Robinson v Victorian WorkCover Authority

[2023] VCC 1948

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-22-04553

CALLUM ROBINSON	Plaintiff
v
VICTORIAN WORKCOVER AUTHORITY	Defendant

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JUDGE:	HIS HONOUR JUDGE CLARK
WHERE HELD:	Melbourne
DATE OF HEARING:	10 July 2023
DATE OF JUDGMENT:	3 November 2023
CASE MAY BE CITED AS:	Robinson v Victorian WorkCover Authority
MEDIUM NEUTRAL CITATION:	[2023] VCC 1948

REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION

Catchwords:              Serious injury – left thumb injury – disfigurement – loss of bodily function – pain and suffering – credit – range

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

Cases Cited:Johns v Oaktech Pty Ltd [2020] VSCA 10; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Tatiara Meat Co Pty Ltd v Kelso [2010] VSCA 12; Dwyer v Calco Timbers Pty Ltd No 2 [2008] VSCA 260; TTB SMS Pty Ltd v Reading [2020] VSCA 203; Porto v Design Line Cabinets Pty Ltd (Deregistered) & VWA [2012] VCC 1645; Razai v Victorian WorkCover Authority [2022] VCC 1732; McDougall v Victorian WorkCover Authority [2021] VCC 1292; Sorrentino v Victorian WorkCover Authority [2022] VCC 581; Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326; Transport Accident Commission v Garcia [2015] VSCA 225; Bustos v VWA [2021] VCC 1531; Bath v Transglobal Group Pty Ltd (formerly t/as Plastic Technology) [2018] VCC 112

Judgment:                  Leave to the plaintiff to bring common law proceedings for pain and suffering damages pursuant ss(a) consequential to the accident which occurred 30 May 2020.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr N Dunstan	Slater & Gordon
For the Defendant	Ms S De Guio	Minter Ellison

HIS HONOUR:

Introduction

1The plaintiff, Mr Callum Robinson, is aged twenty-three years.  On 30 May 2020, in the course of his employment with Aaron’s Outdoor Living, his left thumb was struck by the blade of a Makita 12-inch mitre saw (“the incident”).

2As a result of the incident, Mr Robinson’s left thumb was amputated through the middle and bottom sections.  Surgery was undertaken at the Northern Hospital to re-attach the amputated section.  The operation was successful in as far as the amputated section of thumb was viably re-attached.  However, Mr Robinson says that he continues to suffer ongoing pain, impaired function and disfigurement.

3Mr Robinson says that his left thumb injury is a serious injury for pain and suffering purposes.

4The Victorian WorkCover Authority (“VWA”), the worker’s compensation insurer for Aaron’s Outdoor Living, denies that Mr Robinson has suffered a serious injury.

What is the nature of this proceeding?

5This is an application brought pursuant to s335 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”). Mr Robinson relies upon both paragraphs (a) and (b) of the definition of “serious injury” in s325(1) of the Act. That is:

(a)   his left thumb injury is a “permanent serious impairment or loss of a body function”;

(b)   the consequential disfigurement to his left thumb/left hand constitutes a “permanent serious disfigurement”.

6For Mr Robinson to be successful, he must establish that the consequences from his left thumb injury and/or the disfigurement, when judged by comparison with other cases in the range of possible impairments or losses of body function and/or disfigurements, are “more than significant or marked” and “at least very considerable” as per the narrative test set out in s325(2)(b) and to s325(2)(c) of the Act.

What are the issues for the Court to determine?

7At the commencement of this application, and in final submissions, the VWA said:

(a)   that Mr Robinson’s credit was in issue;

(b)   that otherwise, both heads of the application were “range cases”.

8That said, the real issues come down to:

(a)   as to Mr Robinson’s credit and whether I can accept his evidence;

(b)   which of the medical opinions should be accepted and the assistance they provide;

(c)   does Mr Robinson’s left thumb injury satisfy the serious injury test pursuant to ss(a);

(d)   does Mr Robinson’s disfigurement satisfy the serious injury test pursuant to ss(b).

What conclusion does the Court reach in respect to Mr Robinson’s credit?

