Stephens v Trans Pacific Industries Group Pty Ltd and Victorian WorkCover Authority
[2013] VCC 635
•11 June 2013
| IN THE COUNTY COURT OF VICTORIA AT LATROBE VALLEY CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-11-05259
| BRIAN STEPHENS | Plaintiff |
| v | |
| TRANSPACIFIC INDUSTRIES GROUP PTY LTD | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Latrobe Valley | |
DATE OF HEARING: | 21 and 22 May 2013 | |
DATE OF JUDGMENT: | 11 June 2013 | |
CASE MAY BE CITED AS: | Stephens v Trans Pacific Industries Group Pty Ltd & Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 635 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the right upper limb– pain and suffering – loss of earning capacity – issue estoppel – Medical Panel – no current work capacity
Legislation Cited: Accident Compensation Act 1985, s68(4), s134AB(16)(b), (37) and (38)
Cases Cited: Kocak v Wingfoot Australia Partners & Ors [2012] VSCA 259; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Acir v Frosster Pty Ltd [2009] VSC 454; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170; AMP Workers Compensation Services Ltd v Chalkley [1998] VSC 29; Aburrows v Network Personnel Pty Ltd [2013] VSCA 46; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1.
Judgment: Leave granted to bring damages for pain and suffering and loss of earning capacity.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P O’Dwyer SC with Mr J Goldberg | Slater & Gordon |
| For the Defendants | Mr J Batten with Mr A Saunders | Minter Ellison |
HER HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of his employment with the first defendant during 2007.
2 The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity. These discrete heads of damage require the application of different statutory tests, as mandated by s134AB(37) and (38).
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. There, “serious” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
4 The body function relied upon in this application is the right upper limb.
5 The plaintiff relied upon two affidavits and gave viva voce evidence. He was cross-examined. The plaintiff’s general practitioner, Dr Edwards, was required for cross-examination. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
6 In March 2011, the Medical Panel found that as a result of persisting right arm dysfunction due to right lateral epicondylitis, the plaintiff had no current work capacity and that this situation was likely to continue indefinitely.
7 Section 68(4) of the Act provides
“[F]or the purposes of determining any question or matter, the opinion of a Medical Panel on a medical question referred to the Medical Panel is to be adopted and applied by any court, body or person and must be accepted as final and conclusive by any court, body or person irrespective of who referred the medical question to the Medical Panel or when the medical question was referred.”
8 In Kocak v Wingfoot Australia Partners Pty Ltd & Ors,[1] the Court of Appeal held that a Medical Panel opinion is final for the purposes of determining a question or matter arising under or for the purposes of the Act.
[1][2012] VSCA 259
Outline of Section 134AB
9 Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.
10 The impairment of the body function must be permanent in the sense that it is likely to continue into the foreseeable future.
11 The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, ss(19) and (38)(e) of the Act impose specific burdens in relation to a claim for loss of earning capacity.
12 By ss(38)(c) of the Act, the impairment must have consequences in relation to each of pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “more than significant” or “marked” and as being “at least very considerable”.
13 I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
14 Where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of forty per cent or more, both at the date of hearing and permanently thereafter.
15 Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured.
16 Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the forty per cent loss has been established.
17 Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
18 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[2] and Grech v Orica Australia Pty Ltd & Anor[3] in reaching my conclusions.
[2](2005) 14 VR 622
[3](2006) 14 VR 602
The Plaintiff’s evidence
19 The plaintiff is presently aged fifty, having been born in July 1962. He is naturally right handed.
20 The plaintiff left school at the age of fourteen, before completing Year 9. He has not had any formal education or training and his reading and writing skills are extremely poor. He is illiterate. The plaintiff swore his affidavit after its contents had been read to him.
21 The plaintiff deposed he completed a four-year apprenticeship as a painter and decorator and then for almost twenty years worked self employed in that capacity in the Latrobe Valley and Melbourne area.
22 In about 1980, the plaintiff was a passenger in a transport accident in which he suffered head injuries (“the transport accident”). He made a good recovery and was able to get back to full-time unrestricted work.
23 In cross-examination, the plaintiff confirmed he started his apprenticeship at the age of sixteen in Moe, completing it in 1982. He then commenced work as a self employed painter in the Traralgon area under the registered business name B A Painting. The plaintiff initially said he last worked in that capacity before he commenced work with the first defendant. He also did some panel beating before he worked with the first defendant.[4]
[4]Transcript (“T”) 59
24 The plaintiff agreed he had also worked for about seven years with Latrobe Valley Shire in Moe, painting guide posts and toilets. He left that job as he was sacked. He then went on the dole for a while and later bought a car and resumed painting.
25 The plaintiff also agreed that for about a year in around in 2000, he and his wife had owned a fish and chip shop which his wife ran. The business was sold when their marriage broke up.[5]
[5]T15
26 The plaintiff commenced casual employment as a truck driver with Cleanaway, now known as Transpacific (“the first defendant”), a waste collection business, in Morwell on 1 July 2004. He later became full time.
27 The plaintiff’s job involved driving a waste collection truck, collecting household waste and refuse from homes and other premises in the Latrobe Valley on different collection runs every week.
28 In cross-examination, the plaintiff said he was doing handyman work while working for the first defendant, painting their bins on a subcontracting basis the second year he was in that job. He earned about $13,000 painting bins in 2006-2007 for six months of subcontracting.[6]
[6]T24
29 In cross-examination, the plaintiff agreed he earned about $40,000 with the first defendant in 2005-2006 and 2006-2007.
30 The plaintiff usually started work at 6.00am and finished mid to late afternoon, sometimes as late as 5.00pm, depending on the work involved. The truck was driven on the left side and the plaintiff used his right hand and arm to operate a control handle like a joystick, which operated the truck’s loading equipment. The mechanism lifted and dumped the contents of the bins into the truck and it lifted and split the contents of the bins into the truck and replaced the bins on the ground.
31 The control handle was upright, about six to eight inches in height, and had moulded finger grips. Collecting and emptying garbage bins meant the plaintiff was constantly gripping and holding the handle, using his fingers to operate control buttons, and moving the handle from side to side and forward to back.
32 Throughout a working day collecting and emptying garbage bins, the plaintiff was constantly and repeatedly gripping, operating and handling the control mechanism with his right hand, wrist and forearm.
33 During 2007, whilst engaged in these duties, the plaintiff developed discomfort and pain in the right hand and in and around his right elbow (“the injury”). The severity of the discomfort and pain fluctuated but progressively worsened. Over time, the symptoms of discomfort and pain persisted and were ongoing and became so severe the plaintiff struggled to operate the control handle, having difficulty gripping, moving and operating it.
34 In about October 2007, the plaintiff saw his local general practitioner, Dr Omidiora in Morwell, who recommended physiotherapy and prescribed medication and put the plaintiff off work for about two weeks.
35 After returning to work, the plaintiff’s symptoms quickly returned and he was struggling to tolerate persisting right arm pain and discomfort, especially in the right elbow, forearm, wrist and hand. He tried to keep working but was having chronic problems trying to use his right arm and hand in any normal way.
36 The plaintiff was experiencing ongoing recurring pain and discomfort in his right elbow, with pain into the forearm. Tasks which required repetitive strong or sustained forceful movements were very difficult for him.
37 In about mid 2008, the plaintiff had injections in his right elbow which failed to improve his symptoms. In about July 2008, he was referred to Mr Berger, hand and upper limb surgeon, who organised a right elbow MRI on 18 July 2008. Thereafter, Mr Berger recommended surgery, which was performed on the right elbow in October 2008.
38 The plaintiff deposed that after surgery, he had physiotherapy and was treated with medication. His recovery from the surgery was slow. In cross-examination, the plaintiff was not sure if he had physiotherapy after surgery but he did have that treatment prior to the surgery.
