Riley v Victorian WorkCover Authority
[2018] VCC 1686
•23 October 2018
| IN THE COUNTY COURT OF VICTORIA AT MILDURA COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-18-01608
| CRAIG WILLIAM RILEY | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Mildura | |
DATE OF HEARING: | 3 October 2018 | |
DATE OF JUDGMENT: | 23 October 2018 | |
CASE MAY BE CITED AS: | Riley v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1686 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – impairment of the right forearm/bicep – pain and suffering only
Legislation Cited: Workplace Injury and Rehabilitation Act (Vic) 2013, s325(2)(d)
Cases Cited:Barwon Spinners & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia (2006) 14 VR 602; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Sabo v George Weston Foods [2009] VSCA 242
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C W R Harrison QC with Mr C S O’Sullivan | Maurice Blackburn |
| For the Defendant | Mr W R Middleton QC with Mr R Kumar | Hall & Wilcox |
HER HONOUR:
Preliminary
1 This is an application for leave to bring proceedings pursuant to s335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (“the WIRC Act”) in relation to an incident at work with Olam Orchards Pty Ltd (“the employer”) on 18 February 2015 (“the said date”).
2 The body function said to be impaired is the right forearm/bicep, described in the Particulars of Injury as distal biceps rupture and nerve damage in the right forearm (including chronic pain and dysfunction in the right limb). The left upper limb was also included in the application.
3 The plaintiff bears an overall burden of proof upon the balance of probabilities.
4 By s325(2)(b) of the WIRC Act, the impairment must have consequences in relation to pain and suffering which:
“… when judged by comparison with other cases in the range of possible impairments, or losses of a body function or disfigurement, as the case may be, fairly described [as at the date of the hearing] as being more than significant or marked, and as being at least very considerable.”
5 I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
6 Subsection s325(2)(h) of the WIRC Act provides consequences which are psychologically based, are to be wholly disregarded in paragraph (a) cases.
7 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[1] and Grech v Orica Australia Pty Ltd & Anor[2] in reaching my conclusions.
[1](2005) 14 VR 622
[2](2006) 14 VR 602
8The plaintiff swore two affidavits and was cross-examined. He relied on an affidavit sworn by his partner, Petra Pask, on 7 October 2018. Also in evidence were medical reports and other material. I have read all the tendered material.
The Plaintiff’s evidence
9 The plaintiff is currently fifty, having been born in September 1968. He lives with his partner, Petra, in Robinvale.
10 The plaintiff completed Year 11. Prior to starting work with the employer, he worked in a range of manual jobs, including as a tyre fitter, plant operator and labourer. Between March 2011 and July 2012, he worked as a farm manager for Select Harvests.
11 The plaintiff began working for the employer in about July 2012 as a full-time orchard technician. His various duties involved driving a tractor, general orchard maintenance and the maintenance of machinery such as bank out machines.
12 In late 2014, the plaintiff was referred to orthopaedic surgeon, Mr Kossmann, as he had been having knee pain for several years. That pain did not stop him from working, and he did not have any ongoing treatment in relation thereto.
13 On the said date, the plaintiff was performing maintenance work on a bank out machine. He was pulling the machine safety arm into position, which required him to adopt an awkward posture, and it was difficult. While doing this, he felt a burning sensation in his right bicep (“the incident”).
14 The plaintiff then looked at his arm and noticed something had happened to the bicep muscle, and it was out of place. He reported the incident, and finished his shift and went home.
15 The plaintiff attended Box Hill Hospital the following day. He had an x-ray of his right elbow, and his arm was put in a sling and he was given painkilling medication.
16 The plaintiff completed a WorkCover form on 20 February 2015. His claim was accepted.[3]
[3]Described as right arm injury in Claim Form
17 On 20 February 2015, the plaintiff’s general practitioner referred him to orthopaedic surgeon, Mr Gardiner. As the plaintiff had difficulty getting an appointment with him, instead, he saw another surgeon, Mr Pak, who told him he needed surgery. Mr Pak performed biceps tendon repair surgery on 13 March 2015 (“the surgery”), following which the plaintiff had physiotherapy.
18 The plaintiff agreed the surgery was a success.[4]
[4]Transcript (“T”) 1
19 When he last saw Mr Pak on 28 May 2015, persistent numbness was slightly improving. He had an “okay”, rather than a good, range of movement. He could not recall what Mr Pak said about his return to work, or discussing with him that he would return to his pre-injury level of function. The plaintiff has not seen Mr Pak since.[5]
[5]T2
20 The plaintiff had about ten physiotherapy sessions with Jennifer Cook, physiotherapist, after the surgery. He found her treatment helpful. He might have last seen her in June 2015. He would not say that he then had good strength and range of movement in his right upper limb as she recorded. It was okay. He would not say he had full strength.[6]
[6]T4
21 The plaintiff has tried to have some more physiotherapy through Dr Islam, but he had not seen that general practitioner for eighteen months.[7]
[7]T4
22 On about 28 April 2015, the plaintiff returned to work operating a slasher, working twenty hours a week. He tried to use his left arm as much as possible to protect his right. He began to experience pain in his left elbow, about which he saw his general practitioner on 28 September 2015. He was referred for a left elbow ultrasound which was undertaken on 15 October 2015 and he was prescribed Voltaren.
23 The plaintiff agreed he was certified fit for normal full-time duties as an orchard hand on 14 September 2015. These duties involved anything from maintenance to spraying and slashing. Some of the work was quite physical.[8]
[8]T6
24 The plaintiff agreed he did his normal work for about six weeks and then resigned on 26 October 2015. His resignation had nothing to do with his right elbow. He resigned because had to commute 160 kilometres to and from work.[9] A few days after he ceased working for the employer, the plaintiff began working for Select Harvests as an orchard hand. He continues to work in that role.
