Nikoloudis v VWA
[2018] VCC 1082
•19 July 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-18-00431
| PETROS NIKOLOUDIS | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
---
JUDGE: | DYER | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 July 2018 | |
DATE OF JUDGMENT: | 19 July 2018 | |
CASE MAY BE CITED AS: | Nikoloudis v VWA | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1082 | |
REASONS FOR JUDGMENT
---
Subject: Accident compensation
Catchwords: Serious injury; Partial amputation of ring finger.
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited: Dwyer v Calco Timbers Pty Ltd (No. 2) [2008] VSCA 260;
Ingram v Ingram & Anor [1996] 2 VR 435; Baker v TAC & Anor
[1997] 1 VR 662; Garcia v TAC [2015] VCC 140; TAC v Garcia [2015] VSCA 225
Judgment: Leave granted
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J. Valiotis with Mr S. Scully | Slater & Gordon |
| For the Defendant | Mr D. Churilov | Russell Kennedy |
HIS HONOUR:
Introduction
1 Petros Nikoloudis suffered an injury to his left ring finger whilst working as an employee of VicRig Pty Ltd on a building site in Bendigo on 11 August 2016. There is no dispute that the incident occurred in compensable circumstances and resulted in the loss of approximately two centimetres of the tip of the finger.
2 Mr Nikoloudis underwent two surgical procedures and has since returned to his pre-accident employment, albeit now working largely as a crane operator rather than a rigger, which had been his role at the date of injury.
3 He seeks leave pursuant to section 335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 (‘the Act”) to claim damages in respect of pain and suffering on the basis that his left finger injury satisfies the definition of “serious injury” set out in section 325(1) of the Act.
4 Mr Valiotis, who appeared with Mr Scully on behalf of the plaintiff, relied upon paragraphs (a) and (b) of the serious injury definition in support of a grant of leave.
5 Mr Churilov, who appeared on behalf of the defendant, opposed the grant of leave indicating that the consequences flowing from the injury were not sufficient to satisfy the statutory threshold required under paragraph (a). Additionally, the level of disfigurement, whilst permanent, was not of sufficient degree to warrant it being described as “serious”.
6 Mr Nikoloudis was the only witness required for cross-examination. There was little dispute between the parties concerning any of the medical evidence. The main area of dispute focused on the level of consequences insofar as Mr Nikoloudis’ application relied upon paragraph (a) of the definition.
7 There was also some challenge to the credibility of Mr Nikoloudis and his reliability as a witness. To this extent material from his Facebook account, including a short video recording were tendered in evidence.[1]
[1]Exhibits 1 & 2
8 Insofar as the application relied upon paragraph (b) of the serious injury definition, I should note that the plaintiff’s left hand and finger were examined both by counsel and myself during the course of his evidence before me.
The evidence
9 Mr Nikoloudis relied upon an affidavit sworn on 28 September 2017[2] and a further affidavit sworn 4 July 2018.[3]
[2]Exhibit A, p13-17
[3]Exhibit A, p18-21
10 Mr Nikoloudis was born in Greece on 11 September 1975 and completed his education to Year 12 level. He was then employed in construction, including a period where he ran his own business.
11 He migrated to Australia in mid-2012 with his wife, Sofia, and two sons who were aged 10 and three at the time he swore his first affidavit.
12 He completed further courses of studies after arriving in Australia and obtained employment with his current employer. This has been effectively his only job in Australia. It is clear from the material in his initial affidavit, and the absence of any challenge in cross-examination, that Mr Nikoloudis was an enthusiastic and very competent employee and well regarded by his employer.