39 The plaintiff confirmed surgery helped just a little bit, and then his elbow returned to its condition pre surgery.[7] The plaintiff underwent a cortisone injection after the surgery and he did not think he had seen Mr Berger since that time.
[7]T40
40 The plaintiff confirmed he had been told by a number of doctors, including Dr Edwards, that he had a Chronic Regional Pain Syndrome but he did not know what that condition was. No doctor had suggested the plaintiff become more active to assist with his recovery.[8]
[8]T51
41 On one occasion, the plaintiff saw Dr Muir, a pain specialist, who showed him a lot of exercises which were nearly the same as those suggested by the physiotherapist.[9]
[9]T41
42 The plaintiff does not have any problem with his right shoulder. He reckoned he might have some Major Depression but had not told Dr Edwards that was the case nor had he had any treatment in that regard.
43 In January 2009, the plaintiff tried to return to work but was unable to do so because of chronic problems with his right elbow, forearm and hand.
44 The plaintiff last worked for the first defendant in January 2009. He had been unable to return to work because of chronic ongoing right arm problems, especially in his elbow, forearm and hand.
45 In cross-examination, the plaintiff could not recall whether he had gone back to work or not after the surgery, although that history was noted by Mr Scott on examination in March 2009.[10] The plaintiff had no recollection of lifting two plastic bins on his return to work, causing a worsening of his right elbow pain, after which he ceased work.[11]
[10]T58
[11]T59
46 The plaintiff remained in receipt of WorkCover weekly payments until they were terminated in November 2010.
47 The plaintiff was no longer capable of the work he did with the first defendant. He could not drive a large waste collection truck and was no longer capable of doing any of his pre injury work.
48 The plaintiff had been unable to return to work because of chronic right upper limb problems, especially in his right elbow, forearm and hand. He had constant pain in the right elbow, forearm and hand and was not able to use his right hand and arm fully and freely. It was much weaker and lacked strength. He could not use it in a forceful, repetitive or sustained fashion.
49 When he tried to do such activity, the plaintiff experienced a marked increase in pain and symptoms. He could not make and sustain a strong grip and he was not able to lift and carry even moderate to heavy weights without pain and discomfort. As much as he could, he tried to remain active and tolerate his symptoms but he no longer had the strength, power and movement of the right elbow, forearm and hand to enable him to use his right arm fully and freely.
50 The plaintiff had pain in and around the right elbow which went down the forearm to the right hand and frequently he experienced swelling in his fingers. He also experienced a burning like sensation in his right forearm, especially when undertaking physical activities or trying to use his right hand and arm in a forceful strong way.
51 Because of his right arm injuries, the plaintiff was also no longer capable of working as a painter and decorator. For many years he had worked as a self employed handyman and had worked as a registered business doing repairs, maintenance and painting. He was reasonably skilled at that work and was self taught. The plaintiff had always regarded himself as a good handyman and was able to tackle most repair and maintenance type work readily and confidently and was pretty good at what he did.
52 Handyman work was now beyond him as he was unable to use hand tools, such as hammers and screwdrivers, because of difficulty gripping and using those tools in a repetitive, sustained and forceful way because he had no real effective use of his right arm and hand.
53 In cross-examination, the plaintiff agreed he tried to do things in his shed but cannot do any painting. He would grab a paint pot and see if he could hold it. He goes into the shed and experiments with what he can and cannot do. He has tried to cut up some steel with a hacksaw using his right hand.[12] He could do little jobs around the house, like changing a bit of skirting.
[12]T30
54 The last time the plaintiff did any handyman work around the house was ages ago, as he cannot use his right arm properly.[13] There are rusty paint brushes at home and he has long since sold the drop sheets.
[13]T46
55 The plaintiff’s main interest and favourite hobby is motor cars. In the past, much of his spare time had been spent rebuilding and repairing motor vehicle parts, especially engines, gearboxes and drive trains. He had rebuilt motor vehicles, doing all the work himself. He repaired, panel beated and painted motor vehicle panels and parts. His shed was a mini workshop and he had all the tools and equipment he needed, such as engine stands, block and tackles, welders and compressors.
56 The plaintiff has worked on cars in his shed at home for the last twenty eight years. He used to work on the weekends at night while working for the first defendant. The last time he rebuilt a motorcar was way before he went into trucks, so back in the 1990s.
57 In the past, the plaintiff had rebuilt a Ford sedan and Daihatsu hatch wagon. He had been unable to return to that sort of activity since suffering injury because of persisting right arm and elbow problems. His inability to use his tools and undertake and enjoy repair and restoration work and other tinkering activities in the workshop had been very frustrating and disappointing for him.
58 The plaintiff does simple minor repair work on family cars but is not able to do repair and maintenance work as he did in the past.
59 The plaintiff is very limited because of the ongoing unpredictable problems he experiences with his right elbow, forearm, wrist and hand.
60 In cross-examination, the plaintiff described how he no longer does major work on cars, he just tinkers under the bonnet.[14] He could not do a major service; he just does simple minor repairs working on family cars. In recent times he has done a headlight refit, which he described as a simple job, and he has changed filters. [15]
[14]T28
[15]T29
61 The plaintiff has not worked on a car in the last eighteen months. In the last two years, he has done a radiator repair job for his niece on her Commodore which he worked on his driveway.
62 The plaintiff did not do all that job. His niece undid everything that needed to be undone and he undid the screwdriver hose for her using his left hand. The plaintiff had also helped his friend, Doug Jones, with a manifold gasket in his car In that task, the plaintiff was really just looking and supervising whilst having a beer. [16]
[16]T60
63 The plaintiff has not tested his ability to use hammers on the vehicles around the house. He owns three or four hammers and a nail gun.[17] He has tried to use the hammer with his right arm.
[17]T60
64 The plaintiff’s other major recreational activity in the past had been surf fishing at Port Albert, Seaspray and other locations. Since his injury, he found it very difficult to carry equipment, cast and retrieve fishing lines and land fish.
65 In cross-examination, the plaintiff said he not been surf fishing since about 2005.[18]
[18]T26
66 Since 2008, the plaintiff had been depressed, anxious and at times irritable and difficult to get along with. He had struggled with the persistent ongoing right arm and hand problem and his inability to do things because of these limitations caused by his injuries.
67 When he swore his first affidavit in December 2010, the plaintiff was using Norspan patches initially prescribed by Dr Hall[19] and when the pain was quite severe, he took Panadeine Forte.
[19]T42
68 The plaintiff’s sleep was disturbed by pain and he struggled to get comfortable and enjoy a good night’s rest. The use of medication also made him very drowsy. His day-to-day activities and recreational activities had been markedly affected and he was not able to work.
69 The plaintiff swore a supplementary affidavit on 3 May 2013.
70 The plaintiff had not returned to work and was not able to do so because of the chronic problems with his right elbow, wrist and hand. He remained in receipt of weekly payments until they were terminated in mid 2010.
71 With the support of his general practitioner, Dr Edmonds, the plaintiff was granted a Disability Pension and his wife was granted a Carer’s Pension. Weekly payments were then reinstated after the plaintiff was assessed by a Medical Panel in 2011. The plaintiff received $8,000 under his superannuation policy six months ago. He has had no other income besides weekly payments in the last two years.
Attempt to return to work
72 In late 2010, the plaintiff tried to return to work as a teacher’s aide, working with a group of fifteen to seventeen year old boys to rebuild a pergola. He found the tasks involved in that role very difficult because of the restrictions on the use of his right arm, elbow, wrist and hand.
