Spanovic v Carter Holt Harvey Corrugated Packaging Pty Ltd
[2013] VCC 1231
•18 September 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-09-05406
| LJUBISA SPANOVIC | Plaintiff |
| v | |
| CARTER HOLT HARVEY CORRUGATED PACKAGING PTY LTD | Defendant |
---
JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28, 29 and 30 August 2013 | |
DATE OF JUDGMENT: | 18 September 2013 | |
CASE MAY BE CITED AS: | Spanovic v Carter Holt Harvey Corrugated Packaging Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1231 | |
REASONS FOR JUDGMENT
---
Subject: ACCIDENT COMPENSATION
Catchwords: Compensable injury to the upper limbs suffered prior to 20 October 1999 – whether the plaintiff suffered a compensable injury to the upper limbs after 20 October 1999 – whether the plaintiff’s employment contributed to any compensable injury suffered by the plaintiff had long ceased – whether the pain and suffering consequences and loss of earning capacity consequences are “serious”
Legislation Cited: Accident Compensation Act 1985, ss134AB(38)(c) and (f)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170; Aburrow v Network Personnel Pty Ltd [2013] VSCA 46; Dwyer v Calco Timbers Pty Ltd(No 2) [2008] VSCA 260
Judgment: The plaintiff’s Originating Motion is dismissed.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D Connell with Mr G Grabau | Simon Legal |
| For the Defendant | Mr C Miles | Wisewould Mahony |
HIS HONOUR:
Introduction
1 Before the Court is an application brought by Originating Motion filed 13 November 2009 by which the plaintiff applies for leave, pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”), to bring proceedings to recover damages for injuries suffered by him arising out of or in the course of his employment with the defendant.
2 The plaintiff seeks leave to bring such proceedings for pain and suffering and loss of earning capacity.
3 Mr D Connell appeared with Mr G Grabau of Counsel for the plaintiff, and Mr C Miles of Counsel appeared for the defendant.
4 The plaintiff submitted that he suffered a serious permanent impairment or loss of the function of his upper limbs.
5 The following evidence was adduced during the hearing:
· The plaintiff gave evidence and was cross-examined;
· The plaintiff tendered his Court Book (“PCB”), pages 5-87: Exhibit A;
· The defendant tendered its Court Book (“DCB”), pages 5-76, 81-82, 128, 163 and 249-281: Exhibit 1.
The statutory scheme
6 The application is brought under the definition of “serious injury” contained in ss(37)(c) of the Act which requires the plaintiff to prove that he has suffered a “serious permanent impairment or loss of a body function”.
7 The relevant considerations which apply to such an application are as follows:
(a) The plaintiff must prove that he suffered a compensable injury; that is, an injury which he suffered arising out of or in the course of his employment on or after 20 October 1999;[1]
[1]Section 134AB(1); Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph 11
(b) The injury and the impairment must be permanent; that is, permanent in the sense that it is “likely to last for the foreseeable future”;[2]
[2]Barwon Spinners, at paragraph 33
(c) The plaintiff bears the burden of proof to be determined upon the balance of probabilities, and in addition to the general burden imposed by ss(19)(a), (19)(b) and (38)(e), impose a specific burden on the plaintiff in relation to a claim for loss of earning capacity;
(d) Subsection (38)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than “significant” or “marked”, and as being at least “very considerable”;
(e) Subsection (38)(e) provides that in a claim for loss of earning capacity, that such loss must be to the extent of 40 per cent or more both at the date of hearing and permanently;
(f) Subsection (38)(f) and (g) provide the formula to be applied by which a claim for loss of earning capacity is to be determined, save where the worker was under 26 years of age when the injury was sustained. In those circumstances, ss(38)(e) applies.
(g) Subsection (38)(j) provides that the assessment of serious injury is to be made at the time of the hearing of the application;
(h) Subsection (38)(b) provides that the consequences of an injury and impairment in terms of pain and suffering and loss of earning capacity are to be considered separately. Furthermore, if a plaintiff is successful in proving loss of earning capacity, it follows, without the necessity to determine the consequences to that plaintiff in terms of pain and suffering, that the plaintiff is entitled to leave to bring a proceeding for pain and suffering in any event;[3] an approach which I intend to follow in the appropriate case;
(i) In conformity with Barwon Spinners, I must identify the injury and the impairment said to be produced in consequence of the injury, whether the impairment is permanent, that is, likely to last for the foreseeable future, and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in ss(38)(c). I have applied the principles set forth therein in reaching my conclusions in this application.
