Razai v Victorian WorkCover Authority

[2022] VCC 1732

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

Serious Injury List

Case No. CI-21-00980

SAFAR ALI RAZAI	Plaintiff
v
VICTORIAN WORKCOVER AUTHORITY	Defendant

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JUDGE:	HIS HONOUR JUDGE CLARK
WHERE HELD:	Melbourne
DATE OF HEARING:	12 and 13 September 2022
DATE OF JUDGMENT:	20 October 2022
CASE MAY BE CITED AS:	Razai v Victorian WorkCover Authority
MEDIUM NEUTRAL CITATION:	[2022] VCC 1732

REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION

Catchwords:              Serious injury application – injury to right index finger

Legislation Cited:      Workplace Injury Rehabilitation and Compensation Act 2013, s335

Cases Cited:Humphries and Anor v Poljak [1992] 2 VR 129; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181

Judgment:                  Leave granted to bring proceedings for the recovery of pain and suffering damages.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms J Frederico	Zaparas Lawyers
For the Defendant	Mr T Storey	Thomson Geer

HIS HONOUR:

Introduction

1The plaintiff, Safar Ali Razai, was born in Afghanistan in 1998.  Both his parents died when he was young.  He went to live in Pakistan with a guardian, where he attended school until Year 10. 

2In July 2016, he came to Australia.  He was sponsored by his sister.  Upon arrival in Melbourne, he lived with his sister and resumed his secondary education.

3At the start of 2017, Mr Razai was undertaking a combined Year 10 and Year 11 program at school.  In addition, he had obtained a job at a butcher’s shop known as “Dandy Mart”.  He was working approximately twenty-five hours per week in this job.  His employer was paying him $10.00 an hour in cash.  He was serving customers and, from time to time, undertaking butcher duties. 

4At about 6.00pm on 25 March 2017, Mr Razai sustained an injury to his right index finger, when it struck the blade of a bandsaw which he was operating.  He said his right index finger looked like it was dropping off.[1]

[1]Plaintiff’s Court Book (“PCB”) 26, paragraph 8

5He was driven by his boss to the Casey Hospital.  On the way, he was told by his boss to say the incident happened at home when he was using a grinder.[2]

[2]PCB 26, paragraph 8

6X-rays taken at the Casey Hospital revealed that, in addition to the severe laceration to his finger, he had suffered a fracture at the base of the terminal phalanx, with separation of the fracture fragment.[3]

[3]See Monash Imaging Report, PCB 47

7Due to the seriousness of the injury, Mr Razai underwent surgery at the Dandenong Hospital on 27 March 2017.  Mr John Buntine, plastic surgeon, in his report 31 January 2020, summarised the findings and procedure at surgery:

“… that 95% of the tendon of flexor digitorum profundus was divided at its insertion onto the distal phalanx of the right index finger, that the volar surface of the base of the terminal phalanx was damaged and that the radial palmar digital nerve and artery were completely divided.

… the flexor digitorum profundus tendon was secured at its attachment to the distal phalanx by the use of a ‘button’ over the fingernail, that the radial palmar digital nerve was repaired and that the radial palmar digital artery was diathermied … .”[4]

[4]Plaintiff’s Supplementary Court Book (“PSCB”) 19-20

8After the surgery, he was off work for about two months.[5]  His schooling was also disrupted.  He was not able to keep up with the demands of his Year 10/11 commitments.  As a consequence, he downgraded his studies to the VCAL program.[6]

[5]Transcript (“T”) 41, Line (“L”) 26

[6]T53, L10-13

9Upon returning to work at Dandy Mart, Mr Razai undertook mainly customer service work, with occasional meat-cutting duties.  Towards the end of 2017, he left Dandy Mart and went to work at the Bestways Supermarket.  He was doing similar work.

10After completing his Year 12 VCAL studies, Mr Razai obtained work in the construction industry.  He worked for various employers, initially undertaking unskilled labouring jobs.  Over time, he gained skills in tiling and waterproofing.

11In late 2020, Mr Razai and his friend, Mr Zakir Mozafari, commenced a business, Rapid Tiling and Waterproofing Services Pty Ltd.  He has worked in this business ever since.  He works five to six days per week.

