Neissner-Zmegac v Victorian WorkCover Authority
[2018] VCC 1218
•10 August 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-17-05931
| MARK NEISSNER-ZMEGAC | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
---
JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 July 2018 | |
DATE OF JUDGMENT: | 10 August 2018 | |
CASE MAY BE CITED AS: | Neissner-Zmegac v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1218 | |
REASONS FOR JUDGMENT
---
Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – impairment to the right ring finger/hand – pain and suffering only – whether consequences to the plaintiff are “serious”
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Akgun v Moreland Bus Lines [2015] VCC 1722; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Aburrow v Network Personnel Pty Ltd [2013] VSCA 46; Humphries & Anor v Poljak [1992] 2 VR 129
Judgment: Application dismissed.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Magee QC with Mr R Paoletti | Henry Carus & Associates |
| For the Defendant | Mr R Kumar | Russell Kennedy Lawyers |
HER HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of his employment with Red Box Development (“the employer”) in February 2015 (“the said date”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act. There, “serious” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
4 The body function relied upon in this case is the right ring finger/hand (“the finger/hand”).
5 Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.
6 The impairment of the body function must be permanent.
7 The plaintiff bears an overall burden of proof upon the balance of probabilities.
8 By subsection (38)(c) of the Act, the impairment must have consequences in relation to pain and suffering which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “at least very considerable” and “more than significant” or “marked.”
9 I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
10 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[1] and Grech v Orica Australia Pty Ltd & Anor[2] in reaching my conclusions.
[1](2005) 14 VR 622
[2](2006) 14 VR 602
11 The plaintiff relied upon three affidavits and he was cross-examined. He also relied on two affidavits sworn by his brother, Darren, and an affidavit of his brother, Dylan. An affidavit sworn by the plaintiff’s employer, Jesse Mirabella, was not relied upon. The defendant relied on an affidavit sworn by investigator, Sara Ransom.
12 In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s evidence
13 The plaintiff is presently aged thirty-one, having been born in November 1986 in Melbourne. He is right handed. For nearly two years he has lived with his girlfriend.
14 Prior thereto, the plaintiff lived with his brother, Darren. After the said date, the plaintiff’s relationship with Darren deteriorated, in part because of the plaintiff’s drug use, and he was asked to move out.[3]
[3]Transcript (“T”) 37
15 The plaintiff completed Year 10 and then did a carpentry apprenticeship with Top Cat Constructions for about three and a half years.
16 Thereafter, the plaintiff worked for other builders. He completed a Certificate IV in Business and Construction prior to commencing a diploma. Whilst studying full time, he worked nightshifts at Safeway. He started a Diploma of Business and Construction around the time he started working for the employer, in November 2013. He later said, however, he started the Diploma six to eight months before the said date.[4]
[4]T69
17 There is no relevant history of any injury to the finger/hand prior to the said date.
18 The plaintiff started working for the employer as a contractor on 1 November 2013 and was paid through his own ABN number. He usually worked up to fifty hours a week, invoicing the employer $45 an hour. He was employed to work on a redevelopment project, Dutton Motors in Richmond, constructing a car showroom.
19 In his first affidavit sworn 10 August 2017, the plaintiff described, on a date he could not recall exactly, but in the first week of February 2015 while working on a marquee, he was finishing tightening up a nut when one of the aluminium posts collapsed and fell, crushing his right hand between it and the concrete slab (“the incident”).
20 The plaintiff felt immediate pain in his right hand and told “Tom”, a co-worker, that he had injured his hand. He kept working and bandaged his hand the next day.
Treatment
21 On 9 February 2015, the plaintiff saw Dr Yusuf at his local medical clinic as his right hand pain was not improving. He had an x-ray on 25 February 2015. He believed his right hand was put in a splint, but did not exactly remember when. He continued working, but with increasing right-hand pain.
22 The plaintiff saw his usual general practitioner, Dr Solomon, who referred him to the Emergency Department at Frankston Hospital on 28 February 2015. There, the plaintiff saw a plastic surgeon. He had an operation on the finger on 3 March 2015 and a follow up x-ray on his right hand on 10 April 2015.
23 The plaintiff commenced hand therapy at Peninsula Hand Therapy in April 2015. The pain in his hand was not improving and there was some talk of having the finger fused; however, he did not want to have that done as it would mean he would lose the movement at the top of the finger.
24 The plaintiff thought he would have seen Claire Stockdale, hand therapist, six or seven times, but could not remember how many times he saw her after January 2016 when the screw was removed.[5] She gave him exercises, which he continues to do, basically like gripping onto a ball, like a tennis ball, and moving the finger at the joint.[6]
[5]T58
[6]T59
25 The plaintiff asked to be referred for a second opinion and Ms Stockdale, suggested he see Mr David Syme, plastic and hand surgeon.
26 The plaintiff first saw Mr Syme on 16 September 2015. Mr Syme discussed with him fusion surgery or removal of the screw.[7] He then organised an x-ray of the finger and also for the screw to be removed (“the procedure”). The plaintiff was having problems with movement of the finger and hoped that the removal of the screw would help. This procedure was undertaken in about January 2016.
[7]T5
27 The plaintiff cannot remember the last time he saw Mr Syme or whether he saw him after the procedure. He agreed the procedure improved his hand symptoms.[8] He did not go back to Mr Syme because he felt “like [he] was not really giving him information to work off and [he] was kind of left in a position where [he] did not know where to go or what to do. [He] had no other choice but to be happy with the removal of the screw and had nothing else he could do.”[9]
[8]T55
[9]T58
28 Before the procedure, the plaintiff’s finger or hand did not feel right at the joint. Basically, he was getting pain through the end of the finger. He could not move it properly, which is what led to the screw being removed. After that was done, “it just started to free up the movement of [his] hand a little”. The pain was starting to go and he was starting to get a little bit more movement in the finger. He agreed he was happy with the situation after the procedure.[10]
[10]T57
29 The plaintiff initially wore a finger guard in 2015 after the injury. He later wore a splint, and was still wearing it after mid-2015, but not after the screws were removed.[11] He was told not to wear it after the procedure.[12]
[11]T50
[12]T51
30 The plaintiff confirmed his complaints noted by Dr Solomon in early 2016 and that he saw that doctor on 17 May that year because of problems with his left hand. He initially said, at that stage, he had not been having any problems with his right hand as he was back at work.[13]
[13]T39
31 The plaintiff agreed his left hand was the focus when he saw Dr Solomon on 17 May.[14] The plaintiff explained the note of that attendance meant that he was not keen to claim in relation to that injury.[15] His left finger ultimately healed up and he has never worn a splint on it.[16] His left hand is not an issue.[17]
[14]T43
[15]T44
[16]T49,T92
[17]T92
32 The plaintiff did not go back to see his doctor about his right finger after May 2016 as he did not know what more could be done for him. It was hard for him to keep going to the doctor.[18]
[18]T51
33 The plaintiff has not discussed further hand therapy with anyone. He cannot afford this treatment and does not have the chance to do it because he is working full time, five or six days a week.[19] He earlier ceased therapy as there was a problem with funding.[20]
[19]T60
[20]T93
Work
34 The plaintiff stopped work on about 28 February 2015 due to his injury. In about early 2016, he returned to full-time work for a few weeks for a builder in Richmond. He then worked for another builder.[21]
[21]First affidavit
35 In cross-examination, the plaintiff explained that he worked for two weeks after the incident. He tried to do his normal work, but struggled.[22] He was basically “let off” work. He was not told to come back at that time.[23]
[22]T34
[23]T35
36 In his third affidavit sworn on 19 July 2008, the plaintiff gave further details of his post-incident employment.
37 Following the injury, the plaintiff was dismissed from work at the end of February 2015. His WorkCover claim was ultimately accepted, but he did not receive payments until June 2015. His relationship with the employer became increasingly difficult after the injury and lodgement of the claim.