[3]Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170
The Plaintiff’s background
8 The plaintiff was born in 1964. He is now 49 years of age. He is a married man with two sons who are probably 26 and 18 years of age. The plaintiff was born in Yugoslavia. He came to Australia in 1990 when he was 26 years of age.
9 It would appear that the plaintiff qualified as a fitter and turner in Yugoslavia. He worked for two employers between his arrival in Australia and commencing employment with the defendant in 1998 as a fitter and turner.
The onset of injury
10 In his first affidavit, the plaintiff described the work he performed which resulted in him suffering injury to his upper limbs:
“My work involved changing blades on the paper cutting machine. These weighed approximately 7 kg each. There were 3 settings to be done and this could be done every 10 to 15 min. It required me to reach into the machine with a blade in my left hand, reaching across the top of my right hand and using an air gun. This was awkward and heavy work as one had to stretch forward with the left arm and lifting the heavy blades. The work was also repetitive requiring me to have many motions with my arms. My work also involved about four hours a day on a stretching machine, wrapping plastic around pallets. This was also repetitive and involved me experiencing pain in my shoulders and forearms. Injury involved inserting 7 kg blades into a machine with my left hand and using the drill with my right hand to drill the blade into place. I believe that this constant placement at that machine without rotation contributed to my right and left wrist injuries. The work involved also lifting and stacking and has been continually aggravated by activities.”[4]
[4]PCB 5-6
11 The plaintiff was put on light duties for an unstated period of time. He was later put back on to full duties. He was retrenched on 12 September 2001.
12 Under cross-examination, the plaintiff was asked when he first experienced pain in his wrists. He said:
Q:“You started there in 1998, did you not?---
A:Yes, that’s true.
Q:You had wrist problems, both wrist problems from 1998, didn’t you?---
A:Yes.”[5]
[5]Transcript 28
13 The plaintiff was taken to the history recorded by Dr Cohen, psychiatrist, who examined the plaintiff for the defendant on 29 July 2002 and 9 April 2003. Dr Cohen recorded the following history on 9 April 2003:
“My right hand was injured in 1998 and I was put on light duties for one month.”[6]
[6]DCB 33
14 The plaintiff agreed that he suffered an injury to his right wrist in 1998, and that the history recorded by Dr Cohen is correct. However, the history recorded by Dr Cohen on the first occasion he examined the plaintiff is significantly different. He described his injury as having occurred on 14 December 2000. After suffering injury, he was put on the light duties, operating a shrink wrapping machine and a strap machine.[7]
[7]DCB 23
15 The plaintiff submitted a Worker’s Claim for Compensation form signed by him on 27 February 2001. A part of it asked if he had any previous pain or disability in the area of his present injury/condition. He wrote:
“YES. APPROXIMATELY 2 YEARS AND I FELT PAIN IN MY WRISTS (BOTH) WHEN WORKING ON MANUAL … AT THIS TIME NO WORKCOVER CLAIM WAS RAISED. HOWEVER STONE CONTAINERS GAVE ME TWO WEEKS … .”[8]
[8]DCB 81-82
16 Two years before the form was signed takes it back to early 1999 and possibly 1998. The reference to Stone Containers is apparently a reference to a former name by which the defendant was known.