[9]T7
25 The plaintiff agreed, when working for the employer, he was working pretty long days. At harvest times he might be doing up to a 14-hour shift, 6.00am to 8.00pm, sometimes staying overnight at work.[10]
[10]T17
26 The plaintiff refuted Dr Islam’s note of 10 August 2015 that he then had improved a lot and had almost no residual disability. This was not correct;[11] however, the plaintiff agreed, as Dr Islam recorded on 11 September 2015, when he attended for a certificate, he had no restriction with his right arm, except a little numbness, and was happy to go back to normal duties.[12]
[11]T8
[12]T8
27 The plaintiff did not think that was the last time his elbow was discussed. He had seen a doctor at Tristar when both his arms were aching really badly and he had a blood test.[13] He was unsure if Dr Islam was still at Tristar then. The blood test was probably in 2016.[14]
[13]T9
[14]T10
28 The plaintiff has raised problems with his right elbow since September 2015, whether Dr Islam had written it down or not. The plaintiff had asked him about more physiotherapy at that time.[15]
[15]T9
29 The plaintiff agreed he saw Dr Islam in September 2015 about his left elbow.[16]
[16]T9
30 Whilst a shoulder complaint was noted in February 2016, the problem was the plaintiff’s arms not shoulders, the whole arm. Again, in September 2016, when it was noted there was some left shoulder blade pain after manual work, pain was not just in the plaintiff’s shoulder blade, it went right up his arm through the shoulder blade.[17]
[17]T9
31 Although she would have been aware of the surgery, the plaintiff did not need to discuss his right arm with Dr Jung, who looked after his diabetes, as he had no need to do so.[18]
[18]T13
32 In February 2016, the plaintiff completed a Claim Form for impairment benefits for the injury to his right arm. This claim was accepted.[19]
[19]Letter dated 29 July 2018 following examination by Dr Elder on 13 July 2016. Liability denied for left arm injury.
33 As of 29 November 2017, when the plaintiff swore his first affidavit, he continued to work full time. He found work difficult because of right arm pain and lack of strength in that arm. His job involved the repetitive use of levers on machines, an activity which increased his pain levels.
34 Sometimes at work, the plaintiff had to do some hammering which caused a sharp increase in his right arm pain. His current employer knew about his injury and he believed they tried to make allowances for him in the duties he had to do; however, it was the type of job where manual work was inevitable, and working in pain was tiring and frustrating.
35 The plaintiff is right-hand dominant. His right arm was much weaker than it used to be. This was noticeable when he tried to lift anything heavy at work, like 20-litre drums. His right arm also became very tired easily, particularly while at work.
36 Since injuring his right arm in the incident, the plaintiff had experienced numbness up into the right forearm. Over time, it had improved; however, he still had it at times.
37 As of November 2017, the plaintiff continued to experience pain in the left elbow area. This was not a problem prior to his return to work after the incident. It was not as big an issue for him as his right arm pain, but it still bothered him.
38 The plaintiff also used to enjoy playing sports. He regularly played tennis and golf. Because of the pain and weakness in his right arm, he no longer played those sports. He denied, as Dr Croagh, gastroenterologist, recorded, that he had not played sport regularly since his twenties.[20]
[20]T13
39 The plaintiff played sport nearly to his forties, whether it was football or cricket, or having a hit of tennis, golf, squash and table tennis. He was not playing sport when he injured his arm. He had other interests. He had always been a little overweight playing sport. He was being encouraged to exercise to lose weight in the years leading up to 2015.[21]
[21]T14
40 Before the incident, the plaintiff was playing tennis occasionally. It was not his main sport. That was football and cricket. In 2013-2014, if he had had ten hits of tennis a year, it would probably be with mates. It was the same with golf. He was not a member of a club or had a handicap, he just had a social hit with friends. The plaintiff had no idea whether he played tennis at all in 2014.[22]
[22]T15
41 The plaintiff had not tried tennis or golf since 2014 because he does not have the confidence in his arm, because of the pain and weakness.[23]
[23]T21
42 Any jobs around the house that were repetitive, such as cleaning windows, hanging out washing and gardening brought on increased arm pain. Using a hammer and any tools that involved force was now painful for the plaintiff. He worried a lot about his work future, and what he would be able to do because of the pain and lack of strength in his arms, particularly the right. He knew he needed to work for many years yet, and he had no skills or qualifications for light work.
43 The plaintiff swore a further affidavit on 7 September 2018.
44 The plaintiff continues to have pain and weakness in his dominant right arm. As well as pain, he continues to experience a feeling of numbness in the right elbow. This is not constant, but tends to come on when he is doing more physical duties such as lifting and breaking up bags of fertiliser. His elbow pain is intermittent, depending on the work he has been doing that day or week.[24]
[24]T10
45 The plaintiff indicated his pain is situated from the inside of the forearm, from his bicep, indicating where it snapped. The pain goes down his arm from the right bicep and down the inside of the arm. It also goes to the top of his wrist and sometimes the back of his elbow.[25]
[25]T11
46 The plaintiff gets some numbness in his right forearm if he performs heavy work activities. He would not say there is a slight restriction in his elbow and shoulder, but there is a restriction. It is more than slight, but it depends on his workload at times.[26]
[26]T12
47 The plaintiff’s left elbow is still the same, but it improves if he does not do a lot of work with a lot of lifting. Currently, it is a bit sore, but it is something he has got to grin and bear with sometimes. He has not spoken to Dr Patel about it.[27]
[27]T18
48 The plaintiff rolled up his shirt in re-examination and showed the area of his pain and numbness. The surgery was on the bend of his right elbow. The pain goes into the outside of his forearm and then it gradually goes up to his shoulder.[28] He had “grief” from some sensory loss in his forearm “from day dot”, but there is still numbness there.[29]
[28]T20
[29]T12
49 The plaintiff has been seeing Dr Patel at MDAS again for the last two or three months. He had previously seen Dr Islam, who was his general practitioner at the time of the incident.[30]
[30]T4
50 The plaintiff had an ultrasound of his right elbow on 7 July 2018 and then underwent an injection of cortisone into the elbow on 26 July 2018.
51 The plaintiff is still discussing further physiotherapy with Dr Patel. The plaintiff last saw him about three weeks ago for diabetes and “stuff”. He thought he had seen him at least twice for his elbow. The plaintiff was then sent for the ultrasound and later referred for the injection. Since the injection, Dr Patel told him he needs further physiotherapy to build up his strength in his arms. Dr Patel referred the plaintiff to the Robinvale clinic, but there is no physiotherapist presently at that clinic.[31]
[31]T6
52 For many years, the plaintiff had helped train harness horses. He no longer had the confidence to lead the horses by the reins or drive them because of the lack of strength in his right arm, and also his concern about doing further damage to his arm. That situation was very frustrating for him.