38 Without income for over three months, the plaintiff suffered great financial hardship and initial stress, with health providers, such as his hand therapist, hassling him for payment.
39 In about April or May 2015, the plaintiff was contacted by Justin Barnett, who offered him a short-term job in Sydney, assembling carpentry. He took this work while he was still having hand therapy and wearing a protective splint. However, this was a relatively light job and he was working with another person with whom he had worked at the employer. He knew Mr Barnett from when they both worked with the employer.
40 The plaintiff did the cabinet assembly work for just under a week with another carpenter. The work did not require heavy lifting. He wore a plastic cover on his finger to protect it from harm while working. Mr Barnett was not present while the work was undertaken.
41 The plaintiff was not paid for this work, and on returning to Melbourne, his requests of Mr Barnett for payment were ignored. The plaintiff’s subsequent investigations revealed that that employer was the subject of a story on A Current Affair about not paying subcontractors. The plaintiff has never been paid for this work, nor had any further contact with Mr Barnett since.
42 Prior to being injured, the plaintiff had been engaged to perform carpentry work at a residential renovation site in early to mid-2015; however, as a result of his injuries, he was not able to do that carpentry work and his brother, Darren, agreed to do it instead. The plaintiff passed payment for that job onto his brother after it was paid into his account.
43 In about late 2015, the plaintiff performed some light carpentry work for Bourjon Homes for a short time. He relied heavily on his left hand to perform a lot of the work. The work was difficult to perform due to his injury, but he persevered as best he could.
44 The plaintiff did not mention the 2015 jobs in his early affidavits as they were only a week’s work or “something sort of on and off, so it was not very consistent”.[24] He was working at various stages in September 2015 and was on restricted duties pursuant to a certificate of 7 September 2015.[25] He had told Dr Nam in 2015 that he was working.[26]
[24]T65
[25]T94
[26]T95
45 The plaintiff agreed Dr Solomon certified him fit for pre-injury normal work from 29 February 2016 and told him he did not require any further treatment and there has not been any different certification by that doctor since.[27]
[27]T38
46 The plaintiff probably worked as a subcontractor under his ABN for four different builders in addition to his current employer, Steller, after the procedure in January 2016. That earlier work would either come to an end, or he would have problems being paid, so he felt it was “like a bit of shaky ground”.[28]
[28]T41
47 Although the plaintiff returned to full-time work, he essentially did work which did not put pressure on his right hand.
48 The plaintiff commenced work with Steller in mid 2016.
49 The plaintiff’s boss, Jessie Mirabella, is aware of the finger injury. The plaintiff has someone assisting him at work with all tasks that put pressure on his right hand, such as heavy lifting. If he was to do the job himself, the plaintiff would really struggle because of his pain. The no longer uses his current ABN as he is employed by Steller.[29]
[29]Third affidavit
50 The plaintiff initially thought he actually told Steller of his injury when he started working there in around November 2016.[30] When it was suggested to him he did not tell the boss, Mr Mirabella, of right finger problems until October 2017, the plaintiff said he did not recall if he told him straight away, “like when [he] got the job, but [he] knew it was brought up”.[31] He then said he would not have told Mr Mirabella at the outset, as that would have jeopardised his job.[32]
[30]T81
[31]T82
[32]T83
51 Steller had “twenty boys” working for it so the plaintiff was always working with someone and if there was anything he felt that he could not do, he always had someone to help. [33]
[33]T83
52 Post-incident, the plaintiff tried to tell other employers about his injury. If he did not tell them, it was purely because he wanted the job. He agreed he was able to do the work, depending on what the work was. He agreed he had not been discriminated against or failed to get any work because of having owned up to suffering a WorkCover injury.[34]
[34]T83
53 The plaintiff works for Steller five or six days a week, 7.00am to 3.30pm, as a carpenter, using his hands in that work, but he is very limited in what he can do and very careful in what he does.[35] He is overseen by Mr Mirabella, but he is not always present to see him work.[36]
[35]T78
[36]T84
54 When the plaintiff told Mr Mirabella about his hand, he would have been more mindful of the work he gave to the plaintiff but the plaintiff agreed he continued to perform regular carpentry work. Someone was actually assigned work with him.
55 The plaintiff had not mentioned the injury to other colleagues at the start. It was something where he would be working and then he would ask for help.[37]
[37]T87
56 Probably about six months ago that the issue was really brought up.[38] The plaintiff agreed, before then, he had worked without assistance and that he asked for his brother, Dylan, to be assigned to him as an apprentice and he was basically his brother’s supervisor.[39]
[38]T85
[39]T86
57 The plaintiff agreed Dylan was the person most commonly doing heavy lifting because he was the apprentice. The plaintiff disagreed there was no difference between the situation in the last six months and in the first year or so of his employment. He now gets different jobs and Dylan helps with heavy lifting as the boss has basically organised it with Dylan to back him up at work.
58 The plaintiff denied that his work ordinarily involved two people. The majority of time he was doing lighter duties to what he would do normally.[40] He is still restricted to some extent when he is left at work.[41] He can put things on his shoulder and carry them, but having to pick things up with his hand and put things down, or lifting above his head, is where he really struggles. He uses both hands on the tools.[42] He is still restricted, even though he gets help from his brother. He initially said he did not think it was any different from how he would normally use an apprentice,[43] but then said Dylan basically carried the tools in and out from the job every day.[44]
[40]T88
[41]T89
[42]T97
[43]T98
[44]T99
Pain and limitations
59 As of August 2017,[45] the plaintiff had finger pain every day, most of the time. He had a throbbing pain in the first knuckle of the finger, which ranged from 2 to about 5 or 6 out of 10. He could not move the finger around the first knuckle. His finger pain increased if he put pressure on it when writing or wearing tight gloves. The pain was made worse in cold weather.
[45]First affidavit
60 The finger hurt when the plaintiff accidently bumped or knocked it. His right hand grip was significantly weaker than prior to injury. If he tried to get a firm grip of something, his finger pain increased.
61 The plaintiff continued his grip strength has been significantly weaker ever since the injury. When taken to Ms Stockdale’s measurements in 2015 of pretty much equal grip strength compared to more recent measurements done by Dr Kennedy,[46] the plaintiff could not really explain why his grip was so weak now, but maintained his right grip is still weaker than his left.[47] He was not too sure he would say that it had improved.[48]
[46]T66
[47]T67, T91
[48]T68
62 The plaintiff confirmed that his pain continues as the level he described in August last year.[49]
[49]T60
63 In cross examination, the plaintiff agreed that the pain in the finger is very intermittent and there would be days when he did not have any pain in the finger and it might be weeks before he noticed any restriction with his hand or finger. He agreed, if he was having any significant pain or restriction in his hand or finger and he would have gone to a doctor and he would be taking more medication.[50]
[50]T90
64 The plaintiff could not really remember talking to Ms Stockdale about the pain level in August 2015. Maybe he had less pain then as he was not working.[51] He was on WorkCover. He was stopping and starting jobs during 2015. He went to Sydney in May 2015 and did some work and then, late that year and did some carpentry work for Buisson Homes, but could not remember the date.[52] The plaintiff thought he worked there for a little less than two months doing unrestricted carpentry work. It was the last job he did before the January 2016 procedure.[53]
[51]T61
[52]T62
[53]T63
65 The plaintiff agreed the procedure improved the symptoms in the finger – not so much the pain, it was just the overall movement. It did help the pain a little bit, but it was more the movement and tightness in his finger, so it was a different kind of feeling after the procedure.[54]
[54]T61
66 The plaintiff has had different levels of medication at different times and agreed as he told doctors at times he was not taking medication, so if he feels his hand is in pain, then he will take medication.[55] At present, he takes Nurofen at least once or twice a month.[56]
[55]T52
[56]T53
67 The plaintiff tries to do whatever he can to avoid taking medication or prescribed medication. If it is really needed, then it would be something he would do, explaining that his mother had a problem with painkillers.[57]
[57]T92
68 As of August 2017, the plaintiff was woken by finger pain, on average about once a month. This happened if he knocked his finger at night or lay on it. If he lay on his right side, his finger was sore in the morning. At work, he had to use his left hand more than normal. At the end of the day, the finger was sore, and his left hand felt tired from overuse. On the days when the pain was worse, about twice a week, he took Nurofen.