12Mr Razai says that, as a result of the injury, he has ongoing pain, altered sensation and impairment in his right index finger.  He says this impacts him in a range of domestic and recreational tasks.  While he has maintained full-time employment, he is restricted at work.  Being naturally right handed, he constantly knocks or applies pressure to the finger, which escalates his pain.

The nature of the proceeding

13This is an application pursuant to s335 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”). Mr Razai seeks a pain and suffering certificate pursuant to ss(a) of s325 of the Act.

14The Victorian WorkCover Authority (“VWA”) conceded that Mr Razai continued to suffer a level of pain and dysfunction to his right index finger, but said that the injury did not satisfy the “very considerable” test.[7]  Thus, the matter proceeded as a “range case”.[8]

[7]        Humphries and Anor v Poljak [1992] 2 VR 129 at 140 (per Crockett and Southwell JJ)

[8]        Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1

15The issues to be determined in this application are:

·        As to the credit and reliability of Mr Razai’s evidence.

·        Which of the medical opinions should be accepted and the assistance they provide.

·        Do the consequences which I accept arise from the injury meet the “very considerable” test.

Mr Razai’s credit

16As in a great number of cases of this kind, Mr Razai’s evidence was critically important.  The VWA attacked Mr Razai’s credit.  They maintained that there were aspects of his evidence which were unreliable and that he was exaggerating the consequences. 

17They said, as a result, the weight which I should attribute to the medical opinion should be discounted.

18Mr Razai’s evidence was well tested by Mr Storey.  Having observed Mr Razai give evidence, I concluded that he answered the defendant’s questions to the best of his ability and gave his evidence in a forthright manner.  I accept that some of his responses in cross-examination were awkward and, on one view, inconsistent.  For example his evidence about painkilling medication and the frequency with which he had attended his general practitioner.  The VWA relied on what they said were inconsistencies in his evidence, submitting that they demonstrated that Mr Razai was not a witness of credit.  However, I did not form this view.  I concluded any inconsistencies were a consequence of English not being his first language and his lack of understanding of the compensation legal process.

19Furthermore, I am assisted in my assessment of Mr Razai by the observations made by the medico-legal assessors:  Firstly, Mr Thomas Robbins, hand, plastic and reconstructive surgeon, who assessed Mr Razai on behalf of the VWA on 14 July 2022.  He considered that Mr Razai’s complaints were reasonable and realistic, and consistent with the injury he had suffered.  Importantly, Mr Robbins did not feel that he was exaggerating.[9]  Secondly, Mr Raf Asaid, orthopaedic surgeon, who assessed Mr Razai on behalf of his solicitors on 9 August 2022.  Mr Asaid was of the opinion that the consequences outlined by Mr Razai in his affidavit were consistent with the nature of his injuries.[10]  Finally, Mr Buntine, plastic surgeon, who assessed Mr Razai back in March 2017.  He, too, considered Mr Razai’s complaints to be consistent with the injury which he suffered.[11]

[9]Defendant’s Court Book (“DCB”) 5

[10]PCB 46

[11]PSCB 23

20The observations made by these three medico-legal experts were consistent with my observations of Mr Razai.

21Taking into account the whole of the evidence, I consider that Mr Razai gave his evidence in a reasonable manner and did not exaggerate.  I consider that his explanation of his pain, the significant altered sensation which he has to the finger, and the impact on his day-to-day activities, were realistic and appropriate and that he did not seek to overstate his problems.  Overall, I do not accept that Mr Razai’s credit has been impugned.  Further, I formed the view that he was a stoic individual, who was motivated to work hard and better himself.

Mr Razai’s injury and the consequences flowing from the injury

The medical reports

22There were no medical reports from Mr Razai’s treating general practitioner or hand therapist.  The VWA sought an inference that such reports would not have been of assistance to his case.  I accept that submission; however, I note that he has not consulted either his general practitioner, or his hand therapist, since, at the latest, some time in 2018.  This, in circumstances where Mr Razai was of the understanding that there was no further treatment which would improve his function and that he had to live with his injury as it was.  In the absence of material from the treating medical practitioners and hand therapist, I am aided by the numerous specialist opinions, as well as the Medical Panel Reasons.

