Scott v Victorian WorkCover Authority
[2014] VCC 1520
•12 September 2014
| IN THE COUNTY COURT OF VICTORIA AT WANGARATTA CIVIL DIVISION | Revised Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-05307
| ANDREW JOHN SCOTT | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Wangaratta | |
DATE OF HEARING: | 1 and 2 September 2014 | |
DATE OF JUDGMENT: | 12 September 2014 | |
CASE MAY BE CITED AS: | Scott v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1520 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Damages – serious injury application – impairment to the left elbow – pain and suffering only – “range” case
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Kelso v Tatiara Meat Company Pty Ltd [2007] 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260
Judgment: Leave granted to the plaintiff to bring proceedings for damages for pain and suffering in respect to the left limb injury suffered during the course of his employment from 22 July 2009 until 20 January 2010.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P Jewell QC with Mr S J Carson | Maurice Blackburn Pty Ltd |
| For the Defendant | Ms K Galpin with Mr D C Oldfield | Wisewould Mahony |
HIS HONOUR:
1 This is an application brought by the plaintiff for leave pursuant to s134AB(16)(b) of the Accident Compensation Act (1985) (as amended) (“the Act”) for injury suffered by him in the course of his employment with his employer from 22 July 2009 until 20 January 2010.
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act.
4 There, “serious” is defined as meaning:
“(a) permanent serious impairment or loss of a body function.”
5 The body function relied upon in this application is impairment of the left elbow (non-dominant side), with consequential post-surgical left shoulder dysfunction and eventual central sensitisation and windup.
6 The plaintiff relied upon two affidavits, sworn by him on 13 June 2012 and 20 March 2014. The plaintiff was cross-examined. I have not summarised all the affidavits and evidence of the plaintiff and the evidence of the other witnesses. However, I will refer to the relevant evidence of the plaintiff in my reasoning. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
Relevant legal principles
7 The Court must not give leave unless it is satisfied, on the balance of probabilities, that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s134AB(37) of the Act.[1]
[1]Section 134AB(19)(a) of the Act
8 In order to succeed, the plaintiff must prove, on the balance of probabilities, that:
(a) “the injury” suffered by him arose out of, or in the course of, or due to the nature of, his employment with the employer;[2]
[2]Section 134AB(1) of the Act and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at paragraph [11]
(b) “the injury”, with its resulting impairment, must be permanent, in the sense that it is likely to continue into the foreseeable future;[3]
(c) “the consequences” to the plaintiff of his impairment to the left elbow in relation to “pain and suffering” must be “serious” – that is, “when judged by comparison with other cases in the range of possible impairments … be fairly described as being more than significant or marked and as being at least very considerable”.[4]
[3]Barwon Spinners (supra) at paragraph [33]
[4]Section 134AB(38)(b) and (c)
9 Consequently, the Court must consider the impairment of body function suffered by the particular plaintiff, but the test also requires an objective comparison between the impairment suffered by the plaintiff and the range of possible impairments.
10 As Ashley JA and Beach AJA said in Stijepic v One Force Group Aust Pty Ltd:[5]
“The emphasis in s 134AB(37)(c) and (d) is upon seeing where the facts of a particular case sit in the broad spectrum of cases, remembering that this includes cases which do not end up in litigation – because, it may be supposed, the consequences are glaringly apparent one way or the other. … .”[6]
[5][2009] VSCA 181
[6](supra) at paragraph [42]
11 In assessing the consequences:
“… the significance of what has been lost may be informed, to an extent, by what has been retained.”[7]
[7]Stijepic v One Force Group Aust Pty Ltd (supra) at paragraph [44]
12 The test for “serious”, as set out in paragraphs (b) and (c) of s134AB(38) of the Act, is sometimes referred to as the “narrative test”.
13 In determining the application, the Court:
(a) must not take into account psychological or psychiatric consequences for the purposes of paragraph (a) of the definition of “serious injury” – these can only be taken into account for the purposes of paragraph (c) of the definition of “serious injury”;[8]
[8]Section 134AB(38)(h) of the Act
(b) must make the assessment of “serious injury” at the time the application is heard;[9]
(b) notes that it has been observed that the question of whether any injury satisfies the narrative test is largely a question of impression and value judgment.[10]
[9]Section 134AB(38)(j) of the Act
[10] See Kelso v Tatiara Meat Company Pty Ltd [2007] 17 VR 592, at 628; Sabo v George Weston Foods [2009] VSCA 242 at paragraph [67]
The issue
14 Counsel for the defendant informed the Court that this is a “range case”, namely that the consequences of the plaintiff’s injury do not meet the test of seriousness for pain and suffering, in that they could not be considered “as being more than significant or marked, and as being at least very considerable”, when compared to other cases in the range.