53 The plaintiff remains unable to assist Petra with training horses due to the pain and weakness in his right arm. She keeps horses at their agistment property. He would like to be able to help her a lot more with handling them; however, he lacks the strength to control a horse, particularly if it acts up, and he is always worried about doing further damage to his arm. He cannot afford to hurt himself further and take time off work.
54 From when he was fifteen, the plaintiff had an interest in harness horses as his father was involved in harness racing and was an owner. The plaintiff would help trainers out “as a social thing”. He initially said he probably trained a harness horse himself in 2010,[32] but then said he just helped the trainers. He has not had his own licence.[33]
[32]T15
[33]T16
55 The plaintiff helps feeding and looking after the horses on the block when he can.[34] Petra does the majority of the work. He will feed them and give them water. Feeding them is not that hard.[35] Of late, very few times, probably once or twice a week, he sees the horse because he is working on nightshift.[36]
[34]T22
[35]T16
[36]T17
Gardening
56 The plaintiff has stopped mowing the lawns and using the Whipper Snipper at home because the vibrations cause too much elbow pain. He is careful not to do anything that might aggravate his arm pain and keep him away from work.
57 Petra does most of the mowing. The plaintiff does it occasionally. Normally, he uses his left arm to start the mower, and sometimes he struggles with it.[37] Previously mowing the lawn would have taken him an hour continuously, now he does it in two phases.[38] His problem is the vibration coming up through the mower into his arm when he is pushing it.[39]
[37]T22
[38]T18
[39]T23
58 Petra does most of the work with the Whipper Snipper and the plaintiff is able to try to do it. They have a gardener who comes every two or three weeks to do the garden anyway, but when the grass is long, they mow it.[40]
[40]T18
Current work
59 The plaintiff continues to work at Select Harvests as an orchard hand. He has ongoing pain and difficulty at work, as he previously deposed. He puts up with the pain and weakness as best he can, but he knows he will not be able to do this job until retirement age. He is not yet fifty, and worries a lot about what other work he would be able to do. He has no experience or qualifications for office-type work.
60 The plaintiff agreed, since starting this job in late 2015, he continued working on a full-time unrestricted basis. The employment is secure and he intends to keep working there. It is essentially the same job as he had with the employer.[41]
[41]T7
61 There is always a restriction at work. The plaintiff has good work people behind him who help him if there is a job he cannot do. He would get help nearly every day. He has to modify how he does his work.[42] If he had to put 20 kilograms of fertiliser in a vat, he did it in two lots of ten.[43] When pulling branches, a co-worker would probably pull them and the plaintiff would just drag them.[44]
[42]T12
[43]T20
[44]T21
The Plaintiff’s taxable income
Financial Year Ending Amount 30 June 2011 $44,440 30 June 2012 $53,307 30 June 2013 $67,941 30 June 2014 $64,100 30 June 2015 $61,928 30 June 2016 $16,578 30 June 2017 $63,791 30 June 2018 $61,082
Lay evidence
62 Petra Pask swore an affidavit on 7 September 2018. She has been in a relationship with the plaintiff since about May 2012, moving in together a couple of months later.[45]
[45]T40
63 Since injuring his arm, the plaintiff does a lot less around the property. He no longer mows the lawns or takes care of the garden.
64 Petra owns two horses, and currently looks after three others. Prior to injuring his arm, the plaintiff was actively involved with the horses and helped her get them on and off the float and lead them by the reins. Since injuring his arm, he does very little with them. The horses are heavy and powerful and need two strong arms to handle.
65 Petra often sees the plaintiff having right arm pain, particularly when he comes home from work. He tells her his arm pain makes his job difficult.
The Plaintiff’s medical evidence
Dr Islam
66 The plaintiff’s general practitioner, Dr Islam, reported initially in January 2017, and more recently in October this year.
67 In his first report, Dr Islam noted the plaintiff was diabetic, hypertensive, obese and a non-smoker who rarely drank alcohol. He was an orchard technician and sustained injuries as a result of lifting heavy metal at work on 18 February 2015.
68 Dr Islam diagnosed right biceps tendon rupture (distal end) which was consistent with the stated cause.
69 As of February 2017, Dr Islam noted the plaintiff had returned to full-time work, after treatment surgery including physiotherapy. Dr Islam did not see any issue in future capacity of work. He thought the plaintiff was doing well, with a good prognosis, and he did not anticipate any medical need for the same problem.
70 Dr Islam thought the plaintiff had received prompt treatment for his injury and had recovered well.
71 Dr Islam considered the plaintiff developed tennis elbow in the left arm after the initial right biceps tear. He thought it hard to say whether that was a consequence of the injury or an independent cause. It was a possibility, but there was no concrete evidence.
72 In his further report of October 2018, Dr Islam essentially repeated the same matters raised in his earlier report; however, he then thought a lifting restriction of 15 kilograms was appropriate.
Dr Patel
73 Dr Patel advised the plaintiff’s solicitor that he was not prepared to provide a report as Dr Islam was mainly involved in the treatment of the plaintiff’s right arm.
Mr Pak
74 In early 2015, the plaintiff was referred by Dr Islam to Mr Pak, orthopaedic surgeon, with right elbow distal biceps tendon rupture of duration as a result of lifting at work when he felt a burning sensation and weakness in his elbow.
75 In February 2015, Mr Pak reported pain is not an issue, but the plaintiff had weakness of elbow flexion and supination. He had been off work. The injury did not affect his activities at home.
76 Mr Pak noted the plaintiff’s past history of Type 2 diabetes and high blood pressure.
77 Mr Pak’s examination findings then included proximal bunching of the right bicep with a positive hook test that confirmed a distal biceps rupture. There was also weakness of supination and elbow flexion compared to the plaintiff’s non-dominant side.
78 Mr Pak thought that the distal biceps rupture, confirmed on ultrasound, required treatment with a surgical repair, otherwise there would be a significant weakness of elbow flexion and supination of the forearm. He suggested this surgery be undertaken, and WorkCover approval was sought.
79 The operation report confirmed that a right distal biceps tendon repair was carried out on 13 March 2015. On operation, the findings were complete rupture of biceps tendon from radial tuberosity and tendon contracture.
