Schrantz v UBC Commercial Group Pty Ltd
[2023] VCC 967
•16 June 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Serious Injury List
Case No. CI-22-03879
| ROHAN SCHRANTZ | Plaintiff |
| v | |
| UBC COMMERCIAL GROUP PTY LTD (ACN 137 607 553) | Defendant |
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JUDGE: | HER HONOUR JUDGE CLAYTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 and 5 April and 22 May 2023 | |
DATE OF JUDGMENT: | 16 June 2023 | |
CASE MAY BE CITED AS: | Schrantz v UBC Commercial Group Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 967 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION – LIMITATION OF ACTIONS
Catchwords: Right thumb injury – injury sustained in 2010 – application for leave to pursue a common law claim for pain and suffering damages – application for extension of time – plaintiff claims no work capacity due to injury – continued to work for seven years post injury – whether subsequent injuries caused by thumb injury – whether drug addiction related to thumb injury – credibility of plaintiff
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s335; Limitations of Actions Act 1958, s23A
Cases Cited:Humphries and Anor v Poljak [1992] 2 VR 129
Nikolic v Transport Accident Commission [2020] VSCA 148
Judgment:The plaintiff’s applications are dismissed.
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| Appearances: | Counsel | Solicitors |
| For the Plaintiff | Mr J J Fitzpatrick | Slater and Gordon |
| For the Defendant | Ms D Manova | Hall & Wilcox |
For the serious injury application: | Counsel | Solicitors |
| For the Plaintiff | Mr J J Fitzpatrick with Mr D Nguyen | Slater and Gordon |
| For the Defendant | Ms K M Manning | Hall & Wilcox |
HER HONOUR:
1The plaintiff, Rohan Schrantz, injured his right thumb in a workplace accident on 13 August 2010. He lodged a WorkCover claim for medical expenses and loss of wages, but did not see a lawyer or make an application for leave to bring common law proceedings at that time.
2In October 2020, he met with a lawyer for the first time. He says he was prompted to do so after seeing an advertisement on Facebook. As a result of that meeting, he now makes an application for leave to pursue a common law claim for pain and suffering damages on the basis of a serious injury to his right thumb, pursuant to s335 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the WIRCA”). If he is successful in that application, he makes an application for leave pursuant to s23A of the Limitations of Actions Act 1958 (“the LLA”) for an extension of the period in which he can bring a claim for damages.
3The defendant, UBC Commercial Group Pty Ltd (“UBC”), accepts that Mr Schrantz suffered a workplace injury on 13 August 2010. However, it says that Mr Schrantz is not a credible and reliable witness and his evidence of the consequences of his injury ought not be accepted. UBC also says that, even if his evidence is accepted, Mr Schrantz does not meet the relevant test of a serious injury within the meaning of the WIRCA.
Issues
4The issues in this case are:
(a) Whether Mr Schrantz is a credible witness;
(b) Whether the pain and suffering and loss of enjoyment of life consequences, including any pecuniary disadvantage consequences, can be fairly described as “at least ‘very considerable’ and certainly more than ‘significant’ or ‘marked’”, when compared with other cases in the range of other possible impairments or losses;[1]
(c) If so, whether Mr Schrantz ought be granted leave pursuant to s23A of the LLA, to proceed with a claim out of time.
[1]Humphries and Anor v Poljak [1992] 2 VR 129
The hearings
5Mr Schrantz’s application for an extension of time was listed for hearing on 4 April 2023 and proceeded on that date. However, the serious injury application was not heard at the same time.
6I subsequently raised the issue with counsel, who concurred that the serious injury application should be determined prior to a determination of the s23A application. This meant that Mr Schrantz gave evidence twice, first in relation to his application for an extension of time, and then for his serious injury application.
Credibility and reliability
7Mr Schrantz’s credibility was attacked on the basis that he was not a truthful witness and exaggerated the extent of his consequences in order to bolster his claim.
8For the following reasons, I am satisfied that Mr Schrantz did exaggerate his evidence to bolster his case, and, as a consequence, I treat his evidence about the consequences of his injury with caution.
Evidence of the circumstances of the injury
9Mr Schrantz was born in 1991 and was employed as a cabinetmaker at UBC in 2006. He completed his apprenticeship in 2009. He gave evidence that at the time of the injury, he worked closely with one particular colleague, Tristan, who was training him to become a foreman.
10He said that on the day he was injured, he and Tristan were delivering a cabinet to a worksite at Parkmore Primary School. The cabinet had been loaded using a forklift and Mr Schrantz believed there would be workers at the delivery end to help unload it. However, this did not occur. Instead, Mr Schrantz and Tristan had to unload the cabinet by themselves.
11Mr Schrantz says he attempted to step from a muddy surface to a concrete surface while carrying the cabinet and lost his footing. He fell and the cabinet landed on his right thumb. Tristan tilted the cabinet and Mr Schrantz removed his thumb and the blood just “spat out”. Tristan fainted. Mr Schrantz took off his t-shirt to wrap around his thumb and Tristan was “dry-retching about to throw up”.[2]
[2]Transcript (“T”) 51, Line/s (“L”) 10
12Tristan drove Mr Schrantz to Box Hill Hospital Emergency Department. The Box Hill Hospital records show Mr Schrantz arrived at 12.48pm and left “at own risk, without treatment”[3] at 1.50pm. He was triaged as Category 3 and was noted to have a “Skin Wound/ Laceration”, also described as a “large jagged lac[eration] to thumb. Normal sensation to thumb.”[4]
[3]Defendant’s Court Book (“DCB”) 18
[4]DCB 19
13Mr Schrantz said Tristan got into some sort of altercation with the triage staff over the time it was taking to be seen by a doctor. Tristan was ejected from the Emergency Department and Mr Schrantz also left, as he said Tristan was his only transport. Tristan drove him to a medical clinic, where he was told that he needed to go to a hospital for surgery.
