Parnis v Victorian WorkCover Authority
[2023] VCC 499
•5 April 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| Serious Injury List |
Case No. CI-22-01502
| GAYTANO PARNIS | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE ENGLISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 & 4 November 2022 | |
DATE OF JUDGMENT: | 5 April 2023 | |
CASE MAY BE CITED AS: | Parnis v Victorian Workcover Authority | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 499 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Damages – serious injury – injury to left thumb – pain and suffering and pecuniary loss
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited:Humphries and Anor v Poljak [1992] 2 VR 129; Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69
Judgment: Leave granted for the plaintiff to bring proceedings under sub-paragraph (a) for pain and suffering and loss of earning capacity.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M A Nightingale | Arnold Thomas & Becker Lawyers |
| For the Defendant | Ms S De Guio | Minter Ellison |
HER HONOUR:
Introduction
1On 26 September 2014, the plaintiff, Mr Gaytano Parnis, suffered an injury at work. Since 17 October 2013, he had been employed as a car detailer at a panel shop. Whilst using a blade with his right hand to remove a sticker from a car windscreen, the blade slipped and penetrated the base of his left thumb near his left wrist.
2This is a serious injury application pursuant to s335(1) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) by the plaintiff, in which he seeks the leave of the Court to commence a common law proceeding pursuant to paragraph (a) of the definition of “serious injury” in s325(1) of the Act for pain and suffering and pecuniary loss.
3The onus of proof is on the plaintiff. In Humphries and Anor v Poljak,[1] the question whether an injury is a serious injury, considers when regard is had to the consequences, can the injury, when judged by comparison with other cases in the range of possible impairments and losses, be fairly described as at least “very considerable” and certainly more than “significant” or “marked”?
[1][1992] 2 VR 129 at 140
4The plaintiff claims he has a total incapacity for work. He has to establish at the date of the hearing he has a loss of earning capacity of 40 per cent or more, which is permanent.
5The plaintiff suffered a compensable workplace injury.
6The defendant disputes that the plaintiff’s impairment meets the relevant statutory threshold of being at least very considerable and certainly more than significant or marked.
7Further, the defendant disputes the loss of earning capacity and submits that as the plaintiff returned to pre-injury employment for four years after the injury and was then terminated, the plaintiff retains a significant capacity for suitable employment. It was agreed the plaintiff’s pre-injury earnings were $39,843 per annum.[2]
[2] Transcript (“T”) 9
8Finally, the defendant’s counsel has raised the plaintiff’s credit as an issue in this proceeding. Video surveillance footage of the plaintiff was used to challenge the symptoms and consequences he reported to doctors. The defendant submits that by exaggerating his symptoms and consequences, doctors have underestimated his work capacity.
The plaintiff’s case
9The plaintiff is currently fifty-six years old. He completed Form 4 at St Albans Technical School and has since worked in a garment factory, as a cleaner, in an electronics warehouse, at a call centre for Foxtel and making furniture for caravans. He obtained a degree in Business importing and exporting, and international trade from Victoria College.[3]
[3] Plaintiff’s Court Book (“PCB”) 12
10Following his work injury which occurred on a Friday, the plaintiff attended Epping Hospital where the wound was sutured. He returned to work on the following Monday. He had surgery on 6 March 2017. He continued to work, having had some time off, however he was made redundant on 21 November 2018.[4] Aside from some limited work for his brother, he has not worked since.
[4] PCB 13
11The injury penetrated the base of his left thumb. A radial nerve was injured with subsequent neuroma formation, resulting in sensory disturbance in the distribution of the terminal branch of the superficial radial nerve and hypersensitivity disorder. His surgery comprised a neurectomy and redirection of the cutaneous digital nerve into the muscle belly of the thenar eminence.
12The plaintiff filed two affidavits, dated 14 December 2021 and 4 October 2022.
Evidence about pain and suffering
Description of pain in thumb
13In the plaintiff’s first affidavit, he stated he initially thought the laceration would heal however over time, the condition in his left thumb worsened and he was experiencing significant and increasing pain.
14He struggled performing his normal duties. He was relying on painkillers. His left hand was bandaged.
15The plaintiff continues to suffer ongoing pain and restriction in his left thumb and hand.
16The pain is at the base of his left thumb, and it can feel like an electric shock, accompanied by pins and needles. He stated, “It sometimes feels like someone is trying to break the base of my thumb.”[5] He suffers from loss of strength in his left hand and has difficulty making a fist. There is scarring in the area of the laceration and the surgery.
[5] PCB 15
17His sleep on occasion is affected by the pain in his left hand. Sometimes the pain, a burning type of feeling, awakens him in the middle of the night.[6]
[6] PCB 15
18In his second affidavit, the plaintiff notes he continues to have great problems with his left hand and thumb. He continues to experience pain which is frequently very severe. He gets a really sharp pain around the thumb area, and it radiates up his arm above the wrist. He describes it frequently feels like a stabbing pain and on other occasions it feels as if someone is going to break his thumb. His thumb and hand is very sensitive when it is touched or comes into contact with objects including his clothing. [7] He frequently experiences a burning feeling in and over his left thumb and hand.
[7] PCB 17
19In cross-examination, he described his left thumb as very sensitive, all of the time. In terms of the pain, he described it as off and on, every day, but it comes and goes. There is no particular activity that brings the pain on.[8]
[8] T 30-31
20In order to protect his thumb and hand, he wears a cotton cloth with a brace over it most the time and he has three or four braces which he uses.[9]
[9] PCB 18
21The plaintiff has difficulty gripping and grasping and making a fist. His dexterity has been greatly reduced and has difficulties with tying up shoelaces, buttoning clothing, opening and closing zips and engaging in activities which are fiddly or require manipulation.