17 The plaintiff was asked whether he had pain in his wrists from 1998 onwards. He referred to both 1998 and 1999, which I took to mean the years when the pain in his wrists began. He agreed that the pain in both of his wrists began very soon after he commenced working for the defendant.[9]
[9]Transcript 29
18 The reference in Dr Cohen’s history recorded after he first saw the plaintiff that the plaintiff suffered injury in December 2000, is partly explained by what the plaintiff said in his first affidavit. It would appear that the plaintiff was put on light duties. It would appear that after he first suffered injury, he sought medical treatment. He described that medical treatment as follows:
“The return to work programme of 12 February 2001 outlined my pre-injury duties as a Triplex operator. I was required not to lift weights more than 1-2 kilograms and not repetitively or continuously use my right hand. I saw Dr Jim Dermitzoglou in December 2000 for pains in my right wrist and was given a return to work plan for light duties.”[10]
[10]PCB 6
19 No medical evidence was adduced by the plaintiff of the treatment he was provided contemporaneously with the onset of the wrist pain. No ethical evidence was adduced from Dr Dermitzoglou or from the other medical practitioners who the plaintiff said treated him early on, namely, Dr Turudio, chiropractor; Mr Berger, orthopaedic surgeon; Mr Day, neurologist, or from the physiotherapist from whom the plaintiff obtained treatment some time after December 2000.[11]
[11]PCB 6-7
20 The onset of injury is of critical importance, because Mr Miles submitted that if I found that the plaintiff suffered injury in 1998 or the early part of 1999, then the plaintiff cannot succeed, because common law rights were not reinstated until 20 October 1999, putting the plaintiff into what has become known as the “black hole”.
21 The issue of law facing the plaintiff was made plain by Ashley JA in Grech v Orica Australia Pty Ltd.[12]The issue in this case was whether the plaintiff suffered injury as a consequence of his work before 20 October 1999, and whether his continued use of his hands in a stressful fashion after that date resulted in him suffering further injury.[13]
[12](2006) 14 VR 602
[13]at 617-618
22 The mere reference by the plaintiff to seeking treatment from Dr Dermitzoglou in December 2000 does not inform me whether it was for treatment for injuries suffered before 20 October 1999 or not. The point made by Ashley JA is a fundamental one, and that is, it is for the plaintiff to prove that he has suffered a compensable injury on or after 20 October 1999 to be entitled to leave pursuant to s134AB of the Act. The legal and evidentiary onus is fairly and squarely borne by the plaintiff. I am not satisfied that he has discharged that onus.
23 What the plaintiff must do is adduce evidence which satisfies me that he suffered an injury before 20 October 1999, and subsequently suffered a compensable injury after that date, and that the compensable injury he suffered after that date has impairment consequences which are serious, both in terms of pain and suffering and loss of earning capacity.[14]
[14]Grech v Orica Australia Pty Ltd (supra)
24 I have read the medical reports which were tendered into evidence. The histories taken by a number of medical practitioners vary from the evidence given by the plaintiff. The plaintiff was asked when he suffered injury. There was no confusion about what he was being asked, and from my recollection of his evidence, aided by reading the transcript, it is clear to me that he gave simple but clear answers. His answers constitute the most compelling evidence, and I consider those answers to be more reliable.
25 The failure of the plaintiff to adduce the evidence which I have referred to that he suffered a compensable injury after 20 October 1999 is essentially the end of the matter. However, I have decided to go to the effort of examining all of the evidence to determine whether he can establish serious injury in any event.
The Plaintiff’s evidence
26 I have reviewed the plaintiff’s evidence and the medical evidence which was tendered into evidence. I am not satisfied that the plaintiff has established pain and suffering consequences or loss of earning capacity consequences which are “serious”.
27 The following is a summary of the plaintiff’s evidence adduced under cross-examination which I found to be more edifying than what I have read in his four affidavits.
28 After suffering injury, the plaintiff continued working with the defendant. It would appear that at some stage his hours were reduced. He subsequently returned to work on a graduated return, before returning to full-time light duties.[15] It would appear that the tasks he undertook involved operating at a machine which placed rapping over pallets. He also drove a forklift. He described the job as being a “good job”, and that he was doing a “good job” in meeting the demands of the job. He said he was disappointed that he was retrenched, because he wanted to continue with that job.[16]
[15]Transcript
[16]Transcript 36-37
29 After the plaintiff was retrenched, he was in receipt of WorkCover payments for the next two years. I assume that means that he did not work from about September 2001 to September 2003.