14Tristan drove him in the work truck back to work in Dandenong South. Mr Schrantz called his father from the truck and asked to be collected from work. Mr Schrantz said he then insisted his father take him home, as he wanted to shower and get a shirt. He said, “I was embarrassed with being shirtless, I was literally soaked in blood, so my thoughts were I need to go at least get a T-shirt”.[5] He thought it was “too long already, they’re probably going to have to cut [the thumb] off”.[6] His father then drove him to Frankston Hospital.
[5]T212, L4-7
[6]T55, L12-13
15It was put to Mr Schrantz that his description of his injury made it sound like his thumb was practically severed off. He said:
“Yeah, I couldn’t move it at all. It was basically – the doctor said in the end it was held on by one tendon, and the back part of the knuckle that had been like broken in a way that it held the bone together. That’s why my knuckle is literally sideways compared to what it used to be.”[7]
[7]T56, L12-17
16There is no evidence that the delay in treatment worsened his outcome. Mr Schrantz would not be the first 19-year-old man to underestimate the seriousness of an injury and make unwise decisions about treatment. That does not damage his credit. However, there is exaggeration in his account of the circumstances of his accident and the extent of the injury prior to surgery. It is difficult to accept that he believed his thumb was so badly injured that he would likely lose it, but, nevertheless, left the first hospital without treatment and delayed many hours before getting treatment. It is apparent that, while there was a significant laceration of tendons and likely a lot of blood, the description of the thumb being nearly severed and needing reattachment provided to his lawyer is not correct, and suggests either an embellished memory or an exaggeration.
17Mr Schrantz instructed his lawyer that he had to have a second procedure in relation to the tendon damage to his thumb. There was no record of a second procedure. He said, in cross-examination, that his:
“… thumb had swollen that bad that the stitches had like ripped through my skin and they had to restitch it and clean it up, because it was starting to get infected.”[8]
[8]T57, L29 ꟷ T30, L1
18There is no record that the thumb was swollen so that the stitches had ripped, the laceration had to be restitched, or that it was infected. He conceded that he did not have a second procedure due to tendon damage, but said under cross-examination, “I had the procedure to prevent the tendon damage from infection”.[9]
[9]T58, L21-22
19On further questioning about this second procedure, he said that he went to his outpatient appointment:
“… and it was that swollen that the stitches had started like stretching through the skin so they took the stitches out and cleaned it and that’s when they took the stitches out. They left it unstitched after that.”[10]
[10]T62, L24-28
20It is apparent there was no second procedure but rather removal of the stitches at a planned outpatient appointment.
21Mr Schrantz’s account of the “second procedure” is an exaggeration. In oral evidence, he attempted to distinguish between “surgery” and a “procedure”. He then said that the thumb had to be restitched, before conceding that it was, in fact, not restitched. As it was left unstitched, this logically meant the wound had sufficiently healed and it was safe to remove the stiches. This is the most likely explanation, as there is no mention of a second procedure, nor a need for re-suturing in the Frankston Hospital report. His evidence about the “second procedure” was an attempt to bolster the seriousness of his case.
Drug addiction
22Mr Schrantz’s affidavit material says, as a result of drug addiction, he had to leave his employment in 2017. In 2018, he was charged with a number of drug offences, including possession, use and trafficking of methylamphetamine, and possession of gamma-Hydroxybutyric acid and a prescription drug of dependence. He says he has not used drugs since about February 2019.
23In his affidavit dated 19 January 2023, he says:
“I had and still have ongoing and serious problems with my injury from 2010 to present. Unfortunately I was never to get better. Dr Jordon did not regularly prescribe me with Mersyndol Forte. I don’t know the date or year that I began to buy medications on the street - but I did.
…
My eldest child was born in 2013 … My then partner had post-natal depression and was under stress herself. I worked long hours ….
A mate had initially told he knew someone with a stockpile of medication. I began on a road towards outright addiction. I did have ongoing pains but I also began to become dependent on these drugs and used the drugs to get away from my problems.
When this initial supply became tricky, in 2014 or thereabouts I attended Ballarto Road Medical Centre to get tramadol which I would swap with a mate who gave me Oxynorm ….
I became dependent on Oxynorm and eventually morphine sulphate. This progressed to methamphetamine dependency and trouble with the law ….”[11]
[11]Affidavit of Rohan Heinz Schrantz in Support of application for Extension of Time s23A Limitation of Actions Act 1958, dated 19 January 2023 at page 3
24His oral evidence presented quite a different picture of his drug addiction. He gave evidence that he became addicted as a result of his general practitioner, Dr Robert Jordan, prescribing Mersyndol Forte in October 2010. Mr Schrantz said that, from November 2010, he was addicted to Mersyndol Forte, which he used for the pain caused by his thumb. He said that, despite his request, Dr Jordan refused to prescribe further Mersyndol Forte, and he went to other general practitioners, where he was able to get Mersyndol Forte. He said he was also prescribed Tramadol, and possibly Panadeine Forte, although he is allergic to Panadeine Forte, so would not usually be able to take it. He said he began to use methylamphetamine around the end of 2017 and that was the first time he had used any illegal drugs.[12] Prior to that time, his drug use was abuse of prescription medication which he obtained through friends, other doctors, and from drug dealers.
