Parker v Dahlsens Building Centres Pty Ltd and Victorian WorkCover Authority
[2013] VCC 533
•3 May 2013
| IN THE COUNTY COURT OF VICTORIA AT MORWELL CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-12-00687
| JOHN PARKER | Plaintiff |
| v | |
| DAHLSENS BUILDING CENTRES PTY LTD | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE BROOKES | |
WHERE HELD: | Morwell | |
DATE OF HEARING: | 18 April 2013 | |
DATE OF JUDGMENT: | 3 May 2013 | |
CASE MAY BE CITED AS: | Parker v Dahlsens Building Centres Pty Ltd & Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 533 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – pain and suffering consequences of injury to the left elbow – whether the consequences are “at least very considerable”.
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr O’Dwyer SC with Mr E Delaney | Maurice Blackburn Lawyers |
| For the Defendants | Mr P Scanlon QC with Mr A Saunders | Minter Ellison |
HIS HONOUR:
1 The plaintiff alleges that he injured his left elbow in the course of his employment with the first defendant, due to the nature of his work between 2006 and August 2008. He seeks the leave of this Court to issue proceedings to recover pain and suffering damages in respect of that injury.
2 His right to do so is governed by the provisions of s134AB of the Accident Compensation Act 1985 (“the Act”). In order to obtain such leave, the Court must be satisfied, on the balance of probabilities, that he has suffered a “serious injury”.[1]
[1]Section 134AB(19)(a)
3 The term “serious injury” is defined in s134AB(37) of the Act, insofar as is relevant to this application, as:
“(a)permanent serious impairment or loss of a body function.”
4 The body function relied upon in this application is that of the plaintiff’s left upper limb.
5 The term “permanent” is to be interpreted as meaning “likely to persist in the foreseeable future”.[2]
[2]Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at paragraphs 18 and 19
6 The impairment or loss of a body function shall not be held to be serious for the purposes of this application unless the pain and suffering consequences are, when judged by comparison with other cases in the range of possible impairments or losses, fairly described as being more than significant or marked and as being at least very considerable.[3]
[3]Section 134AB(38)(b) and (c)
7 The plaintiff submits that the pain and suffering consequences of his injury can fairly be described as being at least very considerable. The defendant denies this is so.
Background
8 The plaintiff was born in Australia in July 1964 and is aged forty-eight years. He left school before finishing Year 9 and has no formal trade or professional qualifications. His English speaking skills are good; however, his reading and writing skills are only fair and he needed assistance in reading his affidavits.
9 Prior to working for the first defendant, he performed mainly labouring type duties.
10 In about 2004, he obtained work with the first defendant as a frame builder, and later as a foreman. The first defendant was in the business of making timber wall frames. The plaintiff was involved in making up about 100 frames per day and he described it as heavy, repetitive and physically stressful work.
Injury and treatment
11 In 2006-2007, the plaintiff experienced pain in his left upper limb, particularly in his elbow, due to the physical nature of the work described.
12 In about August 2008, whilst performing the above work, he developed further pain in his left elbow.
13 Thereafter, he was off work for about three months, before going onto light duties. He received symptomatic treatment on and off whilst performing these duties.
14 Eventually he came to an operation on his left elbow at the hands of a surgeon, Mr Tham, on 20 March 2009. On that date, Mr Tham performed a left ulnar nerve release which involved the said nerve to be released and transposed anteriorly beneath the forearm flexor pronator muscles. Thereafter, Mr Tham found there was ongoing discomfort, and recommended that the plaintiff would be best to avoid any activities which required gripping or lifting of weights greater than 2 kilograms. He further stated that if his work as a leading hand did not involve those activities, then he would be capable of returning to work. Otherwise, he would recommend permanent alternative duties with the above restrictions.[4]
[4]Exhibit D, 18 February 2010, Plaintiff’s Court Book (“PCB”) 37
15 Thereafter, the plaintiff returned to light duties approximately three months after the operation.
16 On or about 1 July 2009, he was retrenched along with other workers.
17 Thereafter, he looked for a number of jobs performing lighter physical work such as tractor driving on a goat farm, maintenance work for the Department of Parks and Gardens at Tocumwal and other places such as Berwick and Anakie.
18 Treatment for his injury included the operation referred to, physiotherapy, use of an elbow brace, painkillers and anti-inflammatories. He has been treated mainly by his general practitioner, Dr Ketheeswaran. He has also been referred to a psychologist, Erin Doland, and swore in his affidavit, dated 27 May 2011, that he was taking “Panadeine Forte most days, the number of tablets depending on the level of pain”. In his second affidavit, sworn 26 March 2013, he stated: “I take painkilling medication being Codalgin Forte, two tablets three times per day.” In cross-examination, he stated that in addition to Codalgin Forte, he had been taking Panadeine Forte, two to three per day, ever since his injury in 2008, and such tablets were by prescription.
19 In his first affidavit, he swore that he continued to suffer pain in the left shoulder, elbow, arm and hand. He stated it was usually a shooting type of pain and it is almost always there. Activities that bring on the pain or make it worse include forceful or excessive use of the left arm, knocking objects, lifting, stretching or reaching, overhead use of the arm, and pushing, pulling and gripping movements.