22In cross-examination, the plaintiff agreed squeezing a sauce container would be hard for his left hand because of the pressure required.[10] Likewise, he had difficulty holding onto bike handlebars firmly with his left hand and said, “…It’s the same thing again, like, when you squeeze a chamois or a sauce bottle…”.[11]
[10] T 32
[11] T 33
23It is difficult for the plaintiff to ride a bike, owing to finding it hard to hold the handle bars with his left hand.
24When he rides a scooter, he rests his hand on the handlebars with not much pressure. He did have a petrol scooter which he could still ride.[12] During cross-examination, a surveillance video of one minute and 43 seconds was taken on 27 September 2021 was shown to the court of the plaintiff riding his scooter. It was put the video showed him operating the scooter holding the handlebars with his left hand only. The plaintiff disagreed with this, but agreed he could ride a scooter, and that his hand was not stopping him from riding a scooter and sometimes there is no choice but to use your hand. He stated if he really had to ride a scooter or a pushbike he could still do it, but it is better if he does not have to.[13] I note the video shows him resting two hands on the scooter however from some points of the surveillance it was hard to see what he was doing with his hands.
[12] T 33-34
[13] T 53
25The plaintiff continues to suffer a weakness and loss of strength in his left hand and thumb, and he finds activities that involve strength or proper movement or pinching with the thumb are very difficult.[14]
[14] PCB 18
26The plaintiff’s sleep is disturbed as a result of the pain he experiences, and he frequently finds it difficult to get to sleep and often wakes up during the night with pain in his thumb and hand. Interference with his sleep interferes with what he is able to accomplish during the day and he often has to have a sleep in the day.
Medical treatment and medication
27On 28 October 2014, the plaintiff went to see his general practitioner, Dr Dragan Calic as he was experiencing an electric type pain in the scar over the base of his left thumb.
28On 24 November 2014, an ultrasound revealed a post-traumatic neuroma.[15]
[15] PCB 82
29On 6 March 2017, at Williamstown Hospital the plaintiff had surgery in the form of a neurectomy and redirection of the cutaneous digital nerve into the muscle belly of the thenar eminence. The plaintiff then attended Sunshine Hospital for post operative hand therapy.
30In his first affidavit, the plaintiff stated he takes Panadeine Forte twice a day and Mobic once a day. Between times when waiting on a new prescription, he relies on Nurofen.[16]
[16] PCB 15
31He generally wears a hand splint most of the time during the day. If he bumps the base of his left thumb, it is extremely painful, so he wears a hand splint to protect it, under which he wears a protective cotton glove.[17]
[17] PCB 15
32In his second affidavit, the plaintiff notes he continues to receive treatment from Dr Calic. Dr Calic continues to prescribe strong painkillers including Mobic and Panadeine Forte which the plaintiff takes on a daily basis. In addition, he takes over-the-counter medication including Panadol Osteo, Maxigesic and Nuromol.[18]
[18] PCB 18
33The plaintiff continues to do the exercises recommended by his hand therapist however he no longer attends for hand therapy or physiotherapy.[19]
[19] PCB 19
34In re-examination, he explained his condition is not the same every day and it varies between days and through the day. After doing activities with his left hand, he stated it feels numb and he gets “shock pains…like a burning feeling”.[20]
[20] T 96
Disabling effects of pain
Playing guitar
35He is restricted in his recreational activities. He used to play the guitar for six or seven years before the injury. He has not been able to resume this, owing to difficulties in making cords with his left hand.
36Prior to his injury, the plaintiff taught himself the guitar. He had four guitars which he used to enjoy playing on a regular basis. He described how he would play the guitar, most days of the week, for between half an hour to up to two hours. He stated he derived great pleasure from playing the guitar for his own enjoyment and greatly misses being able to play.[21]
[21] PCB 20
37In cross-examination, the plaintiff was asked whether he strummed or plucked the strings of his guitar. The plaintiff asked what was meant by ‘plucking’.[22] When asked if he actually played the guitar he said, “I’m not really like a professional, I just, you know, just play at home, pastime.”[23] He stated he tries to play two or three of his favourite songs. When questioned further, he asked “What you mean by practice chords?”. He had not heard of the term ‘strum the chords’. He thought he knew three or four chords but could not name them and had not studied the notes.[24] He stated he sometimes played every day, depending on the mood. With respect to songs he played, he was able to name ‘Sultans of Sway’, ‘Blue Suede Shoes,’ and a Roy Orbison song but he could not recall the name.[25]
[22] T 34
[23] T 35
[24] T 36-37
[25] T 38
38The plaintiff stated he owns three guitars, an electric guitar and bass guitar and an acoustic guitar.
39In re-examination, he stated he taught himself the guitar and conceded he was not the “greatest guitarist”.[26] However, he enjoyed playing and cannot play the same with his left hand as he did prior to his injury because of the pressure required on the steel strings with his fingers. Put simply, he enjoyed it and has not been able to do so since the injury and it was a pastime that made him “feel happy…just love doing it…just love the…enjoyment of music.”[27]
[26] T 89
[27] T 90
Working on cars
40Another interest of his is working on cars with his brother doing up older Ford cars, such as GTs. He was able to do spray-painting, including rubbing down panels, panel beating and building engines. The injury to his left thumb now makes these jobs difficult for him.[28]
[28] PCB 16
41In his second affidavit, the plaintiff also notes that working with cars has been a major part of his life and enjoyment of life. This has been seriously affected by the injury to his left thumb and hand. He would often work with cars in his employment, and over the years he assisted his brother in his car restoration business. He described deriving great enjoyment from that pastime. He enjoyed working on cars with his brother particularly doing up older Ford cars such as GTs.[29]
[29] PCB 20
42He is no longer able to perform these activities with cars to anywhere near the manner he was able prior to his injury. He has lost strength and dexterity required to perform most of the tasks involving working on cars. The plaintiff described this as a great loss; prior to his injury he would spend much of his spare time working on cars during weekends, annual leave and public holidays. He described it as a major part of his life.[30]
[30] PCB 20
Other consequences
43Since ceasing work, he has put on 8 kilograms to 10 kilograms in weight.