15 There is support for consequential left shoulder injury but the left shoulder and left elbow cannot be accumulated.
Investigations
16 On 25 February 2010, an MRI scan of the left elbow concluded:
“Common extensor tendinopathy with moderate sized tear. The linearity suggests tear rather than bursal fluid.
Common flexor tendinopathy.”[11]
[11]Plaintiff’s Court Book (“PCB”) 28
Medical reports of the Plaintiff
Dr Saad Mohammed
17 In June 2013, Dr Mohammed, general practitioner, reported that on 12 January 2010, the plaintiff underwent an ultrasound with a diagnosis of common-extensor tendinopathy (tennis elbow) and shoulder capsulitis. He was treated with pain medications and referred to a specialist and to physiotherapy. The injury was consistent with the stated cause. He was last seen at the Berrigan Medical Practice on 12 June 2012 when he transferred to the Cobram Medical Centre.
Dr Yue Chen
18 In December 2013, Dr Chen of the Cobram Medical Centre, advised that he treated the plaintiff for another medical illness but not his work-related illness.
Dr Philip Frawley
19 Dr Frawley, orthopaedic surgeon, provided two reports in October 2011 and August 2014 respectively. Dr Frawley confirmed that he treated the plaintiff on referral from his general practitioner. In February 2010, he referred the plaintiff for an MRI scan which revealed changes within the common extensor origin, consistent with significant degeneration/partial tear. Dr Frawley administered an injection of steroid and local anaesthetic which provided relief for three weeks.
20 In April 2010 the plaintiff underwent surgery to his left elbow. The operation performed was a debridement and repair of the common extensor origin tendons of the left elbow. The plaintiff made a slow and incomplete recovery. The plaintiff received physiotherapy.
21 At approximately three months post-operatively, the plaintiff complained of “a lot of pain” and was taking narcotics. He demonstrated irritability in his neck and left shoulder. Dr Frawley administered an injection into the left shoulder. At five months, he returned to work on light duties. He was unable to make a full recovery. By February 2011, the plaintiff reported struggling. Dr Frawley recommended a further injection. However, the plaintiff did not return for any further clinical care after February 2011. Dr Frawley discharged the plaintiff from his care in May 2011.
22 The plaintiff was referred back to Dr Frawley for a further assessment in May 2014. An x-ray demonstrated slight irregularity of the bone, consistent with the previous surgery. The MRI scan revealed the previous repair was intact and there is no evidence of re-tearing. It was Dr Frawley’s opinion that the plaintiff would be unable to perform physical labouring work for 40 hours per week. However, he thought he was fit for sedentary work for 40 hours per week. He was not in a position to comment on the psychological effects of the plaintiff’s injury.
23 Dr Frawley reported that the ongoing lateral elbow pain, four years after tendon repair surgery, is most unusual. He did not think the plaintiff’s symptoms related to ongoing tendon problems. Rather, he commented that there is some other pathology present which is yet undiagnosed. This other pathology needs to be considered as an explanation for the plaintiff’s pain. He said the plaintiff may have pain from his cervical spine, or pressure on his posterior intraosseous nerve. Both pathologies could be relatively straightforward to diagnose and treat. Alternatively, the plaintiff may have a myofascial pain syndrome, which would be more difficult to treat. He recommended that the plaintiff attend repeat clinical assessment.
Dr Brett A Todhunter
24 In August 2014, Dr Todhunter, specialist in anaesthesia and pain medicine, diagnosed:
(i) initial tear of the extensor tendons of the left forearm at the insertion at the lateral epicondyle/elbow;
(ii) development of persistent pain which is explained by the development of neurophysiological changes known as central sensitisation and windup whereby sensory information coming from the left elbow is amplified in the spinal cord and brain, causing pain in excess of what can be explained by ongoing physical damage and causing what should be non-painful stimuli such as pressure to cause pain. The intermittent swelling would be consistent with ongoing inflammatory changes which may be neurogenic in nature or related to the mechanical damage per se;
(iii) the development of secondary depression due to the sudden changes in his life and inability to return to his pre-injury duties, along with having disturbed sleep.