73 In examination-in-chief, the plaintiff confirmed Recovre had organised this job working with troubled adolescents. The plaintiff worked in this role for about four weeks. He had difficulty helping the students with their spelling. The students often would not turn up for class and when they did they did not listen.[20]
[20]T9
74 In cross-examination, the plaintiff explained the teacher’s aide job was the only one Recovre could find.
75 The plaintiff did not enjoy this job.[21] The students were asking too many questions and the plaintiff had just started on his patches and he was having trouble concentrating. He had done a bit of a literacy course before starting this job and he was then transferred to the class. The plaintiff agreed he laughed at the suggestion of that job.[22]
[21]T50
[22]T50
Current condition
76 The plaintiff has constant aching, discomfort and pain in his right elbow. His forearm and wrist feels abnormal and heavy, like a woody, dead feeling in the forearm and hand. In cross-examination, the plaintiff described being in severe pain most of the time.[23]
[23]T46
77 The plaintiff copes with daily activities involving the use of his right hand, arm and both hands. Some days are more difficult than others, depending upon the level of discomfort, pain and symptoms in his right elbow, forearm and hand.
78 The plaintiff has difficulty doing many tasks and activities involving the forceful use or sustained ongoing use of his right arm and wrist. Using a hammer or other hand tools and applying strength and force repeatedly or for prolonged periods causes a severe increase in pain, making it difficult for him to continue. Also, once the discomfort and pain is stirred up, it takes a long time for it to settle.
79 The plaintiff remains frustrated, often irritable and edgy because of the difficulties he experiences with his injury and the limitations imposed on him.
The video
80 The plaintiff was shown about 14 minutes of video taken of him at Margaret Street, Moe on Thursday, 7 July 2011 commencing at 12.31pm working at various times on his niece’s Commodore. The film concluded at 1.28pm.
81 The plaintiff agreed he was shown using his right arm from time to time and using a rag to wipe grease off his hands. He explained the grease was there because he had been cleaning the tools his niece had been using, not from him working under the bonnet.[24]
[24]T37
82 The plaintiff did a little bit of work on the radiator, took the hose off and took the air filter out and smashed it against the fence. He let his niece do the other jobs because he did not want to hurt or activate his arm pain.[25] The plaintiff admitted he carried the top of an air filter to the front of the shed using his right hand.
[25]T37
83 The plaintiff did not deny he was capable of using his right arm for certain activities, “a little bit here and there”.[26]
[26]T37
84 The plaintiff was not aware of the film’s existence before it was shown in Court but he knew that there were photographs of him working on cars. Since he had been told about the photographs, he had not done any work on cars. He could do a little, but nothing major.[27]
[27]T38
85 Whilst the plaintiff was shown using a small hose for a number of minutes and admitted he could do so for about half an hour or so, holding it in his right hand, he could not wash down trucks all day as he had done on his return to light duties after the initial injury.[28]
[28]T40
Current medication and treatment
86 The plaintiff cannot get by without medication. He uses 20-milligram Norspan patches which are changed every four to five days. These help keep the discomfort and pain at a steady level.
87 The patches control about fifty per cent of the plaintiff’s pain[29] but he disagreed that therefore he had an increased capacity to use his hand 50 per cent.[30] He had not told Dr Edwards that, and just told him his elbow was still hurting.[31]
[29]T54
[30]T54
[31]T53
88 Dr Edwards has not discussed with the plaintiff that the patches are highly addictive and he said they were helping his pain.[32]
[32]T55
89 The plaintiff has not discussed the addictive component of his present medication with Dr Edwards but he has talked about the level of medication a lot.[33] He chats with Dr Edwards a fair bit about medication.
[33]T47
90 The plaintiff is not able to increase his use of the hand because “it still hurt like hell.”[34] When the pain is severe, such as in cold weather or at night, if the plaintiff lies on his right arm for too long, his pain becomes acute.
[34]T55
91 The plaintiff uses Panadeine Forte and rarely does a week go by when he does not have to use it. He takes it about four times a week together with up to six over the counter Panadol.
92 Dr Edwards takes the plaintiff’s blood pressure and sees how he feels. The plaintiff just tells him he “feels crap still” and just fills out his form. He examines the plaintiff’s right forearm when he says it is hurting a bit but it has not changed for a while.[35] Dr Edwards does not examine the plaintiff’s forearm every time.[36] He has given the plaintiff exercises squeezing the ball in his hand to get the blood circulating.
[35]T61
[36]T62
93 Dr Edwards has not been involved in treating the plaintiff in relation to chest pains for which he was an inpatient at Latrobe Regional Hospital in July last year. The plaintiff then found out he had some sort of lung infection and he saw a local doctor in Moe.[37]
[37]T62
Work future
94 Because of his ongoing right upper limb problems, the plaintiff is no longer capable of performing any of the work he did in the past.
95 In examination-in-chief, the plaintiff confirmed that he did not believe there was any work he could do. He had been thinking about it but he could not think of anything.[38] He had only ever done painting or truck driving.
[38]T10
96 The plaintiff had “tried heaps” to get back into the workforce before surgery but he is now not looking for work and he is not registered with any job agency. No-one has told him not to work.[39] When asked whether he was saying he was in so much pain that despite tablets he could not do anything, he said he was limited how he could read.[40]
[39]T39
[40]T39
97 When it was put to the plaintiff he was not seriously saying there was no job suitable for him, the plaintiff asked counsel for the defendant: “Well, if you find it, you tell me.”[41] The plaintiff has not gone back to the Council seeking further work because they sacked him.
[41]T50
98 The plaintiff can drive for a bit more than the thirty minutes but he would not be able to drive for longer periods as a taxi driver.
99 The plaintiff would love to go back to work.[42]
[42]T51
100 The plaintiff does not talk to Dr Edwards about a return to work or the type of duties he could be doing.
101 The plaintiff did not think he could work as a traffic controller because he would have to wear a brace if he was standing all day and that would hurt his neck.[43]
[43]T63
102 In re-examination, the plaintiff said that that job had never been suggested to him before today and he did not know whether there was any clerical paperwork involved and said he just knew about a stop sign.[44]
[44]T65
103 When he finishes his case the plaintiff is “going to sit down and do nothing”.[45]
[45]T49
Level of movement
104 The plaintiff can use his right arm but he does not like moving it around. When his arm is in a lot of pain, he cannot do anything, but through the week it is “okay”.[46]
[46]T20
105 In cross-examination, the plaintiff was asked about Mr Ireland’s findings on recent examination. The plaintiff agreed he had a full range of elbow movement. There was no muscle wasting. When the plaintiff put his arm out in front of him in the witness box, he said he did not want to put his forearm out any higher because he could feel it stretching and that was when “it started to hurt like crap”.[47]
[47]T48
106 The plaintiff thought it was not true that he was using both arms to the same degree.[48] He agreed that he had normal grip strength and his right hand grip is not less than it used to be.
[48]T48
107 The plaintiff has tested himself with weights such as a 4-litre can of paint which he held up to his hip. He described this type of activity as “it’s mental mind for me”.[49] He was just testing himself out and did not do so on medical advice.
[49]T42
108 The plaintiff denied he used a 4-litre tin of paint for half an hour up to hip height to test himself. He held the tin to see how it felt in his arm but he had not done that for ages. He does not go out in the shed and play with it any more because he knows his arm hurts like hell.[50]
[50]T61
109 The plaintiff agreed that he had tested his right arm with a 10-kilogram weight in his garage in recent times, as Mr Ireland reported.[51] He has tried things like putting a bit of wood in a vice and using a handsaw. He could cut through it, but after, his arm just starts aching too much and he says, “Bugger this and I have to go and sit down”.[52]
[51]T63
[52]T32
110 The plaintiff does not have any problems with his left upper limb.[53]
[53]T31
111 The plaintiff has problems getting off the ground or out of a recliner, putting pressure on his right arm.[54] The plaintiff indicated if he used his hand he got pain up into his forearm and it starts aching like hell.[55] He has no pain in the upper forearm and the pain is in the top of his right elbow, right around it.