30 In 2004, the plaintiff obtained a job with a firm known as Rodek Fencing. He was a permanent employee. He worked full time. He worked with that employer until 2007. It would appear that he was mainly occupied in forklift driving. He also drove a truck, undertaking deliveries. He said he liked the job and he did it well. The job came to an end because the employer did not have enough work to keep the plaintiff on.[17]
[17]Transcript 37-38
31 It would appear that the plaintiff was probably out of work for about six months after the job with Rodek Fencing came to an end. He applied for employment with SPI, which is a labour-hire company. He was given work with various employers. It would appear that he was mainly occupied in forklift driving. He said that he could not recall how long he worked with SPI, but it could have been one year, or one-and-a-half years.[18]
[18]Transcript 39
32 The plaintiff then applied for employment with Integrated Services, which is a labour-hire company. His motivation in doing so was to obtain work which paid more than he was earning through SPI. At first he was given casual work, which he described as sometimes two days’ work and sometimes as much as a week. He was eventually found work with Linfox, which he retained for about eighteen months. It would appear that he was mainly occupied in forklift driving. That work ceased when Integrated Services lost its contract with Lindsay Fox.[19]
[19]Transcript 39-40
33 The plaintiff worked for a firm known as Camerons. He did not say when he worked for them, but he did say he worked for them for a period of two years. He was mainly occupied driving electric and petrol powered forklifts. He said he was a good forklift driver and could manage the work. He said that he essentially did all of the work that was offered to him.[20]
[20]Transcript 40
34 It would appear that Integrated Services discovered that the plaintiff had suffered injury in the past. It wanted the plaintiff to provide a medical certificate, presumably to demonstrate his fitness for work. The plaintiff said he had not spoken to anyone from Integrated Services about the need for a medical certificate in the five years it had employed him. He said he was capable of doing the work that he was provided by Integrated Services.[21]
[21]Transcript 42-43
35 Since Integrated Services required the plaintiff to provide a medical certificate, he has tried to register with other labour-hire companies, but none would take him on. It would appear that it was not because of any injury suffered by the plaintiff or any incapacity for work, but because the other labour-hire companies had their books full.
36 The plaintiff said that he has applied for work since the end of 2011. He has applied for work as a truck driver, a forklift driver and as a factory worker. He said that if he was offered work in those positions he would take up the offer. Furthermore, he said that he would be able to do a good job as a forklift driver, but was less confident that he could do such a good job in work as a truck driver.[22] The plaintiff said that if he obtained a job, such as with Linfox or Camerons, and I assume he meant as a forklift driver, then he would be able to work shiftwork and overtime, but he had a preference not to do nightshift work.[23]
[22]Transcript 43-44
[23]Transcript 44-45
37 The plaintiff said that he is no longer looking for work as a forklift driver because of pain he experiences in his right shoulder. He said that he remembered making a claim in 1998 or 1999. The context in which he made reference to those years appears to be when he says he first suffered an injury to his right shoulder.[24] However, it was put to him that he was examined by Dr McInnis, surgeon, on 8 September 2011. Dr McInnis obtained a history from the plaintiff that over the “last 2-3 years”, that the plaintiff had experienced pain in his right shoulder. He also recorded that the plaintiff said that there was no particular incident which caused the onset of the right shoulder pain.[25] The plaintiff agreed that he first experienced pain in his right shoulder in about 2008 or 2009, and that it just came on.[26]
[24]Transcript 45
[25]PCB 29
[26]Transcript 29
38 The plaintiff said that his right shoulder pain has been very bad over the last three years. He also said that his right wrist is more painful. It would appear that the plaintiff considers that it is his right shoulder which is either hindering or stopping him from getting work, rather than his right wrist or both wrists. However, from the answers he gave when asked about his right shoulder and right wrist, I am not particularly clear as to whether his right wrist is hindering him from getting work to the extent.[27]
[27]Transcript 47