44He does not go out much other than to visit his sister or his mother.
45He has difficulty performing tasks including shopping for groceries, and his sister helps him with household tasks such as washing and cleaning. He can vacuum using his right hand. His brother comes over to mow the lawn.[31]
[31] PCB 16
Work capacity
Employment - car detailing
46As the major issue in this case was whether the plaintiff has a loss of earning capacity, I turn to consider the relevant evidence.
47In his first affidavit, the plaintiff described how, post injury, his car detailing duties became more difficult to perform. He could no longer alternate hands when using the Gerni high-pressure gun.[32] In cross-examination, he described needing both hands to hold it firmly because it was very high-pressure and could easily slip out of your hand and “just go everywhere”.[33]
[32] PCB 13
[33] T 13
48He found squeezing the chamois when drying cars difficult.[34] In cross-examination, the plaintiff explained you can’t squeeze the chamois with one hand because the water doesn’t come out, he said “You gotta squeeze it very hard with both hands…”.[35] He described not being able to squeeze the chamois with his left hand at all, “…it was just, like, too painful for – to – around this area, thumb area.”[36] He confirmed it was still a problem for him and he could still not squeeze a chamois with both hands.
[34] PCB 13
[35] T 14
[36] T 14
49Opening containers and chemicals and lifting was difficult because of his left hand pain and restriction.[37] In cross-examination, he described needing two hands to use a tool to open the lid or to hold it with both hands.[38]
[37] PCB 13
[38] T 15
50It was difficult for him to push cars. He relied on his right hand when stripping and assembling parts, but frequently needed to use both hands which was not always possible. He needed help to perform any heavy lifting.[39] In cross-examination, as an example, he explained he might have needed help lifting car batteries, a spare wheel, a jack, or a toolbox, as part of detailing the car.[40]
[39] PCB 13
[40] T 15
51In terms of polishing a car, he could do that with one hand, but needed to rotate his hands when one got tired. Further, the buffing machine required two hands on its two handles.[41]
[41] T 15-16
52In his second affidavit, the plaintiff detailed that following his surgery in March 2017 he found it increasingly difficult to cope with his duties at the panel shop. Owing to his pain and sleeping difficulties he struggled to get to work on time and would often turn up late, and find he was falling asleep at lunchtime. He had difficulties concentrating on work and his productivity was greatly reduced. He also required time off work for treatment for a dermatitis condition.
53He found it difficult to focus and concentrate because of the severe pain, even though he was taking pain killers. He was frequently working in pain because he had no other choice as he has a mortgage and bills to pay.[42]
[42] T 92
54He was not able to do the same quality of work after his injury and it took him longer to perform whatever task he was given.[43]
[43] T 92
55His employer engaged another person to assist with the detailing and the plaintiff was asked to show that person what was required in car detailing, in which he complied. Not long after this he was made redundant.[44]
[44] PCB 13
56His evidence was he did not believe he could do the same full duties he was doing at Top Tech Panels prior to his injury, or work Monday through to Friday 8.30am to 4.30pm daily. He stated two hands are needed to use the high-pressure hose, and with tasks such as disconnecting and removing a battery (mostly nowadays from the boot of a car) which require undoing clips and brackets. He had difficulty with tasks requiring dexterity because he is not able to twist his thumb.[45]
[45] T 92-95
57The plaintiff’s brother has a business restoring primarily Mini engines.[46] Prior to his injury, the plaintiff would attend a few days a week and sometimes on the weekend and help with tasks such as stripping engines. Following the injury, he found it difficult to perform this type of work for his brother and instead did odd jobs such as answering the telephone, paperwork, and unpacking car parts.[47] He no longer works on cars which he misses.[48]
[46] T 18
[47] PCB 14
[48] T 95
Medical evidence about work capacity
58The medical evidence in this case was largely unchallenged.
Dr Calic - general practitioner
59The plaintiff’s general practitioner, Dr Calic has treated the plaintiff since 2014, one month after the work injury.[49] In his report dated 11 June 2019, it is his opinion the plaintiff has no capacity to return to his pre-injury employment. He noted he had some capacity of suitable duties with restrictions; avoiding use of his left-hand, heavy lifting, pushing, pulling, and repetitive manual work.[50]
[49] PCB 24
[50] PCB 25
60Dr Calic prepared a final report dated 22 October 2022. He stated:
“Mr Parnis has some capacity for employment with restrictions including: using primarily right hand and avoiding use of left hand and avoiding repetitive movements with left hand. However, given his skills, education, experience, and the restrictions I think it would be very difficult for him to find a suitable job.”[51]
[51] PCB 30
61I was impressed with Dr Calic’s continuity of care and knowledge of the plaintiff, as well as his detailed reports.
Dr Altaf – occupational medicine specialist
62Dr Khayyam Altaf, occupational medicine specialist, prepared a report dated 4 December 2020. He noted the plaintiff describes the pain as:
“…“comes and goes” but if he uses his hand, he will develop pain around the 1st metacarpal (MCP) both on the volar and dorsal surface and deep within.”[52]
[52] PCB 34
63Dr Altaf was of the opinion the plaintiff is unfit for pre-injury employment.
