Petrovic v VWA
[2017] VCC 1528
•16 October 2017
Derosa55
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-17-00334
| Sonya Petrovic |
| v |
| Victorian WorkCover Authority |
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JUDGE: | His Honour Judge Saccardo | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 October 2017 | |
DATE OF JUDGMENT: | 16 October 2017 | |
CASE MAY BE CITED AS: | Petrovic v VWA | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1528 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious Injury Application – injury to right wrist
Legislation Cited: Accident Compensation Act 1985
Judgment: Leave granted
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Ingram and Mr D O’Brien | Arnold Thomas & Becker |
| For the Defendant | Mr C Miles | Wisewould Mahony |
HIS HONOUR:
1 In this matter the plaintiff seeks leave to commence a proceeding claiming damages for injuries suffered by her in the course of employment with the defendant.
2 The injury relied upon is a grade 4 scapholunate tear of the left wrist.
3 The relevant impairment of function is that of the non-dominant left wrist and hand.
4 In the application plaintiff relies upon two affidavits sworn by her dated 22 September 2016 and 8 October 2017. In addition the plaintiff relies upon an affidavit sworn by her partner on 9 October 2017.
5 The plaintiff attended the application and gave evidence via cross examination.
6 In addition to the above material the parties rely upon medical and like evidence which they have tendered.
7 The application is limited to one seeking leave to commence a proceeding for pain and suffering damages only.
8 The evidence in the case is set out in:
· the affidavit evidence relied upon by the plaintiff;
· medical reports tendered by the parties; and
· the evidence given by the plaintiff in cross examination.
In that sense it is a matter of record and no purpose is served by me repeating it and I will not do so unless it is necessary to give context to my reasons.
9 The plaintiff was cross-examined sensibly and effectively with a focus upon the primary issues in the case. My impression of the plaintiff as she gave her evidence was that she was a witness of truth, was well able to explain her position and did so without any embellishment or lack of reliability. In my view the plaintiff’s reliability was evidenced by the appropriate concessions which she made in cross examination such as those relevant to:
· her absence of pain in the absence of aggravating her symptoms by activity;
· her limited use of medication in the absence of an aggravation of symptoms;
· her pre-existing symptoms of excess sweating in her hands; and
· her past failure in being able to generate an income as a florist which caused her to resume her vocation as a teacher.
10 No aspect of the evidence of the plaintiff causes me to have any question as to her reliability as a historian upon the issues relevant to the ongoing effects which her injury has upon her life.
11 An analysis of the medical evidence reveals that none of the doctors really take issue with the plaintiff’s presentation other than that arising as to the cause of her symptoms of excess sweating of her hands and her decision to exercise what Mr Buntine has described as a level of over caution which is unjustified and is effectively deleterious to her.
12 The defendant points to the fact that the application involves what is colloquially described as a “range case”. It is put by the defendant that a further issue arises namely the necessity to disentangle the effect of any psychological or psychiatric consequences of the plaintiff’s physical injury.
13 I accept the position taken by the defendant that the plaintiff’s complaint of increased sweating in both her hands is not caused by her compensable injury. For that reason in undertaking my analysis as to the consequences to the plaintiff of her physical injury I will ignore any consequences arising by reason of that condition.
14 Given the fact that:
· neither the evidence;
· nor Counsel for the defendant in closing submissions;
identified any influence of that condition upon the plaintiff’s lifestyle (other than the symptoms described by her in her affidavit and medical history which essentially involve excess sweating of her hands) it is a simple task to isolate and ignore those symptoms and their and consequences from my analysis in this instance, and I will do so.
15 Within the medical evidence and in the plaintiff’s own affidavit evidence there is repeated reference to the approach which the plaintiff has taken with respect to the physical activity in which she engages so as to limit the chance of an aggravation or acceleration of the symptoms of disability arising by reason of her condition which is now regarded as having stabilised medically.
16 It is put on behalf of the defendant that the plaintiff’s attitude in this respect, which has been described by some as involving overcompensation or avoidance behaviour by her, gives rise to a requirement by me to disentangle the effect of that overcompensation because it arises by reason of a psychological condition within the meaning of section 134AB(38)(h) of the Accident Compensation Act.