69 The plaintiff’s finger pain interfered with a lot of his activities because he was right-hand dominant. He struggled to hold a pen and found it difficult to write – a situation that continues with problems writing with the pen resting across his knuckle.[58]
[58]T68
70 The plaintiff was halfway through his Diploma in Business and Construction when he injured the finger. Due to the injury, he found it difficult to take notes in class, and missed classes. He did not complete the Diploma, ceasing study in 2015 as he could not complete all the modules. If he had not injured the finger, he believed he would have completed the Diploma.
71 The Diploma would have helped the plaintiff further his education and knowledge on construction and given him some business management skills. He told his teacher of his difficulties writing but was not given any particular assistance or advice and it was getting hard for him to keep up.[59]
[59]T70
72 The plaintiff re-enrolled in the Diploma, probably in March this year.[60] He had not gone back earlier because “with [his] place in life, and with work, [he] did not have a chance to do it any sooner”.[61] He is getting credit for the subjects he had previously done.[62] He will now be able to use a laptop and does not believe he could do the Diploma if he had to write with a pen.
[60]T70
[61]T71
[62]T71
73 It is awkward for the plaintiff to do up buttons.[63] When cutting vegetables, he feels like the knife is just pushing into his knuckle. He has had to alter the way he does things to avoid putting pressure on the finger.[64]
[63]T71
[64]T72
74 Prior to the injury, the plaintiff went to the gym every second day with his brother, Dylan. They enjoyed doing heavy weights, and the plaintiff was lifting around his own body weight of 85 kilograms.
75 Since the injury, the plaintiff had been unable to lift such heavy weights and had only restarted gym last year. He did so slowly, lifting less weight and being careful not to knock or put pressure on the finger. He had lost a significant amount of muscle mass since the injury, and now weighed about 73 kilograms.[65]
[65]A photograph of the plaintiff’s right upper arm taken before the incident showed a well-muscled right upper arm
76 The plaintiff’s confidence had really been affected by the fact that he could not do gym at the level he used to before the injury. Now, he mainly went to the gym with his girlfriend, and felt it embarrassing to explain to her why he had to be careful.
77 Prior to the injury, the plaintiff believed he was able to lift 50 kilograms doing bench presses, as well as the bar, which weighed about 20 kilograms. He is now lifting less than half that weight. Gym was a very big part of his life that had really been affected by the injury.
78 The plaintiff now aims to attend the gym every second day or so. Whilst he said he is lifting double the amount of weights to what he was prior,[66] the tenor of his evidence was that post incident, his gym activities had reduced. He is doing free weights but not putting pressure on his hands. He has a glove that is like a strap that goes around the bar. He is probably lifting about 20 kilograms in each hand at the gym.[67] He can do a bench press because he is not holding the bar.[68] He is a member of Anytime Fitness.[69] He works out for half-an-hour to forty-five minutes.[70]
[66]T73
[67]T90
[68]T91
[69]T73
[70]T74
79 Prior to the injury, the plaintiff played basketball[71] and football[72] with friends virtually every weekend and that was a big part of his social life. He did not remember the last time he tried to play either sport, and could not play them as he could not catch the ball properly and did not want to knock the finger. Basketball would be a problem because of having to put his hands in and drive with the ball.[73]
[71]T96 – mixed team -“The Raiders”
[72]T75 – kick-to-kick
[73]T74
80 Even if he was to play sport now, the plaintiff would definitely be “sort of tippy toeing” in, because he is obviously a little bit more aware of the finger and he has got to be a little bit careful.[74] He agreed he would have told Outpatients in March 2015 that he did not have leisure activities.[75]
[74]T75
[75]T76
81 Prior to the injury, the plaintiff went fishing with his brother or friend, Steve, every second week. He had gone fishing since the injury but had not fished himself, as any fishing could aggravate his finger pain.
82 Since the injury, the plaintiff had not been as close to his brother and friends, as he did not engage in the quality time at the gym or play sport with them anymore.
83 When Dr Kennedy noted the plaintiff had recently commenced some fishing activities, he went out with his brother a couple of times but did not actually fish as he was just not confident with his hands. He explained he had problems reeling in the line with his sore finger. He would cast with his right hand but reel in with the right. He has not tried to cast. He agreed no one had told him not to go fishing.[76]
[76]T77
84 The plaintiff just has not got the drive like he used to, to go fishing.[77] He agreed it was not as interesting for him anymore. He lost much of the feeling in the tip of the finger if he was holding the line.[78]
[77]T78
[78]T79
85 Before his injury, the plaintiff also went shooting with Darren, every second weekend. Darren had a gun licence, which the plaintiff also wanted to obtain. The plaintiff had not been shooting since the injury, and did not believe he could now do so because of the pain it would cause.
86 The plaintiff’s problem with shooting is the recoil of the gun. He “really could not go using [his] hands and fingers as [he] did prior to the injury, but [he] had not tried”.[79] He is not that confident to be shooting with his finger and right hand.[80]
[79]T78
[80]T97
87 The plaintiff’s finger injury affected his intimacy with his girlfriend. He found he was always having to be cautious not to knock the finger, even when he was being intimate with her. He also could not lift her, which was something he would have been able to do prior to the injury.
Lay evidence
88 The plaintiff’s older brother, Darren, swore an affidavit on 16 May 2018.
89 Darren confirmed that, pre injury, the plaintiff was able to bench press close to 80 kilograms and did a triceps exercise involving a dumbbell, which required a lot of hand strength and grip.
90 At the time of the injury, the plaintiff was living with him and his wife. Thereafter, they had to support him financially, which put a lot of strain on them, and because of that, their relationship deteriorated and the plaintiff had to move out. The plaintiff was unable to work and he was unable to go to the gym.
91 Prior to the injury, he and the plaintiff were very close. They went fishing most weekends and camping every long weekend. They went target shooting in Lara every second weekend. He had a gun licence so the plaintiff could come shooting with him. He understood the plaintiff also wanted to get a licence. Since the injury, the plaintiff had been unable to go shooting. They had been fishing together once, but the plaintiff did not actually do any fishing. They had also been camping together once, but the plaintiff did not do any of the physical activities he used to do, and just sat around the campfire.
92 In his second affidavit sworn July 2018, Darren confirmed that in early to mid-2015, the plaintiff advised he had been engaged to perform carpentry work on a residential site. The plaintiff asked if he would like to take over the job from him, and he agreed. The plaintiff passed on the payments from that job to him.
93 The plaintiff’s brother, Dylan, swore an affidavit on 11 June 2018. Dylan commenced working with the plaintiff’s current employer about a year ago as a labourer. After a few months, the plaintiff spoke to the bosses and they agreed to take Dylan on as an apprentice carpenter, and Dylan was assigned to the plaintiff as his apprentice.