13 Apart from matters relating to his employment and injury, Mr Nikoloudis described a long-term interest in piano and keyboards. He stated:
“I have a music diploma in piano obtained from Greece and I have also played with numerous bands over the years.”[4]
[4]Exhibit A, p14[8]
14 He described other leisure activities including fishing, camping and gardening.
15 Subsequent to sustaining his injury Mr Nikoloudis described the restrictions in his keyboard playing as follows:
“I have slowly returned to trying to play keyboards but it’s not so good. I would have called myself a professional before the injury, I have been playing piano and keyboards since I was 6 years old and I was very good. It’s probably a bit better than being a beginner but it’s not that good. I feel frustrated as though I have to learn the notes again and I have to press down more and it isn’t a light touch that I used to have.”[5]
[5]Exhibit A, p15[15]
16 He also described restrictions when fishing, mainly involving the impact of cold surroundings. He described going fishing “a couple of times” and had not contemplated returning to camping at the time of his first affidavit.[6]
[6]Exhibit A, p17[24]
17 In his second affidavit Mr Nikoloudis described the impact of his injured finger in terms of his work emphasising the difficulties involved in using grinders, jack hammers and similar equipment causing vibration.[7]
[7]Exhibit A, p19[4] & [5]
18 Further reference was made to playing keyboards where Mr Nikoloudis stated:
“My ability to play keyboards remains compromised, I believe that my play has improved slightly, however it is not anywhere near the same level as it was prior to the incident where I sustained injury. This was my major interest outside of work and this has been compromised by the function of my left finger and hand, both from a pain and performance perspective and it is very upsetting to me.”[8]
[8]Exhibit A, p19[7]
19 The affidavit made further reference to fishing, once again referring to the impact of cold water and cold weather upon the injured finger and hand.
20 Mr Nikoloudis also referred to a weakness in his grip strength and problems in the workplace if the finger was knocked.
21 Mr Nikoloudis described in some detail aspects of the cosmetic deformity including the maceration of skin in the area of the skin graft. Reference was made to the potential of a further operation, although it would appear that Mr Nikoloudis would prefer to avoid any ongoing treatment.
“I have already had 2 operations to the finger and a 3rd operation would only be for the purpose of looking at the current skin graft which breaks down currently. It’s not going to rebuild the stump and will only look at another skin graft and potentially add another scar to my body. I still have another scar on my wrist and I don’t want to miss any more work and I don’t want to jeopardise losing my job if the operation doesn’t go well.”[9]
[9]Exhibit A, p20[16]
22 When cross-examined I noted the following matters as relevant to the determination of this application:
· Mr Nikoloudis last attended Dr Damigos, his general practitioner, in February 2017.[10]
[10]Transcript (“T”) 12, Line (“L”) 21-30
· After returning to work in July 2016 he underwent a crane operations course in August 2016. The course took a couple of weeks.[11]
[11]T 13, L 1-11
· By January 2017 he had started working full-time up to 65 hours per week.[12]
[12]T 13, L 17-20
· He used to take Lyrica almost every day, but now only when he has terrible pain. He tries to avoid such medication, preferring Nurofen or Panadol to strong pain killers.[13]
[13]T 14, L 9-28
· Mr Nikoloudis would use painkillers in cold weather, or when using grinders and hammer drills which give vibration.[14]
[14]T 16, L 9-15
· He would still do his work even if it caused pain.[15]
[15]T 16, L 19-31
· He agreed telling Mr Behan in December 2016 that he was trying to start playing keyboards again.[16]
[16]T 19, L 10-28
· Before the accident he was playing as part of a band, but he could not return to this activity. He had tried to play “for maybe for seconds because I loved to be with this guy … I try to play but I couldn’t.”[17]
[17]T 21, L 4-26
· When playing the keyboard he struggled with his left hand and missed chords.[18]
[18]T 22, L 5-10
· Mr Nikoloudis agreed that he would still attend these music sessions and would sing, and that remained an enjoyable activity.[19]
[19]T 22, L 21-31
· In relation to camping Mr Nikoloudis agreed that he had gone caravan camping but not tent camping after the injury.[20]