[54]T34
[55]T35
Current activities
112 The plaintiff sleeps a lot and watches television. He goes to the shops if he has to and he can carry shopping if it is not too heavy. He has a ‘pull start’ mower but does not do the mowing because WorkCover organises it.[56] The plaintiff walks around the house a lot and does very little gardening.
[56]T45
113 The plaintiff continues to drive a car, mainly locally. On longer trips, his wife drives and he shares the driving. The plaintiff does not drive far because his right elbow and arm become very uncomfortable, very tender and because it is difficult to place it in a comfortable position.
114 The plaintiff last went on a holiday five years ago for his wedding and he enjoyed himself. He has not been ten-pin bowling since his injury.
The Plaintiff’s earnings
Financial Year Ending
Gross Income from Personal Exertion
Source
30 June 2005
$41,464
Transpacific Cleanaway Pty Ltd
30 June 2006
$41,906
Transpacific Cleanaway Pty Ltd
30 June 2007
$40,493
Transpacific Cleanaway Pty Ltd
30 June 2008
$39,045
Transpacific Cleanaway Pty Ltd
30 June 2009
$31,408
Transpacific Cleanaway Pty Ltd
30 June 2010
$34,428
Transpacific Cleanaway Pty Ltd and Gippsland Community College Gippsland Ltd
30 June 2011
$30,497
Transpacific Cleanaway Pty Ltd and Gippsland Community College Gippsland Ltd
30 June 2012
$32,736
Transpacific Industries Pty Ltd
Treatment
115 Dr Omidiora from Hollie Drive Clinic (“Hollie Drive”) in Morwell reported in May 2009. He noted the plaintiff presented in October 2007 with right forearm pain and was diagnosed as suffering from lateral epicondylitis of the right elbow.
116 The plaintiff had had physiotherapy, local cortisone injection and recently, surgery. Dr Omidiora thought the prognosis was guarded, noting the plaintiff still had pain but hopefully that would settle with time. No further active intervention was presently planned.
117 Dr Omidiora noted the plaintiff had consulted with the surgeon, Mr Rehfisch, and had physiotherapy treatment at Gippsland Physiotherapy in Morwell.
118 Dr Al Mayahe from Hollie Drive reported in September 2010.
119 Dr Al Mayahe noted the plaintiff was not able to return to his pre injury duties and he would be able to work four hours a day at light duties not requiring use of the right hand.
120 Dr Al Mayahe thought it might be useful to have the plaintiff evaluated further by further independent specialists, noting he had been seen by Mr Berger and Dr Muir for pain management.
121 In Dr Al Mayahe’s view, the plaintiff now seemed to have a longstanding injury which was ongoing and had not resolved.
122 Dr Hall, from Moe Newborough Health, reported to the Conciliation Service in September 2010.
123 When Dr Hall first saw the plaintiff in relation to his incident condition in 2010, the main complaint was burning pain in the right radial area. The plaintiff advised the patch worked better than medication.
124 Dr Hall’s assessment was that the plaintiff’s condition was now becoming a Regional Pain Syndrome with neuropathic component. If the logistics could be arranged, he thought the plaintiff should do a two week full time rehabilitation program in Glen Waverley.
125 Dr Hall advised that Lyrica may allow removal or reduction of narcotics from the plaintiff’s regime. He thought the plaintiff was physically able to work in jobs in which did not require actively using his right hand. However, the plaintiff’s functional lack of literacy, not reading a paper or written instructions, and having difficulty writing and spelling words, severely limited his ability to work in a job where he created surplus value for a potential employer.
126 Dr Edwards has treated the plaintiff since October 2010 at Churchill, having earlier seen him at Hollie Drive.
127 Dr Edwards reported in April 2013 that the plaintiff had been diagnosed as suffering from right elbow tendinopathy which had resulted in the chronic pain situation. Current treatment involves analgesic patches and Panadeine Forte.
128 Dr Edwards thought the plaintiff’s condition had stabilised and his chronic right elbow pain was not expected to significantly improve and he would require ongoing analgesics.
129 In cross-examination, Dr Edwards explained that “a chronic pain situation” was a diagnosis he had reached after looking at the plaintiff’s history, the length of time he was suffering from that condition, from previous medical reports and also from his own knowledge. His interpretation of chronic pain in a situation like the plaintiff’s was “often a sort holistic one that one arrived at after the length of time that the plaintiff had been treated”.[57]
[57]T67
130 Dr Edwards thought Chronic Pain Syndrome is a very difficult thing to understand. He agreed it is also called a Regional Pain Syndrome.[58] He was not surprised that by September 2010, Dr Hall considered the plaintiff had a Regional Pain Syndrome because of the length of time the plaintiff had been suffering his pain.[59]
[58]T68
[59]T69
131 Dr Edwards does not examine the plaintiff’s arm every time he attends, particularly because it is a WorkCover situation. He agreed that the plaintiff presented to have localised pain in the right upper limb or pain immediately below the lateral epicondyle radiating into the hand, or pain radiating up into the shoulder. That was broadly how the plaintiff presented with his dominant arm.[60]
[60]T69
132 Dr Edwards explained the plaintiff’s description of symptoms slightly changes from shoulder to elbow to forearm, but it is generally in the upper limb.[61] Dr Edwards disagreed it was localised in a band immediately above the elbow.
[61]T69
133 Dr Edwards agreed his treatment was conservative and was more one of maintenance as the plaintiff had been actively treated before he started to see him regularly in late 2010.
134 Dr Edwards understood the plaintiff had been through the full rehabilitation treatment after surgery and when he started looking after the plaintiff there was really nothing left for him to do for him. He thought there were very few gains that he could achieve for the plaintiff.[62]
[62]T70
135 Dr Edwards thought there had been some benefit in attempts at pain control rather than trying to improve any function in the arm.[63]
[63]T70
136 The plaintiff may well have a degenerative tendon but that has not been discussed.[64]
[64]T70
137 Dr Edwards has never been trained in occupational health. He has discussed alternative employment with the plaintiff but not with any positive response.
138 Dr Edwards said it was very difficult to answer whether the plaintiff was motivated or not. When he took over his care, the plaintiff was sort of focussed on his arm problem and there was no motivation left in him to get back to work. Dr Edwards also noted the plaintiff is illiterate and the only options would probably be heavy physical work and his injured arm was his dominant one, so that immediately shut down quite a lot of opportunities.[65]
[65]T71
139 Dr Edwards did not think the plaintiff could cope with a full shift as a taxi driver. He conceded the plaintiff has no motivation to return to work.[66] He has not suggested some light work the plaintiff could do.
[66]T71
140 Dr Edwards did not necessarily agree that treatment had been met with complete negativity.[67] He would say the plaintiff had no motivation to go back to work if he had to be quite definitive about it.[68]
[67]T71-2
[68]T72
141 Psychological factors were not playing a part, nor was secondary gain. Dr Edwards thought the plaintiff just had no intention of returning to work, because he could not see there were any opportunities. Dr Edwards was not sure if the plaintiff had been given the kind of rehabilitation and opportunities that were being suggested to him by defendants’ counsel. Dr Edwards did not know about the plaintiff’s Council work or owning a fish and chip shop.
142 Dr Edwards confirmed the plaintiff was using a narcotic patch which he thought in patch form for chronic pain was said not to be addictive.[69] It was considered to be very effective if given in appropriate doses for controlling pain.
[69]T73
143 Dr Edwards knew of a codeine problem found by Dr Hall and that is why the plaintiff was started on patches.[70]
[70]T73
144 Dr Edwards prescribes Panadeine Forte in small quantities for breakthrough pain, even though the plaintiff continues on patches.[71] The plaintiff takes Panadeine Forte after he has had a bad day but he does not tell Dr Edwards what that bad day involves.