39 The plaintiff made an investment with a friend to purchase a tow truck about a year ago. He paid a man named “Renko” $3,500. He borrowed the money from his mother. Unfortunately for the plaintiff, no repairs were undertaken to the tow truck. It was never registered. He had a dispute with Renko, who took the plaintiff’s money and the tow truck. He said that he intended to try tow truck Driving. The plan was that he would drive the tow truck during the week, and Renko would drive it on weekends.[28]
[28]Transcript 48-50
40 The plaintiff was asked whether he could manage work as a tow truck Driver. He did not answer the question directly, but said that he was looking for work which did not involve lifting because this would cause pain, presumably in his wrists and right shoulder. I assume that the work which the plaintiff would prefer to undertake is forklift driving.[29]
[29]Transcript 50
41 The plaintiff's affidavits are not overly informative regarding the pain and suffering consequences and loss of earning capacity consequences which the plaintiff says have arisen as a result of the injury to his wrists. In his first affidavit, he referred to having pain in his wrists as a result of the work he did with the defendant. He referred to the medical treatment he obtained, but described it in the briefest and uninformative manner. The only reference to pain and suffering consequences was the plaintiff’s use of a splint on his right arm when doing heavy lifting, such as doing gardening.[30]
[30]PCB 6-7
42 The plaintiff’s swore a second affidavit on 24 April 2012. It is likewise uninformative. The plaintiff referred to obtaining prescriptions for Panadeine Forte and Voltaren for pain relief. He also briefly referred to his situation with work.[31]
[31]PCB 8-9
43 The plaintiff swore a third affidavit on 4 September 2012. He again referred to obtaining prescriptions of Panadeine Forte and Voltaren for pain relief, his situation with work, and a referral to Mr Weber, orthopaedic surgeon, for treatment.[32]
[32]PCB 11-12
44 The plaintiff swore a fourth affidavit on 13 August 2013. For the first time the plaintiff referred to the pain and suffering consequences of his injuries. He referred to a number of types of medication he has been prescribed by Dr Barr, general practitioner, namely Imovane; Imrest; paracetamol; Codeine; EffexorPrisi (sic) and Xanax.[33] He referred to having pain and loss of strength in his wrists, and difficulty gripping or holding heavy objects. He referred to not being able to go motorcycle riding; being dependent upon his wife and family for support around his home; being unable to restore a truck; not being able to go camping or four-wheel driving; suffering interference with sleep, and suffering pain in his arms and wrists when driving long distances.
[33]Imovane and Imrest are used to treat insomnia. Paracetamol is a well-known over-the-counter pain-reliever. My understanding is that Codeine is an opioid which is a constituent of painkilling medication. Effexor is an anti-depressant. I have been unable to find a reference to a medication described as “EffexorPrisi”. Xanax is used to treat anxiety disorders
45 The plaintiff said that he takes Panadeine Forte and Voltaren when he is in pain. It would appear that he often takes it at night before he goes to bed and when he has pain during the day. It was put to him that Dr Barr’s clinical records show that he is prescribed 20 Panadeine Forte tablets per month. He essentially agreed. He said that if he does not take Panadeine Forte tablets he takes Voltaren.[34]
[34]Transcript 56-58
46 The plaintiff said that he did not go camping before he suffered injury. He first went camping in about 2005 and only on one occasion. On that occasion, he was away for about five days camping with friends, and driving his four-wheel-drive. He does not own any camping equipment. He purchased his four-wheel-drive in 2005.[35]
[35]Transcript 59-60
47 It would appear that the plaintiff purchased a Harley-Davidson motorcycle in 1993. He has shown the motorcycle and won five trophies at motorcycle shows. He said that he has not been able to ride the motorcycle because it has an interlock device fitted. He has not ridden the motorcycle for five or six years. It was seized by the sheriff in November of last year.[36] It rather sounded as though it was the plaintiff’s traffic prosecution for drink driving that has prevented him from riding his motorcycle.
[36]Transcript 62-63
48 The plaintiff has a small garden area attached to his unit. The gardening required is done by his sons. He has a range of tools, but does not use them because the landlord of his rented property undertakes any necessary repairs on the unit.[37]
[37]Transcript 64-66
49 The plaintiff agreed that he earned the following gross income:
· to 30 June 1998 – $12,348 (including $6,902 from Austudy);
· to 30 June 1999 – $32,280;
· to 30 June 2000 – $31,309;
· to 30 June 2001 – $35,383;
· to 30 June 2002 – $38,891. It included $5,961 redundancy pay;
· to 30 June 2003 – $28,928 WorkCover payments;
· to 30 June 2004 – $11,540;
· to 30 June 2005 – $32,334;
· to 30 June 2006 – $33,008.