[20]T 23, L 28 to T 24, L 13
· He agreed he may have gone caravan camping in May 2016 following the incident, “to charge my batteries, to escape the house, hospital, doctors and all of that. I took my family, was an opportunity with my family to go in a caravan place.”[21]
· He had purchased the caravan shortly before the incident.[22]
· He was not embarrassed by people looking at his finger at a venue such as the football.[23]
· Fishing caused him difficulty in cold conditions, especially with his hand being in cold water for a long period of time. He had nevertheless continues to go fishing in the winter months.[24]
· Fishing and being in a moist environment would cause the skin graft to open up and cause pain.[25]
· Prior to the incident he would go fishing for a minimum of two or three times per month. Following the accident he had sold his boat after six months, having only done three trips.[26]
· Mr Nikoloudis continued to go fishing, “if I find the opportunity in the warm day, I am going to do it.” He stated it was rare for him to go in the winter months and colder weather.[27]
· In relation to the keyboard playing following the accident, Mr Nikoloudis stated that he would play after a couple of months, “I’m trying to do that. But still I cant.” He agreed that there had been a slight improvement in his ability to play.[28]
· He had played from the age of seven, and agreed he could earn some money prior to the accident, being ranked as a professional musician in a band. He had returned to playing after the accident, but could not use the ring finger, “You can’t fast – give you pain.”[29]
[21]T 25, L 2-22
[22]T 26, L 28-29
[23]T 27, L 9-14
[24]T 28, L 8-31
[25]T 30, L 1-7
[26]T 30, L 23 to T 31, L 26
[27]T 32, L 17-26
[28]T 33, L 4-31
[29]T 34, L 12-27
23 During cross-examination a number of photographs taken from Mr Nikoloudis’ Facebook account were put to him. These were dated between May 2016 and September 2017 and were subsequently tendered in evidence.[30]
[30]Exhibit 1
24 A number of questions were asked of Mr Nikoloudis concerning these photographs. Mr Nikoloudis did not dispute the dates or the circumstances in which the photographs were taken.
25 Finally in cross-examination a short DVD recording was shown to the plaintiff. This showed Mr Nikoloudis in a social situation playing a drum-type of instrument, principally with his right hand, but also using his left hand on the instrument.[31]
[31]Exhibit 2
26 There was also some brief cross-examination concerning Mr Nikoloudis’ gardening activities. Ultimately this was not determinative of the issues before me.
27 When re-examined Mr Nikoloudis gave some further evidence about what was observed in the DVD shown to him in Exhibit 2. The evidence given was that the plaintiff was touching but not hitting the drum with his left ring finger.[32] This evidence did not ultimately affect my impression of the actions which I observed depicted in the DVD recording.
[32]T 52, L 18-22
28 There was further evidence also given concerning the fishing with Mr Nikoloudis stating that he had gone fishing on six or seven occasions since suffering his injury, with the last occasion being approximately seven or eight months prior to the hearing.[33]
[33]T 52, L 23-30
29 Finally, Mr Nikoloudis confirmed in re-examination that the source of pain in the finger occurred mainly in the work environment using vibrating tools such as grinders, hammer drills or jack hammers.[34]
[34]T 54, L 2-13
The medical evidence
30 There is no dispute that the workplace injury resulted in a partial amputation of Mr Nikoloudis’ left ring finger.
31 The plaintiff’s general practitioner, Dr Raftopoulos, described the plaintiff’s injury as follows in her report dated 28 June 2018:
“… left ring finger crush injury with associated amputation and loss of DIP and PIP joints of that finger. Secondary chronic pain syndrome in the left ring finger with neuropathic/phantom pain.”[35]
[35]Exhibit A, p78
32 Dr Raftopoulos was also of the opinion that no further surgical treatment was needed, however there may be a need for ongoing analgesia.
33 Mr Nikoloudis relied upon two medico-legal reports from Associate Professor Felix Behan dated 5 December 2016 and 22 May 2018.[36]
[36]Exhibit A, p80-112 & 119-145
34 In his first report Associate Professor Behan noted the ongoing phantom pain at the amputation site and the loss of grip strength on the left side. He also commented that Mr Nikoloudis was emotionally embarrassed by the loss of part of the digit.