64In his first report in terms of employment, physical restrictions included no sustained gripping tasks with his left hand, no tasks requiring fine manual dexterity, no lifting above 2 kilograms with his left hand, no strenuous pushing or pulling with his left hand, and to avoid climbing ladders.[53]
[53]PCB 37
65Although in his first report he was of the opinion he should be able to undertake full time duties and offer a consistent reliable service,[54] his second report dated 27 September 2022, he noted no progress in the plaintiff’s condition and recommended he avoid “any meaningful tasks with his left hand.”[55]
[54]PCB 39
[55] PCB 46
66In his opinion, the plaintiff at best could manage “4 hours per day, 3 non-consecutive days per week and the breaks required due to his requirement for rest and recuperation from his persisting pain distraction. Any work would need to have tasks with the left upper limb significantly restricted…”.[56] In his opinion, the plaintiff has extremely limited capacity for work. He noted the plaintiff’s prognosis was poor.[57]
[56] PCB 47
[57]PCB 48
Mr Crock – plastic surgeon
67Mr John Crock, plastic and reconstructive surgeon, prepared a report dated 27 September 2021. Mr Crock noted when the plaintiff was injured, the plaintiff divided a superficial branch of the radial nerve. He stated:
“This was not recognised at the time when his wound was initially treated and he went on to develop a neuroma of the distal radial nerve, which has now led to intractable neurological symptoms in spite of an attempt to excise the neuroma and bury the nerve stump in the thenar musculature.”[58]
[58] PCB 64
68In terms of the plaintiff’s capacity for employment, Mr Crock noted the plaintiff had worked in a call centre previously, and stated:
“…it is possible that he could regain employment in this field, where he did not have to use his left hand, and so may still have a valuable role to play in the workforce. Unfortunately all of the manual labour positions which he has skilled in over his entire working career are now unlikely to be realistic options for employment, which will reduce his employability in the workplace in a competitive setting.”[59]
[59] PCB 64-65
69Mr Crock made the interesting point that the plaintiff’s condition deteriorates as the radial nerve branches continue to grow. So, whilst he had improved after his initial surgery, “as the nerve has regrown his symptoms have now recurred and are just as bad as they were before his operation. This is fairly typical of this type of nerve surgery…”.[60] He noted the plaintiff’s condition has stabilised and unlikely to improve.
[60] PCB 65
70Mr Crock noted the plaintiff’s prognosis was guarded and stated, “Typically this kind of pain remains lifelong and relatively crippling.”[61]
[61] PCB 69
71In terms of the plaintiff’s capacity for employment, Mr Crock noted he is currently:
“…incapacitated from doing any jobs which require prolonged use of his hand, fine manipulative or repetitive movements, lifting or the use of his left hand in general, particularly as a support for right-handed activities.”[62]
[62] PCB 70
72Mr Crock also described that the plaintiff as:
“…now gets a shooting pain in the distribution of the radial nerve, which can be crippling at times. It radiates up and down the hand and forearm and then results in a deep aching pain which lingers.”[63]
[63] PCB 70
Dr Yong – specialist occupation physician
73Dr Dominic Yong, specialist occupational physician, prepared three reports for the defendant. He noted the plaintiff does not have a current capacity to work in his pre-injury employment.[64]
[64] Defendant’s Court Book (‘DCB’) 62
74He noted the following restrictions on the plaintiff’s capacity to perform tasks; to avoid lifting more than 3 kilograms with the left hand on a repeated basis, avoid repeated firm gripping and squeezing tasks with the left-hand, and avoid repeated firm pushing and pulling tasks with the left-hand.[65]
[65] DCB 61-62
75In his view, suitable roles for the plaintiff were: administration officer, customer support/enquiry, information officer, call centre, sales assistant (car industry), and subject to individual’s assessment, light product assembler, light process worker and light packer. He was also of the view the plaintiff would be suitable to be a warehouse picker, an automotive service advisor, sales clerk or administrator (automotive parts interpreter) and road traffic camera operator.
76He was of the view the plaintiff could return to full-time pre-injury hours, graduated over a four to six-month period.
Mr Buntine – hand plastic surgeon
77Mr John Buntine, hand plastic and reconstructive surgeon, prepared a report for the defendant dated 5 March 2021. In Mr Buntine’s opinion, the plaintiff:
“…should be physically capable of undertaking light manual work in the near future if he slowly weaned off the use of his present protective cloth and splint...”.[66]
Other possible employment
[66] DCB 77
Plaintiff’s work history
78The plaintiff has applied for numerous jobs in car detailing. Prospective employers are told about his left-hand injury and although he has had many interviews, he has not been successful in obtaining work. He explained there were many detailing jobs where it’s not really detailing, it’s just taking a car to a carwash. In cross-examination, he agreed he would be able to do this work which involved driving rental cars to the car wash and returning them to base.[67]
[67] T 68-69
79The plaintiff has also applied for call centre work. He has had previous experience in this role, when he worked for eight years for Foxtel using a software package Avaya to record conversations with customers. He also worked for two years in the same field for Property Listing Professionals.[68] In cross-examination, he stated if he had been offered the job, he believed he could do it on a full-time basis. In re-examination, he stated when he worked at Foxtel, the conversation with the client had to be typed into the computer, for an eight-hour day and typing with both hands for 90% of the time. He stated he was not capable of doing that now.[69] With respect to the people skills required, when he was in pain he tended to get a bit grumpy and found it hard to concentrate. The pain medication also makes him drowsy.[70]
[68] T 79
[69] T 98
[70] T 98-99
80In his second affidavit, he details trying to find light employment but is unsure whether he could cope with employment in terms of the days and hours required.[71] Part of the problem is that when his pain is severe, which is much of the time, he finds it difficult to concentrate and difficult to communicate and get on with people.
[71] PCB 19
81Because of this, he does not believe he would be able to return to work in limited jobs such as he has had in the past which are non-manual in nature, such as being a call attendant.[72]
[72] PCB 19
82As a result of the consequences of his injury, he feels unreliable and cannot predict from day to day how he will be.