The Plaintiff’s medical evidence
50 Dr Barr appears to have first treated the plaintiff on 19 March 2001 for pain, discomfort and stiffness in the plaintiff’s left upper limb. The plaintiff told Dr Barr this was caused by the nature of his work over preceding months, and in particular, on 13 November 2000. Dr Barr provided a report dated 27 August 2013. A large part of the report is devoted to a recapitulation of radiology and scans. He referred to the plaintiff also telling him that he had pain in his right upper limb, neck and mid back. He prescribed him anti-inflammatory medication.
51 The last occasion Dr Barr treated the plaintiff prior to preparing his report was on 21 August 2013. Curiously, he recorded that the plaintiff was complaining of the following:
“… He was still complaining of the same pain, discomfort and stiffness of the left elbow and left upper limb and right upper limb and neck, as described above, and also anxiety state, headaches and insomnia.”
52 Dr Barr did not obtain a history of the plaintiff suffering pain in his wrists. However, when he last examined the plaintiff on 21 August 2013, he found tenderness over the right wrist; mobility and power reduced by 30 per cent, and diminished reflexes.[38]
[38]PCB 53
53 Dr Barr included 15 pages from his clinical notes, setting out the medication he had prescribed the plaintiff since 24 July 2005 and up to 21 August 2013. He then said that the plaintiff had suffered an upper limb impairment of 25 to 30 per cent, and a right upper limb impairment of 15 to 20 per cent without distinguishing how much of the impairment was due to the plaintiff’s wrists, if any at all. He then concluded by saying:
“I believe that he is only fit for part-time light non-regular duties not involving regular active use of the upper left limb in particular, and upper limb girdles in general, if such theoretical work does exist.”[39]
[39]PCB 69
54 There seems to be some confusion on the part of Dr Barr because the plaintiff’s evidence is in stark contrast to Dr Barr’s opinion and the basis for it. The plaintiff’s claim is based upon impairment of function of his wrists. The plaintiff describes some incapacity resulting from the impairment of function of his wrists, but appears to have emphasised that his right shoulder is also causing him significant problems. Despite that evidence, Dr Barr considers that it is the plaintiff’s left upper limb which is his major problem. It is not a complaint that the plaintiff has made in this proceeding. Dr Barr’s reference to upper limb girdles is a reference to the plaintiff’s shoulders and upper arms, and not to his wrists. Dr Barr’s opinion is confusing.
55 Dr Wilk, musculoskeletal physician, examined the plaintiff in September 2009. The plaintiff was referred to him by Dr Barr. After examining the plaintiff, the radiology investigations and scans, he considered that the plaintiff had some residual stiffness in both wrists, worse on the right side. He instructed the plaintiff to undertake stretching exercises. It would appear that he advised the plaintiff that some injections might help. There is no evidence to suggest that the plaintiff had any such injections.
56 Dr McInnis examined the plaintiff on 8 September 2011 on a medico-legal basis. He obtained a history from the plaintiff that both of his wrists were painful. On examination, he found normal strength in both of the plaintiff’s hands. He found no sensory or neurological abnormality in either wrist. He considered that the plaintiff was suffering from degenerative soft-tissue disease in the cartilage of both of his wrists, which was possibly worse on the right side. He considered that the degree of impairment of the plaintiff’s wrists was moderately severe. He considered that the degenerative soft-tissue disease in the cartilage of both of the plaintiff’s wrists was causally related to the work the plaintiff did with the defendant. Despite the latter opinion, he considered that the plaintiff was able to carry out moderate manual duties, but should avoid heavy repetitive work or using vibrating tools.[40]
[40]PCB 29-32
57 Mr Weber, orthopaedic surgeon, examined the plaintiff in August 2012. On viewing an MRI scan undertaken in 2002, he noted that it suggested tearing of the triangular fibrocartilage, which was more extensive on the left side. He reviewed an MRI scan undertaken on 5 April 2012 of the right wrist which suggested that the triangular fibrocartilage was intact, but thinned. There were early degenerative changes in the distal radionuclear joint of the right wrist. Mr Weber considered that the plaintiff had longstanding problems with his wrists, and a Chronic Pain Syndrome. He considered that the plaintiff could have an arthroscopic debridement of the left triangular fibrocartilage, but he appears to have been hesitant to contemplate that until the plaintiff had his pain managed. He did not offer an opinion regarding the plaintiff’s capacity to function in a domestic, social, recreational or work setting.[41]
[41]PCB 15-17
58 The foregoing is the sum total of the medical evidence adduced by the plaintiff. This evidence was adduced in support of his claim that the bilateral injuries to his wrists have impaired the function of his wrists, and that the impairment is responsible for pain and suffering consequences and loss of earning capacity consequences which are serious. The evidence falls dramatically short of proof to that degree.