94 When Dylan started working with the plaintiff, he told him he was suffering from ongoing problems with his finger.
95 Dylan observed the plaintiff tended to favour his left hand for a lot of the more physically demanding tasks at work, such as carrying larger items or equipment, like a hammer drill. When he tried to lift something heavy, he appeared to have difficulty and tended to place more weight on his left hand. The plaintiff used his right hand a lot for a lot of the smaller tasks, such as putting handles on doors or making hinges, but then tended to favour his left for more demanding tasks that required grip strength.
96 As the plaintiff’s apprentice, Dylan assists with a lot of the heavier tasks, helping him avoid putting strain on his right hand. For example he tended to push heavy wheelbarrows for the plaintiff, and carry large items, like wooden posts and cladding. He also often assisted by mounting the cladding on the walls and holding it in place when the plaintiff performed the lighter task of securing it.
97 An affidavit sworn by the plaintiff’s current supervisor, Jessie Mirabella, on 24 May 2018 was ultimately not relied upon.
The Plaintiff’s treaters
98 A report from Peninsula Health indicated the plaintiff was referred to Emergency by his general practitioner on 28 February 2015, with a two-week history of a fracture in the middle phalanx of the right ring finger, sustained when a frame fell onto the finger at work. His general practitioner had placed him in a splint; however, over the two weeks following, the pain increased and he was referred to Emergency.
99 From Emergency, the plaintiff was referred to a plastic surgeon, Dr Janakiraman, who performed an open reduction internal fixation on the finger on 3 March 2015.
100 The plaintiff was discharged home the following day with hand therapy and plastic surgical outpatient follow up. He initially had hand therapy assessment on 16 April 2015, after which he was referred for ongoing private hand therapy.
101 The plaintiff attended plastic surgical outpatient’s ten weeks post surgery on 28 May, when he was found to have a reasonable range of movement, but there was a suggestion of a loss of position of the fracture; however, the fracture site was non tender, consistent with healing united bone.
102 Note was then made that the plaintiff may require a fusion or joint replacement of that joint in the future should it give him any further grief. He had not been seen at the Hospital with regard to any other issues arising from the fracture since.
103 Claire Stockdale, occupational hand therapist, wrote to Dr Solomon on 13 August 2015, thanking him for referring the plaintiff, who presented six months post injury to the finger.
104 Ms Stockdale noted, on examination, the plaintiff had an exceptional active range of motion for a joint that a surgery team was expecting to [?] fuse. Grip strength was what she expected to be premorbid, namely 50 kilograms on the right and 48 kilograms on the left. The plaintiff reported his pain at rest as 1 out of 10, worse in cold weather, and 3 out of 10 with activity.
105 Ms Stockdale explained to the plaintiff a joint should be seen as an osteoarthritic joint that will continue to have bad and good days, dependent on inflammation or activity. From a conservative management point of view, there was nothing she could offer to provide a long-term solution to the plaintiff’s current presentation, other than teaching him about activity modification and joint protection techniques to slow the OA process.
106 Ms Stockdale noted the plaintiff had indicated he would like to speak to a surgeon regarding options for fusion, as was initially discussed at Frankston, if things were not to improve. She thought, given that they were six months post injury, this would be timely, if Dr Solomon agreed. Despite an excellent range of motion and strength, Ms Stockdale thought there was clearly ongoing pain and instability in the joint that was likely to bother the plaintiff ongoing. She advised she thought Mr Syme would be a fantastic plastic surgeon from whom to consider getting an opinion.
107 Mr Syme, hand, wrist and plastic surgeon, wrote to the plaintiff’s general practitioner, Dr Solomon, on 16 September 2015, thanking him for the referral.
108 Mr Syme noted that since the initial surgery, the plaintiff described ongoing problems with tightness over his DIP joint in the skin, and some ache when cold. He said he had only been able to work for one week since his injury.
109 On examination, Mr Syme noted mild tenderness only with an active range of motion from 0 to 50 degrees of flexion, passively extending to 55 degrees. He thought the plaintiff’s April 2015 x-rays demonstrated poor fracture and fixation position. There had been no further x-rays. Accordingly, Mr Syme arranged further investigations, following which he intended to see the plaintiff again. He also advised him it was very important he stopped smoking and that no surgical intervention would be appropriate without him having stopped smoking completely.
110 Mr Syme re-examined the plaintiff on 22 September 2015. He then noted recent x-rays demonstrated a malunited middle phalanx fracture at the distal interphalangeal joint level of the DIP joint level. The screw was in an intra-articular position and the plaintiff had significant articular surface disruption.
111 Mr Syme discussed the two options with the plaintiff, namely, first to remove the screw and see if that improved things from a symptomatic point of view and, secondly, to proceed with arthrodesis of the DIP joint – procedures which would require the plaintiff to stop smoking, and Mr Syme would not do the fusion unless the plaintiff had stopped for at least six weeks.
112 Mr Syme advised the plaintiff was keen to proceed with the fusion, so he had arranged to see him in three months’ time to check on his progress and he planned arranging surgery if the plaintiff had stopped smoking for a significant period at that stage.
113 Mr Syme last saw the plaintiff on 9 November 2015. He then reported the plaintiff was doing relatively well, having stopped smoking.
114 The plaintiff then had around 15 degrees of flexion at his ring finger DIP joint, with no extension lag. He was non tender around that joint and had a non-irritable DIP joint on loading. He had around 15 degrees of ulnar deviation with his DIP joint secondary to the articular deformity.
115 Mr Syme’s impression was that the plaintiff’s DIP joint was clearly not normal, but he had a relatively good preservation of function. He encouraged the plaintiff to pursue returning to work as much as possible and did not feel he needed to protect his finger in any way for its long-term benefit.
116 Mr Syme discussed with the plaintiff the pros and cons of removing the screws, and while he did not feel that was absolutely necessary, he noted the plaintiff was very keen to have that done and therefore put him on a waiting list at the Frankston Hospital and advised he would continue to see him at Frankston following his surgery.
117 On 7 September 2015, the plaintiff’s general practitioner, Dr Solomon, certified the plaintiff fit for suitable employment not involving lifting or carrying with the right hand more than 10 kilograms, and with five-minute rest breaks every half hour if needed.
118 On 19 February 2016, Dr Solomon reported to CGU that the plaintiff suffered a fractured right ring finger resulting from a work injury on 1 February 2015.
119 Dr Solomon advised he thought the plaintiff currently did not have capacity for pre-injury employment but should be fit for normal pre-injury employment on 29 February 2016. He also advised the plaintiff could do light duties until 28 February 2016, involving not to lift or carry with the right hand more than 10 kilograms, with five-minute rest breaks every half hour if needed. He thought the plaintiff did not require any further treatment.
120 The elective surgery access manager at Frankston Hospital wrote to Dr Solomon on 14 December 2015, advising the plaintiff had been placed on an elective surgery waiting list by Mr Syme to undergo a right DIP joint screw removal.
Investigations
121 An x-ray of the plaintiff’s right ring finger of 25 February 2015 showed an intra-articular fracture involving the head of the intermediate phalanx, and surgical opinion was recommended.
122 A right finger x-ray of 10 April 2015 showed a comminuted fracture of the distal pole intermediate phalanx. The fractures present on 25 February 2015 were still evident. There was some evidence of healing, but the sagittal cleft was still clearly evident. The radiographer noted he was not sure the internal fixation screw had any purchase at its tip.
123 There was a further x-ray of the right ring finger on 16 September 2015. Note was made of a fixation screw transversely through the distal end of the middle phalanx of the ring finger, which appeared to be fixating the fragment. Bony union was not yet complete, particularly along the radial aspect of the fracture, where there was an unfused radiolucent fracture line and a gap in the DIP joint articular surface of approximately a millimetre. It was noted it would be useful to have correlation with previous x-rays to determine if a bony lucency just proximal to the screw was new.