25 Dr Todhunter commenced the plaintiff on Lyrica to try and improve his sleep, which could reduce the impact of the pain upon his life and hopefully improve his mood. He said he needs to continue his analgesics and antidepressants. Surgery would not assist the plaintiff. Potentially a Botox injection could be considered if he is unable to continue work as a farm labourer. It was his opinion the pain was related significantly to abnormal nerve hyper-excitability and hyper-sensitivity due to changes in the central nervous system. Hence pain such as in this situation, where it is persistent, is not related to worsening damage.
26 Dr Todhunter said the plaintiff developed intense acute pain, diagnosed as an injury to his extensor tendons of the forearm at the elbow, requiring surgery. The subsequent development of persistent pain is consistent with the development of what is known as central sensitisation and windup, whereby there are complex neurophysiological changes in the central nervous system, wherein the neurological transmission of pain signals is amplified. Once changes occur in the neurological transmission, the changes continue indefinitely. There is no damage to his spinal cord but a change in the function of the neurological systems. Medication may reduce that to some extent, and the Lyrica is intended to assist. He said there was no cure for his pain and his pain will last indefinitely. It will be relatively stable unless it is aggravated by excessive activity or further injury.
Mr Russell Miller
27 In February 2014, Mr Miller, orthopaedic surgeon, examined the plaintiff at the request of the plaintiff’s solicitor. Mr Miller noted that at the time of treatment, the plaintiff was on a range of medication, including Tramadol and Panadeine Forte. He had used OxyContin and Endone in the past but tries to avoid these medications. He does use anti-inflammatory cream and heat packs. He has had physiotherapy and hydrotherapy in the past, and cortisone injections, but without useful effect.
28 On examination, there was irritability during the left shoulder movement. In respect to the left elbow, there was diffuse tenderness in the area and there was some irritability during elbow movement. Provocation tests were strongly positive for tennis elbow.
29 In respect to the left shoulder, Mr Miller said the plaintiff had mild capsulitis in the left shoulder. There are significant ongoing symptoms but they are less than the elbow. The prognosis for the left shoulder itself should be good.
30 In respect to the left elbow, Mr Miller said the plaintiff suffered an injury to the left elbow with development of lateral epicondylitis. He said he has significant ongoing symptoms, and the prognosis for the left elbow is only fair.
31 Mr Miller stated that he believed the development of the left shoulder symptoms reflects secondary consequences of the left elbow problem, and the current clinical status of the left shoulder and left elbow reflects the effects of that work injury. He said the plaintiff requires ongoing conservative treatment. His current regime is appropriate and will need to continue indefinitely. He said it was possible, but unlikely, the plaintiff would benefit from surgery to the left shoulder or further surgery to the left elbow.
32 Mr Miller said the plaintiff will have difficulty with work involving large amounts of repetitive left arm action and lifting weights more than 5 kilograms on a regular basis. He did not believe he is fit to return to work in the abattoir on any significant full-time or part-time basis. He said the plaintiff had returned to farm work. Although it was physical, he could cope with the duties, because there is a significant amount of variation in that work. He noted that he has some symptoms at work. Mr Miller said the plaintiff’s restrictions are permanent and consistent with the injury. He noted the plaintiff has difficulty with heavy domestic and gardening activities, and that he enjoyed fishing but can no longer go boating on his own.
The Defendant’s medical evidence
Mr Ian R Jones
33 In March 2013 and 2014, Mr Jones, orthopaedic surgeon, examined the plaintiff at the request of the defendant’s solicitors.
34 In 2013, Mr Jones said the plaintiff presented with complaints of continuous low-grade pain in the left elbow, exacerbated by demanding and repeated physical work involving the left forearm and hand. His condition is consistent with having suffered a tear in the tendon of the common extensor origin of the left elbow for which he has undergone surgical treatment. He said the plaintiff’s left elbow condition limited him from carrying heavy weights using his left arm and repetitive gripping and pushing using the left forearm and hand.
35 In March 2014, Mr Jones said the plaintiff complained of ongoing symptoms of constant pain and associated swelling in the left elbow. The plaintiff described the pain as a dull, throbbing pain which troubles him, particularly at night. The plaintiff reported diminished strength in his left arm and complained that he was unable to fully straighten the elbow joint. He reported he could not lift greater than 15 kilograms using his left hand and stated he was unable to lift his five-year-old son.
36 The plaintiff reported taking four and six Panadol tablets per day. At night, he usually takes Panadeine Forte or, if in extreme pain, he takes Tramadol. He applies a local cream and a heat pack at the outer side of the joint.