The Defendant’s medical evidence
59 Mr Troy, general surgeon, examined the plaintiff on 3 May 2001, 24 July 2002 and 15 April 2003. In his last report, he considered that the plaintiff had suffered an internal derangement of the triangular ligaments of both wrists, which he considered to be work related. He considered that the plaintiff was fit for the work he was doing at the time, being driving a forklift, operating a shrink wrapping machine and working normal hours without restrictions.[42]
[42]DCB 20-21
60 Mr Stapleton, plastic and hand surgeon, examined the plaintiff on 24 April 2003 and 10 January 2005. He made the same diagnosis as Mr Troy, but he considered that the plaintiff’s employment with the defendant no longer contributed to the medical condition affecting the plaintiff’s wrists. At the time of his examination, the plaintiff was working for Rodek Fencing as a forklift driver. It would appear that he considered the plaintiff was capable of undertaking that work.[43]
[43]DCB 46-48
61 Dr Kostos, rheumatologist, examined the plaintiff on 7 March 2007, 10 August 2009, 5 October 2011 and 3 June 2013. He made the same diagnosis as Mr Troy and Mr Stapleton. He was of the same opinion as Mr Stapleton regarding the relationship between the condition of the plaintiff’s wrists and his work with the defendant. He considered the plaintiff was capable of working.[44]
[44]DCB 251b-251c
62 Dr Wyatt examined the plaintiff on 11 October 2011 and 6 September 2012. Dr Wyatt appears to have had the same radiology and scans as were available to Mr Troy, Mr Stapleton and Dr Kostos. She considered that the bilateral wrist pain suffered by the plaintiff was consistent with osteoarthritis in the plaintiff’s wrists. She was of the same opinion as Mr Stapleton and Dr Kostos regarding the relationship between the condition of his wrists and his work with the defendant. She considered the plaintiff was capable of working. She was provided with a list of job descriptions, which included forklift driving, among others. She considered that the plaintiff was capable of doing most of the duties described in the job descriptions.[45]
[45]DCB 261-263
63 Mr Dooley, orthopaedic surgeon, examined the plaintiff on 18 May 2012 and 23 July 2013. Essentially, Mr Dooley’s opinion is consistent with that of Dr Wyatt. He considered that he had a capacity to carry out at least light physical work and clerical duties.[46]
[46]DCB 267c-267d
64 Mr Buzzard, general surgeon, examined the plaintiff on 15 August 2012. He does not appear to accept that there was any work influence in the production of the condition of the plaintiff wrists. He considered that the plaintiff has a degree of degenerative disease in both wrists. He considered that the plaintiff had a capacity to carry out a range of work, including forklift driving.[47]
[47]DCB 270-271
Findings
65 It is more likely than not that the work which the plaintiff did with the defendant exposed his upper limbs to straining injuries. This is consistent with the opinion of Mr Troy that the plaintiff had suffered an internal derangement of the triangular ligaments of both wrists, which he considered to be work related. Mr McInnis is of a similar opinion.
66 However, the medical opinions post-dating Mr Troy’s last examination proposes that whether or not the plaintiff suffered such internal derangement or aggravated degenerative changes in his wrists, the work influence on the condition of his wrists ceased at some point. That is supported by the analysis made by Mr Stapleton, Dr Kostos, Dr Wyatt and Mr Dooley. Mr Buzzard is the only medical practitioner who considers that there has never been any work influence in the production of the plaintiff’s injuries.
67 None of the medical practitioners appear to doubt that the plaintiff continues to experience some pain and restriction of movement in his wrists. It is the reason why most have expressed the opinion that the plaintiff should avoid particular kinds of work which might aggravate the condition of his wrists.
