O'Rourke v Victorian WorkCover Authority
[2023] VCC 1472
•28 August 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Serious Injury List
Case No. CI-21-00998
| KEITH O’ROURKE | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE PURCELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 and 21 August 2023 | |
DATE OF JUDGMENT: | 28 August 2023 | |
CASE MAY BE CITED AS: | O’Rourke v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1472 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – left and right elbow injury – pain and suffering – loss of earning capacity – credibility of plaintiff
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013 (Vic)
Cases Cited:Petrovic v Victorian WorkCover Authority [2018] VSCA 243; Giankos v SPC Ardmona Operations Ltd [2011] VSCA 121; Margripilis-Hampton v Spendwatt Pty Ltd [2022] VSCA 16; Weldermichael v ID Sales & repairs Pty Ltd [2019] VSCA 68
Judgment: Application dismissed
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Mighell KC with Mr L Howe | Zaparas Lawyers |
| For the Defendant | Mr T Storey | Lander & Rogers |
HIS HONOUR:
Introduction
1The proceeding before the Court is a “serious injury application” in respect to an alleged workplace injury, the specifics of which I shall turn to in a moment.
2The plaintiff is now 49 years of age. He was born in Ireland, commenced, but did not complete, an engineering degree and then went on to work for various companies that were involved in manufacturing and selling concrete pumps. As far as I can tell, his working life has been spent in and around that industry.
3The plaintiff migrated to Australia in late 2011 and took up similar employment involved with concrete pumps and equipment. In September 2017, he commenced that type of work for Meridian Concrete. After a period, he was transferred across to I & D Construction (“the employer”) which was apparently owned by Meridian Concrete. As of 4 October 2018, the plaintiff was employed full time with the employer. He earned $137,683 gross in the previous financial year.[1] On that day, he was attempting to loosen a nut in a piece of machinery using a long pole, when something happened with the pole and caused him to injure his left elbow (“the incident”).
[1] Income summary, Plaintiff’s Court Book (“PCB”) page 147.
4There is no argument for the purposes of this proceeding that the incident occurred. There is no argument that the plaintiff injured his left elbow in compensable circumstances with the employer. He has received payments of compensation in respect to that condition. There is also no argument that the injury is diagnosed in lay terms as a tennis elbow injury that required surgery. I shall return to the narrative in a moment.
5The plaintiff relied upon the physical injury to the left elbow as a “serious injury”. One of the claimed consequences of the left elbow injury was a consequential overuse injury to the right elbow for which the plaintiff has also undergone surgery. The defendant paid for treatment for the right elbow, but in this proceeding denies that any overuse-type injury can be related to the compensable left elbow injury. The plaintiff also initially relied upon the claimed psychiatric consequences of the left elbow injury/the incident, but at the conclusion of the oral evidence the claim based on the psychiatric injury was abandoned.
6At the commencement of the hearing, the defendant raised, as a preliminary issue, an outstanding subpoena to Victoria Police. The resolution of that issue occupied a morning of the Court’s time.
7The preliminary issue arose, in part, from evidence in a recent affidavit from the plaintiff sworn 14 August 2023[2] and a desire by him that the proceeding not be adjourned.
[2] Well outside the Court ordered timetable for the exchange of any further affidavit.
8In the affidavit sworn 14 August 2023, the plaintiff first acknowledged that he had used, and continued to use, the drug “ice”. For the first time, he also acknowledged a history of criminal offending. He said:
“I have pending criminal charges. I deny the charges. I do not wish to comment further on these charges as they have not resolved. In addition, I have a criminal history that post-dates my injury, relating to my methamphetamine use and homelessness. It includes charges relating to substance use and property theft.”[3]
[3]PCB page 27 at paragraph [11].
9In the context of pending criminal charges, the matter ultimately proceeded after the relevant subpoenaed material from Victoria Police was provided to the defendant after an indication from the Court that the plaintiff could be cross-examined about relevant antecedents but was not to be cross-examined about any outstanding criminal charges. The defendant was informed that it could make submissions to the Court based on any relevant material as if the outstanding criminal charges had been put to the plaintiff and responded to by him with a “no comment” response.