35 At that time he regarded the plaintiff as suffering a 30 per cent disability from the clinical, domestic, industrial and social aspects of his injury.[37]
[37]Exhibit A, p89
36 In his first report Associate Professor Behan noted some modification of Mr Nikoloudis’ work duties and his difficulties working with vibrating machinery or in cold conditions.
37 Associate Professor Behan provided a supplementary report on 22 May 2018.[38] When examining Mr Nikoloudis on the day of the most recent report he noted a tingling in the fingertips, which was described as being an “annoyance.” He also noted maceration of the skin graft when working within a moist environment, and once again commented on the altered grip strength.
[38]Exhibit A, p119-145
38 Associate Professor Behan again made an assessment of what was described as a “lifestyle assessment and disability.” He stated:
“I would certainly consider the patient to have a disability from an industrial loss point of view as a result of his/her injuries taking into consideration the clinical, domestic, industrial and social aspects noted above. Overall the patient would have a 20% disability, taking all these factors into consideration, particularly the phantom sensations and the unstable surface of the graft.”[39]
[39]Exhibit A, p126
39 He did note the potential of some re-grafting in view of the history recorded of maceration of the graft site.
40 The further report relied upon by Mr Nikoloudis was the medico-legal opinion from Mr Murray Stapleton, which had been obtained on behalf of the defendant’s insurer on 6 July 2017.[40] Mr Stapleton recorded the plaintiff’s current status at that time as follows:
“He has no pain at rest, but in cold weather or ‘if my hand is tired,’ his left hand is painful. The power of his grip, of course, is diminished because of the lack of strength of the ring finger. What remains of the left ring finger, there he has a 50% length of the remaining finger involves a partial transverse sensory loss.”[41]
[40]Exhibit A, p112-118
[41]Exhibit A, p113
41 Mr Stapleton regarded the condition as then stabilised and noted the prognosis as follows:
“… the injury has reached maximum medical improvement. With care, I do not see him suffering from an injury or harm by engaging in occupational or daily living activities.”[42]
[42]Exhibit A, p114
42 The plaintiff also relied on a report from Mr John Anstee, prepared at the request of the defendant’s insurer on 18 October 2016. At that stage Mr Nikoloudis had recently returned to work and was seeing his general practitioner “every six weeks or so.”[43]
[43]Exhibit A, Defendant’s Court Book p76
43 Mr Anstee also conducted a grip strength test which showed quite a significant diminution of grip strength at that time. It would seem from the body of his report that the healing process was ongoing at the time of Mr Anstee’s examination, as he had some reservations at that stage about Mr Nikoloudis’ ability to immediately return to his full-time pre-injury duties including overtime.
44 I do note that the examination and report from Mr Anstee occurred only six months after Mr Nikoloudis had sustained his injury. The report is otherwise of little assistance in this application.
Analysis
45 There is little doubt that Mr Nikoloudis has shown a degree of stoicism and fortitude in returning to full-time employment following his injury. It is also clear from his evidence, both by way of affidavit and during cross-examination, that he has attempted to return to aspects of his recreational, domestic and social life to the extent that he is able.
46 My observation of both the bundle of photographs tendered as Exhibit 1 and the DVD recording of him using a drum during a musical gathering at a restaurant in June 2018, essentially go no further than to emphasise that the plaintiff is attempting to participate in day to day activities to the extent that he is able. In the DVD recording he appears to use his left hand in a guarded fashion.
47 There is no dispute that the amputation site on Mr Nikoloudis’ left ring finger remains tender, produces pain and discomfort when exposed to vibration, cold weather or wet conditions. The only medical witness to make an attempt to quantify the degree of loss for social, domestic and industrial purposes was Professor Behan, who found a 30 per cent loss in 2016 and a 20 per cent loss in 2018.
48 Although Mr Churilov on behalf of the defendant queried the relevance of these estimates in final address, I am satisfied that the plaintiff’s partially amputated left ring finger produces consequences which have, at the very least, a significant impact on his day to day activities, including his work, and his social, recreational and domestic duties.
