Ross v VWA
[2022] VCC 1616
•4 October 2022
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Serious Injury List
Case No. CI-19-04938
| David Ross | Plaintiff |
| v | |
| Victorian WorkCover Authority | Defendant |
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JUDGE: | Her Honour Judge Davis | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 & 28 September 2022 | |
DATE OF JUDGMENT: | 4 October 2022 | |
CASE MAY BE CITED AS: | Ross v VWA | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1616 | |
REASONS FOR JUDGMENT
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Subject:WORKPLACE ACCIDENT COMPENSATION
Catchwords: Serious injury application – pain and suffering – loss of earning capacity – post-traumatic stress disorder and/or left hand/wrist chronic pain syndrome
Legislation Cited: Accident Compensation Act 1985 (Vic)
Judgment: Leave granted to the plaintiff
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Richards KC Mr C Farinaccio | Maurice Blackburn |
| For the Defendant | Mr J Angenent | Wisewould Mahony |
HER HONOUR:
Introduction
1David Ross is 41 years old and left-handed. On or about 9 October 2015, he was concreting at a building site for his employer, using a garden hose to add water to a cement mix inside the agitator of a cement truck. The hose he was holding in his left hand became caught in the rotating barrel and his left hand and forearm were pulled into the agitator, causing a crushing injury of the left forearm and fractures to his left wrist (“the incident”).
2Mr Ross was born and educated to Year 11 in Perth. He commenced, but did not complete, a mechanics course, then worked as a brick paver and removalist, as well as installing roof insulation. As a teenager and in his later twenties, he abused drugs and alcohol. He came to Melbourne in 2014 against the back-drop of a failed relationship and an inability to find work. Since 2014, he has been taking Pristiq for anxiety and depression, although the dose of that medication has doubled since the incident. He worked for his employer for seven weeks full-time before the incident, earning about $1,155 per week gross. This is the only employment he has had over the past 7 years. The balance of any income he received over this period has come either from Centrelink or from weekly payments.
The issues
3Mr Ross claims a serious injury under s 134AB(37) of the Accident Compensation Act 1985 (Vic) (“the Act”) on two bases: a permanent severe mental or permanent severe behavioural disorder, in the form of a post-traumatic stress disorder (‘PTSD’) and/or major depression pursuant to s 134AB(37)(c) and/or a permanent serious impairment or loss of function of the left wrist and/or hand pursuant to s 134AB(37)(a).[1] In respect of each of these limbs, the plaintiff says that he has effectively no work capacity or such limited work capacity as to meet the relevant threshold for serious injury. He also says that the pain and suffering consequences of each impairment meet the narrative test for serious injury.
[1] During the course of the hearing the plaintiff abandoned the claim for scarring under s 134AB(37)(b) of
the Act.
4The defendant says that the wrist fractures had healed by early 2016, leaving the plaintiff with a mild carpal tunnel syndrome, mild tenderness to palpation, full sensation and normal finger movements. He was not taking any medication, was keen to return to work, and his treating orthopaedic surgeon indicated that use of the hand and wrist would not cause any long-term damage but just some discomfort.[2] The other non-specific pain symptoms were considered not to have an organic basis, and resulted in referral for psychiatric treatment. As at the date of the hearing, the plaintiff agreed he was able to dress himself, mow the lawn using his right hand, help his mother with housework and cooking (using his right hand) and was not driving due to the loss of his licence for driving offences.[3] The defendant relies on 4-5 minutes of surveillance footage taken in July 2022 (out of 75 hours of surveillance) which showed the plaintiff packing a bag with his left hand and carrying shopping (and a cask of wine) to his mother’s car, along with the fact that the plaintiff had obtained a traffic management qualification and white-card, and had applied for jobs. The defendant also relies on the opinions of Dr Rahgozar, Dr Turnbull, Dr Blombery and Dr Grant to the effect that the plaintiff retains some work capacity, and further says that any incapacity is not related to the incident but in fact due to pre-existing psychological issues and substance abuse. For these reasons, the defendant says that the plaintiff has not satisfied the narrative test for serious injury under s 134AB(37)(a) of the Act in relation to loss of earning capacity or pain and suffering.