9As in a great number of cases of this type, Mr Robinson’s credit and reliability is critical.[1]

[1]See for example the analysis of the Court of Appeal in Johns v Oaktech Pty Ltd [2020] VSCA 10, particularly at paragraph [76].

10The VWA said at the commencement of the application that credit was in issue.  They did not particularise any specific attack, but said it would depend on cross-examination.  In final submissions, the VWA conceded this was “not a big credit case”.[2]

[2]        Transcript (“T”) 39, Lines (“L”) 7 and T39, L31 – T40, L2

11In the course of giving his evidence, I found Mr Robinson to be an uncomplicated, straightforward and stoic man.  At no time in the course of the application was Mr Robinson’s credit or reliability tarnished.

12I accept Mr Robinson to be a credible witness, who gave reliable evidence in an earnest manner.

13It is in this context that I assess the merits of this application.

What aspects of the medical evidence should be accepted and what assistance does this provide?

14There was no dispute in respect to the nature of the injuries sustained by Mr Robinson at the time of the incident, or in respect to the treatment which he received in the period immediately after.

15Mr Robinson:

(a)   underwent the surgery to re-attach his thumb;

(b)   was in hospital for five days;

(c)   underwent a period of hand therapy;

(d)   attended his general practitioner, Dr Diagarajan Ganessane;

(e)   for a period of time was prescribed opioid-based medication, including Endone, Mobic and Targin;

(f)    had periods on and off work, but eventually, by June 2021, had returned to full-time employment;

(g)   was referred to Dr Clara Wong, pain specialist, who he saw on 3 May 2021;

(h)   in August 2021 underwent radio pulse therapy;

(i)    has not attended either his general practitioner or any allied health practitioners since December 2021.

16There were no medical reports in evidence from either Dr Ganessane or Dr Wong.  I did, however, have the benefit of Dr Ganessane’s clinical notes.

17Mr Robinson accepted that he last consulted his general practitioner, Dr Ganessane, specifically for his left thumb injury, on 17 December 2021.  Mr Robinson said that, apart from taking over-the-counter painkilling medication he has had no active medical treatment from that time.  Mr Robinson said he has not had any ongoing active medical treatment since that time because:

(a)   he has been told there is nothing further that could be done;

(b)   he did not want to be prescribed painkillers which he may become addicted to.

18I accept:

(a)   Mr Robinson’s explanation in respect to his lack of ongoing consultations with either his treating general practitioner or other allied health professionals;

(b)   given his personal circumstances, there are good reasons why he avoids painkilling medication which he may end up being addicted to.

19As far as current medical evidence goes, that then leaves me with the various medico-legal assessments.

20The VWA relied upon a report from Associate Professor Evange Romas, consultant rheumatologist.  This assessment, undertaken 12 January 2022, was organised by the VWA for the purposes of Mr Robinson’s impairment application pursuant to the Statutory Benefits Scheme.

21Associate Professor Romas:

(a)   concluded that Mr Robinson had a 6 per cent musculoskeletal whole person impairment by reason of his left thumb injury;

(b)   said Mr Robinson had a total loss of the PIP joint of his left thumb;

(c)   described Mr Robinson’s pain as “minor persistent pain”.[3]

[3]Defendants Court Book (“DCB”) 3, paragraph [1.3]

22Associate Professor Romas did not set out a detailed analysis of the day-to-day impairment to Mr Robinson’s function.  Associate Professor Romas simply noted that Mr Robinson:

(a)   cannot play video games or basketball and cannot hold dumbbells;

(b)   can drive and look after himself.[4]

[4]DCB 3

23Associate Professor Romas’s medical report:

(a)   was brief;

(b)   focused on the AMA impairment;

24Associate Professor Romas’s report was of limited assistance to me.

25Dr Anna Manolopoulos, orthopaedic surgeon, assessed Mr Robinson for his solicitors on 30 April 2022.