80 Mr Pak provided a further report in August 2018, although he had not seen the plaintiff since May 2015.
81 Mr Pak advised that after the surgery, the plaintiff required four weeks in a sling when it was usually two weeks. At two weeks, the wound was well healed and range of motion was from 20 degrees to 130 degrees of flexion. At six weeks after surgery, the plaintiff’s range of motion improved to 15 to 140 degrees. He was allowed to mobilise and commence resistance training.
82 By twelve weeks post surgery, there had been some persistent numbness in the distribution of the lateral cutaneous nerve of the forearm that was improving. The plaintiff had a good range of motion and power.
83 Mr Pak reviewed the plaintiff’s return-to-work plan and signed him off to participate with a lift limit of 15 kilograms.
84 Mr Pak thought the injury was the result of eccentric loading of the plaintiff’s elbow when he lifted a heavy metal object at work. When he last saw him on 28 May 2015, he expected the plaintiff to return to normal work activities within two months. Mr Pak expected he should be able to return to his pre-injury duties.
85 Mr Pak thought that the plaintiff had had appropriate treatment, including timely surgery, as well as post-operative rehabilitation.
Medico-legal examiners
Associate Professor Bruce Love, orthopaedic surgeon
86 Mr Love saw the plaintiff on 19 June 2018.
87 In his report, Mr Love noted the incident injury and subsequent treatment. The plaintiff’s initial return to work was six to eight weeks after the surgery and on alternative duties, four hours a day, five days a week. He was rehabilitated with the aid of physiotherapy.
88 Since that time, the plaintiff had been able to graduate to full-time work, but suffered ongoing symptoms in the right elbow. More recently, symptoms commenced in the left elbow, which the plaintiff estimated occurred about a year after they first appeared in the right. The plaintiff then described a continuing general sensation of heaviness in both elbows.
89 The plaintiff generally feels both arms are weak and he would like to have further physiotherapy. While working, he describes an aching sensation, and his sleep is affected. Both elbows then appeared to have approximately similar symptoms. He was not having any treatment in relation thereto.
90 The plaintiff coped with household chores, living with his partner and her daughter, but there were some impediments to his household functions. He believed he had been diagnosed with knee arthritis and had seen Mr Thomas Kossmann for that condition.
91 On examination, the range of movement in the right elbow was from 10 degrees of fixed flexion to full flexion and the left moved from 0 to 140 degrees of flexion. There was no significant loss of power sensation in either limb. Flexion, extension, supination and pronation were unrestricted. There was some tenderness at the insertion of the biceps tendon in the cubital fossa of the right elbow.
92 Mr Love noted the ultrasound report of 15 February 2015, diagnosing an ablution of the insertion of the biceps tendon at the right elbow.
93 Mr Love thought it could be reasonably assumed the plaintiff had a form of tendinitis of the biceps tendonitis of both elbows, and that condition predisposed him to the rupture that took place on the said date.
94 Mr Love considered the right biceps tendon had been successfully repaired, but the plaintiff had been left with a permanent impairment of function of both elbows, but was managing to cope with full-time orchard work. He was at risk of suffering further deterioration of both elbows due to the history and underlying diagnosis.
95 Mr Love thought it might be in the plaintiff’s best interest to seek retraining in an occupation that does not involve the current stressful work of the right arm and, to a lesser extent, the left arm, putting him at further risk of injury.
96 Mr Love considered the plaintiff had bilateral tendinitis of both elbows. The condition could be considered organic and the diagnosis was based on the history and clinical examination.
97 Mr Love believed it reasonable to accept the nature of the plaintiff’s work could be considered to have resulted in both limb injuries. He thought the right limb injury was caused by the incident. He considered both limb injuries were contributed to by the physically demanding and repetitive nature of the plaintiff’s work with the employer.
98 Mr Love accepted the left limb injury could be considered to have been caused by the nature of the plaintiff’s work, and there was, in all probability, a contribution to his left limb injury due to the favouring of that arm due to the impairment of the right.
99 Mr Love thought, with restrictions with regard to the right limb, the plaintiff was best to avoid the heaviest and most strenuous repetitive use in terms of functions requiring elbow flexion. The left limb must be considered at some risk of having a similar incident to the right limb if the plaintiff engaged in the heaviest of work involving elbow flexion of the left arm. Both limbs were at risk, therefore restrictions were appropriate.
100 Mr Love explained that forearm supination is contributed to by biceps function, in that the radial tuberosity lies posteriorly, and during biceps contracture the tuberosity is pulled in an anterior direction leading to forearm supination.
101 Mr Love noted the plaintiff was working in a relatively unrestricted manner presently, full time, but he was at permanent risk of re-injury. He thought it appeared the plaintiff’s age, education, skills and work experience precluded him from changing easily to an alternative occupation, and for that reason, he believed the plaintiff should be ideally retrained to an alternative occupation.
102 Mr Love thought the injuries to both the plaintiff’s upper limbs should be considered in combination, in that the condition was similar on both sides.
103 Mr Love noted the plaintiff is forty-nine and if he works to the usual retirement age, there is a relatively long period of time during which he is at risk of further injury.
Dr Joseph Slesenger, occupational physician
104 Dr Slesenger examined the plaintiff on 25 June 2018.
105 Dr Slesenger noted the incident circumstances and the plaintiff’s subsequent treatment.
106 On examination, the plaintiff complained of ongoing pain in the right elbow flexor aspect, radiating to the medial aspect of the upper arm and into the forearm. The pain radiated as far as the wrist and there was no associated hand pain. There was numbness in the left forearm.
107 Due to avoidance of the right side (subsequent to the surgery), the plaintiff strained his left elbow and received treatment in relation thereto. The symptoms gradually resolved, and he has been left with mild intermittent symptoms in the left elbow into the left forearm.
108 The plaintiff advised he has difficulty with repetitive tasks on either upper limb, particularly with flexion, extension and forward reaching, and he had difficulty pushing and pulling with force.
109 The plaintiff was taking the occasional Panadol, and medication for unrelated conditions. He was currently seeking further physiotherapy in order to build up the strength in his arms.
110 Dr Slesenger noted the plaintiff had bilateral knee osteoarthritis, diverticulitis, a left shoulder dislocation thirty years ago, diabetes, hypertension and cholesterol.