10As should be immediately apparent, the course adopted was an imperfect solution to a problem created by the outstanding criminal charges and the brief comment about those charges by the plaintiff in his recent affidavit, in circumstances where the Court was concerned that his evidence may prejudice his defence in criminal proceedings and where experienced senior counsel advocated forcibly on his behalf that there should be no adjournment of the proceeding.
11It was no surprise then, that a focus – appropriately – was brought by the defendant to issues regarding the plaintiff’s credit, including his drug use and criminal offending.
12The matter otherwise proceeded in the “usual way”. The plaintiff tendered affidavits and medical reports contained in his court book. The defendant tendered medical reports, clinical records, and documents relevant to the plaintiff’s criminal history from its court book. I have considered the whole of the evidence, including the plaintiff’s oral evidence, together with the parties’ submissions. Otherwise, the relevant legal principles are well known and not in dispute.
13As it transpired, the plaintiff’s criminal offending and drug use were not the only credit issues. The defendant also played and tendered covert video surveillance,[4] which demonstrated the plaintiff going about ordinary day-to-day activity in contrast to his evidence of extreme symptoms and inability to engage in ordinary day-to-day activity. In addition, credit issues arose out of the plaintiff’s oral evidence, to do with topics such as his homelessness, claimed symptoms, and general level of activity.
[4]Exhibit D1.
14At the conclusion of the evidence, senior counsel for the plaintiff made the appropriate concession that the plaintiff’s credit had been impugned. Consistent with that concession, but contrary to the plaintiff’s sworn evidence and the medical evidence obtained on his behalf, it was also conceded that the Court could properly conclude that the plaintiff had a residual capacity for full time “suitable employment”.[5]
[5] Transcript (“T”) 121, Line (“L”) 27.
15In fact, in final address, senior counsel for the plaintiff made an obvious forensic decision not to address the Court in respect to alleged pain and suffering consequences.
16Rather, the contentions on behalf of the plaintiff were confined to the proposition that he had a left elbow injury that prevented him from returning him to his pre-injury employment, and that his residual capacity for “suitable employment” was limited and that he satisfied the test for economic loss, despite his unreliable evidence.
17Completing a brief introduction, the defendant made no secret of the fact that it considered this primarily to be a credit case. Counsel for the defendant described the plaintiff as lying repeatedly about key issues in the proceeding,[6] exaggerating and deliberately attempting to mislead everyone involved in the case.[7] The defendant submitted that the level of his dishonesty as a witness was such that any evidence relied on by him was “so parlous” that the Court cannot make any findings in support of the plaintiff’s application.[8]
[6] T 106, L 24.
[7] T 107, L 1-11.
[8] T 118, L19-24.
18Counsel for the defendant placed emphasis upon what was said by the Court of Appeal in Petrovic v Victorian WorkCover Authority.[9] In that proceeding, Beach, Kaye and Niall JJA said as follows at paragraph [74]:
“As has been said many times before, in a personal injury proceeding, the evidence of the plaintiff (and whether that evidence is accepted by the trier of fact) is often critical to the success or otherwise of the plaintiff’s proceeding. This is particularly so in cases involving psychiatric injuries. Additionally, in such cases, the opinions of medical experts (and the question of whether those opinions should be accepted) are often also heavily dependent upon the acceptance of the plaintiff’s account. Put shortly, the opinion of any particular expert opinion in a case like the present is usually only as good as the underlying history upon which it is based.”
(Footnotes omitted.)
[9][2018] VSCA 243.
19I can do no better than adopt what was said by the Court of appeal in Petrovic. If ever there was a proceeding to illustrate the point that expert opinion is only as good as the underlying history upon which it is based, then this is such a proceeding.
The credit of the plaintiff
20In what is hardly a spoiler, this is a proceeding in which the plaintiff’s credit has been impugned. In my view, he was a wholly unreliable witness.
21In fact, the only reliable objective material comes from the defendant’s concession that the plaintiff suffered a left elbow injury in the course of his employment with the employer, for which he was referred for treatment and ultimately underwent left elbow surgery.