37 On examination, Mr Jones reported there was a slight restriction of the extremes of abduction and flexion in his left shoulder. Some minor wasting of the left biceps muscle was noted compared with the right arm. The left elbow lacked some 15 degrees of extension, but had a normal range of active flexion measured at 140 degrees. Pronation and supination of the left forearm was equal to that of the right side. Subjectively, the plaintiff was tender over the left lateral epicondyle. Subjectively, the plaintiff’s power of grip in his left hand was diminished compared with the right side. He noted the fingers of both the left and right hand were calloused commensurate with normal use.
38 It was Mr Jones’ opinion that the plaintiff presented with complaints of symptoms and signs consistent with a chronic tennis elbow syndrome or lateral epicondylitis. He said the plaintiff’s left elbow precludes him from engaging in work which requires him to repetitively grip and push or pull heavily using his left arm. His estimated maximum lifting capacity involving the left arm alone is said to be 15 kilograms.
Video surveillance
39 Counsel for the defendant admitted that the plaintiff had been the subject of surveillance. I was shown no surveillance. While I cannot speculate as to what the surveillance would have shown, I can be satisfied that it did not assist the defendant’s case.
Credit
40 The plaintiff was a man of few words. He had limited education and performed manual work. He answered questions as best he could in a very direct manner. He was consistent with what he told doctors who examined him. All accepted that his complaints were consistent with his injury. I accept he was a witness of truth.
Analysis of the evidence
41 It was not in issue that the plaintiff suffered a work-related injury. All medical witnesses accepted that the plaintiff developed left elbow pain at work leading up to 22 January 2010. The MRI scan of February 2010 revealed changes within the common extensor origin consistent with significant degeneration/partial tear. The plaintiff received an injection of steroid and local anaesthetic in the left elbow which gave him good relief but the benefit wore off after three weeks.
42 In April 2010, the plaintiff underwent a surgical procedure to the left elbow. The degenerative tissue within the tendon of the common extensor origin was debrided, and the tendon was repaired. The plaintiff underwent regular physiotherapy. He was treated with antibiotics and prescribed strong narcotics. Nine weeks post-operatively, the plaintiff developed pain in his shoulder. His elbow remained stiff due to ongoing pain.
43 Three months post-operatively, the plaintiff demonstrated some irritability in his neck and shoulder. A further injection was administered into the subacromial space. Five months post-operatively, the plaintiff was back at work performing light duties. Dr Frawley recommended a further steroid injection.
44 In May 2014, Dr Frawley reviewed the plaintiff. At that time, he said the plaintiff’s referred pain may be from his cervical spine, or he may have pressure on his posterior intraosseous nerve. Alternatively, the plaintiff may have a myofascial pain syndrome, which is more difficult to treat, and recommended he attend for a repeat clinical assessment after completion of his pain management program.
45 The plaintiff commenced a pain management program under the direction of Dr Todhunter in 2014. Dr Todhunter said the plaintiff’s development of persistent pain was consistent of the development of central sensitisation and windup, which are complex neurophysiological changes in the central nervous system. Surgery is not appropriate and medications can reduce the condition, to some extent. There is, however, no cure for his pain, and his pain will last indefinitely.
46 Mr Jones diagnosed a chronic tennis elbow syndrome or lateral epicondylitis.
47 Mr Miller diagnosed mild capsulitis in the left shoulder, and the development of lateral epicondylitis with significant ongoing symptoms, the prognosis being only fair.
48 I accept the medical evidence is that the plaintiff underwent surgery on his left elbow which was a debridement and repair of the common extensor origin tendons of the left elbow. The plaintiff made a slow and incomplete recovery from the surgery. He developed shoulder pain which was diagnosed as shoulder capsulitis. I must assess the plaintiff as at the time of application. Accordingly, I am assisted by the more recent medical evidence of Dr Frawley, Mr Jones, Mr Miller and Dr Todhunter.
49 The current medical evidence is that the plaintiff presents with symptoms in the left elbow. The medical witnesses differ on the diagnosis. Mr Todhunter diagnosed the development of neurophysiological changes known as central sensitisation and windup. Dr Frawley says the plaintiff may have a myofascial pain syndrome which is more difficult to treat; alternatively, he may have referred pain from his cervical spine, or pressure on his posterior intraosseous nerve. Mr Miller diagnosed injury to the left elbow with development of lateral epicondylitis. This view was adopted by Mr Jones, who said the plaintiff presented with complaints of symptoms and signs consistent with a chronic tennis elbow syndrome or lateral epicondylitis. All medical witnesses accepted that the plaintiff had work restrictions.