[71]T74
145 The plaintiff has told Dr Edwards that he has had pain relief thanks to his prescription. From time to time the dose has been varied and Dr Edwards always tries to keep it at a minimal level so the plaintiff gets reasonable pain relief. However, the plaintiff is never pain free and he has not told Dr Edwards this is the case. He has told him his pain is reasonably well controlled.[72]
[72]T74
146 Dr Edwards has not discussed with the plaintiff what he can do when his pain is well controlled.[73] The plaintiff has never described a percentage in terms of improvement of pain.
[73]T74
147 When it was suggested the plaintiff no longer had any significant pathology, Dr Edwards said there was no specific injury any longer; the plaintiff had got chronic pain. He thought it very difficult to answer whether the chronic pain syndrome was psychologically based.[74] He had never seen it that way; otherwise he would not be prescribing the present pain relief medication.[75]
[74]T75
[75]T76
148 Dr Edwards did not think there was any further gain in the plaintiff undertaking more exercises.[76] On the basis of Mr Ireland’s recent findings, with which Dr Edwards agreed, Dr Edwards thought there was nothing further to be gained physically. [77]
[76]T76
[77]T77
149 When it was put to Dr Edwards that the plaintiff had tested the 4-litre drum, he said it would surprise him he could do it regularly, but he thought he could do it once or twice.[78] He would be surprised because of the pain that the plaintiff was alluding to.[79] On occasion he would not be surprised to see the plaintiff lifting weights up to 10 kilograms.[80] It would not surprise Dr Edwards if the plaintiff could use a hacksaw but he could not do so all day.[81]
[78]T78
[79]T79
[80]T79
[81]T75
150 Dr Edwards did not think the plaintiff’s condition had changed much between September 2011 and February 2013. It was very difficult to take the pain out of the plaintiff’s situation.[82] Clearly, his arm had improved, but the plaintiff is always complaining about pain.[83]
[82]T79
[83]T80
151 Dr Edwards explained that a doctor had to listen to what a patient says. He guessed he had to accept the subjective complaint of pain and that is why he is prescribing what he is. The only realistic way he had found of looking after chronic pain was to maintain the medication and try and keep the patient stabilised and certainly not prescribe excessive amounts.
152 Chronic pain was a very difficult problem in general practice.[84] Dr Edwards accepted that in WorkCover it became more difficult. Secondary gain, he agreed, was one of the factors that one read about in the literature.
[84]T80
153 The plaintiff told Dr Edwards he does nothing during the day.[85] Dr Edwards thought the plaintiff would be able to tinker under the bonnet of cars for friends and family, because that is not heavy work; it is not like lifting an engine block. He thought the plaintiff may find changing a radiator quite challenging but he should be able to do an air filter. He noted that headlights might require fine work and the plaintiff might struggle with that to some extent, undoing the screws.
[85]T81
154 Dr Edwards was shown the video. He agreed the plaintiff was clearly active. When it was put to him the plaintiff was not a man sitting at home, he said he did not think the plaintiff’s right upper limb was being used very much at all. The plaintiff was suing mainly his right hand.[86]
[86]T84
155 Dr Edwards did not observe the plaintiff doing any fine motor movements at all. He only observed him once lift his arm above his shoulder and that was only very, very briefly. He did not really see the plaintiff bend his elbow. Most of what the plaintiff seemed to be doing was with a fairly straight rigid arm and most of the activities seemed to be with his non dominant arm.
156 Dr Edwards explained that he was not trying to defend the plaintiff but look at the film objectively.[87] He did not see a great deal of activity with the dominant arm. It was consistent with what the plaintiff was telling him, that he does not do very much.[88] He has never seen the plaintiff in a sling, nor had the plaintiff told him he wore one.
[87]T84
[88]T84
157 The level of movement shown on the film was fairly consistent with how the plaintiff has presented from October 2010.[89] Whether the plaintiff could maintain the level of activity shown on film for a working day would have to be questioned.[90]
[89]T85
[90]T85
158 Dr Edwards agreed the plaintiff is certainly not a cripple; he can physically move his arm, but the question remains whether he could consistently achieve work for several hours at a time and that has not been tested by him. The plaintiff’s arm is quite capable of a range of movements that could be used during work, but whether he could maintain it for a long time was Dr Edwards’ problem.[91]
[91]T85
159 Dr Edwards thought there was nothing that would stop the plaintiff from holding a traffic control sign but whether the plaintiff had the literacy to understand what he was doing, he was not sure.[92] He would obviously say to the plaintiff to give that job a go but whether he could pass the course he did not know.[93]
[92]T87
[93]T88
160 When it was suggested that he could not say the plaintiff had no work capacity at all in the future, Dr Edwards responded he would just have to wonder how long the plaintiff could keep those activities up for if he was set in a workplace.[94]
[94]T88
161 Dr Edwards had no objection to the plaintiff going to pain management and he would recommend it. He would see it as of some assistance to get the plaintiff off his significant medication if that was possible, but he did not believe that the plaintiff had a medication driven syndrome.
162 Damian Rowe, physiotherapist from Gippsland Physiotherapy Group, reported in May 2008 that he began treatment with the plaintiff on 20 November 2007, when he presented complaining of right lateral elbow pain aggravated by repetitive use at work.
163 Mr Rowe noted the plaintiff’s progress had been slow but steady, with a gradual return to duties, managing up to 200 bins a day on four days a week, which was about a quarter of his normal workload. However, the plaintiff’s pain then began to increase, which led to a decision to have a cortisone injection, as a result of which his condition appeared to deteriorate and he experienced a significant increase in pain levels that was now only beginning to settle to pre injection levels.
164 Mr Peter Rehfisch, orthopaedic surgeon, wrote to Dr Omidiora in May 2008 thanking him for referring the plaintiff.
165 Mr Rehfisch noted that on examination, the plaintiff had a tender area in the extensor musculature of the forearm approximately 4 centimetres distal to the lateral epicondyle but no tenderness over the lateral epicondyle itself. There was a full range of elbow and forearm and good movement in the wrist without crepitus or irritability.
166 Mr Rehfisch thought the plaintiff’s signs and symptoms were highly suggestive of a soft tissue problem in the forearm but it did not appear to be typical of lateral epicondylitis. He noted those problems were usually difficult ones to fix and he believed the plaintiff needed to keep away from activities that were likely to worsen it. He suspected further cortisone injections should be avoided as the one the plaintiff had, had not improved him.
167 Mr Rehfisch advised he had encouraged the plaintiff to continue with all the activities that were helping him at present and consider rubbing onto his arm some local rubs, particularly those producing heat. Mr Rehfisch, however, believed there were then no surgical options for the plaintiff and surgery would not wish to be attempted unless the pathology in his arm could be carefully delineated preoperatively. He noted the plaintiff seemed happy with that advice and would return and see him if he had further concerns.
168 Mr Berger, hand and upper limb surgeon, reported in April 2009, noting the plaintiff was first referred to him in July 2008.
169 On examination, there was some tenderness over the lateral epicondyle of the right elbow and along the course of the posterior interosseous nerve. There were no sensory symptoms.
170 Mr Berger noted the plaintiff provided some MRI scans which confirmed the presence of a right sided lateral epicondylitis. Given the duration of symptoms and the failure to respond to conservative treatment, it was decided to proceed with the surgical release which was performed on 9 October 2008.
171 Mr Berger advised surgical findings then confirmed the presence of a large area of degenerative tissue over the lateral epicondyle.
172 On review six weeks after surgery, the plaintiff still had pain in the lateral elbow radiating to the hand which was sharp at all times, and he was referred for some hand therapy.
173 The plaintiff was reviewed most recently in February, four months after the surgery. His elbow was again continuing to cause trouble with pain and he felt there was no improvement with his therapy.