26Dr Manolopoulos said that it was highly likely Mr Robinson would be permanently impaired in respect to activities such as:

(a)   repetitive pushing, pulling or lifting with his left hand;

(b)   repetitive use of the left thumb;

(c)   overhead activities that required grip;

(d)   fine use of his left thumb and manual dexterity.[5]

[5]Plaintiff’s Court Book (“PCB”) 54

27Dr Manolopoulos said that Mr Robinson has a slightly increased risk of developing arthritis.[6]  If this occurred, he may require surgery.  Dr Manolopoulos said it was possible Mr Robinson may require a tendon release.[7]

[6]PCB 56

[7]PCB 56

28Mr Robinson was assessed by Mr Thomas Kossmann, orthopaedic surgeon, on behalf of his solicitors on 12 December 2022.

29Mr Kossmann provided a lengthy medical report.  Mr Kossmann noted Mr Robinson’s symptoms included:

(a)   pain on volar forearm on the left side;

(b)   restricted movement of the left thumb;

(c)   a slight reduction in sensitivity on the radial side of the left thumb of 5 to 10 millimetres;

(d)   that the left thumb is reduced in length and approximately half the size compared to the right thumb.[8]

[8]PCB 66

30Mr Kossmann considered Mr Robinson’s prognosis to be guarded.  He thought that Mr Robinson may require further treatment such as:

(a)   pain medication;

(b)   anti-inflammatory medication;

(c)   further maintenance hand therapy.[9]

[9]PCB 66

31Mr Kossmann thought Mr Robinson was at risk of developing degenerative change to the other joints of his left thumb due to the biomechanical changes.

32Mr Kossmann undertook a very detailed lifestyle and work impairment evaluation.  Mr Kossmann noted there were many facets of Mr Robinson’s activities of daily living and work activities where he would have difficulties.

33The final medical evidence is from Mr Peter Dixon, a plastic reconstructive surgeon.  Mr Dixon said his special interests included injuries below the elbow.  He assessed Mr Robinson on 4 May 2023 for his solicitors.

34Mr Dixon said of Mr Robinson’s current condition that he suffered:

(a)   reduced capacity of this left thumb;

(b)   pain;

(c)   reduced grip strength;

(d)   impairment for activities of daily living and lifestyle.[10]

[10]PCB 76

35Mr Dixon said there would be no improvement in the level of motion of Mr Robinson’s left thumb and wrist.  Mr Dixon also said that the sensory recovery was stable and no improvement was to be expected.[11]

[11]PCB 76

36Mr Dixon specifically undertook testing of Mr Robinson’s grip strength by way of a Jamar grip-strength device.  Mr Dixon said this testing confirmed a loss of strength.  I note the results of that testing were recorded by Mr Dixon as being consistent.[12]  Mr Dixon also recorded wasting of the left arm.[13]

[12]See Table at PCB 75

[13]See Table at PCB 75

37Mr Dixon said that Mr Robinson:

(a)   has ongoing impairment for pushing, pulling and lifting, either singularly or repetitively;

(b)   would be permanently impaired in his capacity to undertake pre-injury levels of employment;

(c)   was at an increased risk of developing arthritis in the left thumb and its basal joint.[14]

[14]PCB 77

What conclusions do I take out of the medical evidence?

38While the medical evidence was generally consistent, the tenor of Associate Professor Romas’s report tended to Mr Robinson’s consequences being at a somewhat lesser level than assessed by Dr Manolopoulos, Mr Kossmann and Mr Dixon.  In particular, in respect to Mr Robinson’s residual grip strength.  In this regard, I prefer the analysis of Mr Dixon.  It was objectively based and the assessment results were consistent.

39The medical evidence is generally consistent with the complaints which Mr Robinson had made in both his affidavit and oral evidence.  That is, his left thumb injury:

(a)   is a source of persistent pain;

(b)   has resulted in a significant loss of movement of the left thumb itself;

(c)   has caused a loss of dexterity;

(d)   has caused a loss of grip strength and lifting capacity;

(e)   may result in further degenerative change as time progresses;

(f)    impacts on both work and activities of daily living;

(g)   is permanent.

Is Mr Robinson’s left thumb injury a serious injury for the purposes of his ss(a) application?

40It is Mr Robinson who has the onus of proof.

41Given my conclusions in respect to credit and the medical evidence, this is purely and simply a range case.