[2] Plaintiff Court Book (‘PCB’).
[3] Transcript of Proceedings, Ross v Victorian WorkCover Authority (County Court of Victoria, CI-19-
04938, Judge Davis, 28 September 2022) (‘T’) T40-42.
5In relation to the plaintiff’s psychological impairment, the defendant points to the plaintiff’s pre-incident history of depression (for which he has been taking anti-depressants since 2014) and substance-abuse related hospital admissions as well as to psychiatric opinions to the effect that his presentation is complicated by alcohol and cannabis abuse and a significant personality dysfunction.[4] The defendant says that this is at best an aggravation case, but that the plaintiff has failed to disentangle the other contributors to his psychological presentation from the psychological impact of the incident and has therefore failed to satisfy the narrative test for serious injury under s 134AB(37(c) of the Act in relation to loss of earning capacity or pain and suffering.
[4] T81-83.
The hearing
6The plaintiff gave evidence and was cross-examined at the hearing. No other witnesses were called. The parties tendered court books and the defendant tendered a few minutes of surveillance footage taken on 26 and 30 July 2022. At the conclusion of the hearing, the parties provided me with written submissions to which they spoke briefly.
7I have considered all of the evidence tendered as well as the written and oral submissions.
The plaintiff
8I found the plaintiff to be a straightforward witness. He made a number of concessions against interest in cross-examination. For example, he conceded his history of alcohol and substance abuse before the incident as well as a number of hospital admissions after the incident. He also agreed that he knew nothing of the requirements of the employment options which he claimed in his affidavits he was unfit to perform. I note that his evidence as to his ongoing left wrist pain, ingestion of medication and impact on his social, domestic and recreational functioning was consistent with what he reported to his doctors. The video surveillance material in which he used his left hand to pack a bag of shopping and to carry the shopping bag, was consistent with the matters deposed to in his affidavits and reported to his doctors.
Permanent severe mental disturbance or disorder
9The plaintiff’s evidence is to the effect that in the years prior to the incident, he suffered from some depressive symptoms, and abused drugs and alcohol.
10Against this background, the plaintiff described the incident as extremely traumatic and that he believed he was going to lose his arm.[5] Every time he looks at his left hand he thinks about the incident and how he feared not getting his hand back.[6] This feeling so disturbs him that at times he would rather not have the left hand, so he would not have to look at it and think about the incident.[7] He has frightening nightmares about the incident every night and often wakes sweaty and anxious.[8] During the day, he sees the incident over and over and this distracts and consumes him.[9] It is very hard for him to live day to day without seeing his left hand and being triggered by it to think of the incident.[10] He spends most of his time at home, watching television and playing video games. He gets very distressed if he sees trucks on the road, especially cement trucks and will only travel by car if accompanied.[11] He still lives with his mother and niece but has pushed them away since the incident and is unpleasant to be around.[12] Otherwise, he hardly has any social contact.[13] He feels anxious leaving the house, no longer takes proper care of himself; and feels hopeless, helpless and depressed.[14] In terms of medication for his psychological symptoms, he is currently taking Minipress, Seroquel and Pristiq (100 mgs) on a daily basis.[15]
[5] T66.23-28.
[6] T66.25-28.
[7] T67.5-9.
[8] PCB 91.
[9] Ibid.
[10] Ibid 87.
[11] T67.22-29.
[12] PCB 92; T45.30-46.1.
[13] PCB 29.
[14] Ibid 28.
[15] Ibid 26; T64.22-65.6.
11The plaintiff’s mother, Sue Lee, deposed to the fact that the plaintiff’s psychological condition worsened rapidly after the incident; that he relapsed into using marijuana; that he does not leave the house very often; that she worries about him self-harming; and that he seems very depressed to her.[16]
[16] PCB 35.