124 There was an ultrasound of the left finger in May 2016, which demonstrated bony irregularity of the bony dorsal aspect of the base of the middle phalanx. The extensor tendon appeared irregular and thickened in the region of the PIP joint with limited movement. The tendon appeared intact. There was synovial thickening, together with a small amount of fluid.
125 A plain x-ray demonstrated the presence of an ununited fracture involving the dorsal aspect of the base of the middle phalanx. There was a triangular fragment measuring up to about 5 millimetres, which was slightly separated from the middle phalanx and involved the articular surface. The dorsal aspect of the middle phalanx adjacent to the fracture was slightly thickened, which, it was noted, was likely to represent periosteal new bone. It was a tiny bony fragment lining anterior to the base of the middle phalanx with slight separation, and there was soft tissue swelling present, particularly about the PIP joint.
Medico-legal evidence
126 Dr David Kennedy, sports and industrial physician, examined the plaintiff on 12 April 2018.
127 The plaintiff then advised that the right finger seemed to improve to some extent after the removal of the screw. He was certified to perform modified occupational duties.[81]
[81]The plaintiff was certified fit for pre injury duties and hours in February 2016
128 Dr Kennedy noted the plaintiff had resumed carpentry work in March 2016, working for several builders for a short period, and then started work with Steller in mid-2016, where he continued to work. He was not, then, receiving any specific medical treatment.
129 On examination, the plaintiff complained of intermittent pain in the finger. He was restricted at work with lifting and doing repetitive activities involving the right hand, especially using some of his tools, with pressure on the ring finger causing discomfort and pain. He lacked full movement in the ring finger. Work helped the plaintiff with his workload and he was not pushed by his current employer to do heavy repetitive duties.
130 The plaintiff advised he was restricted with his recreational activities and hobbies, such as doing gym work, fishing and playing basketball, which he had not returned to. He recently resumed some gym work and some fishing. He had problems gripping with his right hand, as well as writing.
131 On examination, the plaintiff’s right hand was quite calloused and dirty, as was his left. When gripping, he used, more, the thumb, index and middle fingers, than the ring and little finger. There was a reduction in the range of motion at the MCP joint from 0 to 90 degrees in flexion and at the PIP joint, the range of motion was from 10 to 85 degrees of flexion, and that at the DIP joint, the range of motion was quite limited, from 0 to about 5 degrees of flexion.
132 With the use of a dynamometer, the average grip strength in the plaintiff’s left hand was 37.2 kilograms of force, and in the right hand, 29.6 kilograms, and there was a reduction in the pincer grip between the thumb and index finger.
133 Having seen the September 2015 x-ray and the May 2016 ultrasound,[82] Dr Kennedy concluded the plaintiff sustained a crush injury to the finger consistent with the workplace injury, the crush injury involving a comminuted fracture of the head of the middle phalanx of the ring finger. He thought there were no obvious discrepancies between the plaintiff’s current symptoms, presentation, and the clinical findings on examination.
[82]The ultrasound of May 2016 was of the left finger and showed synovial thickening.
134 In Dr Kennedy’s view, union had occurred between the two distal fragments to the main part of the phalanx, which was now sound, but there were significant problems involving the synovium and capsular of the DIP joint, with restricted movements of this joint and pain with gripping and grasping, which was also restricted.
135 Dr Kennedy noted the plaintiff had returned to carpentry, but had worked for a different employer since mid-2016, who assisted him greatly with restrictions in relation to heavier workloads, particularly in relation to repetitive activities involving his right hand.
136 Dr Kennedy thought the plaintiff should continue with hand therapy exercises shown to him by the therapist, with gripping and grasping activities to increase the intrinsic muscle strength of the right hand.
137 Dr Kennedy noted the plaintiff had restrictions in relation to some personal, social and recreational activities, and had only recently returned to some gym work and fishing, but had not returned to basketball. He also had some restrictions with gripping and grasping with his right hand, particularly pincer grip between his thumb and ring finger, and also problems with repetitive writing.
138 Dr Kennedy thought the prognosis was fair, as, on balance, the plaintiff continued to have problems in his right ring finger, such as is the nature and extent of the damage sustained, involving, particularly, the right fourth DIP joint and, to a lesser extent, the PIP joint, which will affect pincer, grip, and overall grip strength in the right hand, as well as some fine motor movements involving the right finger.
The Defendant’s medical evidence
139 It was noted when the plaintiff attended Outpatient’s on 16 April 2015, he reported no leisure ADLs.
140 On 19 February 2016, Dr Solomon certified the plaintiff fit for pre-injury employment from 29 February 2016.
141 The parties agreed that Dr Solomon’s notes indicated the last complaint of any finger/right hand problem was on examination on 17 May 2016. The main focus of the attendance was in relation to a five-week old left hand injury. In terms of the right, it was noted the plaintiff wanted an x-ray post his ORIF “nil issue now”.
142 The plaintiff saw Dr Leong on 31 May 2016 complaining of an injury to his left hand: “was I pain so went to gp- re xrays .. swollen… splint several three weeks.”
Medico-legal evidence
143 Mr Phillip Sharp, senior consultant surgeon, first saw the plaintiff on 1 May 2015, post-surgery, but before the procedure.
144 The plaintiff then complained of intermittent, but daily, pain along the ulnar border of the DIP joint of the finger, which was worse if he bumped it. He was no longer wearing a protective finger shield on the finger, not having worn it for the past two weeks.
145 The plaintiff was not, then, having any medication, and he saw a hand therapist. He was single and living with his brother and his brother’s family.
146 The plaintiff was able to do activities of daily living, but had difficulty doing up buttons, cutting up his food or wiping his bottom with his right hand. Since injuring himself, he had not been able to go to the gym, go fishing, kick a football or play basketball.
147 On examination, the finger was swollen, and there was no movement over the DIP joint. There was 45 degrees of flexion at the PIP joint and 75 degrees at the MCP joint of the right ring finger.
148 Mr Sharp noted the plaintiff’s presenting symptoms were some pain in the finger and the DIP joint. He diagnosed a comminuted fracture of the DIP joint of the right ring finger with articular extension, requiring open reduction and internal fixation.
149 At that stage, to obtain a full return to work, Mr Sharp thought that the plaintiff needed improvement in movement in the finger. He considered it was likely the plaintiff would be left with little movement in the DIP joint of the finger due to the injury. He considered hand therapy was, then, essential.
150 Mr Sharp re-examined the plaintiff nearly two months later, in June 2015.
151 The plaintiff then complained of constant pain along the ulnar border of the DIP part of the finger and worse if he bumped it or gripped objects in his right hand.
152 The plaintiff was able to do activities of daily living, but continued to have problems doing up his buttons or cutting food, and had not resumed his pre-injury sport. He was no longer wearing a protective finger shield, and had not done so for two weeks.
153 This time, on examination, there was no swelling of the finger, but still no movement of the DIP joint. There was 90 degrees of flexion at the metacarpophalangeal of the finger and flexion at the proximal joint had increased from 45 to 75 degrees. Finger sensation was normal.
154 At that stage, Mr Sharp was not sure if the plaintiff would ever get movement back at the DIP joint of the finger and thought he was likely to have ongoing symptoms of discomfort for the next month or so. He considered the plaintiff could probably return to pre-injury duties and hours in about one or two months. He could return to modified pre-injury duties and hours working in his usual job, but might find it difficult with vibrating machinery or clenching a hammer. He considered the plaintiff could have a gradual increase in hours, starting four hours a day, then five days a week, increasing to full hours over the next month, monitored by his treating doctor. He thought the plaintiff should not lift, push or pull more than 10 to 15 kilograms with his right hand because of the right ring finger. He could probably return to these modified pre-injury duties immediately.