17 Whilst it may be that overcompensation or avoidance behaviour at an extreme level might be appropriately categorised as involving the presence of a psychological consequence in the present case given:
(i) the repeated surgery which the plaintiff has undergone to achieve a stabilised condition;
(ii) the obvious incapacity, emotional trauma and inconvenience associated with those surgical procedures and the recovery from them which, while not the subject of evidence, may be readily inferred;
(iii) the advice given to the plaintiff by her treating surgeon that she is at risk of a traumatic aggravation of her condition the endpoint of which might involve a fusion of her wrist; and
(iv) the warning provided to her by her general practitioner to similar effect;
I am satisfied that it is not unreasonable that the plaintiff has adopted a conservative approach in order to protect her wrist from the potential of further injury. I am further satisfied that the adoption by the plaintiff of that approach does not provide evidence of the presence of a psychological condition. On the basis of those findings it follows and that were I to adopt the mode of analysis contended for by the defendant I would in effect be disentangling to identify and exclude the influence of common sense.
18 Given the evidence, which is unchallenged, that the plaintiff does not present with any behaviour of sufficient severity to give rise to a diagnosis of the presence of any psychological or psychiatric condition, in the context of my analysis above I am satisfied that I should regard the restrictions in the plaintiff’s lifestyle and level of activity which she has imposed in order to protect herself from a further exacerbation of her condition to be secondary to the presence of a physical condition and not to any condition appropriately described as falling within the meaning of 134AB(38)(h) of the Act.
19 Largely the medical evidence contained no disagreement as to the mechanism of the plaintiff’s injury or its stabilised condition.
20 An issue does arise in the medical evidence as to whether the plaintiff has diminished grip strength in her left hand.
21 The plaintiff made clear in her evidence that this was the case. That aspect of the evidence was not the subject of any challenge which caused me to doubt the plaintiff’s evidence on the issue.
22 In turn the plaintiff’s evidence in this regard is consistent with the findings of the plaintiff’s treating general practitioner and two hand specialists, Dr Chehata who examined the plaintiff in September 2017 and Mr John Buntine who examined the plaintiff on 6 September 2017.
23 For these reasons I am satisfied that the plaintiff presents with a grip strength in her left hand which is only two thirds of that of her right hand.
24 Given not only the plaintiff’s work history but also her general interests which activities involve the manual use of her hands bilaterally, I am satisfied that it is probable that the plaintiff has suffered a significant loss of grip strength in her left hand by reason of the subject injury and I accept her evidence:
· as to the way in which her injury and resultant disability impacts upon her ability to carry out the activities of daily living about which she gave evidence; and
· that her injury has been responsible for her inability to carry out the activities involved within the area of her specialist training as a teacher which she has now had to abandon.
25 The issue for me to determine in this instance is whether or not the consequences to the plaintiff of her now stabilised injury meet the high threshold established by reason of the Accident Compensation Act in defining serious injury, namely that they give rise to consequences which are more than significant or marked and at least very considerable when account is taken of the range of impairments which might arise in the setting of the broad range of compensable injuries under the Accident Compensation Act.
26 I am satisfied that the plaintiff’s current medical condition is best summarised in the opinion expressed by Mr Ash Cheta in his report dated 5 September 2017, in which he opines that whilst the plaintiff’s injury has an excellent prognosis and is unlikely to deteriorate in the future he nonetheless opined that her injury:
· “will restrict her lifting carrying due to lack of strength in the left wrist pushing and pulling is likely to be an impairment as easily wrist flexion and extension and rotation driving long distances will be impaired, all due to lack of strength and loss of range of movement”
· has had the effect of compromising fine motor skills, “that are required in her preinjury duties to work as a textiles and food technology teacher she has an inability to exercise and use scissors and knives with lack of fine motor capacity all related to her scapholunate ligament rupture;
· is unlikely to cause it to suffer from ongoing pain (I interpret those words to refer to a position of constant pain);
· operates such that “she has been compromised attending the school camps as well is the family camping and hiking has ceased she is unable to ride a bike all of which is now compromised both the social and recreational activity”
27 I am satisfied that the plaintiff’s affidavit evidence, her viva voce evidence and the evidence of her partner establishes that the stabilised condition of the plaintiff’s left wrist involves the following consequences:
· she is modestly affected by embarrassment about the presence of her surgical scars;
· she has reduced grip step strength in her left wrist which impacts adversely upon her ability to lift moderately heavy objects of the type which she was able to manage without difficulty prior to her injury as described in her affidavits and that of her partner;
· she is able to work full-time but is not able to engage in those aspects of her vocation in which she is trained and which hold her primary interest, the result being that she is confined to teaching courses in respect of which he has little interest in and from which she derives little enjoyment;
· because of the plaintiff’s relative lack of training and competence in the areas in which she is now confined to teach she is denied the opportunity of engaging with senior students and the rewarding relationships so often associated with such engagement;
· she is denied the opportunity to develop the lifestyle which she sought to establish, namely combining part-time work a florist with part-time teaching. I am satisfied in making this finding that this alone represents a very significant loss for the plaintiff. In my opinion an injury which has the effect of stymieing forever a choice of lifestyle in a relatively young woman must be regarded as one giving rise to very considerable consequences;
· she is denied any form of strenuous recreational activity such as walking in terrain which might expose her to a risk of falling or riding a pushbike, engaging in canoeing which she was previously able to do when attending school camps or engaging in such activities which she enjoyed such as camping and hiking with her partner;
· her sleep is interfered with to a modest degree but to an extent significant enough for it to be identified by her partner;
· whilst she does not suffer from constant pain, and is often pain-free, she nevertheless suffers from symptoms of pain and discomfort associated with physical activity which she manages by using over-the-counter to medication such as Panadol and Neurofen, which she employs every six weeks or so;
· her approach to activity is totally governed by her attitude of always being protective of her left wrist. That attitude, which I am satisfied for the reasons I have referred to above is neither unreasonable nor inappropriate, is in turn clearly responsible for the diminished size and strength of her left hand and wrist as is demonstrated by Mr Buntine who in his report comments that those changes arise by reason of the plaintiff’s conservative attitude to the use of, and her protection of, her left wrist.