12The weight of the evidence from treating practitioners (psychiatrist Dr Srirekha Vadasseri in 2017 and 2021; psychologist Dr Bradley Barker in June 2022) and medico-legal psychiatrists (Dr Leon Turnbull in July 2022; Associate Professor Peter Doherty in 2020; Dr Vinit Mathur in March 2018; Associate Professor Saji Damodaran in February 2017), which I accept, is to the effect that as a result of the incident the plaintiff has suffered PTSD whose ongoing symptoms require daily medication, since April 2016, (100 mg of Pristiq, Seroquel and Minipress); as well as psychological appointments every three weeks; and have caused very significant limitations on his day to day domestic, recreational and occupational functioning.
13The plaintiff’s treating psychologist, Dr Bradley Barker, has been treating the plaintiff since September 2020. In late June 2022, Dr Barker reported that, against a background of depression and suicidal ideation, as a result of the incident the plaintiff presented with new symptoms, those of PTSD: intrusive memories of the event, frequent nightmares, extreme distress and anxiety when seeing cement trucks on the road, and having memories of the event triggered by looking at his left hand.[17] The plaintiff said to him on several occasions that looking at his left hand distressed him so much that he would like to have it removed.[18] Dr Barker opined that the PTSD was directly related to the incident. He noted that since further surgery in 2022 to remove foreign bodies (whose presence was unrelated to the incident) from his forearm, the plaintiff’s mood and anxiety had improved somewhat, but he continued to be hampered by not using his left arm due to its traumatic association with the incident. Dr Barker considered that the plaintiff would require psychological treatment for the foreseeable future.[19]
[17] Ibid 87.
[18] Ibid.
[19] Ibid 89.
14In relation to work capacity, the psychiatric opinion (from Professor Damodaran in 2017, Dr Vadasseri in 2017 and 2018, Associate Professor Doherty in 2020) was to the effect that the plaintiff has no work capacity as a result of his PTSD symptomatology. Dr Grant considered that the plaintiff’s PTSD was in partial remission with treatment, although he did not explain why he reached this conclusion.[20] He concluded that the plaintiff was unfit for his pre-injury employment, but had a capacity to be retrained for part-time alternative, suitable employment.[21] He did not comment on the number of hours the plaintiff could work.
[20] Defendant Court Book (‘DCB’) 50.
[21] Ibid.
15The plaintiff’s medicolegal occupational and forensic psychiatrist, Dr Leon Turnbull, opined in July 2022 that the escalation in drug and alcohol use by the plaintiff after the incident was in part a form of coping with his PTSD symptoms.[22] In spite of significant treatment with psychotropic medication and psychological therapy, reduced resort to drugs and alcohol, and the recent surgical solution to his left forearm pain, Dr Turnbull considered that the plaintiff remains “quite deeply psychologically dysfunctional” and that the “core of the PTSD will remain much the same for the foreseeable future”.[23] Dr Turnbull noted that his condition continues to be unstable, with damaged concentration, varied mood states, nightly nightmares which disturb him and reduce his daytime clarity, distraction by his PTSD symptoms, and irritability with those around him.[24] Dr Turnbull could not identify any alternative work that the plaintiff could do realistically on a psychiatric basis, but indicated that if there were some sort of role he could perform at his own pace at home, it would be for a maximum of 10 to 15 hours per week.[25]
[22] PCB 93.
[23] Ibid.
[24] Ibid.
[25] Ibid 94.
16I am satisfied on the weight of the above evidence that the incident caused a frank and permanent psychological injury to the plaintiff, that of PTSD, and that one of the consequences of this injury is that he has established a permanent 40% loss of earning capacity. For this reason, I am satisfied that in terms of work capacity, the consequences of the plaintiff’s psychological injury are more than serious, to the point of being severe.
17For the sake of completeness, I indicate that on the material before me, I do not consider this to be an aggravation case. However, if I am wrong in this regard, I consider that the aggravation flowing from the incident and the onset of PTSD meets the narrative test for serious injury in terms of loss of earning capacity.
18Given this conclusion, it is unnecessary for me to consider the pain and suffering consequences of his permanent, severe, mental disorder (PTSD). However, for the sake of completeness, I indicate that I accept the plaintiff’s evidence, which is consistent with what he has reported to his treating team and medico-legal experts, concerning those pain and suffering consequences, which I have outlined above at paragraphs 8 to 17. I am satisfied that those pain and suffering consequences are more than serious, to the point of being severe.