155 Mr Sharp reported further in July 2015, having been shown a report of surveillance earlier that month, in which it appeared the plaintiff could drive and use his right hand when talking on a mobile telephone. Mr Sharp confirmed his examination findings and opinions and thought it was probable that the plaintiff could undertake his pre-injury duties and hours.
156 Dr Darrell Nam, plastic and reconstructive surgeon, examined the plaintiff in late October 2015, before the procedure.
157 The plaintiff complained of pain in the finger. He told Dr Nam he had obtained some work as a builder about two months ago and worked for about month, but work ceased. He managed to do things around the home.
158 Dr Nam reported the DIP joint could flex passively to 45 degrees and extend fully to 180. He noted the plaintiff’s hands were consistent with manual worker’s hands and heavy calloused, with some staining of the skin. The plaintiff’s right hand was more developed than the left and showed more callous development.
159 Dr Nam diagnosed a comminuted fracture of the condyle of the middle phalanx of the finger. In his view, the plaintiff could return to work in pre-injury duties and hours. He thought the plaintiff had a work capacity and was most likely able to conduct his normal activities. The plaintiff complained of pain in his finger which may restrict his ability to find suitable employment.
160 Dr Nam noted the plaintiff was seeing a plastic surgeon, and further surgery had been contemplated. Dr Nam considered it most likely unnecessary and, at most, he would recommend the screw be removed and there be a work capacity assessment thereafter. He thought if the plaintiff had chronic and ongoing long-term problems with the finger, then a joint fusion may be considered, but that was premature.
161 Dr Nam noted an attached report stated the plaintiff was able to conduct the activities of daily living and driving with his right hand, and that was not contested.
162 Mr John Buntine, hand, plastic and reconstructive surgeon, examined the plaintiff in June 2016, almost six months after the removal of the screw.
163 The plaintiff advised his right ring finger seemed to improve somewhat after that surgery. His pain had ceased in about November, prior to which he had undertaken a small amount of light work, while he was certified as fit to perform suitable duties at work. In about March 2016, he commenced full-time work as a carpenter for another builder.
164 The plaintiff said he was then taking about two Nurofen a week and that his finger was not presently receiving any treatment, and it no longer appeared to be changing.
165 On examination, the plaintiff then complained of pain in the DIP joint of the finger, extending as far as the finger’s PIP joint under cold conditions and with use of the finger. He reported his right hand grip was significantly weakened because of the pain when he gripped firmly. He complained of a slight stiffness of the finger, which was worse when he first got up in the morning.
166 The plaintiff advised he was inconvenienced while operating a framing gun and while marking timber with a pencil. He said he coped with his work, but he was aware of the finger’s abnormality. Because of that abnormality, he needed to stop attending a gym, playing basketball and to stop fishing.
167 Mr Buntine noted a number of photographs of the plaintiff’s right hand and finger. There was clear evidence seen of greater recent use of the dominant right hand than of the left. He noted the plaintiff’s symptoms and complaints were intermittent, while others were continuous.
168 Mr Buntine diagnosed a comminuted fracture of the head of the middle phalanx of the finger, which had been reduced surgically with some persisting deformity, but union of the two distal fragments to the main part of the phalanx were sound. There was mild stiffness of the DIP joint of the right ring finger, and movement thereof, and exposure to cold conditions caused pain in the injured joint. There was minor stiffness of the finger as a whole.
169 Mr Buntine thought the prognosis was for little change to occur, except for slow lessening of discomfort and perhaps minor improvement in ranges of movement. He noted there was clear evidence that considerable use was presently made of the finger.
170 Having seen the photograph of an x-ray film, Mr Buntine commented that treatment for degenerative changes was often not required because of the minimal symptoms usually caused by such changes at the particular joints.
171 Mr Buntine thought the observed condition of the finger was consistent with the plaintiff’s complaints concerning the finger, except for objective evidence of recent use of the finger for heavy manual work. He also noted it was not completely clear why the plaintiff remained off work or performed minimal work over a long period. He allowed a percentage impairment under the AMA Guide.
172 Mr Buntine confirmed he doubted that degenerative changes affecting the DIP joint of the finger would be a particular problem in the future. However, it is possible that degenerative changes affecting this joint could progress and so it was possible that fusion of the joint would be indicated eventually, but no joint implant presently available, in his view, would be likely to be satisfactory, considering the plaintiff’s relative youth and his work as a hands-on carpenter-builder.
173 Mr Thomas Robbins, hand, plastic and reconstructive surgeon, examined the plaintiff in November 2017.
174 Noting the history of treatment received, the plaintiff said he had been offered a fusion and was told it was up to him. It was not done, because he was concerned it may result in further problems.
175 The plaintiff advised he had been working for Steller Australia for a year, although he said he was allowed to do light duties if the finger was troubling him.
176 The plaintiff’s complaints, then, were that every day he suffered cold discomfort and discomfort when using power tools. He had trouble brushing his teeth and doing his buttons. It felt weak. He was not on any medication.
177 On examination, Mr Robbins noted the plaintiff’s hands appeared well used in heavy working conditions. The injured finger looked normal. There was a 10 degree deficit in flexion into the palm, but full extension, and it was not obviously tender.
178 Mr Robbins thought the plaintiff’s complaint of cold discomfort and weakness was consistent with the injury and time of occurrence, but apart from that, there was nothing to suggest any other residual disability.
179 Mr Robbins noted the plaintiff was not currently having any treatment. He did not consider he needed any treatment at present and thought the plaintiff should use his hand and the finger freely. Later, he thought the plaintiff is likely to develop some arthritis in the joint, which may warrant fusion, but not at present, and it may be years before it may be necessary. He noted the plaintiff did not seem to be getting enough symptoms to justify the fusion.
180 Mr Robbins thought his findings correlated with the radiological information with no inconsistent findings. He could see no reason why the plaintiff could not continue with employment as a carpenter as before. He noted that the plaintiff was presently doing pre-injury duties and there was no reason why he should not be. The plaintiff said he mentioned the injury he had to his fingers to his present employer and was being allowed to do lighter duties when necessary.
181 In Mr Robbins’ view, the plaintiff did not need rehabilitation.
Vocational evidence
182 There was a Transferable Skills Analysis carried out in July 2015, following Mr Sharp’s examination in May 2015, when he thought the plaintiff had a capacity for work from June 2015.
183 Work Able noted, although Dr Solomon stated the plaintiff was not able to use his right upper limb while working, the plaintiff reported the finger had improved considerably to the point where he believed he would be able to return to working as a carpenter.
184 It was noted the plaintiff was currently finishing the last couple of assessments to gain his Diploma in Building and Construction, as he would like to become a foreman site supervisor within the building industry.
Lay evidence
185 Sara Jane Ransom, investigator, swore an affidavit in July 2018. She was asked to investigate employers of the plaintiff, which post-dated the claim, to ascertain the nature of his subsequent employment and any restrictions within which he worked.
186 Ms Ransom spoke to Mr Mirabella, the plaintiff’s supervisor at Steller on 31 October 2017. He told her that he was unaware of the plaintiff having a WorkCover claim and knew nothing of him having injured his finger in 2015. He advised that the plaintiff performed unrestricted carpentry duties at Steller and he was considered a good chippy.
187 During that conversation, Ms Ransom realised the plaintiff continued to work at Steller.
188 Following an email request on 8 November 2017 for further information about the plaintiff, Mr Mirabella advised by email that he did not have time to gather the information sought. He advised Ms Ransom in similar terms on 20 November 2017.