111 The plaintiff advised that Petra attends to the heavier domestic tasks, including shopping, gardening and cleaning, and he could do light domestic duties. He used to enjoy harness racing. Petra does the majority of those tasks. He used to engage in shooting, golf and tennis, but no longer does so.
112 On his return to work, the plaintiff performed modified duties and was gradually able to increase to eight hours a day, five days a week. Dr Slesenger noted, when working full time, the plaintiff had still not returned to unrestricted duties[46] and decided to change his job, primarily because he wanted to work closer to home.
[46]This seems to be at odds with Dr Islam’s September 2015 certification
113 The plaintiff obtained a job at Select Harvests in a similar role as a farmhand working between 6.00am and 7.00am and 2.30pm and 3.30pm. The job tasks were similar to those he did with the employer, although his current employer is aware of his injury and he was allocated primarily to tractor driving. He was not required to perform any farm equipment maintenance tasks and he was supported by other staff members if required.
114 The plaintiff had continued to work within this role, although he was struggling to cope with some of the job demands, particularly manoeuvring bags of fertiliser weighing up to 25 kilograms (which he was required to forcefully throw onto the ground to break up the fertiliser) and to perform some light equipment maintenance tasks.
115 On examination of the right shoulder, there was tenderness to palpation over the anterior cubical fossa. Flexion was to 160 degrees, 0 extension, 70 degrees pronation and supination.
116 There was tenderness of the right elbow to deep palpation over the anterior cubital fossa. Flexion was to 160 degrees, nil extension and pronation, and supination to 70 degrees. There was mild tenderness of the left elbow over the anterior aspect. Flexion was to 160 degrees and a similar range of motion as in the right.
117 Movement of both wrists was identical and there was no tenderness. Power, tone, sensation and reflexes were normal.
118 Dr Slesenger noted the plaintiff described residual right upper limb symptoms, with difficulty with repetitive upper limb tasks. In addition, he subsequently developed left elbow symptoms, which he attributed to avoidance of the impaired site.
119 Subsequent to the injury and his recovery, the plaintiff was able to return to modified duties and subsequently changed employment. He described residual functional limitations affecting his occupational activities. He continued working full time.
120 Dr Slesenger diagnosed bicipital tendon rupture for which the plaintiff had undergone repair of the right elbow, and residual pain and associated dysfunction. There was tendinitis with the residual left elbow dysfunction. He was satisfied there was an organic basis to the plaintiff’s impairment, and that the right upper limb symptoms were a result of the incident.
121 Dr Slesenger believed the left elbow symptoms were causally linked to the workplace exposures due, at least in part, to the repetitive nature of the job demands, but mainly due to avoidance of the impaired right side.
122 Based on each upper limb alone, Dr Slesenger recommended the following restrictions – no push, pull, carry or lift over 10 kilograms, no repetitive bilateral arm use (in order to avoid overuse of both elbows due to the right elbow impairment) and no forceful pushing and pulling. He imposed the same restrictions on both upper limbs together.
123 Taking into account the plaintiff’s age, current symptoms, functional limitations, past occupational experience and lack of qualifications, Dr Slesenger thought the plaintiff retains capacity for work with the restrictions outlined above. He recommended the plaintiff remain in work, working five hours a day, four days a week, and could remain in work in a light maintenance support role within the agricultural industry. He considered the plaintiff’s current job demands lie outside his capacity limits.
124 In terms of further treatment, Dr Slesenger recommended the plaintiff continue to attend his general practitioner and also engage in physiotherapy to address his residual impairment and to address the appropriate restrictions. He thought the plaintiff may also benefit from an occupational therapy assessment of his work duties to assist and adapt to his residual impairment and associated functional limitations.
Investigations
125 There was a right biceps ultrasound on 19 February 2015. It was reported there was destruction of the distal tendon with significant retraction of the muscle belly. It was suggested plain film review may be worthwhile in assessing underlying associated osseous injury.
126 Following an ultrasound of the left elbow on 15 October 2015, it was reported the common extensor tendon was thickened and very heterogeneous in echotexture, with a small, chronic, intrasubstance tear measuring 5 x 2 millimetres. Tiny calcifications over the lateral epicondyle were noted. The common flexor tendon was also slightly thickened and inhomogeneous in echotexture, although a definite tear could not be identified. The biceps and triceps tendons were intact. There was no joint effusion anteriorly and no fluid collection in the olecranon bursa.
127 There was a right elbow ultrasound on 7 July 2018. It was reported there was intact biceps repair, inflamed extensor origin and injection therapy could be considered.
128 The plaintiff underwent an ultrasound-guided injection of the right elbow on 26 July 2018. It was reported there was no effusion. Intrasubstance tears were identified.
The Defendant’s medical evidence
129 The clinical notes from the Tristar Medical Group from June 2011 to 12 February 2018 set out the following:
· 20 February 2015 – complaint of pain in the upper arm near the right elbow, suspected long-headed biceps tendon tear (elbow insertion) in the right arm, Swan Hill Hospital.
· April 2015 – another week of restricted duties until sees specialist.
· 5 May 2015 – return to work with full hours, but lifting with injured arm >7 kilograms.
· 15 June 2015 – restriction now 15 kilograms instead of 7, in two months’ should be able to return to full normal duties. Advised to come back if any concern.
· 13 July 2017 – reviewed and felt okay. Reason for contact – WorkCover. Continue medication.
· 10 August 2015 - WorkCover certificate. Improved a lot. Almost no residual disability.
· 11 September 2015 – WorkCover certificate. No restriction with right arm except little numbness. Happy to go back to normal duties.
· 28 September 2015 – left elbow pain for the last few months, there all the time. Some pain elicited with active and passive movements of the left elbow. Voltaren.
130 A note from Swan Hill District Health dated 16 May 2013 set out barriers to weight loss included low motivation and lack of time, with long hours at work, with twelve to thirteen hours a day as a farmhand. The plaintiff hoped to increase physical activity with his partner. Management was to aim for greater than 30 minutes’ daily exercise.
131 The plaintiff’s physiotherapist, Jennifer Cook, noted on the last attendance on 19 June 2015 – “Okay. No further review with Mr Pak, range of motion üü, strength üü, 2/12 before full rtw.”