83In cross-examination, the plaintiff stated he loved the job of detailing and could never see himself leaving that job and thought he would retire there. He loved working with cars, he said “it was like my hobby…it’s what I enjoyed doing.”[73]
[73] T 16
Recovre Report
84The Recovre Vocational Assessment report dated 8 September 2021 noted the medical opinions support the notion that the plaintiff:
“…retains capacity to perform light practical roles that did not involve heavy or repetitive grip and grasp actions. With this in mind, Mr Parnis’ low skill experience base would readily transfer to selected, or ‘light’ picking type roles within warehouse type settings.”[74]
[74] DCB 195
85The report also noted his other primary transferable skill base relates to customer service and administration roles.[75]
[75] DCB 195
86The defendant proposed a number of jobs that the plaintiff is capable of performing.
(i)the full-time job of a warehouse picker.
87This involves picking duties for online orders. It involves picking an item and putting it in a trolley and scanning it.
88The plaintiff said he would definitely love to give it a go if he had the opportunity.[76] He noted sometimes he gets severe pain and may not be able to work throughout the whole day. In re-examination, he was taken to a reference requiring fine gross grasp and pinch grip required to handle stock items, which the plaintiff stated he could not do on a consistent and regular basis.[77]
(ii)Automotive service advisor.
[76] T 84
[77] T 100
89The plaintiff said he would give it a go.[78]
(iii)Sales clerk administrator
[78] T 85
90The plaintiff agreed he could be a sales clerk. He stated:
“…there’s no job I cannot do. It’s only because once you get pain in your hand, then you may not be able to continue.”[79]
[79] T 86
91In re-examination, when advised the role entails computer-based tasks with bilateral hand use occupy 80 to 90% of the work day, he said he was not capable of that.[80]
(iv)Rover (Quality Inspector/Customer service officer)
[80] T100-101
92He agreed he could do this.[81]
[81]T 86
93The plaintiff did stand-up comedy for functions for about 10 years.
94In re-examination, he was asked about his degree in Business importing and exporting and international trade from Victoria College. He stated it was difficult and he found it hard to understand the subjects clearly and struggled to pass.[82]
[82] T 99
95With respect to the jobs he was asked about, he agreed he could do some aspects of those roles some of the time but could not work eight hours a day, five days a week.[83]
[83] T 100
Photos and video surveillance
96A significant feture of this case challenging the plaintiff’s credit was the Facebook photos, video surveillance and the YouTube videos.
Facebook photos
97In cross-examination, the plaintiff was taken to a number of photos in the defendant’s court book of him photographed at his brother’s panel shop. He was photographed wiping the roof of a Mini.[84] In relation to buffing windows of cars and wiping down cars, the plaintiff stated:
“It wasn’t – it’s not a regular thing where – I just did it that once. Filling up parts - the cabinets with parts, that was regular and also paperwork as well – I do like filing and there’s lots of quotes…invoices everywhere. I used to put them all together…”.[85]
[84]DCB 236 and T20
[85] T 21
98It was put to the plaintiff in cross-examination that he did not mention any manual car related work to either Dr Yong or Dr Altaf when he was reporting to them the work he did for his brother. The plaintiff mentioned the work he did for his brother was “…random, very random. Sometimes two days in a row…sometimes one day in a month, sometimes nothing in two months…just very random.”[86]
[86] T 24
Video surveillance – washing his car
99Video surveillance taken on 11 May 2022 was played to the court for a period of 21 minutes and 44 seconds. The footage depicted the plaintiff washing his car in the driveway of his home in Caroline Springs. He agreed he was seen holding a bucket of water with his left hand and lifted it up to waist height.[87] He was also operating a garden hose. He was also seen wringing out a rag with both hands, as well as polishing or drying off the car. He was also carrying a vacuum cleaner and pulling down the garage door using his left hand. It was put to him there were no obvious signs of restriction, difficulty, or discomfort. He stated in reply, “…I’m not denying that…I think I had a good day and, um, mostly I use the right hand for everything.”[88]
[87]T 54
[88] T 55-56
100It was put that it was not correct when he gave evidence of having difficulty squeezing a chamois with his left hand. He stated it was just a rag and that a chamois is made from material that soaks in water, needs less squeezing, and when it does need squeezing “…you gotta squeeze it really hard to get the water out of it.”[89]
[89] T 56
101The plaintiff was taken through the steps involved in cleaning the car; washing it with soapy water, drying it off, using the vacuum as well as a tissue at one stage. He agreed he used to do a similar process at work when he was a car detailer, the difference being using a high-pressure gerni for washing the car.[90]
[90]T 57
102It was put to him that given the video footage he could go back to work, but he disagreed. In re-examination he described it as a one off, that it was really rare for him to wash the car. He stated he could do it once, but not as a job if five cars were lined up as his hand would get tired as this would require the use of both hands constantly.[91]
[91] T 97
Video surveillance - 24 & 25 September 2022
103The next surveillance video footage shown to the court was taken on 24 September 2022. The footage depicted the plaintiff at the pokies, filling up at the Ampol petrol station, and driving.