22But, of course, surgery does not equate automatically to “serious injury”.
23In assessing the impairment and impairment consequences of that left elbow injury as at today’s date, including whether the right elbow injury is causally related, the plaintiff bears the evidentiary onus. As I shall explain, I conclude that the plaintiff is such an unreliable historian that it is impossible to make any reliable conclusions as to impairment and impairment consequences.
24In other words, I accept the primary contention of the defendant that the plaintiff’s credit has infected the evidence relevant to impairment and impairment consequences to such an extent to render it unreliable and in those circumstances the plaintiff simply fails to discharge his evidentiary onus.
25Next, I shall set out some of the plaintiff’s evidence in the context of illustrating his unreliability and the lack of reliable or objective evidence of impairment and impairment consequences.
The plaintiff’s claim of homelessness
26In his first affidavit, the plaintiff described a period in early 2019, when his WorkCover payments were cut off, causing him to be unable to pay his rent and become homeless for some period. He went on in that affidavit to describe how he was no longer living in his car but said he had not been able to obtain a rental, despite applying for a lot of different properties. His evidence in that affidavit contradicted himself and was unclear as to when or why he became homeless. That affidavit gave an address in Ormond as his residential address.
27The issue of the plaintiff becoming homeless became important in the context of how it related to his use of methamphetamine. In his second affidavit he said:
“I use illicit substances, ice. I was not into drugs before I hurt myself. I first used ice when I was living in my car in the circumstances outlined in paragraph 26 of my previous affidavit. The insurer stopped paying my WorkCover wage payments. I had no money for about 3 months. I became homeless. I wasn’t in a right frame of mind. I tried ice. I let some bad people into my life. I developed a problem with ice use. It was a stupid thing to do. I wish I hadn’t. I still use ice but much less. I have been trying to stop and get my life back together.”
28During cross-examination, clinical records from his treating general practitioner, Dr Abhishek Mallik, were put to the plaintiff. A clinical record of 17 May 2018[10] was used in cross-examination to highlight that the plaintiff was then going through a lot of stress due to a matrimonial break-up, was missing days off work, and binge drinking. The plaintiff did not accept that he was binge drinking. He did accept that he took a few days off work.[11] He was also asked whether, prior to October 2018, there had been any time when he had been living out of his car, and he said, “There was a bit of time when I split up from my wife”, but he could not remember whether that was May 2018.[12]
[10]Defendant’s Court Book (“DCB”) page 176.
[11]T 57, L 23-24.
[12]T 57, L 30-31; T 58, L 1-6.
29In any event, there was a consistent theme throughout the plaintiff’s evidence and in the tendered evidence that his left elbow injury had caused extended periods of homelessness. For example, when examined by Associate Professor Peter Doherty, consultant psychiatrist, on 26 June 2023, he apparently told Associate Professor Doherty that he had also been homeless for quite a while, “probably for one and a half years. He has lived in the car and had an odd night in a hotel”.[13] But it became clear during the oral evidence that the history of homelessness to Associate Professor Doherty was patently untrue.
[13]DCB 57.
30It is hard to get an accurate handle on where the plaintiff has lived since the incident. When presenting for medical treatment in April 2019, he provided an address in Seymour Road, Elsternwick. There was an incident where the police attended the Ormond address[14] in February 2020, and so I assume he was living there at that stage. During his oral evidence he also described at one point living in Sandringham. While he was not sure of the exact dates, he gave evidence that he had lived in Sandringham for two years, give or take.[15] By the time he swore his second affidavit on 14 August 2023 he was living at an address in Seascape Street, Clayton. During his oral evidence he said he had been at the Clayton address for approximately 10 months.[16] He was also cross-examined about an address in William Street, Balaclava, that he gave as his contact details when he attended for a vocational assessment with Ms Hayley Morey of CoWork Pty Ltd on 7 July 2023, as contained in her report dated 4 August 2023.[17] The plaintiff explained that he was probably staying in Balaclava.[18] I understand the Balaclava address to be the plaintiff’s friend Sam’s address, and that he stays there a bit, and she stays a bit at Clayton.