Medico-legal examiners
Dr David Elder, occupational physician
132 Dr Elder examined the plaintiff on 13 July 2016.
133 On examination, the plaintiff described ongoing discomfort, with decreased movement in the right elbow. His main complaint, however, was that his arm easily fatigued and did not feel as strong as it did. Although the sensory disturbance had improved, he still noted altered sensation in the distribution, completely consistent with that described by the surgeon.
134 The plaintiff had noted similar fatigue in his non-dominant left arm, which he thought was because he was using it more to protect the right.
135 Dr Elder noted the plaintiff was doing full-time heavy farm work with Select Harvests and he was not seeking any medical care for the condition.
136 Although the plaintiff was not playing any sports at the time of his injury, he stated he does not even think he could now throw a ball. He does have a harness horse and is very cautious not to lead it by the reins, as he does not think he could control it.
137 Although the plaintiff could start the lawnmower using his right arm, if it did not start the first time, he then changed to his left hand. He mostly lifted things, such as the lawnmower catcher, with his left hand. He was otherwise independent in ADL’s and was completely independent in self care.
138 Dr Elder measured range of motion repeatedly and it was completely consistent. There was also sensation disturbance consistent with the lateral cutaneous nerve of the forearm. Powers were within normal limits, although there was a 2.5 centimetre difference in the biceps circumference less than the dominant side.
139 In summary, Dr Elder thought the plaintiff had ongoing right arm dysfunction relevant to the accepted elbow injury, including neurological and surgical sequelae. The impairment had stabilised.
Dr John Ashwell, orthopaedic surgeon
140 Dr Ashwell examined the plaintiff on 26 February 2018.
141 The plaintiff told him of the incident injury and subsequent treatment. He advised he returned to light work on 28 April 2015 and he noticed right elbow symptoms increasing with work activities. They would often radiate up his arm to his shoulder. He eventually returned to pre-injury duties and then resigned in November 2015 to obtain work closer to home, as he had to drive over 100 kilometres to work.
142 In August 2015, the plaintiff noticed soreness on the outer aspect of his left elbow, and went to his doctor. He had an ultrasound in October that year, which indicated lateral epicondylitis with a partial tear. He had Voltaren, but no other therapy. He did not have any time off work. His left elbow symptoms improved with time.
143 The plaintiff had been able to return to full-time work with the employer and, later, Select Harvests, from November 2015. He took general care with his right elbow, avoiding any heavy lifting.
144 The plaintiff had intermittent pain in the front of the right elbow and forearm, and numbness with any heavy activity, such as pulling branches out of a tree or lifting a 20-litre drum. He mostly used his left arm. The right elbow has aching pain up to the shoulder area.
145 The plaintiff normally sleeps on his left and he does not have any neck pain. He occasionally had some discomfort in the interscapular area with sleeping.
146 The plaintiff stated his left elbow was sore on the outer side after recovering from the surgery, but lately that had not been an issue.
147 Dr Ashwell noted the February and October 2015 ultrasounds.
148 The plaintiff advised he took occasional Panadol Osteo. He was not attending for any therapy or then doing any exercises.
149 Dr Ashwell noted the plaintiff was able to manage his own self care and most housework. He also did the yard work. He was able to mow a lawn and did not have any outside help. He could drive a car long distances. He did not have any prior sports or hobbies.
150 The plaintiff does keep two standard-bred Sulky horses about 1 kilometre from his residence. He has some difficulty handling them now, but he does still feed them. His partner did most of the managing of the horses, which are bred to pull a sulky and not for riding.
151 Dr Ashwell noted the plaintiff’s other health problems of hypertension, vitamin D deficiency, controlled diabetes, and also the fact he was overweight. He had chronic knee pain since 2010.
152 On examination, the plaintiff’s right upper arm was reduced 2.5 centimetres at the maximal point, not consistent with hand dominance. There was normal power of elbow flexion and supination. The biceps distal attachments were palpable and intact on both sides and normal thickness.
153 Right elbow movements were slightly restricted, with a 10-degree fixed flexion deformity and flexion to 140 degrees. Supination was 50 degrees and pronation 90 degrees.
154 The plaintiff’s left elbow had full movement, with flexion from 0 to 140 degrees, supination 80 degrees and pronation 90 degrees.
155 There was some reduced sensation to a slight degree at Grade 3 in the lateral right forearm. There was normal sensation in the hands and normal power of elbow flexion.
156 In the left elbow, there were negative provocative tests for lateral epicondylitis and there was no tenderness around the lateral epicondyle, and no swelling.
157 Dr Ashwell concluded the findings on examination were that the plaintiff has a slight restriction of right elbow movement and right shoulder movement, but otherwise had a good result from the surgery. He diagnosed a rupture of the right distal biceps following the incident.
158 Dr Ashwell thought the prognosis was good and no further treatment was indicated. He considered the plaintiff had not lost any body function apart from slight restriction of elbow and shoulder movement and some mild sensory loss in his forearm.
159 Dr Ashwell found a full range of movement of the left elbow with negative provocative tests and no indication of underlying pathology. It appeared the plaintiff suffered a lateral epicondylitis condition of the left elbow, but that had now resolved. That condition may have occurred as a result of greater use of the left arm to protect the right side; however, that was not an ongoing issue. The prognosis for the left elbow was good and no further treatment was indicated.
160 Dr Ashwell thought the plaintiff had not had any loss of body function or impairment resulting from the left elbow injury.
161 Dr Ashwell concluded the plaintiff’s conditions were now resolving and he has been able to return to full-time pre-injury duties without restrictions. He does take general care with the right elbow, and stated that is mainly because he is concerned about further injury. There appeared to be normal power of elbow flexion on both sides, and no further treatment was indicated.
Overview
162 It is not disputed that the plaintiff suffered a right biceps tendon rupture in the incident, shown on ultrasound, and treated surgically on 13 March 2015.[47]
[47]T25
163 The plaintiff’s claim pursuant to Division 4 of Part 2 and Divisions 4 and 5 of Part 5 of the WIRC Act was accepted in relation to the right upper extremity, limited to the right elbow and scarring.[48]
[48]Letter dated 29 July 2016
164 There was also an application pursuant to this section of the WIRC Act in relation to the left elbow, with this injury said to result from overuse when favouring the right, or causally related to the plaintiff’s duties. This application was denied because there was no complaint of any left elbow pain until a year or so after the incident, and on that basis, it was not causally related.