[12]T25, L20-21
25He said he used Mersyndol Forte from 2010 until 2014, when he received Tramal and Tramadol for his migraines and his addiction “spiralled onto that drug”.[13] He said he would ask his friends to get Mersyndol Forte for him, because there was a Mersyndol-branded painkiller that he could get over the counter at the chemist, but he ended up getting barred at chemists, so he would ask his friends to get Mersyndol Forte for him.[14]
[13]T104, L22
[14]T104
26He said, in about March 2011, he got Mersyndol Forte tablets from the Young Street Medical Clinic,[15] but after that avenue of supply ran out, he began getting Mersyndol Forte from drug dealers. He said he got one prescription off one doctor, then another doctor in Frankston gave him two prescriptions.
[15]T229-230
27He gave evidence that:
“I think it was like the third box of it, then I was like ‘I need this [for] my pain’[16] because it literally would take the pain away from my thumb, so I’m like, ‘I need this to be able to function,’ and that is when I, essentially that’s inevitably when I started relying on it, because it was taking the pain away in the beginning, and then I ended up just becoming completely addicted to codeine.”[17]
[16]T230, L19-21
[17]T230, L22-26
28He said initially he was taking it as prescribed, but “then when I realised that it was like taking the pain away from my thumb, and like it gives you like a euphoric feeling as well”,[18] he started to take it more. He said he was taking four tablets a day, so the prescription repeats ran out pretty quickly, “So I sort of hung out until I could get it, which was only like a few days, so I got that repeat and then when that ran out, then I started seeking it elsewhere”.[19]
[18]T231, L5-7
[19]T231, L12-15
29He said that, on the first repeat of Dr Jordan’s prescription, he was already taking it more than he should. He said his decline into prescription-medication addiction was fairly quick.[20] Throughout his oral evidence, he attributed his addiction to Mersyndol Forte, and his subsequent addiction to methylamphetamine to that first prescription from Dr Jordan for his thumb injury. However, this sequence of events is not supported by the medical records.
[20]T231, L26-27
30The records disclose that Dr Jordan prescribed Mersyndol Forte on 8 October 2010. That prescription was for twenty tablets, with two repeats, a total of sixty tablets. Dr Jordan recommended one tablet twice a day. If taken in accordance with instructions, this would have provided Mr Schrantz with a month’s worth of Mersyndol Forte. It would not have even lasted a month, if taken four times a day as Mr Schrantz claims.
31He received no further prescriptions of Mersyndol Forte from Dr Jordan until 2012, when he was prescribed Mersyndol Forte for hernia pain.
32He was first prescribed Mersyndol Forte from the Young Street Medical Clinic on 23 July 2012 for hernia pain. This is despite a number of attendances prior to that date, including on 23 November 2010, when he attended with left testicular pain and was cleared for a testicular torsion. He attended the Young Street Medical Clinic on six occasions in 2011, three of them complaining of knee pain. There is no record of any complaint of thumb pain and no record of any request for Mersyndol Forte, or any other pain medication, on any of those occasions.
33He also received prescriptions for Mersyndol Forte from the Ballarto Road Medical Clinic in January 2014 for back pain and migraine. He received prescriptions for Tramadol from the Ballarto Road Medical Clinic in 2015, 2016 and 2017.
34Mr Schrantz said he lied to doctors to get medication[21] and used his migraines as “an excuse” to get painkillers, although he did suffer from migraines. This may well be true; however, it is apparent from the medical records that this behaviour did not start until mid-2012, at the earliest. The medical records are largely consistent with the account of his addiction given in his affidavit of 19 January 2023, rather than his evidence in cross-examination.
[21]T24, L1-2
35I do not accept his evidence that he was addicted to Mersyndol Forte from the time of his first prescription from Dr Jordan. Given the gap in obtaining prescriptions for Mersyndol Forte, on his evidence he would have had to go from that first prescription from Dr Jordan in October 2010 directly to obtaining Mersyndol Forte from drug dealers or friends, without exhausting his options with other general practitioners first. This is implausible and is an exaggeration by Mr Schrantz to bolster his case.
36It is more likely that his addiction to Mersyndol Forte, and thereafter to other drugs, occurred later in 2012, possibly in the context of seeking treatment for his hernia, back pain or migraines.