50 I accept the majority of the medical witnesses thought the plaintiff had stabilised. Given the fact that the plaintiff has suffered injury since 2010, I accept the impairment is permanent. No medical evidence suggested improvement.
51 The issue is whether the consequences satisfy the statutory test.
52 Counsel for the plaintiff submitted that the plaintiff was a stoic individual and that his case should be looked at and assessed in that light. As evidence of stoicism, I was referred to the plaintiff’s evidence as to why he left the employment of the abattoir. His evidence was:
“I didn’t know where to go, what to do. I’d applied for positions within the company and to be told off the record that I would not receive a company position or staff position because I’d been on worker’s comp.”[12]
[12]Transcript 33, Lines 7-11
53 Further, the plaintiff agreed that he left the company on 24 July 2011 and found another job. It was put:
Q:“And by August you had another job?---
A:It’s my job to put bread on the table.”[13]
I accept the submission of counsel for the plaintiff that this is evidence of a person who is putting the injury behind him and doing what he can in life, despite the effects of injury.
[13]Transcript 33, Lines 18-19
54 It was my view that the plaintiff presented as stoical. He was not given to exaggeration and he gave his evidence in a most uncomplaining way. I accept the injury suffered by a stoical plaintiff is not to be viewed any less seriously merely because he manages to remain more active than might have been expected given the level of pain. I refer to Nettle JA’s comments in the case of Dwyer v Calco Timbers Pty Ltd (No 2):[14]
“… I suspect that, but for the way in which the appellant has been prepared to put up with his pain and suffering and get on with his business as best he can, the respondent may well not have disputed his claim. It is unnecessary for present purposes to reach a concluded view about that and I have not done so. But it would be unfortunate, and in my view wrongheaded, if in future such an applicant were treated less favourably than another who, being of less strength of character, simply resigned himself to his injury.”
[14][2008] VSCA 260 at paragraph [3]
55 I adopt the comments of Nettle JA in the above decision.
56 I also accept a further submission from counsel for the plaintiff which was that the medical records of the plaintiff do not mention the elbow and specific treatment of the elbow, because the plaintiff had, to a large degree, lost faith in the medical profession by early 2011.
57 Dr Frawley recommended the plaintiff undergo a further steroid injection. The plaintiff’s response as to why he did not pursue that course was:
A:“At that point in time I had no faith in any of the doctors. I was not getting anywhere.
Q:He suggested something to you that he said would improve your pain, didn’t he?---
A:He said may improve.
Q:And you just determined not to bother with it?---
A:I wouldn’t say that.
Q:I suggest to you that would indicate your pain wasn’t troubling you too much at the time at all?---
A:Maybe the thought of sticking another needle in my arm might have.”[15]
[15]Transcript 35, L28 – Transcript 36, Line 6
Pain
58 The plaintiff’s evidence as to pain was as follows.
59 In February 2014, Mr Miller said of the pain:
·“Left Shoulder
He has ache, discomfort and pain in the left shoulder. It is worse with repetitive activities and worse with overhead activities.
·Left Elbow
He has pain and discomfort in the left elbow. It is worse with repetitive activities and strenuous activities. His symptoms fluctuate, but there has been no pattern towards improvement and he reports sleep disturbances. He notes in particular he has difficulties with physical work and with some activities of daily living.”[16]
[16]PCB 67
60 In March 2014, the plaintiff reported to Mr Ian Jones:
“… ongoing symptoms of constant pain and associated swelling in the left elbow. The pain is described as a dull throbbing pain which troubles him particularly at night.”[17]
[17]Defendant’s Court Book (“DCB”) 11
61 Dr Frawley did not describe the plaintiff’s pain in May 2014,
62 The plaintiff reported his pain levels to Dr Todhunter at between 3 to 9 out of 10 on a zero to 10 scale, where zero is no pain and 10 is the worst pain imaginable. Dr Todhunter said there was no cure for the plaintiff’s pain, which will last indefinitely. It will be stable in an ongoing way unless it is aggravated by excessive activity.
63 Dr Todhunter described the plaintiff’s pain as development of persistent pain.
64 The plaintiff’s evidence to the Court as to pain was as follows:
“The problem I have now and have had all along is the exacerbating dull (indistinct)[18] pain that drives me insane.”
…
“It’s a dull repetitive pain that just drives me insane, it’s not healthy.”[19]
[18]Counsel for the plaintiff said the word used by the plaintiff was “throbbing”.