189 Exhibited to Ms Ransom’s affidavit was a record of the 31 October conversation.[83]
[83]T114 – Counsel for the plaintiff submitted this record was inconsistent with the version of the conversation deposed to
Overview
190 It is not disputed that the plaintiff suffered a fractured head of the second intermediate phalanx of the finger which was openly reduced and held by a transverse screw. The screw was removed in January 2016.
191 There is no suggestion that the plaintiff had any problems with the finger before the said date. Further, it is accepted any impairment of the finger is organically based.
192 The plaintiff’s claim was accepted by CGU by letter dated 19 May 2015. He was later advised, based on examination by Mr Sharp and Dr Nam, that his entitlement to weekly payments ceased form 4 December 2015, on the basis he was longer incapacitated for work.
193 By letter dated 6 July 2016, CGU advised the plaintiff that liability had been accepted pursuant to s98 for an injury to the finger based on the assessment of Mr Buntine.
194 The issue in this application is whether any present impairment of the finger meets the statutory definition of “serious”.
Credit
195 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[84]
… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
[84](2010) 31 VR 1 at paragraphs [11] and [12]
196 Counsel for the defendant submitted the plaintiff’s evidence was not wholly reliable in terms of his difficulty doing up buttons and the reason why he gave up the Diploma in 2015. However – “It was not said he was a conscious liar, but there were some difficulties in his recollections and some parts of his evidence are difficult to accept.”[85]
[85]T103
197 In response, counsel for the plaintiff submitted the plaintiff is a “man of truth who made concessions against his own interests”. He adequately explained why he did not mention his 2015 work in his earlier affidavits.
198 Further, there was surveillance undertaken and no film was shown.[86]
[86]T126
199 Save for his evidence about whether he told post incident employers about his injury, which I found somewhat confusing, the plaintiff was generally a credible witness. He did not exaggerate his current complaints and, if anything, his description of his present pain levels and their effect on his work was very much to the lower end of the range.
200 Any inconsistencies in the plaintiff’s evidence about his current work situation do not feature prominently in my decision. As counsel for the plaintiff indicated at the outset, there was a limited interference with work as a result of the injury. It impacted on the way the plaintiff conducted his job, but there was no suggestion he was losing time or income, so it was a very limited reliance.[87]
[87]T29
201 Counsel for the plaintiff advised the Court that her instructing solicitor had been told by the plaintiff’s supervisor, Mr Mirabella, who had earlier sworn an affidavit supporting the plaintiff, that he no longer wished to be involved in the matter and was considering terminating the plaintiff’s employment. Further, the plaintiff told the Court that his brother, Dylan, could not get time off work at Steller to attend the hearing.[88]
[88]T33 - Plaintiff’s evidence of conversation
202 In these circumstances, I have given very little weight to the matters deposed to by Ms Ransom. As counsel for the defendant conceded, her evidence is hearsay, although permissible in interlocutory matters of this nature.[89] In my view, however, it offends the general rule that credibility evidence about a witness is inadmissible.[90]
[89]Akgun v Moreland Bus Lines Pty Ltd [2015] VCC 1722 at paragraph [18]
[90]T 113; Evidence Act, s102
Consequences
203 In general terms, counsel for the plaintiff submitted there were significant and ongoing issues for this young plaintiff[91] in relation to the finger, which is on his dominant hand.[92] He is left with a finger that will never get back to normal.[93] He continues to have pain and weak grip strength, and needs both hands in his work as a carpenter.[94]
[91]Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181 per Ashley and Beach at paragraph [43]
[92]T114
[93]T123
[94]T123
204 Whilst conceding the plaintiff does have some issues with his finger, counsel for the defendant submitted any present impairment is not “serious”.
Pain
205 The evidentiary basis of the pain assessment will ordinarily comprise, inter alia, what the plaintiff says about his pain both in Court and to doctors.[95]
[95]Haden Engineering Pty Ltd v McKinnon (supra) per Maxwell P
206 Counsel for the defendant relied on similar considerations raised by the Court in Aburrow v Network Personnel Pty Ltd[96] in terms of the complaint, frequency and duration of pain.[97]
[96][2013] VSCA 46
[97]T102
207 The plaintiff confirmed the description of pain set out in his August 2017 affidavit continued with finger pain every day most of the time, a throbbing pain in the first knuckle of the finger, which ranged from 2 to about 5 or 6 out of 10 – worse in cold weather – and when he put pressure on it, such as writing or wearing tight gloves.
208 However, in cross-examination, the plaintiff agreed that the current situation was somewhat different, accepting that the pain is very intermittent and there would be days when he did not have any pain and it might be weeks before he noticed any restriction with his hand or finger. This evidence in cross-examination was not given in the context of his work situation, as counsel for the plaintiff submitted.[98]
[98]T118
209 The plaintiff has complained to examiners of varying level of pain since the incident.
210 Early on when seen by hand therapist, Ms Stockdale, in August 2015, before the procedure, his pain was at most 3 out of 10, although he told Mr Sharp two months earlier of constant pain along the ulnar border of the DIP part of the finger and worse if he bumped it or gripped objects in his right hand.
211 In October 2015, Dr Nam simply noted the plaintiff complained of pain in his finger.
212 When Mr Syme last saw the plaintiff on 9 November 2015, he simply noted the plaintiff was doing relatively well, having stopped smoking, and made no mention of the plaintiff complaining of any specific or significant pain.
213 In June 2016, when he saw Mr Buntine, the plaintiff complained of pain in the DIP joint of the finger under cold conditions and with use. He also mentioned a slight stiffness of the finger.
214 The plaintiff told Mr Robbins in November 2017 that every day he got cold discomfort, and discomfort when using power tools. He had trouble brushing his teeth and doing his buttons. It felt weak.
215 When seen by Dr Kennedy in April 2018, the plaintiff complained of intermittent pain in his right ring finger.
216 As counsel for the defendant submitted, these complaints of pain, particularly of recent times to Dr Kennedy and in cross-examination, are to the lower end of the range.[99]
[99]T104
Clinical findings
217 Save for Dr Kennedy’s recent grip test findings, I accept, as counsel for the defendant submitted, despite the plaintiff requiring surgery on two occasions, clinical findings before and after those procedures were not particularly significant.
218 In 2015, Ms Stockdale reported an exceptional active range of movement and normal strength. One month after the procedure, in February 2016, Dr Solomon found a full range of movement.
219 In June 2015, whilst he was unsure whether the plaintiff would ever get movement back at the DIP joint of the finger, Mr Sharp thought the plaintiff was likely to have ongoing symptoms of discomfort for the next month or so. He considered the plaintiff could probably return to normal work in about one or two months.[100]
[100]T106
220 Mr Syme found a relatively good preservation of function when he last saw the plaintiff and does not appear to have seen him since the procedure.[101]
[101]T105
221 Mr Robbins only found a 10 per cent deficit in flexion in November 2017, concluding that there was no need to protect the finger and there was no need for ongoing treatment or attendance of a general practitioner.[102]
[102]T104
222 Mr Buntine described mild stiffness, and thought there should be minor improvements in the range of movement.[103] He did not carry out any testing of the plaintiff’s grip strength. He also noted that after encouragement, consistent movements were observed.
[103]T106
223 Counsel for the plaintiff however submitted, whilst there has been an improvement after the procedure, movement is still a problem, and grip strength is reduced.[104]
[104]T116
224 Reliance was placed on Dr Kennedy’s finding of lack of full movement and his grip test results which showed a significant current problem with right grip strength. It was submitted there was no suggestion the plaintiff was not cooperating with that test.[105]
[105]T119
225 Further, it was submitted Dr Kennedy approached the issue like the other examiners, conducting independent testing. He found consistency between the findings and the complaints, and concluded there was a significant problem involving the DIP joint with restrictions of movement of that joint and pain on gripping and grasping.[106]
[106]T120
226 It is difficult however to reconcile Dr Kennedy’s recent findings of significant weakness with those of hand therapist, Claire Stockdale, who described the plaintiff’s grip strength before the procedure, which he conceded resulted in some improvement in movement, as essentially normal.[107] Further, in August 2015, she thought the plaintiff had an exceptional range of movement of the joint.