Incarceration
37In his affidavit material in support of his application for an extension of time, Mr Schrantz gave evidence about his periods of incarceration. He said, “I was in custody for many, many months”,[22] “I had been released in late 2018 from custody but went in again in February 2019. When I was released from custody in (I estimate) July 2019, I avoided my old friends”[23] and “I was in custody until early 2020”.[24] He said, “It took a while to try and get myself sorted on my release from prison”.[25] He said his criminal record might not be complete because “I am sure I was in custody until early 2020”.[26] He denied that this evidence was given to imply he had received a custodial sentence, or to assist his claim that, due to his incarceration, he had not taken steps to consult a lawyer and to pursue his common law claim.[27]
[22]Affidavit of Rohan Heinz Schrantz in Support of application for Extension of Time s23A Limitation of Actions Act 1958, dated 19 January 2023 at page 4, paragraph [37]
[23]Ibid at page 5, paragraph [40]
[24]Ibid at page 5, paragraph [41]
[25]Ibid at page 5, paragraph [42]
[26]Ibid at page 5, paragraph [41]
[27]T39
38In his oral evidence, he said he did not know that he had previously stated in his affidavit that he had been in custody for “many, many months”, when, in fact, he was only in custody for five days in November 2018.[28] In cross-examination, he said he was in jail for one month in February 2019[29] and he was in custody again in November 2020.[30] He agreed he had never been sentenced to a term of imprisonment and his time in custody had been on remand. It was put to him that, in February 2019, he was actually on bail. He then said he was arrested on 12 February and released just before 20 February “after Valentine’s Day”[31]. The certified extract[32] shows that, on 13 February 2019, he was convicted of committing an indictable offence while on bail and was given a twelve-month Community Correction Order. He says he then “sat at Moorabbin [Police Station] for another three days after the hearing”.[33] Even accepting Mr Schrantz’s evidence that he remained in custody at Moorabbin Police Station after his sentence, this would mean he was in custody from 12 February 2019 until 16 February 2019, not the month he had sworn to in Court. He then said that his evidence about being in prison for a month in February 2019 was actually that he had been in prison, over various periods, for a total of a month.
[28]T36, L23-24
[29]T37, L6-8
[30]T37, L29-31
[31]T38, L26
[32]DCB 254
[33]T38, L30-31
39He accepted he was not in custody in early 2020, but said he was in custody in November 2020. He denied that his affidavit evidence about his periods of incarceration were exaggerations. Instead, he said that he might have used the incorrect “lingo of the criminal justice system”.[34]
[34]T40, L3-4
40His changing evidence about his periods of incarceration, even allowing for the foibles of memory and the passage of time, lead me to conclude that he was deliberately exaggerating the time and extent of his incarceration, likely to assist his application for an extension of time. His explanation that he “must have glanced over it and just not gathered it properly and missed” the reference in his affidavit to being in custody for “many, many months” is implausible. Even if, as often happens, his affidavit was drafted by someone else, his solicitors most likely obtained those instructions from him. He did not take the opportunity to correct his affidavit in either of his subsequent affidavits in support of his extension of time application, nor at the commencement of proceedings.
41My findings about his evidence lead me to conclude that he has exaggerated his evidence to bolster his case and he is not a credible witness.
42This does not mean that I disregard his evidence, however it does mean that I will give less weight to his evidence unless it is supported by corroborating material. I must also examine the whole of the evidence before me in deciding his application.[35]
[35] Nikolic v Transport Accident Commission [2020] VSCA 148, paragraph [64]
Consequences of injury
Medical treatment
43Mr Schrantz had surgery at Frankston Hospital. The hospital records note he had a 3-centimetre-long laceration over the first metacarpophalangeal joint, which was deep, and associated with distal numbness on the radial side. He underwent debridement and repair of the wound, as well as a joint washout of the first metacarpophalangeal joint. At surgery, the laceration was found to have divided the radial collateral ligament, the volar plate, abductor pollicis brevis tendon and partially divided the radial digital artery, all of which were repaired. The radial digital nerve was intact. The surgery was described as uncomplicated.
44He was discharged the following day. He had four follow up attendances as an outpatient. On 19 August 2010, he started hand therapy and was provided with a thermoplastic splint for his hand.
45On 7 October 2010, he was noted to have a non-tender thumb and scar, and was able to commence mobilisation and strength work. He was advised to continue splinting with the thermoplastic splint if performing any heavier duties with his right hand.
46He saw his general practitioner, Dr Jordan, at Carrum Downs Medical Clinic on 8 October 2010. Dr Jordan noted, “nasty deep lac[eration] right thenar eminnece (sic) repaired and [followed up] at Frankston Hospital”.[36] Dr Jordan’s examination notes recorded a reduced range of movement, reduced sensation, healed scar and right thenar muscle wasting”.[37] He provided a certificate for WorkCover. It is not clear exactly when Mr Schrantz returned to work.
[36]DCB 42
[37]DCB 42
47Mr Schrantz said he went back to work earlier than recommended by the Frankston Hospital because his employer asked him to, as they were understaffed.
48On 20 October 2010, he returned to the Frankston Hospital for follow up. He was noted to have a full range of movement in his right hand, was back at work on light duties, and his hand was non-tender, with an excellent return to almost normal strength. He was cleared to return to work on full duties at that time.
49His final attendance at Frankston Hospital was on 3 November 2010. At that appointment, he was noted to be back at work, but complaining of pain after heavy use. He was noted to have normal strength in both hands and was educated regarding pacing and resting of the hand. He has not returned to Frankston Hospital since that time.
50Mr Schrantz returned to Dr Jordan on 5 November 2010. On that occasion, Dr Jordon notes:
“[Range of movement] good right thumb
…
been working harder subsequently right thumb and local hand sore so sore couldn[’]t work today.”[38]
[38]DCB 42
51There was no treatment or prescription recorded in relation to his thumb.
52This was Mr Schrantz’s last medical attendance in relation to his thumb.
53He said:
“… I believed I had exhausted all treatment options and had no other solution but just to put up with it and manage it as best I could. I had been told the damage suffered to my thumb and hand was irreversible.”[39]
[39]Affidavit of Rohan Heinz Schrantz in Support of application for Extension of Time s23A Limitation of Actions Act 1958, dated 19 January 2023, page 4, paragraph [39]
54In the years after the injury, he saw a number of general practitioners at three medical clinics. I have read all the clinical records and summarise them here briefly. He saw his general practitioner in November 2010 for a sore testes. In 2011, he consulted a general practitioner on a number of occasions for eye irritation, asthma, cough and a sore right knee.[40] He had general practitioner attendances in 2012 for hernia pain and a sore ankle. He had surgical repair for the hernia in 2012. In 2013, he had attendances for hernia pain, back pain and migraine. In 2014, he had attendances for back pain, migraine and cough. Between 2015 and 2017, he had a number of attendances for headache and migraine.