42Before starting my analysis, I acknowledge Mr Robinson is right hand-dominant.

43I am assisted in my analysis by the observations and process set out by Maxwell P in Haden Engineering Pty Ltd v McKinnon.[15]

[15](2010) 31 VR 1

44Starting firstly with the pain consequences.

45I accept that Mr Robinson suffers, what he described as, discomfort in the area of the left thumb, which is there all of the time.  Mr Robinson found it difficult to articulate this discomfort.  In his oral evidence he said:

Q:“Yes. And Dr Romas has a record of you telling him that the sensation in your left hand was more of a pulling and elastic band sensitive or stretch type sensations. (sic) Page 1 of Dr Romas' report, Your Honour. Can you remember describing it in that way?---

A:Yeah, um, yeah, it's hard to describe the pain, that's the only way I can sort of tell people. It just feels - I don't know if its tendons or nerves, I don't know what it is, but that's what the pain - feels like an elastic band in my arm stretching and  pulling and that's what - yes.”[16]

[16]Transcript (“T”) 11, Lines (“L”) 4-13

(sic)

46Mr Robinson said this discomfort was there all of the time.[17]

[17]T11, L29-31

47Mr Robinson said that, in addition to this discomfort, he suffered pain.  He said the pain was not there all of the time, but, rather, was there “a lot of the time”.[18]  I accept this to be so.

[18]T11, L28

48Mr Robinson said:

(a)   his pain varied. 

(b)   the more he used his left hand, the more pain he suffered. 

(c)   there were times when he was at rest and he still had pain in his left hand.[19] 

(d)   he suffered increased pain if he knocked his thumb. It is vulnerable.

(e)   the thumb is sensitive to the cold.

Again, I accept these consequences to be so.

[19]T12, L5

49The VWA said that Mr Robinson did not use prescription medication, nor did he have any ongoing treatment, and that tended against a finding of serious injury.[20]

[20]See Court of Appeal in Tatiara Meat Co Pty Ltd v Kelso [2010] VSCA 12.

50Mr Robinson explained that he avoided medication which may be addictive.  Given his past life issues, that is not unreasonable.

51Mr Robinson said he used over-the-counter Voltaren, which he took between two to four times per week.

52Mr Robinson said that he had been told that there were no further treatment options available to him.  Apart from the possibility of future surgery, which was raised by a number of the medico-legal witnesses and Mr Kossmann, who thought that some maintenance hand therapy may be of some assistance, there was no medical evidence that any ongoing treatment would make a difference.

53I do not consider Mr Robinson’s failure to attend for further treatment from either his general practitioner or allied health practitioners, to be unreasonable.  I do not accept the lack of treatment to be determinative that the consequences to Mr Robinson are not serious.  I accept that he has reasonably formed the view that ongoing consultations with his general practitioner or allied health practitioners would not impact upon his level of function. 

54I accept that, in addition to pain, there are areas of Mr Robinson’s left thumb which are numb.  I accept that this loss of sensation will be permanent.

55Mr Robinson is a young man.  I accept his left thumb injury is permanent.  Mr Robinson will continue to suffer persistent pain and impaired sensation for the balance of his life.  To live with this persistent level of pain, discomfort and impaired sensation, is, in itself, a very significant consequence.

56I move now to the loss of movement.

57In the course of the application, I undertook a careful inspection of Mr Robinson’s left hand and the range of movement in his left thumb.  I accept that Mr Robinson was genuine in his endeavours and presented a true level of impairment.  There was very limited movement of the left thumb.  Mr Robinson had difficulties in trying to achieve the pincher motion.  I accept the lack of that function and his lack of movement generally to be a very significant consequence.

58Moving now to Mr Robinson’s complaint of diminished grip strength.

59As I have previously noted, there was some divergence in the medical opinion.  Associate Professor Romas said there were some inconsistencies in Mr Robinson’s presentation.  This can be contrasted to the objective testing undertaken by Mr Dixon.  Referring to the table which formed part of his evidence, it can be seen that his test results were consistent.[21]

[21]PCB 75

60I accept Mr Dixon’s findings as reliable.  They are consistent with Mr Robinson’s evidence, which I accept.  I accept Mr Robinson suffers from a significant loss of left-hand grip strength and this also impacts upon his lifting capacity.

