a permanent basis seems to me to be a consequence of quite some magnitude.
(v) I had the opportunity, along with counsel, of examining the plaintiff’s left hand and having him explain some of the problems associated with it. I would refer to T33-34. During the course of this examination, the plaintiff complained of constant pain, worse when the thumb is touched or used. He also referred to it as being deformed. In addition, there is some loss of sensation at the top of the thumb, although the area is not completely without feeling. There is also a limited capacity to bend the thumb. As demonstrated above, this seemed to me to represent quite a marked disability.
(vi) There has also been considerable interference with the plaintiff’s lifestyle. Prior to the accident, he had returned to playing football, albeit for the reserves in a local team near Cobram. However, whilst he might not have been playing at a particularly high level, it was a sporting activity to which he had returned, which he enjoyed, and which is now lost to him. In his younger days, he had been an outstanding javelin thrower, competing internationally, but I gather he had not been engaged in that sport for some time prior to the accident. He has sworn that the injury affects him in his everyday life and is constantly on his mind. It has hindered him from doing things a young man of his age should be able to do without thinking “… and the simplest tasks that I used to take for granted are now difficult form” – see the plaintiff’s affidavit of 4 September 2015. In that regard, he has difficulty doing such things as folding or hanging clothes, tightening the lid on a bottle, picking up crockery, working with tools, doing up buttons, getting dressed and the like – see his affidavit of 27 January 2017.
37 In summary, I am satisfied that the consequences of the plaintiff’s impairment or loss of body function could, when the relevant comparison is made with other cases in the range of possible impairments or losses of a body function, be fairly described as being more than significant or marked and as being at least very considerable.
Conclusion
38 The plaintiff is successful. He has discharged the burden of proof. Leave is given to him to bring proceedings for pain and suffering damages.
39 I shall hear the parties as to any ancillary orders that are required.
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