[14]DCB 268.
[15]T 86, L 14-15.
[16]T82, L 10.
[17]DCB 75.
[18]T 88, L 15-16.
31The short point is that the plaintiff painted an extreme picture of homelessness as one of the consequences of the left elbow injury. That claim has clearly been exaggerated. It may in fact be that the plaintiff was homeless for a period before he hurt his left elbow. The extent of any “homelessness” since the left elbow injury is hard to assess.
32Underpinning the claim of homelessness is a claim of significant financial stress because of the left elbow injury. Yet that claim is also not borne out on the objective evidence. The plaintiff in fact continues to receive WorkCover weekly payments. According to a summary of income provided on his behalf, for the financial year ended 2019 he had wages and WorkCover payments of $122,844. For the financial year ended 30 June 2020 he received $129,928. For the financial year ended 30 June 2021 he received $114,248.[19]
[19] PCB 147.
33It also came out during his oral evidence that he had received a total and permanent disability payment of approximately $400,000. It was put in cross-examination that he received that money in mid-2021, and he agreed with that proposition.[20] The fact of the total and permanent disability payment was not referred to in any of his affidavits. One of the things that he did with that money was purchase a Tesla vehicle for approximately $165,000. As I shall come to, he is seen driving that vehicle in the video surveillance. It is a strange decision for someone who is homeless and in financial difficulty to spend such a large amount of money on a car.
[20]T 39, L 16.
34The plaintiff’s evidence about being homeless was unreliable, and inconsistent with the objective evidence.
Criminal offending
35As already mentioned, the plaintiff made passing reference in his most recent affidavit to his criminal offending. I do not propose to say much about that history, other than that the convictions are inconsistent with someone with extreme left (or right) elbow symptoms. He has convictions related to drugs, theft, and assault.
36Further, because of his criminal offending, he was imprisoned for a period of 52 days in approximately mid-2022, which was also omitted from his affidavits. He has also been sentenced to undertake 100 hours of community work commencing 5 June 2023,[21] which was also omitted from his affidavits, and the details of which are not before the Court.
[21]DCB 253.
37The plaintiff has pending criminal charges that I do not propose to consider. His history of criminal offending and drug use is sufficient to cast doubt on his claimed level of incapacity. The evidence regarding his drug use, including his criminal convictions, indicates that he has a drug addiction. There was no attempt in final address to maintain the claim based on a psychiatric injury, and no attempt to link the plaintiff’s drug use to any compensable injury.
38I note that Associate Professor Doherty was the only medical practitioner to obtain a relevant history of the plaintiff’s drug use. In those circumstances, Associate Professor Doherty’s opinion that the plaintiff has a drug-induced psychosis[22] is compelling. That psychosis may or may not explain the plaintiff’s unreliability as a witness.
[22]DCB 64.
39In assessing the criminal offending, I am conscious that he has been dealt with by the criminal justice system and must not be punished twice. In that sense I disregard the offending. But what I consider is that the activities that he engaged in to commit criminal acts speak for themselves as inconsistent with a man with the inability to do anything other than very light or basic activity with his arms.
Claimed impairment and impairment consequences
40In his first affidavit, the plaintiff set out the history of the left elbow injury and specialist assessment that he had undertaken, leading to left elbow surgery on 7 June 2019 which was performed by Mr Ash Chehata, orthopaedic surgeon. The plaintiff described ongoing significant pain in his left elbow. He described shooting pains into the arm, “especially when I use the arm a lot, for example to try and carry shopping”. He said he used to be an active person, enjoying golf and cycling. He said he had not been able to return to either of those activities, and that he could not now swing a golf club, although I note the criminal conviction for assault arose in circumstances where he used a golf club to attack another person. In any event, he went on to describe how “even carrying groceries is difficult if it is anything more than very light objects”. He said that his handwriting had been affected because “my grip is weak so my writing is squiggly and messy. I cannot write for long.”
41In short, in the first affidavit, the plaintiff painted a picture of significant disability.