61The diminished left-hand grip strength and impaired left arm lifting capacity is a very significant restriction for a young man who is reliant upon his physical capacity in many aspects of his life.

62Moving now to work.

63Mr Robinson has returned to work as a carpenter.  Mr Robinson said:

(a)   he had to modify numerous work practices to accommodate his injury;

(b)   he was considering leaving the industry;

(c)   he found it difficult to work by himself;

(d)   he was reliant upon the help of co-workers to do what should be one man tasks.

(e)   it was not viable to set up his own business given his injury.

64Mr Robinson is not seeking leave to pursue economic loss damages.  Lest there be any doubt, I do not, in dealing with Mr Robinson’s pain and suffering application, give weight to the work consequences, which are impermissible.[22]  Any impact on Mr Robinson’s work activity is relevant  in the context of the pain he suffers and representative of his loss of left hand function generally.

[22]See analysis in Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326 (“Ellis Management”)

65In this context, I accept that Mr Robinson has been stoic.  I accept that his work duties lead to increased pain on a daily basis.  I accept this can be extremely wearing.

66Moving now to sleep consequences.

67Mr Robinson said, in his affidavit evidence, that, at times he suffered pain at night and when in bed.[23]  In the early days post the incident, Mr Robinson said he had trouble sleeping.[24]  There was no challenge to this evidence.

[23]PCB 18

[24]PCB 13 at paragraph [9]

68Moving now to what I considered to be one of the key aspects to this application.  Mr Robinson’s loss of dexterity.

69I accept Mr Robinson has suffered a significant loss of dexterity in the use of his left thumb, and ,as a consequence, his left hand generally.  Mr Robinson is impacted every day in many different ways.  Such consequences include:

(a)   not being able to hold a nail between his left thumb and index finger;

(b)   not being able to do up buttons left handed;

(c)   not being able to use power tools in his left hand;

(d)   difficulty using any equipment which has a safety trigger;

(e)   not being able to pick up items such as a pen or screws using his left thumb;

(f)    difficulty changing his daughter’s nappies;

(g)   difficulties chopping food;

(h)   problems using a fork when eating a meal;

(i)    problems doing up shoe laces;

(j)    an inability to grip larger items;

(k)   not being able to lift and manoeuvre heavy weights in his left hand.

This list is not exhaustive.

70I accept that Mr Robinson’s loss of dexterity is a frustration and impediment which Mr Robinson has had to live with since the incident and will be lifelong.

71Moving now to self-care and self-management.

72Mr Robinson is able to live and function independently.  However, I accept that there are many aspects of his daily living which are impacted by reason of his loss of dexterity, or result in increased pain.

73Moving now to household and domestic activities.

74Mr Robinson continues to undertake household and domestic activities.  Again, this is subject to the caveat that any activity which requires the use of his left hand is likely to be impacted.

75Moving now to recreational activities.

76Prior to the incident, Mr Robinson’s principal recreational activity was “gaming”.  That is, in simple terms, playing games on his PlayStation.  Mr Robinson explained this requires the use of both hands.  He said he tried to resume gaming, but was not able to cope.  He no longer plays.  His PlayStation remains in its bag.

77I accept Mr Robinson’s inability to engage in, and enjoy, gaming is a significant loss to him.

78I also accept that, in general terms, Mr Robinson’s overall enjoyment of life has been impacted by his pain, pain-related restriction and loss of dexterity. I accept the consequences to be permanent.

79Having said this, Mr Robinson has worked hard to get on with his life and get back to a level of normality.  I must, of course, take into account what Mr Robinson has retained.[25]  For example, Mr Robinson:

(a)   has returned to full-time employment;

(b)   continues to independently perform most activities of daily living;

(c)   made no complaint of impaired social life.

[25]Dwyer v Calco Timbers Pty Ltd No 2 [2008] VSCA 260

80In assessing this application, I am conscious of the need to assess Mr Robinson’s injuries in comparison to other cases.  Indeed, the VWA referred me to a number of cases which they said I should take into account.