165 However, there is some medical support for the plaintiff developing left elbow problems as a result of using his left arm more because of his right arm injury.[49] I accept, as counsel for the plaintiff submitted, any problem the plaintiff experienced after the incident with his left arm was as a consequence of overusing it to protect his right.[50]
[49]Mr Love and Dr Slesenger. Mr Ashwell and Dr Islam thought the left elbow problems “may” have been caused by overuse, protecting the right
[50]T33
166 The primary thrust of the plaintiff’s case was he is a manual worker who, while having had successful surgical repair, has ongoing restrictions and pain. They affect his employment prospects and his capacity to do his job, and it was submitted that satisfied the statutory test of seriousness.[51]
[51]T37
167 Whilst the plaintiff suffered a rupture of the biceps tendon at work, counsel for the defendant submitted he seemed to have had a successful surgery procedure and had been back at full-time unrestricted duties since September 2015.[52]
[52]T25
Credit
168 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[53]
“The weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
[53](2010) 31 VR 1 at paragraphs [11] and [12]
169 Counsel for the plaintiff submitted the plaintiff was a candid, honest witness, who made appropriate concessions and did not exaggerate his difficulties, and he should be accepted as a witness of truth.[54]
[54]T34
170 Counsel for the defendant submitted however that the plaintiff’s evidence should be treated with caution, as he clearly overstated his level of difficulty in relation to a number of matters including his domestic and sporting activities, horse training and his work future.
171 In my view, there is some merit to this submission. Whilst the plaintiff deposed there was some risk to his employment future, he confirmed in his viva voce evidence that his job is secure. Further, a reading of his affidavit suggested a greater involvement in sporting activities and horse training pre incident than is the case.
172 In those circumstances, in the absence of independent corroboration, I have some difficulty accepting the plaintiff’s evidence in relation to certain matters.
Is the right bicep/forearm impairment “serious”?
Pain
173 The evidentiary basis of the pain assessment will ordinarily comprise, inter alia, what the plaintiff says about the pain (both in court and to doctors).[55]
[55]Maxwell P in Haden Engineering v McKinnon (ibid)
174 The plaintiff has described continuing pain and weakness in his dominant right arm and a feeling of numbness in his right elbow. He indicated his pain is situated from the inside of the forearm, from his bicep where it snapped. The pain goes down the inside of the arm and also goes to the top of his wrist and sometimes the back of the elbow.[56]
[56]T11
175 This pain is not constant, but tends to come on when he is doing more physical duties. His elbow pain is intermittent, depending on the work he has been doing that day or week.[57]
[57]T10
176 In his first affidavit, the plaintiff described continuing pain in his left elbow that bothered him, but not as much as his right elbow. He did not mention his left elbow in his second affidavit. His left elbow is a bit sore, but it is something he has to grin and bear with sometimes.[58]
[58]T18, T32-33
177 Further, Dr Ashwell thought that the plaintiff had made a recovery from any left elbow problems. Dr Slesenger thought the left shoulder symptoms had resolved and the plaintiff had been left with mild intermittent symptoms from the elbow into the forearm.
178 The plaintiff had not seen Dr Patel in relation to any left elbow complaint.[59]
[59]T32
179 There is no recent report from a treating doctor as to the nature of the plaintiff’s current complaints.
180 Mr Pak did not really comment on the plaintiff’s condition when he last saw him in May 2015, save to say he expected he would return to normal duties within two months. When he last saw the plaintiff in February last year, Dr Islam simply said the plaintiff was doing well, with a good prognosis, and he did not anticipate any medical need for the same problem.
181 In mid 2016, the plaintiff described to Dr Elder, medico-legal examiner, ongoing discomfort, with decreased movement in the right elbow, the main complaint being his arm easily fatigued and felt weaker. There was improving sensory disturbance. A similar fatigue was noted in his non-dominant left arm.
182 In 2018, the plaintiff described to Mr Love weakness in both arms and an aching sensation. He told Dr Slesenger about ongoing pain in the right elbow flexor aspect radiating to the medial aspect of the upper arm and into the forearm, going down to the wrist with numbness in the forearm.
183 On examination with Mr Ashwell, the plaintiff reported intermittent pain in the front of the right elbow and forearm numbness with any heavy activity. The right elbow has aching pain up to the shoulder area.
184 Overall, the plaintiff’s present complaints of pain and weakness in the area of the biceps rupture/forearm are mild and to the lower end of the range and not a constant, serious problem for him in his daily activities. His left elbow pain seems to have resolved and gives him very little trouble.
185 Clinical examination in recent times by medico-legal examiners has not involved particularly significant findings in the right upper limb. Tenderness in the area of the cubital fossa of the right elbow was found by Mr Love and Dr Slesenger, Mr Ashwell and Dr Elder found some wasting, and there was some restriction of elbow movement.
186 Dr Ashwell thought the plaintiff had not had any loss of body function apart from slight restriction of elbow and shoulder movement and some mild sensory loss in the forearm.
187 Dr Slesenger imposed permanent restrictions on the use of both the plaintiff’s arms.
Treatment
188 The plaintiff underwent bicep repair surgery in March 2015, followed by physiotherapy, which ceased in Jun 2015. The physiotherapist then reported the plaintiff had a good range of movement and strength. Later, when left elbow symptoms commenced, he underwent an ultrasound and was prescribed Voltaren.
189 Whilst he said he has recently discussed physiotherapy with Dr Patel, there is nothing from that practitioner explaining why the plaintiff had not had that treatment.[60]
[60]T29
190 The plaintiff does not take any painkilling medication, and has not for a long time.
191 The plaintiff has not seen his regular general practitioner, Dr Islam, for eighteen months. The Tristar notes last mention a right elbow complaint in September 2015. At that time, there was only a little numbness and the plaintiff was happy to return to normal duties.
192 The plaintiff now sees Dr Patel, who has not provided a report.
193 It is somewhat difficult to know, on the medical evidence available, what the plaintiff is currently being treated for. In particular, whilst there is the report of the 8 July 2018 ultrasound and 26 July 2018 injection sent to Dr Patel,[61] there is no explanation by that doctor why he sent the plaintiff for that investigation or injection.[62]
[61]Plaintiff’s Court Book, pages 42 and 43; T26
[62]T25
194 Whilst Dr Patel had advised he would not provide a report given Dr Islam had provided the majority of the plaintiff’s treatment on the right arm,[63] this explanation obviously does not assist in clarifying this issue.