42In his more recent affidavit, he said he continued to suffer the pain, symptoms, and consequences of his left and right elbow of the same intensity as outlined in the previous affidavit, and that he continued to have the same problems.
43During cross-examination, the plaintiff agreed that his symptoms have continued unabated and at the same level as set out in his first affidavit. He said that both affidavits were true and correct in every way,[23] and that neither affidavit was exaggerated.[24]
[23]T 31, L 25.
[24]T 31, L 26.
44He said that since he stopped work, he had not been doing any arduous physical activity.[25] He was cross-examined specifically about some of the consequences as set out in his affidavits and maintained that his evidence was correct. For example, he agreed that he cannot play golf because it is difficult to hold a golf club, and it would be really difficult to swing it because of the left elbow.[26] He agreed that any physical activity which involved the use of the arms can be painful and difficult, and even something very light can bring on pain. He maintained that even carrying light shopping bags can bring on pain,[27] and even something like opening the fridge door could bring on pain in the left arm. He said the left arm was worse than the right.
[25]T 36, L 6.
[26]T 40, L 11-16.
[27]T 40, L 30.
45The plaintiff was cross-examined about the evidence in his second affidavit of dropping things because of weakness in the arms. He said that evidence was true.[28] He was asked whether something as light as a coffee cup might be difficult and he might drop the cup because of the pain and difficulty in the left arm. He said “Yes. You can get a bolt of pain and you just drop it.”[29]
[28]T 41, L 15.
[29]T 41, L 26-27.
46The plaintiff was cross-examined about the use of his arms. He said he had to carry some things but accepted that it would be fair to say that if he saw something big and heavy, he probably would not try to lift it, because he knew it was going to bring on pain.
47The plaintiff had been assessed by several medical practitioners for the purposes of treatment and for the purposes of this proceeding. He has consistently described ongoing left elbow pain and an inability to do much with the left elbow.
48There is no need to set the medical evidence out in detail other than to highlight examples of the unreliability of what he has said to both treating and medico-legal practitioners.
49In that context, commencing with the treating surgeon Mr Chehata, who I will return to discuss in more detail, in a report dated 21 June 2022, he said that chronic pain had developed, and that repetitive lifting would be far better avoided.[30]
[30]PCB 73.
50The treating general practitioner, Dr Mallik, provided several reports. In a report dated 19 November 2020,[31] he described the plaintiff as suicidal because his payments had been stopped. Then, in a report dated 16 September 2021,[32] he diagnosed the right elbow injury and said that while it was “difficult to definitively attribute cause” he thought it likely related to his work history.[33] In his most recent report dated 30 January 2023,[34] he discussed the plaintiff’s injury, physical symptoms, and ongoing mental health issues. He said the plaintiff could not return to his pre-injury employment “given the extent of impairment in his elbows” but that “it may be possible for Keith to return to employment in the future though it would need to be admin based and not involve manual labour”.[35]
[31] PCB 50.
[32] PCB 51.
[33] PCB 51.
[34] PCB 52.
[35] PCB 53.
51Dr Mallik writes as a concerned general practitioner who is supportive of his patient. But it is unclear if he is aware of the plaintiff’s drug use and criminal offending. The contents of his reports suggest he has also been misled by the plaintiff as to the true extent of his ongoing symptoms.
52Next, turning to the medico-legal evidence, Associate Professor Bruce Love, consultant orthopaedic surgeon, examined the plaintiff at the request of his solicitors and provided a report dated 14 February 2023. In that report he assessed the plaintiff as having developed bilateral epicondylitis related to his employment with the employer. He obtained a history of symptoms in both elbows and related sensory change. He had an (inaccurate) history that the plaintiff was homeless. He had a history that the left elbow condition precluded the plaintiff from engaging in social, domestic, and recreational activities. He made similar comments about the right elbow, which he said had been caused by the consequence of developing a left elbow condition. He described the plaintiff as “severely restricted with regard to social, domestic and recreational activities”.[36]
[36]PCB 95.