[40]Exhibit D6, pages 26-83
55After his consultation with Dr Jordan on 5 November 2010, he did not seek any further medical treatment for his thumb. He says the medication he received for his migraines was actually because he had thumb pain. He said he did not mention his thumb pain because:
“… the doctor had already said I had been on it too long for thumb. He couldn’t find it feasible to keep giving it to me for my thumb because I would become dependent on it for that reason and that’s why I ended up changing doctor.”[41]
[41]T24, L30 ꟷ T25, L3
56He says the medication he received for back and headache pain also alleviated his thumb pain. He said, “I just stopped complaining about it, I just learnt to deal with it really”.[42]
[42]T81, L22-23
Pain and limitation
57Mr Schrantz says he has limited movement in his right thumb. The thumb is numb and the numbness extends down into the palm of his right hand. He says the thumb throbs, particularly if he uses it too much, it is worse in cold weather and he can get a “stabbing type pain”.[43]
[43]Plaintiff’s affidavit in support of application for leave to commence a common law proceeding, dated 13 May 2022, paragraph [26] at PCB 36
58He says his ability to grip with his right hand has been significantly reduced. The more he uses it, the weaker his grip becomes. He struggles to hold tools, such as a cordless drill or an electric plane, without an increase in thumb pain. The vibration of certain tools also aggravates his pain. He struggles to hold small objects with his right hand. He cannot hold a knife in a normal position when he cuts food and has to rely on his index and middle fingers. He cannot hold a pen properly and struggles to write. Doing up buttons is difficult and causes pain. He cannot shake hands properly.
59His father’s affidavit supports his complaints of pain to some extent. He says:
“A couple of years ago as Rohan’s hand was still bad I told him – I could see him wincing as he helped me with a small job. I told him he needed to see a doctor … .”[44]
[44]PCB 47
60His mother also supports his complaints of pain. She says, “He used to complain about ongoing pain in his injured hand for years – he still does”.[45]
[45]PCB 50
61It is understandable, in the context of a longstanding injury, that when treatment options are exhausted a patient ceases mentioning ongoing pain to medical professionals and learns to just live with the pain.
62However, that is not this case. Mr Schrantz was found to have normal strength and a normal range of motion on 3 November 2010, less than three months post operatively. He was noted to have pain after heavy use. He also reported pain to Dr Jordan on 5 November 2010, so painful he could not work, and was given a certificate. I am satisfied that, in the immediate months after his injury, he was experiencing pain, and that after he returned to full duties, it hurt to use his thumb a lot.
63However, thereafter, there are no further mentions of his thumb in any of the medical records. If his thumb had been causing the degree of pain and restriction he now claims, it is difficult to accept that he would not have sought any further treatment, or raised it with his doctors.
64I am satisfied that, for a period of months after the surgery he had pain and restrictions in his thumb, a limited range of movement and lessened grip strength. This improved so that, by November 2010, his thumb function, range of movement and grip strength, were normal or close to normal. I accept, at that time, he had pain on heavy use. I do not accept that he had constant debilitating pain, or that any use of the hand, for example using power tools for any period, would cause the degree of pain he describes. If he experienced the pain he describes, it is difficult to understand how he could have continued in his employment, using power tools on a daily basis.
65I accept that he continues to feel some pain in the thumb and probably has some restriction of movement, but those restrictions, and that pain, is not to the extent Mr Schrantz claims.
Expert evidence
66Mr Damon Thomas, plastic and reconstructive surgeon, assessed Mr Schrantz and provided two reports dated 5 November 2021 and 13 March 2023. In his first report, Mr Thomas notes Mr Schrantz’s injuries and diagnoses “post-traumatic issues with pain, overall reduced function, reduced strength and reduced range of motion”.[46] He does not record any details of his assessment or, for example, provide any information about the degree of reduction in strength, function and range of movement.
[46]PCB 58
67His opinion relies on Mr Schrantz’s reports of his ability and pain. Mr Thomas says:
“Current symptoms with regards to the right hand is that of pain with doing anything physical, repetitive tasks, reduced range of motion of the thumb, reduced strength. This translates to reduced capacity to do anything manual and physical with the right hand. For example he can not (sic) hold a drill due to reduced strength and the vibration causes pain and discomfort in the arm.”[47]
[47]PCB 58
68He then says, “Mr Schrantz does feel he could undertake his pre-injury duties only in a part-time role with reduced hours. For example, 10-20 hours per week as a trial”.[48] This suggests it is Mr Schrantz’s opinion of his ability to undertake pre-injury duties, rather than Mr Thomas’s which is reported.