68 In weighing up the competing opinions, it appears to me that the plaintiff did suffer injury to his wrists consistent with the opinions of Mr Troy and Mr McInnis, but it is doubtful whether the symptoms he now experiences are any longer work-related. It appears to me that the body of the evidence to support that conclusion is compelling.
69 Even if the plaintiff can establish causation, I am not persuaded that the plaintiff has suffered pain and suffering consequences which are “serious”. I accept the plaintiff’s evidence as follows:
· He has pain in both of his wrists. It would appear that the condition of his right wrist is more painful than the left;
· He suffers some interference with his sleeping pattern;
· In the past he has used a splint on his right arm when undertaking heavy lifting, such as doing gardening. I assume the reference to the right arm means the right wrist;
· He cannot engage in the tasks required of him in his pre-injury work;
· He uses Panadeine Forte and Voltaren for pain relief; and
· He does not appear to be having any active medical treatment except for the prescription of medication.
70 It is difficult to see what pain and suffering consequences the plaintiff has suffered beyond what I have just summarised. It is clear that he only went camping after he suffered injury. It is not clear how his motorcycle riding has been impaired by his injuries. It is clear that he has otherwise been able to drive a car and operate a forklift without any particular difficulty, and in the past has been able to drive a truck.
71 I have given due consideration to the approach advocated by the Court of Appeal in Aburrow v Network Personnel & Worksafe Victoria.[48]I have also given due consideration to what was said by Ashley JA in Dwyer v Calco Timbers Pty Ltd(No 2)[49] that an assessment of the pain and suffering consequences involves considering not only what has been lost by the particular applicant, but what has been lost can be informed by what has been retained.
[48][2013] VSCA 46, and in particular, at paragraphs 9-11
[49][2008] VSCA 260
72 The plaintiff’s affidavits and his oral evidence demonstrate that he has not had much medical treatment other than symptomatic treatment. It is true that he has had a number of radiological investigations and scans to locate the source of the complaints of pain. What those investigations have turned up is that the plaintiff has some identifiable pathology. This has not prevented him from working as a forklift driver and undertaking manual operations, save where they involve heavy lifting.
73 It occurs to me that the plaintiff has retained a significant capacity to work as a forklift driver and in work as a truck driver where there is an absence of the need for heavy lifting. The pain he experiences is insufficient to prevent him from undertaking that work, should it be available to him. His resort to medical treatment appears to be intermittent, and now for the purpose of obtaining prescriptions of medication. Judged objectively, the losses that the impairment of function of the plaintiff’s wrists has produced, when balanced against what he has retained, do not persuade me that the losses can be described as “very considerable”.
74 The plaintiff’s loss of earning capacity claim has never had any merit. It is clear from the summary I have given of the plaintiff’s work history post injury, that he returned to forklift driving, some truck driving, and has in fact earned in excess of $32,000 in subsequent years. According to his evidence, he would be driving a forklift now if it were not for the fact that he cannot get a job. If a job were offered as a forklift driver he would take it. I cannot see how the preponderance of both the medical evidence and the plaintiff’s own evidence, support a conclusion that he has suffered the requisite degree of loss of earning capacity when a comparison is made of his income with injury, and without injury.
Conclusion
75 One of the submissions made by the defendant was that the opinion of the Medical Panel that the plaintiff’s employment with the defendant is no longer a significant contributing factor to the soft-tissue injuries to his wrists is binding upon me. I do not need to consider that question because of the conclusions I have made on other grounds which are fatal to the plaintiff’s claim.
76 I am not satisfied that the plaintiff suffered a compensable injury on or after 20 October 1999 for the reasons already set out.
77 I am satisfied that the work influence in the production of the plaintiff’s injuries ceased some time ago for the reasons already set out.
78 Even if I am wrong about the foregoing, it otherwise seems to me that if I assume that the plaintiff’s injuries have produced a permanent impairment of function of his upper limbs, I am not satisfied that the pain and suffering consequences, nor the loss of earning capacity consequences are serious for the reasons already set out.
Orders
79 For the reasons set out above, I order that the plaintiff’s Originating Motion must be dismissed.
---
0
5
0