53Dr Justin Lewis, consultant psychiatrist, examined the plaintiff at the request of his solicitors and provided a report dated 10 March 2023. He described the plaintiff as a challenging interview subject.[37] He described consequences including chronic pain, physical restrictions, occupational incapacity, poor response to treatment, financial strain, and an inability to return to previously enjoyable recreational interests.
[37]PCB 104.
54Dr James Rowe was a specialist occupational physician who examined the plaintiff at the request of his solicitors and provided a report dated 7 March 2023. He obtained a history of pain in both elbows radiating into the forearms, with a reduced range of motion and reduced grip strength in both hands, causing him to frequently drop things. He recorded the left-sided symptoms as more significant than the right, and no significant benefit from the surgeries. He noted the plaintiff continued to struggle with the loss of functional use of his arms and hands.[38]
[38]PCB 112.
55The defendant has also obtained medico-legal opinion. There is no need to delve into those reports, other than to record the inaccurate history provided also to those doctors.
Video Surveillance
56The picture of significant disability that was painted in the history to the doctors that the plaintiff relied on, is to be contrasted with the inferences that can be drawn from the evidence of his past criminal offending, but also more starkly from the video surveillance that was played and tendered by the defendant.
57Whilst the duration of the video was relatively short, it demonstrated that, at various times on 28 July, 8 and 9 August 2023, the plaintiff was able to engage in ordinary day-to-day activities. He was seen driving his Tesla and using both hands to steer the vehicle. He was seen purchasing items, including painting items, and he explained that he had been helping a friend doing some light sanding. He was shown lifting a clotheshorse and other items at a house. He was attending at an equipment-hire facility and gave strange evidence about trying to hire something to lift a hydraulic rock-breaker that a friend of his was trying to sell.[39] He was also shown stopping his Tesla to retrieve a television from a box on the side of the road. He was shown to vigorously remove the television from the box, to lift it without any obvious restriction, and to place it into the back of his car. He was then shown to tie a strap to secure the television in the boot of the Tesla. Later, he was shown attending at a timber yard and going about ordinary day-to-day activity.
[39] T 63, L 24-31; T 64, L 1-31.
58The video surveillance must of course be seen in both time, content, and context.[40] On the plaintiff’s behalf, much was made in final submission about the fact that no doctor had been provided with the video surveillance. But, of course, the video surveillance did not depict the plaintiff doing anything other than what he must know that he can do and has done. He was seen to be regularly out and about in his vehicle. Apparently, he can help friends with activities including painting and sanding. He was shown to use his arms to carry items without any restriction. In that context, the video surveillance was quite damning of his evidence of extreme disability.
[40] Church v Echuca Regional Health [2008] VSCA 153 at [66].
59In fact, the only conclusion from the video surveillance is that the plaintiff has significantly exaggerated the extent of any ongoing impairment consequences.
60There is simply no objective medical or other evidence to enable any reliable conclusion as to the plaintiff’s true level of impairment and impairment consequences. It is no answer to that by simply highlighting that he had an initial compensable injury and surgery. It is the impairment and impairment consequences as at today’s date that need to be assessed, and, I repeat, there is simply no reliable evidence to do that.
The onset of right elbow symptoms
61One further issue in this proceeding is when and how the plaintiff developed right elbow symptoms. The thrust of his affidavit evidence was that because of the left elbow injury he was favouring it and was overusing the right elbow, and therefore the right elbow is a consequence of the left elbow.
62First, there is no reliable evidence to form a conclusion whether the plaintiff was in fact favouring his left elbow after undergoing surgery. Mr Chehata noted on 30 June 2019 that the plaintiff was making gains after the left elbow surgery.[41] In a letter to Dr Mallik dated 21 August 2020, Mr Chehata then recorded the following:
“Keith is a gentleman who is still complaining of some mild left elbow pain, and as a result has more or less developed some right elbow pain. He remembers the initiating factors of him being admitted to hospital for Helicobacter pylori and after some intravenous needles going into the right elbow, afterwards he appeared to get far worse.