[48]PCB 59
69Mr Thomas says the prognosis is for “long-term impairment with regards to the right thumb with reduced range of motion, dexterity, and global reduction in function”.[49] He considers the joint “relatively stable” and notes:
“… If there was a degree of biomechanical instability or alteration in the joint articular surface, then he may be prone to post-traumatic arthritis however there is no sign of this currently.”[50]
[49]PCB 59
[50]PCB 60
70In his second report, Mr Thomas says Mr Schrantz is unable to undertake his pre-injury duties, but does have some capacity for suitable employment. He does not expect any improvement or deterioration in the thumb. He says, “in my opinion the patient has post-traumatic pain of the thumb due to biomechanical joint derangement and scar related pain and adhesions”.[51]
[51]PCB 67
71Mr Thomas:
(a) says the pain is post-traumatic, but does not ascribe it to any particular cause or function, for example neurological or arthritic, other than the scar and adhesions. This does not explain, in my mind, why the pain extends into the hand, forearm and arm;
(b) says the thumb is stable and will neither improve nor deteriorate. He does not provide any opinion in relation to Mr Schrantz’s claim that the condition of his thumb has significantly deteriorated over time and no medical explanation is provided for this deterioration. He does not grapple with the findings of the Frankston Hospital that, as at 3 November 2010, Mr Schrantz had full range of movement and normal grip strength in both hands. This is a significant deficiency in the report as I am unable to understand why there has been a change from normal range of movement to a reduced range of movement;
(c) does not explain the significant reduction in grip strength Mr Schrantz says he experiences. In November 2010 he had near normal grip strength in both hands. Mr Schrantz says he now has such poor grip strength he cannot hold a knife to cut his food, and cannot do up his buttons as he cannot hold the button firmly enough. There has been no medical explanation for this deterioration;
(d) says Mr Schrantz is now unfit for pre-injury duties but reported he was fit for pre-injury duties on reduced hours in 2021. This appears to be primarily based on Mr Schrantz’s report of his pain and limitations. He does not explain, in the context of a stable thumb, why Mr Schrantz was able to perform his pre-injury duties for seven years after the injury but is no longer able to perform those duties. He does not explain in what way the thumb condition has changed between 2021 and 2023 so as to preclude him from pre-injury duties now if he was able to perform those duties, albeit on a part time basis, in 2021. There is no expert or medical evidence of any deterioration and Mr Thomas considers the thumb to be stable;
(e) does not describe the findings he made on examination, for example the extent of the reduction in the range of movement, dexterity and global functioning of the thumb. A finding that there is reduced range of movement is of little assistance in determining whether Mr Schrantz’s injury meets the test without some understanding of how significant the reduction is. A minor reduction would be unlikely to meet the test. This leaves me with only Mr Schrantz’s evidence about his reduced mobility and I have already made adverse findings about Mr Schrantz’s credibility.
72I accept Mr Thomas’s opinion that Mr Schrantz has reduced range of movement, dexterity and global functioning of the thumb. I am unable, on the basis of Mr Thomas’s report, to determine the consequences of these findings for Mr Schrantz. I must look at other evidence to make that assessment.
73UBC relied on two expert reports of Mr Thomas Robbins, hand, plastic and reconstructive surgeon, dated 8 December 2022 and 27 February 2023. The first assessment was done “on the papers” and in the absence of a physical examination. Without having examined him, somewhat surprisingly, Mr Robbins was able to opine that Mr Schrantz was “consciously not making an effort to fully use his thumb”[52] based on photographs. He says:
“… it is evident the worker is not making a conscious effort to move his thumb. His flexed fingers are not completely flexed and there is no reason for them not to be completely flexed.”[53]
[52]DCB 10
[53]DCB 10
74Mr Robbins then confirms this assessment after examining Mr Schrantz in February 2023. He says:
“On examination it was difficult to measure his exact thumb movements. The worker was deliberately not cooperating but the injured joint (which constitutes the least of thumb movement) was stable and non-tender. There may be a slight restriction in the movement of this joint but overall the worker had good thumb movement. He also complained of numbness over all the thumb, front and back, and the thenar eminence. This is not explainable.”[54]
[54]DCB 13
75He then goes on to say Mr Schrantz has normal thumb use and his complaints are “factious and deliberant”.[55]
[55]DCB 14
76While Mr Robbins is entitled to form an opinion about the veracity of Mr Schrantz’s complaints and his efforts on examination, it is difficult to understand how, when he considers a patient is deliberately not cooperating, he can make an assessment that the patient has “normal” thumb use. One would assume that the only finding open would be that a proper assessment was not possible, due to the patient’s unwillingness to cooperate. His finding of normal thumb use is also contradicted by his opinion that there may be “slight restriction” in the movement of the joint. Mr Schrantz said that Mr Robbins was unreasonably rough during the examination:
“… He was definitely pulling it to the point where I was like, that’s going to like, it felt like it was going to pop the knuckle out of its place, he was grabbing it so hard, and I told him to stop and do it a bit more gentle, or don’t do it at all. And he just did it more gently.”[56]
[56]T258, L24-29
77Mr Robbins formed an opinion adverse to Mr Schrantz without having examined him. Mr Robbins’ second report confirms his assessment made on the papers, but does not provide real assistance in the task I must undertake which is to assess the consequences of the injury for Mr Schrantz, as I am unable to understand how he has come to his opinion that Mr Schrantz has normal thumb use. Even if he is correct that Mr Schrantz was deliberately not cooperating with the investigation, this does not lead to the automatic conclusion that the thumb is normal.
78I accept Mr Robbin’s opinion that Mr Schrantz’s claimed pain and restrictions are not consistent with the expected clinical course of the injury on clinical findings. Given the findings I have made about Mr Schrantz’s credibility, this opinion assists me in assessing the consequences of the injury for Mr Schrantz. If his account was consistent with the expected course of an injury of this type, I could more readily accept the claimed consequences, notwithstanding that I have found Mr Schrantz to be an unreliable witness.