Mr John Buntine – report dated 31 January 2020

23At paragraph 7 of this judgment, I quoted Mr Buntine’s summary of the surgery undertaken 27 March 2017.  Mr Buntine noted, subsequent to the surgery, Mr Razai was followed up at the outpatients clinic at the hospital and referred for hand therapy.  Consistent with Mr Razai’s evidence, Mr Buntine noted that he was presently not receiving any treatment other than self-massage and exercise, and was not taking analgesics.  Mr Buntine concluded that Mr Razai had mild stiffness, significant sensory loss and mild pain affecting the right index finger.  He noted that Mr Razai’s symptoms were worse when exposed to cold conditions.  He also recorded that his ability to lift heavy objects was appreciably limited.  Mr Buntine considered Mr Razai’s clinical presentation to be consistent with the injury sustained.

The Medical Panel

24Mr Razai was assessed by the Medical Panel (“the Panel”) on 18 August 2020.  The Panel was constituted by Dr David Kotzman, occupational and environment physician, and Mr Damian Ireland, orthopaedic surgeon.

25The Panel concluded that he was suffering from persisting dysfunction of the right index finger as a consequence of a deep laceration to the distal segment of the right index finger, an avulsion fracture of the long flexor at the base of the distal phalanx, and scarring of the right index finger. 

26A two-point discrimination assessment undertaken by the Panel revealed partial radial longitudinal sensory loss distal to the proximal interphalangeal joint (80 per cent of digit length).[12]

[12]PSCB 38

Mr Thomas Robbins – report dated 25 July 2022

27On examination, Mr Robbins noted that the distal pulp of Mr Razai’s right index finger looked atrophied compared with the distal pulp of his left index finger.  He noted there was a 20-degree loss of extension of the distal interphalangeal joint, and that he had altered sensation distal to the scar over the volar surface of the distal pulp of his right index finger.[13]

[13]DCB 5

28As previously noted, Mr Robbins confirmed that Mr Razai’s complaints were reasonable and realistic and that he was not exaggerating his symptoms.

Mr Raf Asaid – report dated 9 August 2022

29Mr Asaid noted that Mr Razai continued to experience pain in his right index finger, which varied depending on his level of activity.  The pain was worse when exposed to cold and he was careful, when working, to avoid knocking the finger, as this greatly aggravated his pain.  Mr Asaid noted difficulties which Mr Razai had with tasks, referencing, in particular, doing up buttons and opening jars.  He reported that Mr Razai had become reliant upon his left arm.

30Mr Asaid considered the consequences outlined in Mr Razai’s affidavit were consistent with the nature of his injury.  Mr Asaid considered his restrictions would continue into the foreseeable future.

Conclusions from the medical reports

31The medical opinions are, in general terms, consistent.  Based on these opinions, and Mr Razai’s evidence, I accept he has been left with:

·        A loss of extension of about 20 degrees in the distal interphalangeal joint.

·        A loss of distal pulp in the top of his right index finger and reduced moisture.

·        As a result, there is a permanent structural deformity to the tip of the right index finger.

·        Significantly altered sensation to the right index finger (about 80 per cent of the length of the finger).

·        Ongoing pain, which increases if the finger is knocked or put under pressure.

·        Vulnerability to the cold.

32As previously noted, none of the specialists suggested that Mr Razai was exaggerating his complaints of pain or altered sensation, and all consider his complaints to be consistent with the injury which he has suffered. 

Mr Razai’s evidence

33While there is some limited movement and structural deformity to Mr Razai’s right index finger, it is the pain and altered sensation which were the focus of his complaints.  

34Dealing firstly with pain.  It was his evidence that there was pain in the finger 80 per cent of the time.  He said the pain varied in intensity.

35Having heard and considered Mr Razai’s evidence which was, as I have previously noted, well tested by defendant’s counsel, I accept that his pain is such:

·        At times, he has a deep aching pain in the top of the index finger.  When the pain becomes severe, there are times when he puts his finger between his teeth and bites down to try and gain relief.

·        When something hits his finger, or he knocks it, the pain increases.  Given that Mr Razai is naturally right handed, I accept that this is a regular and unavoidable occurrence of normal life.  He explained that, when his finger is struck, or he knocks it, he will often massage the finger to get relief.  It will take a few minutes for the increased pain to settle.