174 Mr Berger injected the tennis elbow with local anaesthetic and the plaintiff was provided with a strap to reduce stress on the common extensor origin.
175 Mr Berger concluded the plaintiff presented with right sided epicondylitis in relation to which surgery had had limited success. He noted the plaintiff had a further cortisone injection and ongoing therapy.
176 Mr Berger advised that at that stage, the plaintiff was not recovering well following his surgery and as such, his prognosis for the plaintiff’s condition was guarded. He thought the plaintiff may require further investigations and treatment if his symptoms persisted. No referrals had then been made.
177 A rehabilitation assessment report was carried out by the Victorian Rehabilitation Centre following assessment on 16 December 2008. The plaintiff’s condition was diagnosed as persistent right upper limb pain.
178 The assessing team were of the opinion the plaintiff would benefit from an individual pain management program with some group based exercises. It was suggested the plaintiff participate in a total of six weeks of a multidisciplinary program.
179 Dr Andrew Muir from the Victorian Rehabilitation Centre wrote to Dr Omidiora in July 2009 thanking him for the referral. He noted the plaintiff had a post operative pain syndrome affecting his right distal arm. This condition started an elbow tendonitis, treated surgically by Mr Berger. The plaintiff had advised his pain was worse since surgery.
180 On examination, the plaintiff had a normal sized arm but was quite tender over the posterior aspect of the scar at the right elbow. He had some tender spots in the belly of the extensor muscular expansion and over the dorsum of the hand.
181 Dr Muir could not detect signs of a Complex Regional Pain Syndrome. Deep tendon reflexes were normal, as was sensation bilaterally. Dr Muir felt power was normal but restricted by reaction to pain.
182 Dr Muir advised that he needed to adopt a rehabilitation type approach in the plaintiff’s case and he had also written a prescription for Norspan patches. He thought it might also be worthwhile the plaintiff having a trial of Tricyclic antidepressant at night to see whether its pain relieving properties could be useful. He planned a review in about one or two months.
183 Dr Muir wrote to Dr Omidiora in September 2009, having recently seen the plaintiff. He noted the plaintiff’s pain remained much the same. He was not able to tolerate patches and had abandoned them. He was taking Prothioden regularly and found it useful for sleep. Dr Muir advised he would like the plaintiff to move to 25 milligrams every night and possibly even 50 milligrams in a week or two.
Medico-legal evidence
184 The plaintiff was examined by plastic and hand surgeon, Mr Stapleton, in April 2013.
185 The plaintiff gave a history of pain for about six months before 16 October 2007, when he reported problems with his right arm to Dr Omidiora.
186 The plaintiff described constant pain, worse in the morning, and not being able to lie on his elbow at night, and he was careful not to bump it. He had a reduced range of elbow movement. He had improved to 5 out of 10 but the pain could quickly return to 10 out 10 with any activities involving lifting, pushing or pulling.
187 On examination, Mr Stapleton noted the plaintiff was very tender over the lateral epicondyle. The right movements flex and extend from 10 to 110 degrees.
188 Mr Stapleton diagnosed physical injuries of chronic lateral epicondylitis which was the result of the plaintiff’s work. He noted the plaintiff’s dominant hand was involved and that lifting, pushing, pulling or indeed anything that caused him discomfort should be avoided and that exercise would not improve the plaintiff for the reasons stated.
189 Mr Stapleton considered the plaintiff would not recover from this condition which, on balance, had been caused by his occupation.
190 Dr Helen Sutcliffe, occupational physician, examined the plaintiff in April 2013. The plaintiff then described constant pain present in the right hand, elbow and forearm with intense pain in the right elbow.
191 There was restricted right shoulder movement and limitation of flexion and extension of the right elbow. There was pain on supination and pronation which was restricted as a result.
192 On examination of the right wrist, dorsiflexion was possible to 40 degrees and palmar flexion limited to 15 degrees. There was also restricted ulnar and radial deviation. Using a dynamometer, there was 20 kilograms of force on the right compared to 40 kilograms on the left hand.
193 On inspection of the hand, there was change in colour from normal mottled colour to pale appearance after activity. There was a tremor present which the plaintiff indicated was there constantly. There was no left tremor.
194 The plaintiff indicated an area of intense pain on the right forearm on the ulnar border, which he described as painful to touch and it became sweaty at times. There was tenderness that was extreme on the right elbow. There was swelling in the right forearm compared to the left. No sensory change was detected.
195 Dr Sutcliffe noted the right elbow MRI of July 2008, an ultrasound-guided injection of 1 April 2008 and a May 2008 x‑ray of the right elbow.
196 Dr Sutcliffe concluded that the plaintiff sustained onset of right lateral epicondylitis together with persisting pain following surgery. There were also some elements of neuropathic pain.
197 The plaintiff described temperature change, intense pain and an area of sweatiness in the arm. Colour change was noted on examination. The plaintiff had also developed a tremor in the right hand.
198 Dr Sutcliffe believed a diagnosis of neuropathic pain was appropriate. She thought the plaintiff had no capacity for employment of any nature, taking into account his age, education, work experience, together with his training and the nature of his incapacity.
199 Dr Sutcliffe considered the plaintiff had no capacity on a permanent basis for previous occupations as a truck driver or a painter and effectively lost his long term occupation as a painter, and would not return to it at any stage.
200 Dr Sutcliffe commented upon the plaintiff’s capacity for jobs set out in the July and August 2009 vocational assessments.
201 Dr Sutcliffe thought the plaintiff had no capacity for employment as an assistant teacher or vocational education teacher, taking into account his education, past work experience, training and his current incapacity. She thought that incapacity was permanent in terms of employment in those capacities.
202 Similarly, Dr Sutcliffe believed the plaintiff had no capacity, on a permanent basis, for driving in any form, including courier driver, delivery driver, blood collection driver or taxi driver.
203 Dr Sutcliffe explained the plaintiff could not perform those duties, either full or part time, in a manner that would be reliable, productive and efficient to the satisfaction of any employer. In addition to loss of occupational options, Dr Sutcliffe thought the plaintiff had sustained, on a permanent basis, very substantial adverse impact on his capacity of daily living in social, leisure, domestic and self care activities.
204 Dr Sutcliffe noted the onset of left upper limb discomfort and pain was related to the use of his left upper limb while saving his right.
205 On 6 March 2011, the Medical Panel concluded that the plaintiff was suffering from persisting right arm dysfunction due to right lateral epicondylitis (surgically treated) relevant to the claimed right hand and forearm injury. The Panel was of the opinion that the plaintiff had no current work capacity an indefinite basis.
Investigations
206 There was an ultrasound-guided injection of the right elbow in April 2008 in which the common extensor origin, which contained a small fleck of calcification, was injected without incident or difficulty.
207 An x‑ray of the right elbow was ordered by Dr Omidiora on 1 May 2008. It was reported there was normal alignment, osteo density and smooth articular surface. Joint spaces and para-articular fad pads were normal.
208 An MRI scan of the right elbow was ordered by Dr Omidiora in July 2008. It was reported there was tendinopathy, local enthesopathy and minimal common flexor tendinopathy.
Claim documents
209 The plaintiff lodged a claim for WorkCover signed on 18 October 2007. He set out he had strained his right hand and forearm using the joystick to pick up bins. The date of injury was noted as 16 October 2007, with the plaintiff first noticing injury approximately three weeks ago and ceasing work on 18 October 2007.
210 The plaintiff was then working 40 hours a week earning $18.20 per hour and his average ordinary weekly gross earnings at the time of injury was $728 with no overtime.
211 By letter dated 28 April 2012, QBE advised that in relation to right elbow and right shoulder injuries occurring on 16 October 2007, the plaintiff’s claim pursuant to s98C had been accepted, following an examination by Mr Gerald Moran in April 2010.