49 It is also apparent from the evidence that Mr Nikoloudis has regained some ability to undertake fishing and camping, as had been his outdoor recreational activities prior to his injury. Nevertheless the frequency with which he undertakes these activities is in my assessment markedly less than it had previously been. I am also able to conclude that Mr Nikoloudis is less able to actively participate in aspects of these recreational activities as a result of the evidence of him selling his fishing boat and being limited to caravan camping as against tent camping. This must necessarily lead to a conclusion that some aspects of his outdoor recreational life had been impacted and will remain so through the foreseeable future.
50 I am also able to conclude that the loss of grip strength and the sensitivity both to cold weather and vibration must necessarily impact on his work activities, given the physical nature of his work. Whilst it is true that the level of medication used by him, and the absence of any ongoing medical treatment since early 2017, militates against a finding that the actual level of pain would satisfy the serious injury threshold, I am nevertheless satisfied that the consequences of the finger injury in a work environment, including the repeated breakdown of the skin graft site, must be taken into account in an assessment of the overall pain and suffering consequences.
51 Most significantly in my view is the impact on Mr Nikoloudis’ ability to return to his level of performance as a keyboard player. There is no dispute that he has returned to some level of playing keyboard, although the evidence satisfies me that prior to the accident he could fairly have been described as playing in a band and at a level that would be ordinarily regarded as professional for a musician.
52 I accept his evidence that since returning to play the keyboard he misses chords, has difficulty keeping up with other musicians in a band and, as simply stated to me during his evidence, he’s now playing a keyboard with nine fingers instead of ten.[44]
[44]T 34, L 12-27
53 Although Mr Churilov quite fairly and properly challenged Mr Nikoloudis in cross-examination as to the extent to which he had returned to playing keyboards post injury, there was no attack on his sworn evidence as to his level of participation effectively as a professional prior to sustaining his injury.
54 Mr Churilov referred me in particular to the authority of Dwyer v Calco Timbers Pty Ltd (No. 2).[45] In that case a 44 year old truck driver had suffered a crushing injury to his right arm.
[45][2008] VSCA 260
55 The Court of Appeal emphasised the significance of retained capacities in making an assessment of what had in fact been lost as a result of the injury.[46]
[46]Ibid at [27]
56 Insofar as the application relies upon paragraph (a) of the definition of serious injury, I am satisfied that the consequences presently impacting on the plaintiff can appropriately be regarded as permanent. The actual pain and suffering, including the maceration of the skin graft when exposed to wet conditions, could not of themselves amount to consequences which are fairly described as at least very considerable and more than significant or marked. The partial restriction to the recreational activities of fishing and camping once again would not of themselves satisfy the statutory definition.
57 The impairment of the plaintiff’s ability to play keyboard instruments at a level consistent with that of a professional musician, does in my view have a very significant effect on Mr Nikoloudis’ enjoyment of life.
58 He was 40 years of age at the date of his injury and had started playing keyboard in Greece at the age of seven. He has since that time achieved a level of competency which has enabled him to be accurately described as a professional musician. He has still retained an ability to participate in the promotion of a band, but he has permanently lost the ability to perform as a musician to the high level previously achieved by him.
59 Even if no regard was given to the interference with his other recreational activities or the impact of ongoing pain and loss of grip strength and dexterity in a work situation, the impact on his musical performance might of itself have been sufficient to satisfy the statutory definition.
60 Taking into account all of the pain and suffering consequences to which I have referred, I have no difficulty in being satisfied that Mr Nikoloudis is entitled to leave on the basis that the permanent loss of body function of the partially amputated left ring finger produces consequences which can fairly be described as at least very considerable and more than significant or marked. He is therefore entitled to the leave sought on that basis.
61 Although it is unnecessary to decide the question of whether the partially amputated ring finger constitutes permanent serious disfigurement, I should nevertheless consider the application made by Mr Valiotis and Mr Scully on behalf of the plaintiff.
62 I was referred to Ingram v Ingram & Anor[47] which deals with cases of gross disfigurement. Notwithstanding the very thorough and well researched submissions advanced by Mr Valiotis and Mr Scully, I could not conclude that this injury has resulted in what could fairly be described as gross disfigurement for Mr Nikoloudis.