[63]T33
195 Further, on the limited material available, counsel for the defendant submitted the injection appears to be into a different part of the tendon. The ultrasound report referred to an inflamed extensor tendon and noted the biceps was intact. It was submitted there was an absence of medical opinion in relation to this finding and no doctor has commented on the need for the injection or explained what it is for.[64]
[64]T27
196 Whilst Dr Islam considered the plaintiff developed tennis elbow in the left arm after the initial right biceps tear, it was possible that it was a consequence of the incident injury but there was no concrete evidence.
197 This issue is further complicated by examiners who saw the plaintiff shortly before July 2018, having considered no further treatment was then required.
198 When Dr Slesenger saw the plaintiff on 25 June 2018, his only comment as to further treatment was for the plaintiff to see his general practitioner, have physiotherapy and undergo an occupational therapy assessment of his work duties.
199 Dr Ashwell thought the prognosis was good on examination in February 2018, noting then there appeared to be normal elbow flexion on both sides and no further treatment was indicated.
200 Whilst Mr Love diagnosed bilateral tendonitis of both elbows and thought the plaintiff was at risk of further injury when he saw the plaintiff in June 2018, at that time he made no mention of the need for any further treatment, let alone the ultrasound-guided elbow injection which took place a month later.
201 I am not satisfied, in these circumstances, that the plaintiff underwent the ultrasound and injection in July 2018 in relation to his compensable injury. In light of my concerns as to the reliability of the plaintiff’s evidence, I do not agree that I should accept his evidence why he needed this treatment, or that it was “consistent with genuine enlivening of the risk about further deterioration” as his counsel submitted.[65]
[65]T36
Consequences
Work
202 Counsel for the plaintiff submitted the plaintiff is a manual worker, who is now nearly fifty and has done manual work all his life. As Mr Pak confirmed, his recovery post surgery was slower than normal and he imposed a 15-kilogram limit - a view embraced by Dr Islam in his most recent report.[66]
[66]T34
203 Counsel for the plaintiff relied on the views of Mr Love and Dr Slesenger, who considered, because of his incident injury, the plaintiff ought to change his job. Further, Dr Slesenger thought the plaintiff was doing too much and should only be doing twenty hours a week, and imposed a lifting limit of 10 kilograms.[67]
[67]T37
204 It was submitted it is simply not accurate to describe the plaintiff’s current situation as being full-time work of an unrestricted nature. The plaintiff’s partner confirmed his complaints on coming home from work, and it was submitted that there could be no greater evidence of the persistence of pain and ongoing nature of the problems in the recent injection. [68] It was submitted the plaintiff ought to be believed about needing help at work.[69]
[68]T35
[69]T35
205 However, as counsel for the defendant submitted, there was really no or minimal restriction on the plaintiff’s work activities after surgery and he agreed the reason for leaving the employer was the travelling distance, not his right elbow condition.[70] As Dr Elder stated in July 2016, the plaintiff was then doing full time heavy farm work and not seeking medical attention.
[70]T30
206 Further, I accept the plaintiff’s affidavits overstated his post-incident work situation and made it sound like he was really at risk of losing his job; however, he readily conceded he was performing unrestricted duties and while there might be some modifications, as he said in re-examination, getting people to help him, he agreed it was stable employment and he intended to continue with it.[71]
[71]T30
207 When Dr Islam reported in early 2017, he thought the plaintiff was doing very well and had a very good prognosis, he did not anticipate any medical need for the same problem. He imposed no restrictions in his work duties at that time. Not having seen the plaintiff since, there was no explanation by him why he now imposes a lifting limit of 15 kilograms.[72]
[72]T28
208 I do not accept that there has been a significant interference with the plaintiff’s work capacity as a result of his right upper limb injury. He has worked full time with no formal modification in his duties since being cleared by his general practitioner in September 2015.
209 Although there is some support for a lifting limit of 15 kilograms, this is still a relatively heavy weight the plaintiff can lift. He may require some help from co-workers with heavier tasks but his current employment is secure as he confirmed.
Sport
210 Counsel for the plaintiff submitted the inability to have hit of golf and tennis are, not alone, a serious consequence, but they are part of the picture of a situation consistent with restrictions the plaintiff has at work.[73] As the plaintiff explained, he had not returned to those sports because he did not have the confidence in his arm.[74]
[73]T38
[74]T38
211 However, as counsel for the defendant submitted, the plaintiff’s affidavit was suggestive of a man who, up until the time of the injury, was playing sport and had been shut out as a result. On the plaintiff’s viva voce evidence, this obviously was not the case. At the time of the injury, he was not involved in competitive sport or regular sporting activities. Further, he had other comorbidities, including bilateral knee osteoarthritis, which featured prominently in the clinical records and would have affected the plaintiff’s capacity to engage in sporting activities.[75]
[75]T30
212 Whilst the plaintiff deposed to an interference with his ability to train harness horses, he has never trained a horse himself, only helped others. He has never held a trainers licence. He continues to help out with his partner’s horses on the agistment property when he is able, with the long hours he is presently working.[76]
[76]T31
213 Whilst the plaintiff deposed in his second affidavit that he had had to stop mowing the lawn, this clearly is not the case.[77]
[77]T30
214 I am not satisfied that it is likely the plaintiff’s right arm condition will deteriorate in the future as Mr Love predicted, given the plaintiff’s improvement post-surgery and the present level of his activities. Significantly, there is nothing from his current employer saying he has difficulties with his job.[78]
[78]T31
215 Overall, while the plaintiff has some ongoing mild discomfort and pain in his right bicep/forearm and some restriction in his activities, I am not satisfied the consequences in relation to the incident injury are “serious” as at the date of hearing.
216 As Neave and Mandie JJA stated in Sabo v George Weston Foods:[79]
[79][2009] VSCA 242 at paragraph [73]
“In considering whether [an impairment] is ‘at least very considerable’ weight must be given to the adverb ‘very’. As Callaway JA stated in TAC v Dennis:
‘Many [impairments] are considerable, in the sense that they are important or substantial, without being very considerable.’”
(citations omitted).
217 Accordingly, the application is dismissed.
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