The Defendant’s medical evidence
212 Mr Berger wrote to Dr Omidiora in November 2008, having reviewed the plaintiff six weeks after his lateral epicondylitis release.
213 Mr Berger advised the plaintiff’s elbow was still a bit tender and painful and swollen on activity. He had requested the plaintiff continue with hand therapy and he was sure that over the next weeks, things should settle down pretty well. He asked the plaintiff to return at that time if there was a problem, but otherwise to try and use the hand as much as possible and that he would probably need another four to six weeks off work before he could return.
214 There was further correspondence of 11 February 2009 after Mr Berger reviewed the plaintiff.
215 Mr Berger noted the plaintiff was now four months following surgery and was still having some moderate problems. He was tender over the lateral epicondyle and had some difficulty returning to work because of his pain.
216 Mr Berger advised he had reinjected the elbow area with local anaesthetic and Depo-Medrol and had arranged for the plaintiff to see a hand therapist to look at other ways of controlling his discomfort. Mr Berger had not made any further appointments to review the plaintiff.
217 An entry in the Latrobe Regional Hospital Emergency Department file on 24 February 2012 set out the plaintiff presented with left chest pain. The plaintiff also attended on 15 July 2012 complaining of left-sided chest pain that had started three days ago.
218 Dr Edwards reported to QBE on 20 November 2011.
219 Dr Edwards advised that the plaintiff’s serious right arm pain had developed into a Regional Pain Syndrome.
220 The injury commenced and developed in 2007 to the point where the plaintiff was now unable to work for a considerable time.
221 Dr Edwards advised he had recently completed applications for a Disability Pension and also a Carer’s Pension for the plaintiff’s wife.
222 Dr Edwards advised that the plaintiff’s dominant arm had been injured and was seriously affecting his ability to perform several essential day-to-day tasks. For example, the plaintiff is unable to feed himself, needing assistance with cutting up food. He needs assistance with buttons, shoelaces and some zips, and is unable to get in and out of the bath on his own. He cannot drive safely.
223 Dr Edwards advised that to alleviate some of his pain, the plaintiff had been prescribed Norspan patches. The plaintiff found those effective for pain, but the medication significantly affected his alertness. The plaintiff stated that the side effects of the patches caused cloudiness in the head and ongoing drowsiness. He was not able to socialise or enjoy bingo as he used to.
224 Dr Edwards advised that the plaintiff was not able to read or write other than in a very basic way and he had no office based skills. He did not believe the plaintiff possessed a realistic work capacity and that his future prognosis for work also remained bleak.
Medico-legal evidence
225 The plaintiff was examined by Mr Peter Scott, initially in April 2008 and later in March 2009.
226 On both occasions, Mr Scott diagnosed right lateral traumatic epicondylitis of the elbow, or tennis elbow on both occasions.
227 On the initial attendance, the plaintiff described recurring pain and discomfort on the outer aspect of the right elbow with radiation into his forearm. There was a full range of painless movement of all upper limb joints. The outstanding feature was localised tenderness over the common extensor muscle mass origin from the right lateral epicondyle of the elbow and the discomfort in that area was exaggerated with dorsiflexion of the wrist against resistance and with pronation and supination of the right forearm against resistance. There was no other upper limb abnormality.
228 Mr Scott believed the defendant should accept liability for the plaintiff’s ongoing problems with traumatic lateral epicondylitis. He thought the plaintiff was fit for full-time duties that did not require repetitive movements with the right upper limb but he would be unfit to do his pre accident job requiring the operation of the joystick. He thought the plaintiff was perfectly fit for work that did not involve those aggravating factors.
229 Mr Scott advised initially it was his belief serious consideration should be given to the plaintiff undergoing a right lateral extensor tenotomy for his tennis elbow problem but before that, he recommended an MRI scan and that the plaintiff see an orthopaedic surgeon for the instigation of further management. Mr Scott noted a previous ultrasound showed some evidence of some calcification and he suspected, therefore, further steroidal injections would not assist.
230 Mr Scott thought that the plaintiff would not be able to clean or wash bins and vehicles as suggested in the return to work plan of 26 October 2007.
231 On re-examination in 2009, the plaintiff reported his symptoms were worsening. To direct questioning, there was no evidence of any colour changes of the skin of the right upper limb or excessive sweating. The outstanding features were marked local tenderness over the outer aspect of the right elbow at the common extensor muscle mass from the lateral epicondyle and the plaintiff complained of exquisite pain to light touch – hyperalgesia – with pain radiating to his shoulder and down the extensor forearm.
232 There was the absence of any colour changes in the right upper limb or sweating in the palm of the right hand. There were no other abnormalities or any evidence of hair loss or fingernail changes that might suggest an abnormal pain response.
233 Mr Scott advised that he believed the defendants should accept liability for the ongoing costs that were incurred for the condition which had now developed from a simple tennis elbow to a Regional Pain Syndrome of a chronic nature without evidence of any classic Complex Regional Pain Syndrome Type RSD signs.
234 Mr Scott thought the plaintiff was unfit to return to his pre injury job or similar employment because of his abnormal pain response and development of a Chronic Regional Pain Syndrome. He thought there was nothing to suggest any non work related factor but noted the plaintiff had developed an abnormal pain response or hypersensitivity, possibly related to sensitisation of nerve cells resulting in the more widespread symptoms.
235 Mr Scott believed the plaintiff’s presentation represented magnification of a tennis elbow as the result of an abnormal pain response. Employment remained a significant contributing factor to the present symptom complex.
236 Mr Scott thought the plaintiff had no capacity for employment using his right upper limb and was not fit for his pre accident duties but could do some very light work that did not require his upper limb. Mr Scott noted treatment had not helped and it had now become an otiose exercise.
237 Mr Scott believed serious consideration had to be given for the plaintiff to attend a pain management clinic for multidisciplinary therapy. He thought the plaintiff’s condition had not stabilised.
238 Mr Gerald Moran, orthopaedic surgeon, initially examined the plaintiff in June 2009, and more recently April 2010.
239 The plaintiff, on initial examination, complained of pain from his right middle finger radiating up to his right elbow, present most of the time. He also reported restricted right elbow movement.
240 The plaintiff attended wearing a sling. There was some reduction of right shoulder and elbow movement.
241 Mr Moran thought the plaintiff developed adhesive capsulitis of his right shoulder as a result of him developing lateral epicondylitis of his right elbow. Therefore, the shoulder injury arose from work. He thought the plaintiff’s impairment had not stabilised. He considered it likely the plaintiff would regain more right elbow movement and recommended reassessment in a year.
242 Mr Moran re-examined the plaintiff in April 2010. The plaintiff then had constant right elbow pain made worse by the use of his right arm. He reported restricted right elbow movements and he had intermittent right shoulder pain, and movements were a bit restricted.
243 On examination of the right elbow, range of movement was 10 to 120 degrees. Examination of the right shoulder revealed flexion of 120 degrees, extension 20 degrees, abduction 110 degrees, adduction 20 degrees, external rotation 70 degrees and internal rotation 90 degrees.
244 Mr Moran thought the plaintiff had lateral epicondylitis of his right elbow and adhesive capsulitis of the right shoulder. He found no neurological dysfunction and considered the impairment had stabilised.
245 Mr Stanley O’Loughlan, orthopaedic surgeon, saw the plaintiff in April 2010.
246 On examination, the plaintiff complained of pain extending from the middle of his hand up the forearm to the outer aspect of the right elbow. The surgical scar on the right elbow was not particularly tender. The elbow moved from 20 degrees short of full extension to 120 degrees of flexion. Supination and pronation were normal.