[19]Transcript 36, Lines 20-24
65 Another example was the following:
A:“I wouldn’t have said low grade, that’s not my word. I would have said dull.
Q:I think he indicated in his most recent report, which is March of this year, that you have described it as a dull throbbing pain. Is that a fair description?---
A:That would be my word.”[20]
[20]Transcript 43, Lines 20-25
66 In June 2012, the plaintiff attended at the Berwick Medical Centre. Dr Saad Mohammed reported:
“Patient for review.
Reported pain in the LT elbow swelling started last Thursday + pain, took rest break from work for a week to give it a rest.”[21]
[21]DCB 36
67 In re-examination, the plaintiff said about his pain:
Q:“What effect has that work [crutching of sheep] had upon your elbow?---
A:It has exacerbated the pain.
Q:How much?---
A:Unbearably, to the point where it becomes unbearable.”[22]
[22]Transcript 50, Lines 1-4
68 I accept the submission of the plaintiff’s counsel that the plaintiff has been left with a permanent dull throbbing pain, subject to flare-ups, that reach the level of unbearable, and he is likely to be affected in that way for as long as he is required to use his left elbow in a work situation. This is a consequence I can take into account.
69 The plaintiff told the Court about the medication he took and the treatment he required.
Medication and treatment
70 The plaintiff’s evidence as to medication for pain relief was that he currently takes Tramadol, Panadeine Forte and paracetamol. He takes paracetamol, either Panadol or Herron daily, two in the morning, two in the evening and on occasions, up to six per day when the pain is bad. He could not remember not taking paracetamol. Daily, he uses creams and heat packs. When the pain is excessive, he uses Tramadol but because it makes him drowsy, he cannot take the medication when he knows he will be operating a heavy machine or a truck the following day. He said that Tramadol masks the pain.
71 The plaintiff’s evidence was that he takes Panadeine Forte two or three times per week.
72 In May 2014, Dr Todhunter prescribed Lyrica to give him relief at night so he could get some sleep. As a result, his sleeping has improved; however, it does not assist the pain.
73 On the evidence, there was some confusion as to the frequency with which the plaintiff used Tramadol and Panadeine Forte. The plaintiff produced boxes of Panadeine Forte and Tramadol in evidence. Those boxes were dated 27 March 2014. The plaintiff’s evidence was that 27 March 2014 was when he last received prescriptions for Panadeine Forte and Tramadol. In cross-examination, he agreed that he had only taken one Tramadol out of the box and eight Panadeine Forte out of the box. He could not recall when he was first prescribed Tramadol. In re-examination, he said he had other boxes of the prescribed drugs.[23]
[23]Transcript 50, Lines 22-23
74 The plaintiff described the medication he was taking to the doctors whom he saw.
75 In February 2014, he reported to Mr Miller taking Tramadol and Panadeine Forte and said, in the past, he had taken OxyContin and Endone.[24]
[24]PCB 67
76 In March 2014, the plaintiff reported to Mr Jones that he took between four to six Panadol per day. At night, he takes Panadeine Forte or, if in extreme pain, Tramadol. He applies local cream into the elbow and uses a heat pack on the outer surface of his joint.
77 In August 2014, Dr Todhunter recorded:
“In terms of analgesics, he was taking Tramadol and Panadol or Panadeine Forte.”[25]
[25]PCB 62
78 Dr Todhunter commenced the plaintiff on Lyrica to try and improve his sleep. I accept the plaintiff was consistent in reporting his use of medication to the doctors he saw in 2014. The plaintiff’s evidence was that he had only taken specific numbers of drugs out of these specific boxes, and that he had other boxes of prescribed drugs. Furthermore, I note the plaintiff’s evidence that he spent sixty per cent of the time working on machinery; accordingly, his use of Tramadol would be reduced. In any event, he is consuming four Panadol tablets a day and, on some occasions, six, depending on his pain levels. He uses daily heat packs and cream. I take into account what Dodd-Streeton JA said in Kelso v Tatiara Meat Co Pty Ltd:[26]
“… The chronic pain was a prominent feature of the appellant’s case. The endurance of permanent daily pain requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence.”
[26][2007] VSCA 267 at paragraph [119]
79 Mr Miller said the plaintiff requires ongoing conservative treatment. His current treatment is appropriate and will continue indefinitely.