104The plaintiff was also seen on 25 September 2022 lifting rocks from a wheelbarrow in his front garden. He stated the rocks were fake rocks and weighed the same as a piece of wood, which he agreed was about 3 kilograms.[92] He agreed on that occasion he did not appear to have restrictions or difficulties in using his left hand. He stated his hand was not the same every day.[93] In re-examination, he stated he thought the rocks were artificial or fibreglass, pretend rocks for reptiles.[94]
[92] T 58-59
[93]T 60
[94] T 96
105When it was put to the plaintiff he had exaggerated his restrictions he stated:
“…But there are days when I can do a lot of stuff. Like I can vacuum, as you saw, I can wash the car…I could still wash cars when I was still working for four years at Top Deck Panels. But not with the garden hoses, bit different. I’m not denying that I can’t do anything at all… Sometimes I get good days where, you know, I said it’s random…It comes and goes, sometimes it’s two or three, four times a day, sometimes once a day. It just depends. If I have a good day, I try and do stuff, I want to do stuff, I can’t just sit there at home doing nothing – like sitting there. You know, I’m trying to move around, trying to do things, so hopefully, um, – it would change my life, maybe get back to work.”[95]
[95] T 60-61
106The plaintiff denied exaggerating his restrictions to doctors, such as Dr Altaf, stating, “No, it’s not an exaggeration…it’s because like I said, it’s not always the same.”[96]
[96] T 61
YouTube videos
107The defendant then showed a video to the court (without audio) dated 23 March 2018 taken from YouTube, of the plaintiff pretending to play the guitar, titled ‘Funny Music Video Impersonating “Roy Orbison” - Only the Lonely. (Tano Parnis)’. The plaintiff explained, “I’m just making a funny video impersonating singers. If you listen to the song, like, it’s actually really Roy Orbison singing.”[97] The plaintiff clarified he was neither playing the guitar nor singing, he was just miming.
[97] T 62-63
108A second video was shown to the court, (again without audio) dated 5 March 2018, also taken from YouTube with the title, ‘Funny Music Video Impersonating “Glen Campbell - Like a Rainstorm Cowboy” (Tano Parnis)’. Again, the plaintiff’s evidence was he was not really playing the guitar, just pretending, and pretending to sing.[98]
[98] T 64
109A third video was shown to the court dated 25 February 2018 again from YouTube titled, ‘Funny Music Video of “Bad Moon on the Rise” (Tano Parnis)’. Again, the plaintiff’s evidence was he was just holding the electric guitar which was not plugged in.[99]
[99] T 65
110It was put to the plaintiff that he did not play the guitar prior to his injury, but pretended to, as seen in the videos. The plaintiff stated he could now hold the guitar and pretend to play. He noted to play the guitar, you had to twist your hand more and press really hard and be really quick to change, but now “my hand’s not going anywhere.”[100] He stated it is not hard to do that with his injury, but to really play it is a bit more difficult. He explained when he was sitting down relaxing, he tried to play some music, but not like in the videos.[101]
[100] T 65-66
[101] T 66
111The videos and the plaintiff’s evidence confirm he loves music and playing the guitar. He can make some rudimentary sounds and has three guitars at home which he mucks around on. Post injury he likes to mime songs whilst holding his guitar, and he makes videos of himself doing this which he posts on YouTube.
The plaintiff’s credit
Submissions
112The defendant submitted the plaintiff’s credit was in issue and the video surveillance of him washing his car was in “stark contradiction” to his evidence about his difficulties squeezing a chamois.[102] Although the plaintiff distinguished a chamois from a rag, the defendant submitted they were very similar.
[102]T 110
113The defendant further submitted the video surveillance which showed the plaintiff riding a scooter, as well as lifting heavy items, such as a bucket of water is contrary to what he told Dr Altaf and his evidence about difficulties squeezing a sauce bottle.
114The defendant submitted the surveillance footage demonstrated what the plaintiff has retained with respect to the ability to enjoy playing the guitar.
115Further, it showed he had the ability to do heavy work without restriction contrary to the plaintiff’s evidence. This impacted his ability to do suitable employment.
116It showed he had misrepresented to doctors about the functionality of his left hand which meant the doctors had under assessed his ability to work.
117The plaintiff submitted credibility has to be assessed on the totality of the evidence.
118The plaintiff submitted, in the plaintiff’s favour:
(a) The plaintiff had made admissions against interest, for example that he could do the rental car wash job full-time.
(b) Significantly, after his injury the plaintiff continued to work at the panel shop for four years and following his hand surgery after some time off. This showed he had great motivation to remain in employment.
(c) During his last six months of employment, he had difficulties with timeliness and concentration owing to his hand being painful and his sleep being affected. This was unchallenged by the defendant.
(d) Of the 30 hours of surveillance, the one minute and 43 seconds of footage of the plaintiff on his scooter demonstrates nothing different to what the plaintiff says he can and cannot do.
(e) The video footage of him washing his car was “pretty full on while it was taking place”,[103] and the moving of rocks, should be viewed in the totality of all the evidence and does not mean he has a greater capacity for work than what is referred to by the doctors.
[103]T 131
119Turning to the medical material, the plaintiff submitted Dr Yong, Dr Calic, Dr Altaf and Mr Crock each accept the plaintiff cannot return to his pre-injury employment. This is very significant for the plaintiff as he loved working with cars.
120The plaintiff submitted that positions such as car detailing, administrative officer, customer service enquiry, light product assembler and light process worker were not suitable given his injury and the impairment consequences that flow from that. Further, he did not have the required consistency, reliability, and concentration. The days and hours required for employment are such that “…it is not enough to say, well, you may be able to lift some rocks on one afternoon, you may be able to wash a car on another afternoon.”[104]
[104] T 137
121It was submitted he has some residual capacity for work.
Analysis of credit
122I take into account the totality of the evidence.
123With respect to the video surveillance, I caution myself from relying too heavily upon it when deciding credit and note it must be seen in both time and context.
124With respect to the Facebook photos, the defendant’s point is that the plaintiff did not mention doing manual car related work to Dr Altaf or Dr Yong. I note in Dr Altaf’s report dated 27 September 2022 he details that the plaintiff said he did some casual work at his brother’s restoration yard, ‘This involves sorting out parts on shelves, emptying bins and popping out to get lunches for the staff’.[105] In Dr Yong’s report dated 2 August 2021, he notes the plaintiff told him the work for his brother’s business included opening boxes of parts and putting parts on shelves,[106] and in his report dated 12 September 2022 he states ‘He said he would handle some smaller parts and he would tidy the work area.’[107]
[105] PCB 41
[106] DCB 19
[107] DCB 58
125The Facebook photos are dated 6 August 2016 and 20 February 2016 and 11 November 2018 respectively,[108] which is when the plaintiff was still working for the defendant. I am of not of the view they prove any inconsistent reporting to Dr Altaf or Dr Yong regarding what he can and cannot do.