20 Further, he stated the injury continued to disturb his sleep. He said the pain could wake him and keep him awake. He stated he rarely got a good night’s sleep because of pain and discomfort in the left shoulder and arm.
21 Before the injury, he swore he loved his job with the first defendant. He found it easy work that suited his limited skills and he worked indoors out of the weather. He said he generally got along well with his workmates.
22 Away from work he enjoyed various activities such as fishing, camping and bowling with friends.
23 As a consequence of the injury, he swore that the pain and limited use of the left arm prevented him from returning to the type of work he did with the first defendant. Further, he stated the injury affected his ability to maintain a home and garden, including exposing the arm to vibration when doing the mowing and raising the arm to trim trees. Also, his ability to cast a fishing line, haul in fish and row a fishing boat had been affected. The injury also restricted his ability to drive for a long time because of prolonged gripping of the steering wheel. The injury also limits his ability to set up camping equipment and to join in social activities. He finds it difficult to play physically with his grandchildren.
24 In his second affidavit, he stated he had applied for a number of positions including a light labouring job with a concreting firm in Willowgrove. He has also applied for a job as a fruit picker and for a position doing park and wildlife work. In cross-examination, he attested that he had applied for other jobs: tractor driving on a goat farm and mowing lawns on a ride-on machine.
25 In his second affidavit, he swore that the pain continued to disturb his sleep. He stated he went to bed at about 10.30pm each night and woke up on average about three times during the night due to the throbbing in pain in the elbow.
Consequences of injury
26 Assessment of the consequences of the plaintiff’s injury inevitably involves assessment of his credit as a witness. It is clear that a central plank in his case before this Court was that he was suffering from unremitting pain in the left elbow necessitating the ingestion of Panadeine Forte, or its equivalent, two to three times per day ever since he injured his arm in August 2008. It became clear in cross-examination, and after examination of the general practitioner’s records,[5] that such a claim was not made out. Prescriptions for Panadeine Forte were issued on 29 December 2009, 15 March 2010, 23 April 2010, 20 May 2010, 8 June 2010 and 16 July 2010. On 8 November 2010, there was a note that Panadeine Forte had ceased. There was no other prescription issued until 3 June 2011, when there was an apparent recurrence of the pain.
[5]Exhibit M
27 However, there was no other prescription issued until 4 June 2012 when there was a consultation with a history “A/W for dental appointment in 2 days. Still in pain with dental infection.” There was no history taken on that occasion of pain in the left elbow. There was no further prescription thereafter until 3 January 2013, when there is a history of “left capital fossa syndrome”. Accordingly, I find the plaintiff’s evidence about his ingestion of painkilling medication for his left elbow injury to be unreliable at best, and misleading at worst. I take into account his depressive illness as a possible contributing factor which leads towards the unreliable area of the spectrum. In any event, he attended his general practitioner on at least fifteen occasions between 18 March 2011 and 5 November 2012, wherein it is recorded that he was still unable to find suitable work. To some extent, this corroborates the plaintiff’s own evidence that he had been looking for work on a number occasions and certainly far greater than three or four, as suggested in cross-examination. However, it should be noted that on all the above occasions there is no mention of left elbow pain and perhaps the strongest history in that period is an entry on 6 May 2011 where it is recorded: “Pain on and off. Able to manage.”
28 It should also be noted that where the plaintiff has alleged that the pain in his elbow would frequently interfere with his sleep, there is little or no corroboration for this claim in the clinical notes. There is from time to time complaints of an inability to sleep noted, but in the context of a depressive illness rather than with a history of left elbow pain.
29 Accordingly, I am unable to find that the plaintiff has discharged the onus of proof with respect to the frequency and level of pain in the left elbow necessitating recourse to analgesic relief.
30 I find the judgment of Maxwell P in Haden Engineering Pty Ltd v McKinnon[6] to be helpful in this regard.
[6](2010) 31 VR 1 at paragraphs 9-17
31 Here, the plaintiff is a forty-eight year old man who is not working for a number of medical reasons. It is common ground that the injury to the left elbow precludes him from heavier repetitive labouring-type work for which he is vocationally suited. I accept the plaintiff’s counsel’s submission that he is more vulnerable than most plaintiffs because of his unstable early life. However, he has been looking for work, for which he has conceded he has a belief that he is able to perform, but has been unsuccessful in obtaining same. He is still able to engage in camping and fishing and plans to travel around Australia with his wife once the matters of litigation and treatment of other medical conditions are accommodated.
32 In making the above findings, I should indicate that I accept that he experiences pain in the left upper limb, particularly in the region of the elbow, which does restrict him in enjoying a full, active life such as in his previous occupation. I also accept he is restricted in enjoying the heavier aspects of fishing such as big game ocean fishing. However, as indicated earlier, I reluctantly find him to be an unreliable witness with respect to the level of pain and ingestion of analgesic medicines, such that overall I am not satisfied that the plaintiff has established that he has suffered an injury which can be fairly described as being “more than significant or marked” and as being “at least very considerable”. The application is therefore refused.
33 I shall hear the parties in respect of costs.
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