·        That pressure on the right finger will lead to increased pain.  For example carrying a grocery bag in his right hand.  To avoid the development of pain, he will extend his right finger out and carry these bags in the balance of his fingers.  Again, I accept the exposure to pressure and trauma to the right index finger is an unavoidable consequence of normal life.

·        That in the evening after he finishes work, and at night when relaxing or watching television, he will suffer pain in the finger.  I conclude that this is a matter of some real concern to him.

·        That exposure to cold weather, or cold water, will increase his level of pain.  Given that he must, as a part of his job, regularly put his hand in cold water, this is an ongoing problem for him.  Again, such exposures are inevitable as part of normal life.

·        That he has become much more reliant upon his left hand.

36Mr Razai openly conceded he did not use painkilling medication.  Much was made of this by the defendant in the course of the hearing.  I accept that it is not just what Mr Razai says about his pain, but also what he does about the pain, which must form part of my determination.  Mr Razai said he did not wish to use painkilling medication such as Panadol or Nurofen on a regular and long-term basis.  I accept that this is a preference which can be properly held.  In the circumstances of this case, I do not accept that the plaintiff’s failure to take over-the-counter medication such as Panadol or Nurofen, is conclusive that he does not suffer the pain of which he complains.  He said that he would try to manage his pain by putting his hand in warm water, at times biting it, at other times massaging the finger and wearing gloves.  Otherwise, he just puts up with it.

37The VWA invited me to accept the proposition that, because Mr Razai did not take painkilling medication, his complaints of pain were not genuine and/or of any great significance, and certainly were not “very considerable”.

38As I have already said, I accept Mr Razai as being a credible witness.  I also accept that he is a very stoic person.  I do not accept the submission that his decision not to take painkilling medication such as Panadol or Nurofen, establishes that he does not suffer the pain of which he complains.  I accept Mr Razai’s evidence that he has pain in the right index finger 80 per cent of the time and he regularly suffers pain of increased intensity.

39Moving now to the sensory disturbance which I accept Mr Razai suffers.  I accept that the altered sensation in the right index finger, of itself, impairs Mr Razai’s use of his right finger and hand, and also causes him distress.  Mr Razai explained that he has:

·        An ongoing feeling like there is a foreign object inside the finger, which is moving.  This leads him to massage the finger to try and obtain relief. 

·        Constant numbness and loss of feeling at the top of the finger, which impacts his ability to use the finger and, indeed, his hand.

·        That the finger is sensitive to touch, and he has reported that he suffers occasional electric shock-type sensations.

·        Problems gripping and carrying items in his right hand.  This causes Mr Razai difficulty when undertaking work, domestic chores such as cleaning and shopping, and in general life.

40I note, in particular, the Panel’s finding that Mr Razai has impaired sensation to 80 per cent of the length of the finger.

41Moving, now, to other consequences. 

42A significant part of the hearing focused on the impact which Mr Razai’s injury has upon him at work.  Rightly so.  He spends approximately eight hours per day, five to six days per week, undertaking manual duties in his business.

43Mr Razai said that he has had to modify his work duties as a result of his injuries.  For example:

·        He now uses a trowel in his left hand a lot of the time.

·        He tries to use his left hand to mix the grout.

·        He is no longer able to use his right index finger to apply silicone.

·        He is more reliant upon his business partner for assistance.

·        He generally uses his left hand more often to avoid trauma to the finger and, hence, increased pain.

·        The pain, impaired sensation and vulnerability of the right index finger, impacts on his ability to grip and use his right hand.

44I am aided in my assessment of Mr Razai’s complaints of pain and restriction by the evidence of Mr Mozafari, his friend and business partner.  Mr Mozafari said that Mr Razai did complain of pain at work and there were tasks which he had to assist Mr Razai with because of his injury.  I accept Mr Mozafari’s evidence.  It corroborates Mr Razai’s evidence and my observation of him as a stoic and hardworking man.

45I accept that Mr Razai has made adjustments at work to try and manage the pain and restriction which he suffers.  That, however, is not the end of it.  Mr Razai still has to use his right, and dominant, hand every day at work.  I accept this invariably leads to his finger being knocked, put under pressure, or being exposed to the cold.  These stressors are unavoidable.  I accept that simply undertaking his normal work inevitably results in him suffering increased pain, both at the time and afterwards.  I accept that, at times, the pain is severe, leading him to massage his finger, place it under hot water, or, at times, bite it to try and dull the level of pain.  I also accept that, in the evening after work, he will suffer ongoing, and at times, increasing pain.