The ultrasounds from Capital Radiology confirm partial thickness tearing of the common extensor wad, all consistent with either degenerative tear, or partial tearing as a result of his long standing work history. I am glad that although the left side is still mildly painful, this confirms an intact common extensor origin, although hyperechoic, all consistent with a previous repair.”[42]
[41]PCB 56.
[42]PCB 59.
63Next, in a report dated 6 May 2021,[43] Mr Chehata said regarding the right elbow:
“From the documentation provided, I became aware of the right elbow after referral on 18 August 2020 after the general practitioner noticed ongoing pain in the right elbow approximately a year after the initial repair. Dr Abhishek Mallik of 161-163 Carlisle Street, Balaclava, organised on 3 August 2020 through Capital Radiology, an ultrasound confirming partial thickness tearing of the common extensor origin measuring approximately 10 mm, with increased vascularity and a classic feature of tennis elbow.”
[43]PCB 66.
64Mr Chehata said further in that report that:
“I saw Mr O’Rourke who is an incredibly fragile individual with severe psychiatric and psychological concerns and he is to a point now where he is socially recluse and is homeless living in his car.
Unfortunately, this colours all the clinical assessments, as well as his history. On 21 August 2020 he tells me he was admitted into hospital for a severe gastrointestinal problem and issues with Helicobacter pylori. After having some intravenous needling into his right elbow, it appeared the pain in his right elbow that was present prior to this procedure, appeared to get worse.
He tells me that since the surgical intervention on that left side, he has been utilising his right arm and as a result, has developed right elbow pain and it would appear that simply on balance, it is difficult to truly define the underlying cause. However, there is no doubt that rather than a simple idea of work related issues, it is more related to a multifactorial presentation.
The concept here of utilising the right arm far more if he is not using his dominant arm, which is the left arm, is certainly very reasonable and although employment may not be the entire driving force, it is no doubt a significant contributing factor considering that the left side was not being able to be used and the right side was therefore over used and any type of tearing has become magnified. He has certainly noticed a significant deterioration in his overall function because of this.”[44]
[44]PCB 68.
65As can be seen from Mr Chehata’s reports, he expressed some support for the “overuse” argument regarding the right elbow, but in the context of relying upon what the plaintiff had told him. The same applies for other supportive medical opinions such as Dr Rowe, who said as follows:
“I am satisfied that the right elbow injury was caused by his employment at I&D Group. He described repetitive, heavy and forceful use of his arms and hands over time. His symptoms were aggravated after he ceased employment, due to over-reliance on his right side, following the left-side injury and subsequent surgery.”[45]
[45]PCB 120.
66The plaintiff was cross-examined about the onset of right elbow symptoms and cross-examined about what was contained in clinical records. Contrary to his affidavit evidence that the right elbow was an overuse injury, he said during cross-examination that he had in fact injured the right elbow at the same time as the left elbow because “both elbows hit the ground”.[46] The plaintiff maintained that the right elbow was never as bad as the left initially, and then got worse as time went on.[47]
[46]T 31, L 28.
[47]T 32, L 3-4.
67If in fact the right elbow was injured at the same time as the left, then it would have to be considered separately for “serious injury” purposes.
68Regardless, the unreliable nature of the plaintiff’s evidence makes it impossible to form a conclusion whether he in fact was relying on his right elbow after the left elbow surgery, such that it can be a consequence of the left elbow. I note that in early 2020 he was involved in criminal offending which might suggest that the left elbow was not as bad as the plaintiff had attempted to make out.
69If pushed, I would conclude that the right elbow is not made out on the evidence to be related to the left elbow, although ultimately nothing turns on this, because the overall unsatisfactory nature of the plaintiff’s evidence means that, even if it was related, a sound conclusion cannot be drawn about ongoing consequences. It is another example of the unreliability of the plaintiff.
After injury capacity for employment
70Consistent with how his case was closed, I consider that the only way the plaintiff could establish “serious injury” is by reference to pecuniary loss consequences. There is simply no reliable evidence to form an opinion as to whether the plaintiff has a “very considerable” pain and suffering consequence either from the left elbow in isolation or both elbows in combination.