[47][1996] 2 VR 435
63 I was also referred to authorities of Baker v TAC & Anor[48] which concerned multiple scars to a 17 year old woman suffered in a transport accident. The Court of Appeal referred to the scarring as follows:
“Satisfactory descriptions of the scars on the appellant’s body are not easily provided. This is so, I suppose in cases of scarring generally. The scarring is to her left lower leg, right lower leg, right foot, right buttock and abdomen. As regards the left lower leg, there is quite an obvious 20 centimetre scar on the inside of the leg but close to the front of the leg. As a result of a puncture would there is on the left lower leg also a very noticeable scarred depression evidently about three centimetres long near the front of the leg. It is the depression which makes this scar very noticeable. The appellant, not without some justification, described it as a hole. As to the right lower leg, there is quite an obvious 20 centimetre scar on the inside of the leg. There is a three centimetre scar on the outer side of the right foot. At the base of the right buttock there is a scar said to be ‘some inches long’. There are two quite obvious scars on the abdomen, a 20 centimetre vertical midline scar running from the rib cage to just below the navel, joined by a 15 centimetre horizontal scar passing to the right. Having, as one of the judges in Ingram’s case, seen the photographs of the abdominal scar which was then in question, I can say that the present abdominal scars differ from the single midline scar in that case in that they are neither thin or whitish.”[49]
[48][1997] 1 VR 662
[49]Ibid at 664
64 Unsurprisingly in that case the court was satisfied that the scarring satisfied the statutory definition of permanent serious disfigurement.
65 Mr Valiotis also referred me to a more recent decision of the Court of Appeal in TAC v Garcia.[50] That case concerned an appeal against the grant of leave given to a plaintiff who had been left with a 15 centimetre long scar down the front of his left upper arm. The scarring in that case had resulted from surgical incisions made to reduce and internally fix a fracture of the plaintiff’s left humorous. The scar had been described by the original trial judge as follows:
“What I observed was a scar running from just under the shoulder joint and extending down the front of the plaintiff’s left bicep. The scar is very obvious. It was 3 or 4 millimetres wide, as best I could estimate. The scar was reddish in colour.”[51]
[50][2015] VSCA 225
[51]Garcia v TAC [2015] VCC 140 at [8]
66 Much of the Court of Appeal’s reasoning concerned the approach which had been taken by the trial judge to the assessment as to whether the scar in that case did satisfy the statutory test. Ultimately the court did not interfere with the assessment that had been made by the trial judge.
67 Significantly the court in Garcia stated:
“… while it may be said that the reasons for judgment do not contain the level of detail about consequences that one might ordinarily see in a paragraph (a) case, this is to be expected in circumstances where the consequences of scarring (in this case, as in perhaps many cases) are not likely to be something about which one can dilate at length. Indeed, when one examines this Court’s judgment in Baker, one sees little (if any) detail in the judgment of the Court concerning the consequences of the scarring in that case – which consequences were found by the Court to satisfy the description ‘permanent serious disfigurement.’”[52]
[52]TAC v Garcia [2015] VSCA 225 at [30]
68 I had the opportunity to examine the amputated stump of Mr Nikoloudis’ left ring finger, including the skin grafted area. I can accept that the stump is embarrassing for him. It does not in my assessment constitute what could fairly be described as a serious permanent disfigurement when a comparison is made with a range of other cases of possible disfigurement.
69 Therefore insofar as the application relies upon paragraph (b) I would not grant leave to the plaintiff.
Conclusion
70 I am satisfied that the plaintiff has made out his application for leave in respect of paragraph (a) of the serious injury definition. Insofar as it remains necessary to consider the plaintiff’s application otherwise I would not grant leave on the basis of reliance on paragraph (b) of the definition.
71 I propose to grant the plaintiff’s application and I will hear the parties in respect of the formal orders sought, including orders in respect of costs.
- - -
0
3
0