[107]T106
227 I accept the submission on the defendant’s behalf that Dr Kennedy, not a hand specialist, did not really explain his findings and that his report is somewhat of a recitation of the plaintiff’s complaints without any analysis thereof.[108] Further, he seems to have based his opinion to some extent on the 2016 ultrasound which was of the left finger.
[108]T105
228 Further, I do not accept the plaintiff has any significant problem with grip strength given his ability to lift free weights of up to 20 kilograms at the gym.
Treatment and medication
229 The plaintiff has not complained to a doctor of any problems with the finger since he saw Dr Solomon in May 2016. Whilst further investigations were discussed that day, none have been undertaken of the finger.
230 The plaintiff’s present medication intake is relatively minor, only taking Nurofen at least once or twice a month.[109] He agreed had he had any significant pain or restriction in his hand or finger, he would have gone to a doctor and he would be taking more medication.[110]
[109]T53
[110]T90
231 As counsel for the defendant submitted, despite very active occupational activity, there is no need for any real medication. In fact, the plaintiff’s need for medication is lessening over time.[111]
[111]T107
Other consequences
232 Whilst the plaintiff complains of problems sleeping due to finger pain, this occurs only once a month and he has not required any medication to assist sleep. As counsel for the defendant submitted, sleep problems are negligible.[112]
[112]T107
233 Intimacy problems are described by the plaintiff but there is no corroborative evidence in this regard from his partner.
234 Counsel for the plaintiff submitted, because of his injury, the plaintiff had been unable to resume a number of sporting activities. In particular, he had suffered a significant loss in relation to gym activities.[113]
[113]T117
235 Reliance was placed on the photograph of the plaintiff’s well-muscled right upper arm pre injury. It was submitted the plaintiff, post injury, is now unable to lift weights of the magnitude he could pre injury.
236 Although there is a reduction in the weights he can lift,[114] the plaintiff is still able to attend gym on a fairly regular basis and can lift free weights up to 20 kilograms – a situation I find extremely difficult to reconcile with his evidence that he requires assistance from his brother with heavy lifting at work. Counsel for the plaintiff then conceded that the ability to lift was “not one of the highlights” of the case.[115]
[114]Although commented that he is now doing twice as much
[115]T116
237 Other than gym, pre injury, the plaintiff’s sporting activities were largely social. Football was kick-to-kick with mates and basketball was playing in a mixed social team.
238 It was also submitted that the plaintiff is precluded from engaging in pre-injury hobbies of fishing and shooting by his injury – both activities he enjoyed with his brother pre incident.
239 Whilst I accept that the plaintiff may experience some discomfort with recoil when holding a gun in his right hand, the plaintiff does not have a licence and could only go shooting with Darren who had a licence and with whom the plaintiff has had a falling out. [116]
[116]T109
240 I have difficulty understanding any problems the plaintiff would have with the finger reeling in a fishing line.[117]
[117]See In Stijepic v One Force Group Aust Pty Ltd & Anor (supra) at paragraph [46] and T109
241 There is no medical evidence that the plaintiff would be precluded from engaging in these activities by his injury nor that he would suffer further injury if he attempted these activities.
242 I have significant difficulty accepting that the plaintiff has problems writing, doing up buttons and cutting up food because of the finger injury. I do not understand how the injured joint is involved in those activities. As counsel for the defendant submitted, it is very difficult to accept the plaintiff’s complaints in this regard, [118] relying on Mr Robbin’s view that the plaintiff was exaggerating his difficulties.[119]
[118]T107
[119]T106
243 Similarly, I am not satisfied the plaintiff ceased studying in 2015 because of problems writing. In any event, he has been able to take up study again using a computer.[120]
[120]T107
244 Whilst there was limited reliance on employment consequences and it was certainly not suggested there was a loss of time or loss of wages,[121] counsel for the plaintiff submitted the plaintiff was somewhat of a stoic[122] in terms of his post-incident work, and that he now relied heavily on his brother, Dylan’s, help to complete his work tasks.
[121]T125
[122]T125
245 I do not accept this is a case of stoicism. There is no evidence that the plaintiff had any difficulty with work post incident such that he needed to see a doctor for treatment or medication.
246 Significantly, since February 2016, the plaintiff has been certified fit to perform unmodified pre-injury duties.
247 The plaintiff commenced work at Steller in mid 2016. It is only in the last six months that his brother, Dylan, has been apprenticed to him, having started work at Steller as a labourer a year ago. The plaintiff’s explanation of this situation is somewhat unsatisfactory and not a matter mentioned to any medico-legal examiners or deposed to in his recent affidavits.[123]
[123]T110
248 The plaintiff’s description to medical examiners of difficulties at work are quite limited.
249 The plaintiff told Dr Kennedy earlier this year that he was restricted at work with lifting and doing repetitive activities involving the right hand, especially using some of his tools, with pressure on the ring finger causing discomfort and pain.
250 The plaintiff told Mr Buntine in June 2016 he was inconvenienced while operating a framing gun while marking timber with a pencil. He coped with his work but was aware of the finger’s abnormality.
251 The plaintiff told Mr Robbins in November last year that he was allowed to do light duties if his finger was troubling him.
252 On his own evidence, the plaintiff said it may be weeks before he is faced with any work restrictions.
253 It is difficult to understand why a man who can lift 20-kilogram weights at the gym requires help from his brother to carry his tools and undertake other work duties.
254 Further, examiners over the years , including Mr Kennedy earlier this year have described the plaintiff’s right hand as calloused and commented there was evidence of considerable use of that hand- not the situation one would expect if the plaintiff uses his left hand more because of any problems with the right.
255 Taking all these matters into account, I am not satisfied any interference with work due to the finger injury is significant.
Prognosis
256 As counsel for the plaintiff submitted, a fusion was discussed by Mr Syme before the procedure as there was non-union;[124] however, there has been no suggestion since that time that the plaintiff requires fusion surgery. He has not complained of pain or restrictions at any time sufficient in the view of his treaters to warrant this type of surgery.
[124]T115
257 In terms of prognosis, Mr Buntine doubted degenerative changes affecting their particular problem, but thought it would be possible. Noting there was a persistent deformity,[125] he thought it is possible there would be fusion in the future but there was nothing appropriate at the moment to be done.[126]
[125]T121
[126]T121
258 Mr Robbins thought it likely the plaintiff would have arthritis, but did not know whether there would be a fusion warranted and it might be years before necessary. His symptoms did not warrant such a procedure.[127]
[127]T112
259 Dr Kennedy thought the prognosis was fair but did not comment on the need for fusion surgery or the likelihood of arthritis.
260 I accept that there is a prospect of the plaintiff requiring fusion surgery in the future if his symptoms worsen, however, to date, there has been no such worsening and his complaints of pain and restriction in my view are to the lower end of the range of possible impairments.
261 It is the impairment not the injury which is the relevant consideration in a serious injury application.[128] Whilst the plaintiff has undergone two surgical procedures and there is some persisting deformity, as Mr Buntine described, taking into account all the evidence, I am not satisfied that any impairment of the finger, as at the date of hearing, meets the high statutory threshold of “serious”.
[128]Humphries & Anor v Poljak [1992] 2 VR 129 at paragraphs [40]-[50]
262 Accordingly, the application is dismissed.
- - -
0
7
0