LEFT HAND/WRIST INJURY
19After the incident, the plaintiff’s fractures healed. However, MRI of the left wrist on 23 February 2016 reported tendinopathy of the distal ulna with inflammation, some minimal scarring of the triangular fibre cartilage and prominent scarring at the scapholunate ligament.[26] The plaintiff complained of ongoing left wrist pain and had cortisone injections in March and May 2016, but these did not help his symptoms.[27]
[26] PCB 42.
[27] According to the report of his treating general practitioner, Dr Gayle Troedson, dated July 2017 (Ibid
49).
20The plaintiff saw an orthopaedic surgeon, Mr Jason Harvey, between May and August 2016, and Mr Harvey reported that the plaintiff complained of ongoing left wrist pain, was found to be maximally tender to palpation over the scapholunate interval and had subjectively altered sensation in the left hand.[28] Mr Harvey noted that as the fractures had healed, the plaintiff could return to activities as tolerated, and that any resulting pain would not cause further damage.[29]
[28] Ibid 64.
[29] Ibid 65.
21The plaintiff then presented to Dr Clayton Thomas in April and December 2016, with complaints of ongoing, constant left wrist pain. In April 2016, Dr Thomas noted “well-preserved range of movement” of his wrist,[30] as well as altered sensation to light touch and sharp and painful stimulus, with the left hand being slightly paler and sweatier than the right hand.[31] Dr Thomas considered that the plaintiff probably had Chronic Regional Pain Syndrome (‘CRPS’) although he did not meet the strict diagnostic criteria, and referred the plaintiff for functional restoration at the Victorian Rehabilitation Centre.[32] He also recommended psychiatric assessment for PTSD.[33] In December 2016, Dr Thomas noted that the plaintiff had made no progress with his left wrist, and required psychiatric treatment.[34]
[30] Ibid 46.
[31] Ibid.
[32] Ibid 47.
[33] Ibid.
[34] Ibid 48.
22Dr Majid Rahgozar, occupational physician, assessed the plaintiff for medico-legal purposes at the request of the defendant’s solicitors in 2017 and 2022. In 2017, he noted the plaintiff’s complaint of constant aching pain in the wrist, rating about 6/10, which was worsened by forceful grabbing, grasping and vibration, and of loss of sensation in the wrist and hand.[35] He was taking marijuana and drinking heavily to cope with his pain. On examination, he was found to have normal range of motion and grip strength on the left side. Dr Rahgozar diagnosed non-specific pain which was “highly influenced by his significant mental health issues, high level of alcohol consumption, and illicit drug use”.[36] He considered that the pain and disability were no longer related to the incident but were related to his mental health issues and drug and alcohol abuse. He considered that the plaintiff was fit to return to pre-injury duties. In October 2017, Dr Rahgozar reported that from a physical point of view, the plaintiff had the capacity for positions such as site supervisor, quality controller, light packer, light handyperson and light assembler.[37]
[35] DCB 7.
[36] Ibid 9.
[37] Ibid 18.
23In August 2022, Dr Rahgozar reported that the plaintiff told him that surgical removal of foreign bodies from the left forearm had relieved the pain in his left wrist and hand.[38] However, the plaintiff reported that he had some trouble toileting and showering, and could mop, vacuum and hang out washing with his right hand. He was mainly staying at home, watching television. On examination, Dr Rahgozar found mild tenderness to palpation on the left wrist, pain on extension, and loss of sensation to pain and fine touch from the wrist to the tips of fingers without peripheral nerve pattern. Grip strength was normal. He found no symptoms suggestive of CRPS.[39] He again diagnosed non-specific left sided pain with no physical, musculoskeletal or neurological basis. He felt that the plaintiff does not have any physical incapacity and, with retraining could perform the duties outlined in the previous paragraph, along with the duties of light courier driver, delivery driver, pathology courier, Uber or taxi driver, meter reader, dispatch clerk, or warehouse administrator.[40]
[38] Ibid 21.
[39] Ibid 22.
[40] Ibid 25.