46The VWA said that Mr Razai’s return to work and undertaking of a range of tasks in his role as a tiler precluded the Court from finding that his injuries reached the “very considerable” threshold.  While I accept that Mr Razai has retained a capacity to work, despite the injury to his right index finger, I also accept that his continued work comes at a price in terms of pain.  This price is paid every day that he works.  His return to work must be viewed in the context of Mr Razai doing his best to make good his life in Australia and make a success of himself.  He should not be penalised in this application for his stoicism and his work ethic. 

47Mr Razai is able to look after himself on a day-to-day basis.  However, there are activities which are either problematic or cause him increased pain or frustration.  The pain and altered sensation make it difficult for him to use his right index finger for fine manipulation.[14]  The type of activities which are impacted on a day-to-day basis include:

·        Doing up buttons on shirts.[15]

·        Opening jars.[16]

·        Not being able to use the finger to smooth off silicon sealer.[17]

·        Carrying bags of groceries.[18]

[14]PSCB 20

[15]PCB 44

[16]PCB 44

[17]PCB 37

[18]        PCB 44

48I accept there are a range of normal day-to-day activities that are impacted by his injury and which unavoidably cause increased pain.

49Mr Razai has limited recreational pursuits.  He has returned to playing soccer.  He has not returned to playing volleyball.  I accept that volleyball, and other similar activities, where the finger would be knocked, are no longer open to him. 

50He said that, using a keyboard on a computer or typing on his phone using his right index finger, is painful and difficult.[19]  I accept that to be so.  In this day and age of digital communication and social media, this is something which will impact him on a daily basis.

[19]        PCB 27

51I also accept that there are times when he does not have pain in the finger.  However, it is never far away.  Undertaking any number of normal day-to-day activities results in pain, and often severe pain.

Analysis

52This is range case.

53Mr Razai has the onus to establish that the consequences to him are more than “very considerable”.[20]

[20]        Humphries & Anor v Poljak (supra)

54I am conscious that the consequences to him, for him to be successful, must go beyond being significant, important or substantial.

55Mr Razai has retained the capacity to work, undertaking, at times, heavy and demanding tasks, engage in some recreational and sporting activities, and to live independently.  He does not use painkilling medication.  He does not have ongoing treatment.  All these matters tend to him not meeting the requisite test.[21]

[21]        Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260

56Having said that, I take particular note that his injury is to the index finger on his right, and dominant, hand.  I accept that Mr Razai endeavours to manage the use of his right hand and that he structures his life around the inevitable increase in pain which he will suffer if his right finger is knocked, placed under pressure, or exposed to the cold.  Further, I found Mr Razai’s evidence in respect to the sensation of a “foreign object” in his finger, very persuasive.  I accept that Mr Razai suffers this sensation and accompanying pain.  This causes him considerable distress.  He also has to adapt to, and manage, the dysfunction caused by the impaired sensation.  Having heard him give evidence, I accept this is a significant imposition.

57As explained, I accept that Mr Razai is a stoic and driven individual.  He should not be placed at a disadvantage because of this.[22]  His work, which is clearly very important to him, is compromised.  I accept that he suffers pain approximately 80 per cent of the time.  I accept that he regularly suffers increased pain at work.  I accept that he suffers increased pain at night, especially after work.  I accept that there is impaired sensation to some 80 per cent of the finger length.  I accept that he is limited in the sporting activities which he can enjoy.  I also accept that, in a day and age where mobile phones and computers are an integral part of life, there is a level of impairment.

[22]        Dwyer v Calco Timbers Pty Ltd (No 2) (supra)

58I must also take into account Mr Razai’s age.[23]  He was seventeen when the injury occurred.  He has suffered the consequences for the last seven years.  The medical evidence is consistent that the consequences will be permanent.  He will endure the consequences of this injury to his grave.

[23]        Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181

59I find there is sufficient impact to Mr Razai by way of pain, loss of sensation to the finger, dysfunction and interference to his daily life, to amount to “very considerable” consequences.

Conclusions

60For the reasons outlined, I grant Mr Razai leave to commence a common law proceeding for pain and suffering.

61I will hear the parties in respect to costs and generally.

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