[108] DCB 233-236
126Likewise, the video footage of the plaintiff on his scooter does not prove the plaintiff incorrect in his reportage to doctors.
127The most significant footage is the car washing footage which depicts the plaintiff in his front driveway washing and drying his car using a rag to wash his car which he regularly wrings out using two hands and carrying a bucket of water. The moving of rocks footage depicts the plaintiff in his front garden with a wheelbarrow transporting large rocks to the side of his house.
128In his affidavit material, the plaintiff noted it was difficult to squeeze the chamois when drying cars and other detailing duties such as using the high pressure gerni with alternate hands. Dr Yong reports when the plaintiff was still working he stated he had ‘trouble with some of the tasks including…squeezing the chamois with his left hand…using his left hand to do gripping actions.’ He also said he would sometimes have to ask a colleague to help with heavy lifting tasks.[109]
[109] DCB 19
129Dr Altaf reports the plaintiff has difficulties with doing up buttons, tying shoelaces and he is reliant on his sister to do the main cleaning tasks, as well as his washing.[110] He is not able to restore cars or play his guitar.[111] He told Dr Altaf he was limited now in his cooking and that ‘Squeezing sauce containers with his left hand is also difficult.’[112]
[110] PCB 35
[111] PCB 35
[112] PCB 34
130I note the surveillance footage was part of over 30 hours of surveillance. The footage shows the plaintiff doing things he described in his affidavit and to doctors as difficult to do. The fact he can wash his own car does not displace the unanimous medical evidence that he cannot return to his pre-injury employment. His evidence was it was difficult to do things like squeezing a chamois, not impossible. This might be a fine point, but it is important, because the footage is not inconsistent with this. It was also his clear evidence the pain is variable, and Mr Crock explained the reason for that.
131With respect to the rocks, I accept the plaintiff’s evidence they were fibre glass or a light material which is consistent with the way he was handling them. If they were rocks, he would have been bending and bracing to pick them up and not moving them with the ease depicted.
132In my view, the plaintiff answered questions honestly and in a straightforward manner. He made admissions against interest. He was eager in his responses to agree he could do the jobs suggested to him. His continuation at his work for four years post-injury and surgery is a testament to his work ethic and desire for employment. His prior work history also supports his work ethic.
133I accept his evidence he loved his job and never saw himself leaving. I accept he has a genuine love for, and interest in, cars. Proof of this and his car detailing skills is the footage of him washing his car in the manner he did. I do not find it inconsistent with his affidavits or reportage to doctors.
134I do not find the plaintiff’s credit has been impugned. Whilst I found him to be a curious character, with a quirky sense of humour, he lacked guile. When he was asked by his counsel if he was lying or exaggerating, he stated, “I told the truth as best I could.”[113] I accept his evidence.
[113] T 101
Pecuniary loss
135The medical evidence supports that the plaintiff is not capable of returning to his pre-injury employment.
136In relation to the pre-injury earnings, as noted, the parties agree the plaintiff’s pre-injury gross income is $39,843. To establish the requisite 40 per cent loss, the plaintiff must show he is incapable of earning a sum greater than $434.65 per week.
137The plaintiff’s “with injury” earning capacity is assessed on what he is earning, whether in suitable employment or not (s325(2)(f)(i)(A) of the Act), or capable of earning in suitable employment (s325(2)(f)(i)(B) of the Act) as at that date, whichever is greater.
138Suitable employment requires an objective test which looks at the worker’s suitability for work, taking into account matters such as age, education, experience, and residence.
139Relevant to this application, with respect to rehabilitation, pursuant to s325(2)(g) of the Act, the plaintiff must establish that retraining or rehabilitation in an employment sense has nothing to offer him in the future which would give rise to the 40 per cent loss. Given the plaintiff’s limited education, struggle to pass his business qualification and his history of manual work, I am satisfied he is not able to be retrained to take up alternative employment.
140Dr Altaf, occupational physician, was of the opinion the plaintiff has a residual capacity for work, at best he would manage four hours per day, three non-consecutive days per week and breaks.[114] The plaintiff submitted the packer position, the mail clerk position and the call centre operator at 12 hours a week, all fall below the 60% gross pre-injury earnings of $39,843.
[114] PCB 47
141I note the plaintiff had a strong work history of continuous employment up until the workplace injury in September 2014 and thereafter until he is retrenched in November 2018.
142The medical evidence, which I have also detailed above, supports a finding the plaintiff has no capacity to return to his pre-injury employment.
143The defendant has the onus to propose suitable employment for the plaintiff. The defendant’s counsel submits the Recovre report identifies the plaintiff has capacity for work as a number of roles including as a packer, a mail clerk, and a call centre operator.
144I accept Dr Altaf’s opinion the plaintiff has an extremely limited capacity to work, namely at best three non-consecutive days a week, for four hours per day. I accept Dr Altaf’s opinion regarding the plaintiff having capacity for a 12-hour week.
145I am satisfied from this evidence, as well as the decline in the plaintiff’s performance in the six months prior to his retrenchment, that he has some residual capacity to work and can perform parts of some roles on a part time basis.
146Further, I accept the plaintiff has reliability and concentration difficulties which will impact on his ability to consistently and regularly meet the requirements of employment.
147Taking a 12-hour week, the jobs proposed by the defendant, namely the picker packer role would be $330.63 per week, the mail clerk role would be $391.56 per week, and the call centre operator would be $416. All these figures are less than $434.65.
148I find the plaintiff has shown he has sustained a loss of earning capacity.