24In August 2022, Dr Peter Blombery, cardiologist and pain specialist, reported to the plaintiff’s solicitors that the plaintiff complained during the video-link consultation of ongoing left wrist pain since the accident, particularly when straight or extended.[41] The plaintiff rarely used the left hand, but when he did, it became blotchy. He also had tingling and numbness in the left hand. The pain kept him from sleeping, and rated 7/10 at rest, increasing to 10/10 with use of the left hand. There was no swelling.[42] The plaintiff told him he learned to use his right hand for personal care activities, and for writing, but could no longer draw.[43] On examination, Dr Blombery noted that both hands were of similar colour and that both wrists had reasonable range of movement.[44] Dr Blombery felt that there may be a component of CRPS 1, although he could not verify this without an in-person examination. However, Dr Blombery considered that the plaintiff has a chronic post-traumatic pain syndrome in the affected area where there is sensitisation of nerve pathways.[45] Dr Blombery considered that there was unlikely to be any change in the plaintiff’s level of disability for the foreseeable future. He recommended that the plaintiff attend a pain management clinic. He concluded, after discussion with the plaintiff, that given the severity of his physical injury and its sequelae, the plaintiff had no realistic capacity for any work for more than two hours per week.[46]
[41] PCB 97.
[42] Ibid.
[43] Ibid 98.
[44] Ibid.
[45] Ibid 98-99.
[46] Ibid 99.
25I note that Dr Rahgozar’s finding that the plaintiff had non-specific pain but no neuropathy, CRPS or musculoskeletal condition is not necessarily inconsistent with the opinion of Dr Blombery that the plaintiff suffers from an organically based chronic pain syndrome of the left hand/wrist. I accept the opinion of Dr Blombery in this regard.
26I note that in his evidence, the plaintiff said that since the incident he has had constant left wrist pain (in the back of the wrist) which prevents him from getting to sleep at night and wakes him at night,[47] and for which he takes 12 Panadol per day,[48] and has ongoing physiotherapy. The plaintiff said that he was unable to perform repetitive left-hand movements for significant periods of time.[49]
[47] T65.14-17; PCB 28.
[48] T64.26-31.
[49] T65.29-66.2.
27The plaintiff’s physical restrictions relating to the left hand were listed in the detailed vocational assessment by Erin Williams in August 2022 as comprising difficulties lifting, carrying, pushing, pulling, reaching overhead, writing, typing, gripping or pinching, driving, cooking or cleaning.[50] He described constant left wrist pain rating 7/10 on an average day,[51] for which he had had been taking Gabapentin but had recently ceased. Given his anxiety around trucks, particularly cement trucks, Ms Williams considered that the plaintiff could not return to any driving position.[52] Given his age, physical restrictions and ongoing pain, time out of the labour force, limited skills and experience, she felt that he was unlikely to be able to reliably and safely obtain and sustain in any of the positions identified by the defendant (which are referred to above at paragraphs 23-24).[53] I accept her conclusions in this regard. I note that they are consistent with the plaintiff’s evidence.
[50] PCB 107-108.
[51] Ibid 109.
[52] Ibid 113.
[53] Ibid 115.
28Although the plaintiff has had a chequered and limited work history, his work capacity is demonstrated by the seven weeks he earned $1,155 per week gross while working for the defendant.[54] I am satisfied on the basis of the evidence outlined above, that, due to sustaining in the incident a permanent injury in the left wrist in the form of an organically based chronic pain syndrome, the plaintiff will permanently suffer a 40% loss of earning capacity. I am therefore satisfied that the pecuniary loss consequences of the permanent impairment of the left wrist/hand are more than considerable when compared with other cases in the range of permanent impairments of the left hand/wrist.
[54] Ibid 22.
29For the sake of completeness, having regard to the plaintiff’s evidence as to his pain, restrictions, ingestion of medication, and sleep disturbance flowing from his left wrist injury, which is consistent with his reports to doctors, I am satisfied that these consequences are more than considerable when compared with other cases in the range of permanent impairments of the left hand/wrist.
CONCLUSION
30Under sub-paragraphs (a) and (c) of s 134AB(37) of the Act, leave is granted to the plaintiff to issue common law proceedings in respect of the incident. I reserve the question of costs.
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