80 Accordingly, the plaintiff’s use of medication and heat packs and cream is a consequence I can take into account.
Work
81 I accept the plaintiff’s evidence that his job at the abattoir was his work of choice because it enabled him to work early in the morning, commencing between 5.00am to 5.30am and finishing about 2.30pm. The plaintiff’s evidence was that working these hours enables him to spend the balance of the day with his family. In particular, he was able to assist his wife with their two young sons, who are autistic.[27] Further, the plaintiff’s evidence was that he had worked in farm work in the past, but that he obtained work at the abattoir and enjoyed working with other people. He enjoyed the comradeship, and he misses his mates at the abattoir. I accept the plaintiff has suffered a loss of flexibility in his choice of work which, for this particular man, this is significant given his family demands and his social network.
[27]T47, L7-10
82 The medical evidence is that the plaintiff is unfit to work as an abattoir worker either on a full-time or part-time basis. Dr Todhunter said the plaintiff could not be expected to undertake repetitive work which would require the use of the left upper limb, such as shovelling, lifting hay bales or other heavy objects. He said the plaintiff could lift up to 20 kilograms to 30 kilograms in a single effort, but not repetitively. Dr Frawley said the plaintiff was unable to perform physical labouring work for 40 hours per week. The plaintiff reported to Mr Jones that over the last twelve months, he had taken his holidays and sick days throughout the year as a consequence of his elbow complaint. Mr Jones said the plaintiff’s left elbow precludes him from engaging in work which requires him to repetitively grip and push or pull heavily using his left arm.
83 The plaintiff’s evidence was that he applied for other positions at the abattoir, as a meat inspector, and also considered security work, which did not involve repetitive movements of the upper arms or limbs. He said he would have done any work to stay in the company.[28] However, he was told that it was unwritten company policy not to offer positions to an employee if they had made a worker’s compensation claim.
[28]T31, L14
84 Currently, the plaintiff is working is a farmer/farm manager. When asked about his current duties, the plaintiff said:
A:“Some of the duties are difficult.
Q:But the majority of the duties you can manage because they don’t involve repetitive use of your left arm?---
A:I wouldn’t say majority but some.”[29]
[29]T34, L25-28
85 The plaintiff’s evidence was that his son had been employed on the farm and assisted him with farming duties. His son left the farm approximately three months ago. His son was carrying out most of the physical labouring repetitive type jobs and now he has to do them himself. He said he thought the type of work he was doing at present had a limited timeframe. I accept the evidence is that the plaintiff is performing farm work which he is having difficulty performing due to his elbow injury. Previously he had the assistance of his son, who could do the more difficult work.
86 The plaintiff was asked whether he was a bit concerned about the possibility of losing his job. The plaintiff replied:
“… Not a bit concerned, I’m extremely concerned.
…
If you can’t fulfil your agreements or potentially fill your position, I guess it’s in the back of your mind that you may lose your job.
…
Farmers don’t write you letters and say ‘Pick your act up’, they just say ‘It’s time to go’.”[30]
[30]T40
87 Further, the plaintiff’s evidence as to the level of success in his current job is as follows:
Q:“And you felt it was something you could do?---
A:It was something I was willing to try and do, yes.
Q:And something you succeeded in doing, wasn’t it?---
A:Well, not yet. It ain’t over yet.
Q:You have been doing it for three years?---
A:With assistance.
Q:You have been doing it for three years. You would say you’ve succeeded, haven’t you?---
A:Succession’s at the end of the run, isn’t it?”[31]
[31]T34, Lines 9-16
88 In relation to the plaintiff’s work, his evidence was that he is not doing the job as he would like. I accept that the plaintiff has a legitimate concern as to the future of his current work.
89 I accept the plaintiff would much prefer to have continued work at the abattoir. He also said he would love to have time to pursue a less physical job, but has difficulty fitting in time for any educational courses. He gave evidence that he commenced an occupational health and safety course but did not have the time to attend to it.[32] Currently, he is too busy at work; he is trying to compensate for the fact that his work takes him longer to perform because of his injury now that his son is not there to assist.
[32]T44, L5-7
90 I accept that these are consequences which I can take into account. They are supported by the medical evidence.
Sleep
91 The plaintiff’s evidence was that the pain frequently makes it difficult to get to sleep and stay asleep. He would frequently wake up during the night due to the pain. He finds it difficult to maintain the work hours and the demands of farm work due to his lack of sleep. The plaintiff’s current evidence is that the Lyrica has reduced the loss of sleep, and Dr Todhunter says he needs to continue with Lyrica. Dr Todhunter said he commenced the plaintiff on Lyrica to try and improve the plaintiff’s sleep. I accept this is a consequence I can take into account.