81There have, over the years, been many finger-injury cases before this court.  I have undertaken a review.  They are too numerous to reference them all in this judgment.  I refer to a sample:

(a)   TTB SMS Pty Ltd v Reading:[26]

The applicant suffered injury to his right little and ring fingers, which were surgically repaired.  The applicant returned to work.  The applicant took over-the-counter medication once or twice per week.  His application was unsuccessful.

(b)   Porto v Design Line Cabinets Pty Ltd (Deregistered) & VWA:[27]

The applicant suffered partial amputation to the ends of his middle and ring fingers of his right hand.  The applicant was successful.

[26][2020] VSCA 203

[27][2012] VCC 1645

(c)   Razai v Victorian WorkCover Authority:[28]

The applicant suffered an amputation of his right index finger when it was struck by a band saw.  Surgery was undertaken to re-attach the finger.  He was a young man.  The applicant was successful.

(d)   McDougall v Victorian WorkCover Authority:[29]

The applicant suffered a crush injury to the left index finger.  He underwent surgery to repair the finger.  He returned to work.  The applicant was unsuccessful.

(e)   Sorrentino v Victorian WorkCover Authority:[30]

The applicant suffered a laceration to her left little finger, resulting in damage to the sensory nerve.  She was twenty-four years of age at the time of the injury.  The applicant was successful.

[28][2022] VCC 1732

[29][2021] VCC 1292

[30][2022] VCC 581

82It is, of course, trite to say that each application must be determined on its own facts and circumstances.

83As the Court of Appeal said in Ellis Management Services Pty Ltd v Taylor,[31] in range cases such as this:

“The judgement in issue is an evaluative one involving a synthesis of matters of fact and degree.  Such a judgment necessarily involves a consideration of detail facts and a weighting of cumulative factors.  Different minds might reasonably reach different conclusions as to where the overall seriousness of the consequences fell within a range …”

[31]Ellis Management paragraph [59]

84Mr Robinson is twenty-three years old.  He will have to endure persistent pain as a consequence of his left thumb injury for the rest of his life.  He has been left with a permanent loss of movement, strength and dexterity.  This will impact him every day in many different ways.

85Having been in the unique position of observing Mr Robinson in the witness box and having considered all of the evidence, I accept that the consequences to him do constitute a serious injury pursuant to paragraph (a).  Leave will be granted.

Is the disfigurement which Mr Robinson suffers a serious injury?

86I start this analysis by noting the concession made by Mr Dunstan that, while the disfigurement aspect of the application was not abandoned, the real focus of the application was the paragraph (a) claim.  I agree.  That was a correct assessment.

87Leave will not be granted pursuant to paragraph (b).

88In coming to this determination, I note:

(a)   While it was clear, when undertaking the inspection in the course of the application, that Mr Robinson’s left thumb is, when compared to his right thumb, obviously smaller, that disfigurement, of itself, was not so obvious that it immediately brought attention to it.

(b)   True it is there is residual scarring. However, the scarring, itself, is not immediately obvious.  The operating surgeon did a very good job in minimising the scarring.

(c)   While Mr Robinson, in his affidavit evidence, described the left thumb as being about one half to two thirds the length it used to be, and about half the width, he did not say, as is often the case in such applications, that this had led to levels of self-consciousness or embarrassment.  Indeed, I form the view that Mr Robinson had taken a pragmatic view to the disfigurement and had not let that impact him too much.  That can be contrasted to his loss of body function and dexterity which obviously had a very considerable impact on him.

89Having regard to what was said by the Court of Appeal in the seminal disfigurement case of Transport Accident Commission v Garcia,[32] and having reviewed comparative cases,[33] I accept that, while the disfigurement may be marked or significant, the consequences to Mr Robinson are not very considerable.

[32][2015] VSCA 225

[33]See for example Bustos v VWA [2021] VCC 1531 and Bath v Transglobal Group Pty Ltd (formerly t/as Plastic Technology) [2018] VCC 112

Orders

90I will hear the parties in respect to the consequential orders to be made in this matter.

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