28 Whilst Counsel for the defendant appropriately pointed to the plaintiff’s:
· relatively sparse use of non-prescription strength medication; and
· absence of constant pain;
as indicators of the lack of severity of her symptoms, the merit of that position needs to be considered in the context of the plaintiff’s evidence that she is always cautious with the activity in which engages with her left hand
29 I am satisfied that the plaintiff’s attitude in this respect provides an explanation for her limited recourse to medication and reduced levels of symptoms, and for that reason each of these factors which may assume considerable significance in some cases in this instance provide little guidance as to the severity of the plaintiff’s underlying condition or the restrictions which it imposes on her life and level of activity.
30 In reality I am of the opinion that is appropriate to summarise the stabilised long-term consequences to the plaintiff of her injuries as involving a change from her pre-injury life in which she was able to engage in unrestricted employment and activity, subject to the occasional exacerbation of a grumbling condition in her lumbar spine, to a position in which her employment is restricted into fields which give no real satisfaction and involves a lifestyle in which she is constantly reminded of a presence of injury by reason of its sporadic symptoms, and even more significantly her caution in attempting to both avoid those symptoms but, more importantly, any permanent exacerbation of her symptoms and disability.
31 In my opinion is not without significance that these effects were imposed upon the plaintiff at:
· a time in her life at which she was seeking to move in a direction in which she could combine the enjoyment which she derived from working as a florist with the pursuit of her vocation as a teacher through which she would be provided with a stabilised income whilst undertaking work which gave her the most satisfaction; and
· the relatively young age of 41 years of age and are such that she will carry them for the rest of her life.
32 In deciding the issue which arises in this case, namely whether the plaintiff’s pain and suffering consequences when judged by comparison with other cases may fairly be described as being “serious”, I am required to assess the consequences in terms of pain and suffering which the plaintiff’s injury has occasioned to her and to determine where the facts of this case sit in the broad spectrum of cases.
33 I am guided in my approach to the analysis of the particular circumstances of this case by the statements of the Court of Appeal in both Haden Engineering Pty Ltd v McKinnon[1] and Sutton v Laminex Group Pty Ltd,[2] where the task which I am required to undertake remains:
[1](2010) 31 VR 1.
[2][2011] VSCA 52.
“… a value judgment, in which matters of fact and degree, and of impression, are operative”[3]
[3] Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181.
and one in which I am required to take into account:
“… not only what symptoms there are and what the worker is precluded from doing, but also what limits there are to symptoms and to inhibitions upon activities. It is true that impairment is concerned with what has been lost. But the significance of what has been lost, which bears upon the seriousness of consequences, may be informed, to some extent, by what is retained.”[4]
[4]Dwyer v Calco Timbers Pty Ltd No 2 [2008] VSCA 260.
34 Whilst I am satisfied that in this instance an analysis of the consequences to the plaintiff of her stabilised injury when measured against the plaintiff’s retained capacity for activity and employment fall towards the borderline of those cases which meet the definition of serious injury as employed by the act; I am nevertheless satisfied that the extent of the permanent effects of the plaintiff’s compensable injury in this instance are such that they do meet the high threshold imposed by the provisions of the Act in defining the concept of serious injury and accordingly that the plaintiff is entitled to the leave which she seeks in this instance.
35 I will hear the parties both as to the nature of the specific leave order which should be made in this instance and also upon the issue as to costs.
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