Other injuries
79Mr Schrantz claims that as a result of his thumb injury, he also has a hernia and a back injury. He said those injuries arose from the lack of function and strength in his right hand due to his thumb injury.
80Mr Schrantz had said nothing about either of these injuries arising from his thumb injury in his affidavit evidence.
81There was no medical material to support the mechanism of injury, nor any other supporting documentation. If the thumb injury was impeding his work to the extent he claims and resulted in additional workplace injuries, it is difficult to understand why he did not make any complaints to his workplace or treating doctors about his thumb limitations.
82Given my findings about Mr Schrantz’s credibility, the absence of any mention of these matters as being causally related to the thumb until the hearing, and the absence of medical material supporting a causal connection, I am not satisfied that they are caused by the thumb injury.
Addiction
83In his affidavit material, Mr Schrantz does not suggest his drug addiction was a consequence of his thumb injury. However, at the hearing it was clear that he attributed his drug addiction and the consequences of that addiction to his thumb injury and his desire to manage the pain his injury was causing.
84He said the Mersyndol Forte “literally would take the pain away from [his] thumb”,[57] leading him to continually need the drug and resulting in his addiction.
[57]T230, L21-22
85I have already made findings in relation to the likely timing of the onset of Mr Schrantz’s addiction. I am not satisfied, on the evidence, that the addiction occurred in 2010, after the first prescription of Mersyndol Forte. I find it more likely that it commenced at some time after 2012, possibly in connection with hernia or back pain. I am not satisfied that the hernia and back injury are attributable to the thumb, and I am also not satisfied that the addiction is attributable to the thumb injury.
Impact on work
86Mr Schrantz claims that as a result of the limitations and pain, he cannot work as a cabinetmaker, particularly doing installation work. Lifting cabinets aggravates his pain. Using power tools for any period of time causes pain.
87He said that after the surgery, he was pressured to return to work under threat of losing his job. Mr Schrantz say he returned to work in about October 2010, initially on light duties, which consisted of office work and sweeping, but he says he was told if he “couldn’t perform [his] normal tasks then they would have no place for [him] there”.[58]
[58]T61, L7-8
88He says that as a result of being “pushed further than light duties”, he started to have problems with his thumb. There is no medical support for the proposition that overuse caused his thumb problems.
89In his affidavit he says it was a struggle but he managed to get back to his cabinetry work. He would avoid certain activities, such as heavy lifting. After he returned to full-time duties at UBC in October or November 2010, he was unable to manage the work and so became a foreman in training. He said that prior to the injury, his colleague Tristan was already training him to be a foreman. In cross-examination, he agreed that he did not become a foreman until 2011 and returned to his pre-injury role for about three or four months before becoming a foreman. He said that he thinks he “pushed it too, far too quick”[59] because of fears about his job security.
[59]T220, L1
90When the employer ceased operating in 2013, he went to B&R Cabinets, where they were aware of his hand injury and he was able to pace himself and avoid certain tasks. He says B&R Cabinets became unhappy with his output and he decided to leave. He went to work at Wak Carpentry. He says that although he was working in cabinetry, he only had to install rather than lift the cabinets. He was still using power tools, including drills and circular saws, but these tools aggravated his thumb problems. Because of this, he eventually left and returned to B&R Cabinets.
91He says that at B&R Cabinets, he worked as a supervisor and was not required to use his right hand. He left in 2017 because of drug addiction problems and has not worked since.
92He said becoming a foreman was a promotion. He was supervising a team of seven workers and was paid more. He agreed he had to demonstrate things from time to time and provide instruction and direction to the workers he was supervising.
93He agreed that he would have remained in a foreman position if the factory had not closed down.
94He said that when he went to B&R Cabinets, he was unable to keep up with the cabinet installation onsite, and so:
“… they then stepped me out into like a managerial position where I was off the tools then, so that I didn’t have to use my hand because it was becoming a real problem … .”[60]
[60]T222, L20-23
95He agreed that he was essentially working as a foreman at B&R Cabinets.
96He said that he could not write properly, including writing changes to blueprints and plans. He was required to “draw all over them, write sizes” and he could not do this, and it was embarrassing. He said when he was working as foreman for UBC, Tristan would do part of his job for him, because he could not do that due to his injury. He said he had a close work relationship with Tristan. At this time, Tristan had a drug addiction problem. Mr Schrantz said Tristan “was one of the most efficient people I’d ever met, being a drug addict, yeah, he could do the work of five people, it was unreal”.[61]
[61]T225, L6-8
97From shortly after his injury until 2017, Mr Schrantz worked full time in his usual employment for seven years. He then ceased employment due to drug addiction issues.
98I have already found the addiction issues were not caused by the thumb injury. Had Mr Schrantz not experienced the drug addiction issue, it is likely he would have continued to be employed as a foreman, as he was for seven years post-injury.
99If the pain and limitations were at the level he describes, it is difficult to accept that he would have been able to continue to perform his pre-injury duties for a number of months before moving into a foreman role. In cross-examination, he conceded that even as a foreman, he still used his tools daily. It is not apparent why he could do this for seven years post-accident but would be unable to do this now.
100His thumb injury might cause some limitations such as heavy lifting. However, given that he was able to continue in full-time employment in his pre-injury work for seven years, I am not satisfied that he is precluded from this type of work presently or in the future.