71In respect to pecuniary loss, the first submission on his behalf was that he is now unable to return to his pre-injury employment. That submission suffers from the same evidentiary problems as already identified: namely, the overall unreliability of the plaintiff makes it impossible to conclude whether he is incapacitated for his pre-injury employment.
72But even if he is incapacitated for his pre-injury employment, the claim still fails.
73In closing submission, it was conceded that the plaintiff could return to three of the five jobs said by Ms Morey in the CoWork report to be “suitable employment” after injury. The first three of those jobs in section 4 of her report are leaflet deliverer/flyer distributor; dog walker; and meter reader. The rates of pay given for those jobs are such that if the plaintiff undertook those employments on a full-time basis, he would be earning less than 60 per cent of his “without injury” earnings.
74The other two jobs in Ms Morey’s report are of quality inspector/product examiner for annual earnings of $73,112 gross, and sales representative (concrete) for annual earnings of $84,760 gross. If either of those jobs are now “suitable employment”, then the plaintiff does not satisfy the test for pecuniary loss, “serious injury”.
75On his behalf, it was submitted that neither quality inspector nor sales representative were suitable employment. It was submitted that, as those jobs had not been put to medical practitioners for comment, the Court should not take that evidence into account. I take that submission to mean that in the absence of opinion from appropriate medical practitioners, the Court should attach little weight to the opinions of Ms Morey in the CoWork report[48] because, according to the qualifications set out in the report, she is an occupational therapist and not medically qualified.
[48] Giankos v SPC Ardmona Operations Ltd [2011] VSCA 121 at [111].
76I must consider the whole of the evidence. In the context of what is seen in the video surveillance, at the very least, I conclude that the plaintiff has “after injury” the capacity to engage in light work. Dr Mallik’s most recent report also supports that conclusion.
77The plaintiff has extensive experience with concrete pumps and within that industry, including, if his first affidavit is to be believed, in administrative and supervisory positions.[49] A position as a sales representative, in my view, meets the definition of light work.
[49] PCB 14 at paragraph 7.
78While no medical practitioner commented upon the CoWork jobs, neither did the plaintiff provide any reliable evidence to form a conclusion that those jobs were not “suitable employment”. In that context, I have weighed all the evidence according to the proof which it was in the power of each party to produce and for the other to contradict.[50] The plaintiff did not produce any reliable evidence about his residual capacity for “suitable employment”, in circumstances where he bore the overall onus and produced no evidence to rebut the CoWork report. In that context, the defendant discharged its evidentiary onus to identify “suitable employment” for the plaintiff “after injury”.[51] Ms Morey has provided a description of the jobs of Quality Inspector/Product Examiner[52] and Sales representative (Concrete)[53] that is evidence that I accept as now being within the plaintiff’s capacity.
[50] Margripilis-Hampton v Spendwatt Pty Ltd [2022] VSCA 16 at [16].
[51] Weldermichael v ID Sales & repairs Pty Ltd [2019] VSCA 68 at [80].
[52] DCB 96.
[53] DCB 98.
79The CoWork report provided evidence of the physical and intellectual tasks required in the identified jobs. Based on the evidence contained in the report, the plaintiff conceded that he could do three of the identified jobs. He proffered no basis to conclude that the two other jobs (quality inspector/product examiner and sales representative (concrete)) were not “suitable employment” beyond the fact that medical practitioners had not commented upon those jobs. I consider that submission to be no more than a complaint that the rates of pay for those jobs meant that he would not satisfy the test for pecuniary loss serious injury.
80Ultimately, it is my assessment as to whether the identified jobs, after weighing all the evidence, constitute “suitable employment”, and in light of the concession that the plaintiff does have a capacity for “suitable employment”.
81In the circumstances, I conclude that the plaintiff has a residual physical capacity for “suitable employment” in any of the five CoWork jobs “after injury”, and so on that basis he has failed to prove the requisite loss.
82Further, more broadly, I consider that, overall, the plaintiff failed to discharge his evidentiary onus to establish “serious injury”.
Conclusion
83For the reasons given, the application is dismissed.
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