149The plaintiff must satisfy the Court he will continue permanently to suffer a loss of earning capacity of 40 per cent or more (s325(2)(e)(ii) of the Act).
150The medical opinions of Mr Crock, Dr Altaf and Dr Calic support a finding that the plaintiff’s condition is not likely to improve for the foreseeable future. He has a guarded prognosis.
Conclusion
151I accept this will remain so for the foreseeable future and I find the plaintiff will continue to permanently suffer a loss of earning capacity of 40 per cent or more.
152I grant leave for the plaintiff to bring proceedings for the recovery for loss of earning capacity.
Pain and suffering
153Generally, the pain and suffering consequences flow from a finding of loss of earning capacity, however this is not straight forward in this case.
154Given the video footage and attack on the plaintiff’s credit, I now turn to consider the pain and suffering consequences.
155The four matters commonly considered when assessing pain and suffering are referred to in Haden Engineering Pty Ltd v McKinnon[115] as what the plaintiff says about the pain, what he does about the pain, what the doctors say about the pain and what the objective evidence shows about the disabling effect of the pain.
[115] [2010] VSCA 69 at [11]
156I have noted earlier what the plaintiff says about the pain and what he does for the pain. I have considered the medical evidence and his reportage to doctors and my view as to his credit.
157I now turn to consider the disabling effect of his pain.
158I accept the plaintiff’s evidence about his pain is that it is variable, but severe and can disrupt his sleep. The thumb is extremely sensitive. He wears a brace and takes prescription medication regularly for the pain. This evidence was not disputed.
159I accept the two main consequences for the plaintiff are his loss of being able to play the guitar and his loss of working with cars.
160I turn to his loss of playing the guitar and to the YouTube videos.
161I note the date of the three YouTube videos were dated 23 March 2018, 3 March 2018 and 25 February 2018 respectively, during which the plaintiff was still employed.
162The YouTube videos were used by the defendant to submit the plaintiff was still able to play his guitar.
163In my view, the YouTube videos show the plaintiff miming to songs whilst pretending to play his guitar. It is clear he is not playing his guitar.
164Pre-injury, the evidence was clear the plaintiff had limited musical knowledge, as he was unfamiliar with words such as ‘strumming’, ‘plucking’ and ‘strum the chords’. That said, his evidence was he had three (in evidence) or four (in affidavits) guitars, and he would play 30 minutes to two hours most days of the week and he could name about three songs.
165Dr Altaf noted in both reports, ‘He has also been unable to get back to playing his guitar.’[116] Mr Crock in his first report notes, ‘…in particularly he cannot play guitar, which is particularly troublesome for him…’,[117] and in his second report notes ‘In his spare time, he used to love playing the guitar…Music was a large part of his life.’[118] Dr Buntine notes the plaintiff is no longer engaged in any hobbies or recreations.[119] Dr Yong noted he has not returned to his hobby of playing the guitar.[120]
[116] PCB 35 and PCB 44
[117] PCB 63
[118] PCB 67
[119] DCB 74
[120] DCB 59
166I accept the plaintiff played his guitars. I note the test of whether a consequence is significant is whether it is significant for the plaintiff. This is a subjective test which means his proficiency on the guitar is not relevant. It is apparent from the evidence and indeed to some extent from the YouTube videos, that the plaintiff loves his guitars and music, regardless of his level of ability. The evidence establishes he owned a number of guitars, he would spend most days of the week ‘playing’ them and for him he was “having fun with it”. It is a significant consequence to him that he can no longer do. It is not my role to determine what skill level he had reached, but to determine whether the pain and suffering consequences of him no longer being able to ‘play’ is significant. I find on the evidence that it is.
167With respect to his consequence of not being able to work as a car detailer and work on cars, in my view the evidence supports this is a very significant consequence for him.
168Dr Altaf noted in both reports, ‘From a hobby perspective, he has had a long history of enjoying restoring cars and is keen to get back into this, however, is currently unable due to his left-hand incapacity.’[121] Mr Crock noted he loved working with his hands restoring old cars and going to car shows.[122] Dr Yong noted he has not returned to his hobby of working on cars.[123]
[121] PCB 35 and PCB 44
[122] PCB 67
[123] DCB 58
169I accept his love of cars and that he would spend his spare time working at his brother’s car yard. The Facebook photos tendered by the defendant attest to that.
170With respect to other consequences, a third significant consequence is his lack of fine motor skills and dexterity for self-care activities such as doing up buttons and zips and shoelaces. Whilst seemingly individually trivial, these tasks are in fact constant requirements of daily living, integral to putting clothes on each morning and taking them off at night. In my view, having difficulties with these tasks is a significant consequence.
171In respect to him not being able to clean his house, he admitted he could clean if he had to, and that his sister does it for him, along with his washing. Given his concession, I give less weight to this consequence.
172The injury is to the plaintiff’s non-dominant hand. However, I note the injury is to the base of his left thumb and the opposable thumb distinguishes a humans’ ability to grasp and manipulate a wide range of objects and shapes. It is pivotal to the functionality of the hand.
Conclusion
173Taking all the evidence into account, including the evidence about the plaintiff’s pain, he has a passion for both music and cars and his involvement with those extremely enjoyable interests are significantly curtailed, and I find that this is a very considerable consequence for him. This has significantly impacted his amenity and enjoyment of life. The consequences of his injury have affected a range of activity. The loss of the job he loved as a car detailer, has been significant. The loss of his ability to undertake a previously enjoyed activity, such as work, is relevant to assessing pain and suffering. He also has reduced fine motor skills which are important for daily living.
174When judged in comparison with other cases in the range of possible impairments and losses, I am satisfied the consequences for the plaintiff can fairly be described as more than significant or marked, and as being at least very considerable.
175I grant leave for the plaintiff to commence proceedings under sub-paragraph (a) for pain and suffering.
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