Leisure activities
92 The plaintiff told the Court he was a keen fisherman, but now has great difficulty in handling a boat. It significantly increases his pain level and, accordingly, he does not go fishing very often. In cross-examination, he said he has assistance with handling the boat, he just does not bother. Therefore, this is a recreation that is not lost but compromised. I accept that this is a consequence to the plaintiff. He reported it to a number of the medical witnesses.[33]
[33]Mr Miller – PCB 71
Left shoulder
93 While Counsel for the defendant raised an issue that the left shoulder and left elbow cannot be accumulated, she made no submission on this point. In any event, I have addressed the left shoulder as a consequence of the left elbow.
94 Mr Miller said it was likely that the plaintiff has mild capsulitis in the left shoulder. He said the left shoulder symptoms reflect secondary consequences of the left elbow problem. This is a consequence I can take into account.
Home life
95 The plaintiff gave evidence that he works a ten-hour day and this limits his ability to spend time with his family, particularly in assisting his wife with their two autistic children.
96 The plaintiff reported to Mr Miller he has difficulties with domestic and gardening activities. Mr Miller accepted that his injury would affect his capacity for heavy domestic and gardening activities.
97 These are consequences I can take into account.
98 Counsel for the defendant submitted:
(i)First, that the plaintiff has retained a capacity for general work. He has worked as a farmer performing labouring-type work for very long hours from 6.00am till 10.00pm on occasions, and this is the type of work he performed before obtaining employment with the abattoir. He performs this work without restrictions.
Whilst I accept the plaintiff is currently employed, performing farming duties, his evidence is that he no longer has the assistance of his son to perform the heavy work. The farming work takes him longer to perform, and he works longer hours to accommodate his limitations. He identified a real concern about the future of his current employment. Accordingly, I do not accept that the plaintiff has retained a capacity for general work.
(ii)Secondly, that the plaintiff’s evidence was fashioned to support a case of serious consequences, but this is not consistent with the objective evidence. In reliance on this submission, Counsel for the defendant pointed out there is no record in the doctors’ notes that the plaintiff was being assisted by his son, who performed the heavy work on the farm. I note that after June 2012, the plaintiff did not receive treatment from a general practitioner for his left elbow. Further, the plaintiff’s second affidavit sworn in March 2014 does not suggest things have become worse. The plaintiff does not report to the doctors he saw in 2014 that he has had to take over the heavy work since his son left the farm. However, the evidence was that the son left in the middle of the year. Furthermore, I gained the impression that this plaintiff simply answered questions put to him. He was not talkative and did not volunteer information. It is clear that the medical evidence supports the fact that the plaintiff would be restricted in the work and activities he performed.
(iii)Thirdly, Counsel for the defendant was critical of Dr Todhunter’s diagnosis of the plaintiff’s injury, and submitted that there was no diagnostic testing to support his diagnosis. The evidence is that Dr Frawley thought that the plaintiff may have been suffering a myofascial pain syndrome. Regardless of this, Mr Miller diagnosed the development of lateral epicondylitis with significant ongoing symptoms and only a fair prognosis. Mr Jones made similar diagnoses and said the plaintiff was precluded from engaging in work which requires repetitive grip and push or pull heavily using his left arm. He said he had a maximum lifting capacity of 15 kilograms. Accordingly, I accept there was no force in this submission.
99 The reality is, none of the medical witnesses suggested that the plaintiff is exaggerating his symptoms. All agree he cannot return to his pre-injury employment. The plaintiff presented in court as genuine. I formed the view he was stoical. Accordingly, I reject the submission that the plaintiff’s evidence was inconsistent with the objective findings.
100 Taking all the evidence into account, I am satisfied it is fair to describe the pain and suffering consequences of the plaintiff’s left limb as being “more than significant or marked, and properly regarded as very considerable” when judged by a comparison with other cases in the range.
101 In reaching that conclusion, I have made a comparison with other cases in the range of possible impairments. No element of the mental component is taken into account in this assessment. Indeed, the mental element is required to be excluded by s134AB(38)(h) of the Act. I am satisfied that the left limb injury is permanent given the evidence from all medical witnesses. The plaintiff therefore satisfies the narrative test for pain and suffering.
102 In such circumstances, the plaintiff’s application seeking leave to bring proceedings for damages for pain and suffering in respect to the left limb is successful.
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