101There is no medical support for the proposition that his thumb deteriorated because he went back to work too soon or did too much too soon after his surgery. He said that he had returned to work, earlier than he told his doctors and against medical advice, because he was scared of losing his job. However, at his final assessment at Frankston Hospital he had a normal range of movement and normal strength. Without a medical explanation as to why there has been such a significant deterioration between about November 2010 and the present, I do not accept Mr Schrantz’s evidence about that deterioration.
102Because I have found that Mr Schrantz has exaggerated his evidence and is not a credible witness, I cannot accept his evidence about the level of pain and the degree of restriction he experiences. I therefore do not know what impact his thumb injury has had on his work. The only reliable evidence is that he continued in his pre-injury work for months after the injury, and was then promoted into a foreman position which he did for many years until other issues arose.
Other activities
103Mr Schrantz gave evidence that prior to his injury, he was a keen amateur boxer and rugby player. Neither of these matters were raised in his affidavit material.
104At the hearing, he said that at the time of the injury, he was boxing three times a week, that he was going to be become “semi-amateur and like start fighting for money and that sort of thing”.[62] He said he played rugby for a local Frankston team and also for school and he was on course to play for the Melbourne Storm Juniors, and he possibly could be playing for Melbourne Storm today. He said he stopped playing because of his thumb because he could not catch the ball and he could not afford to hit his thumb and damage it even further.[63]
[62]T275, L18-19
[63]T277, L22-31
105I do not accept his evidence about the level to which he performed as a boxer and rugby player prior to his injury. There is no corroborative evidence about either of those matters and no mention of them in his affidavit material which I would have expected if they had been a significant part of his pre-injury life.
106At the time of his injury he was 19. He is now 33. I am not persuaded that, in the absence of his injury, he would have become either a semi-amateur boxer or a Melbourne Storm player, or that he would have continued playing those sports in the same fashion today.
107If his current inability to play rugby or box was a significant consequence for him, I would have expected him to at least refer to it in his affidavit material.
Findings
108For the reasons set out above, I treat Mr Schrantz’s evidence with caution and look for external corroboration. I must have regard to the whole of the evidence. I am mindful that Mr Schrantz is still a relatively young person and was very young when he was injured. This means that he has already lived with the consequences of his injury for nearly 13 years and will continue to live with those consequences for a long time. This means that the consequences for him are more significant than the consequences for an older person with the same injury.
109I make the following findings:
(a) Mr Schrantz sustained an injury in August 2010 that required surgery and post-operative treatment, including a splint. He had reduced range of movement and grip strength post-operatively but by November 2010, he had normal, or close to normal, function and was back at work full time in his pre-injury duties. He had pain on heavy use of the hand;
(b) Thereafter, he continued to work full-time for seven years. If he had restrictions in his work duties, they did not prevent him from working full-time;
(c) Before his injury he was working toward becoming a foreman. He continued on this trajectory and largely worked as a foreman or in foreman-type roles after his injury;
(d) For reasons other than his thumb injury and primarily to do with his addiction issues, he ceased work in 2017 and has never returned to the workforce;
(e) He now describes pain, restricted movement and limited dexterity, which would make it impossible for him to return to his pre-injury duties. I do not accept his evidence. Put simply, if his hand is as he now describes, he would not have been able to work full-time for seven years after the injury;
(f) There is no explanation for the apparent deterioration in his hand between 2017 and today, and no medical material that supports such a deterioration. His explanation that overuse of the hand has caused the deterioration is not supported by medical evidence. If his hand was as he describes, he would not have been able to maintain full-time employment until 2017;
(g) If he was unable to play rugby or box after the injury, I am not satisfied that this is a significant consequence for him;
(h) I accept that he does experience some pain from the injury. However, there is no constant pain, disturbed sleep, ongoing or additional treatment, or further surgery. There is no indication that his condition will worsen in the future. Indeed, the expert evidence is that it will not deteriorate.
110Mr Schrantz had a significant injury that required surgery, and this has had ongoing and significant consequences for him, which I find are:
(a) pain on heavy use of his thumb;
(b) scarring;
(c) numbness at the scar site;
(d) some unquantified restriction of movement; and
(e) inability to play rugby or box.
111However, I find that:
(a) he was able to return to pre-injury duties;
(b) he was promoted to a foreman role;
(c) he continued to work full time for seven years;
(d) he sought no medical treatment in relation to his thumb after November 2010; and
(e) he took no medication for pain between about November 2010 and about mid-2012 and that medication was not prescribed for his thumb pain.
112Having regard to those matters, I am not satisfied that the consequences for him meet the test of “more than significant” and “at least very considerable”. Accordingly, his application for leave to pursue a common law proceeding is dismissed.
Section 23A application
113Section 23A of the LAA applies to any action for damages for negligence, nuisance or breach of duty, where the damages claimed consist of, or include, damages in respect of personal injuries to any person.
114The WIRCA provides that if a worker is injured in the course of their employment, they are entitled to compensation in accordance with the Act.[64] The WIRCA restricts those who can recover damages for personal injury to persons who have a serious injury. “Serious injury” is defined as a “serious impairment or loss of a body function”.
[64] WIRCA, s39(1)
115Mr Schrantz does not have an action for damages unless he is granted leave by this Court to bring proceedings.
116Section 23A only applies to an action for damages. As I have not granted Mr Schrantz leave to pursue a common law claim, he does not have an action for damages. The provisions of s23A are consequently not enlivened, which precludes any consideration of whether he should be granted an extension of time under s23A of the LAA.
117Accordingly, his application pursuant to s23A of the LAA is dismissed.
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