247 There was tenderness over the lateral side of the elbow maximal over the lateral epicondyle. Flexion of the wrist caused discomfort over the lateral side of the elbow and attempted extension of the wrist against resistance increased the elbow pain. There was no neurological abnormality.
248 Mr O’Loughlin examined the July 2008 MRI scan and noted the injection.
249 Mr O’Loughlin thought the plaintiff had sustained epicondylitis of the right elbow due to intrasubstance tear at the site of the common extensor attachment to the lateral epicondyle or possibly a tendinopathy of the tendon. He noted there had not been a favourable outcome following surgery and there may be a pain syndrome present, as symptoms continued despite reasonable treatment.
250 Mr O’Loughlin thought the tennis elbow was produced by the repetitive use of the joystick.
251 Whilst he thought treatment was appropriate, Mr O’Loughlin thought the plaintiff had taken too much Panadeine Forte and should be weaned off it and probably take anti inflammatories and continue with physiotherapy. He noted because the plaintiff was on strong medication and had not improved, a Chronic Pain Syndrome had to be considered and maybe the plaintiff should be referred to a pain management specialist.
252 Mr O’Loughlin thought the plaintiff could not return to his pre injury work. He considered he could carry out lighter work not using his right upper limb, working half time to commence with, and gradually building up if he was able to do the job. He thought the plaintiff was able to do most activities of daily living but not strenuous ones. A return to light duties would need to be monitored. It would be best if the plaintiff worked only with his left hand and not do any lifting or repetitive work or with his right and should have appropriate breaks.
253 In a supplementary report of August 2010, Mr O’Loughlin advised that the plaintiff had a capacity for part time work, noting he currently was working ten hours a week as a teacher’s aide and was coping satisfactorily. He did not think the plaintiff would improve a great deal and suggested he be assessed by a rehabilitation and pain management consultant to see if his treatment could be modified at all. He thought further significant recovery was unlikely. He did not think the plaintiff would ever be able to return to his former job as his condition had been ongoing since 2007.
254 Whether or not the plaintiff could increase his hours as a teacher’s aide, Mr O’Loughlin could not answer, but that would have to be assessed by an onsite occupational rehabilitation officer.
255 Dr Kevin Fraser, rheumatologist, examined the plaintiff in August 2011. On examination, the plaintiff complained of local tenderness at the lateral epicondyle but provocative tests for epicondylitis included resisted dorsiflexion of the hand and forceful gripping were negative. There was no swelling or tenderness at the medial epicondyle.
256 Elbow movements were not restricted but the plaintiff complained of pain at the extreme of extension. He could form full wrists with good grip strength. There were no features of RSD. The left upper limb joints were normal and there appeared to be overreaction on physical examination.
257 Dr Fraser noted the July 2008 right elbow MRI showed tendinopathy of the common extensor muscles.
258 Dr Fraser was not convinced there was any ongoing work related injury in this case. He noted the plaintiff may have developed right lateral epicondylitis as a result of his work activities; however, he did not consider there was any convincing evidence of ongoing epicondylitis. He noted the negative provocative tests belied the plaintiff’s ongoing complaints.
259 Dr Fraser noted the overreaction on physical examination suggested the plaintiff’s current symptoms and signs were largely due to non organic factors and he did not accept there was any significant functional incapacity.
260 Dr Fraser noted, unfortunately, the plaintiff was being treated with narcotic analgesics and was probably dependent on them. He did not consider that they were warranted in the situation. He believed the plaintiff should be weaned from them. He did not consider the plaintiff required any further treatment and operative treatment was certainly not warranted. He thought the plaintiff was fit for his pre injury duties or any other work for which he was otherwise suited.
261 Mr Damian Ireland, hand surgeon, examined the plaintiff in August 2011. The plaintiff then complained of a throbbing, burning pain on the lateral aspect of the right elbow. He also complained of an intermittent sharp needle like pain which lasted for seconds.
262 On examination of the right upper limb, there was no obvious swelling or deformity. The surgical scar was white and non tender, non hypertrophic and not adherent.
263 Active range of motion at the elbow measured by goniometer was 20 degrees extension to full flexion. Active range of motion of the forearm measured by goniometer was 45 degrees supination compared to 70 degrees on the left. Pronation was complete and supination was limited by pain on the lateral aspect of the elbow.
264 There was evidence of mild diffuse atrophy with loss of 0.3 centimetres on the right. There was reduced grip capacity.
265 Mr Ireland noted the point of maximum tenderness on the lateral aspect of the elbow was over the mid portion of the surgical scar which overlay the neck of the radius. There was minimal discomfort over the common extensor origin closer to the lateral epicondyle. At 20 degrees from full extension, the plaintiff experienced some pain in the lateral aspect of the elbow. However, power gripping at that point did not increase the pain. The provocative test for lateral epicondylitis, which included forced palmar flexion of the wrist against isometric extension, also failed to increase the lateral elbow pain.
266 Mr Ireland noted the suprinator test and the resisted long finger extension stretch test for radial tunnel syndrome were positive. The radial nerve compression test with maximum elbow extension, maximum forearm rotation into pronation and forced passive flexion of the wrist aggravated the lateral elbow pain. The radial nerve was generally tender on the anterior aspect of the elbow.
267 There were no neurological abnormalities.
268 Mr Ireland thought the plaintiff’s continuing lateral right elbow pain was most likely caused by compression neuropathy of the radial nerve and/or of the posterior interosseous nerve. He thought there was no evidence of continuing lateral epicondylitis. He noted it probable that this condition had co existed with the lateral epicondylitis since the onset of symptoms in 2007.
269 Mr Ireland thought there was a cause and effect relationship between the nature of the plaintiff’s work and onset of symptoms affecting his elbow.
270 Mr Ireland noted the diagnosis of radial tunnel syndrome was largely clinical and difficult to confirm by investigation. To help confirm that diagnosis, he believed further investigations were necessary. In the absence of those investigations, an MRI study may be helpful, undertaken also by a musculoskeletal expert. If the diagnosis could be confirmed and be accepted by a further hand surgery specialist, then consideration for surgical intervention aimed at decompressing the affected nerve would be appropriate.
271 Mr Ireland thought there was no evidence that the plaintiff was malingering or exaggerating. He considered the plaintiff suffered from a genuine and significant clinical problem that prevented him returning to any form of manual employment. He thought the plaintiff was incapable of undertaking any form of manual employment or work that required bimanual activities.
272 Mr Ireland noted the only two jobs the plaintiff had undertaken all of his working life were house painting and truck driving. He thought the plaintiff presently was incapable of either of those jobs. He noted a recent attempt at improving the plaintiff’s literacy with a view to vocational rehabilitation in non manual work had been unsuccessful.
273 Mr Ireland re-examined the plaintiff in February 2013. The plaintiff then complained of pins and needles on the dorsum of his right hand which extended into the dorsal aspect of the fingers. He had generalised and constant pain on the lateral aspect of the right elbow. He also complained of tenderness over the surgical scar.
274 On examination of the right upper extremity, there was a full range of active motion of the elbow, whereas previously there was a 20 degree extension lag. The plaintiff was able to make a fist with the elbow extended without any obvious discomfort. When passively flexing the isometrically extended wrist, with the elbow extended, the plaintiff experienced minimal pain on the lateral aspect of the elbow. The surgical scar was barely palpable. There was a palpable void distal to the lateral epicondyle, where the common original extensor tendon had been resected. This area was maximally tender.
275 The test for radial tunnel syndrome was negative, having previously been positive. The middle finger extension stretch test was mildly positive causing lateral elbow pain. The radial nerve on the anterolateral aspect of the forearm was non tender, previously being tender. There was a mild restriction of supination to 60 degrees but that was symmetrical and there was full pronation. There was no evidence of excessive sudomotor of vasomotor activity and there was no dystrophic skin changes. Forearm circumference on the right was 34.2 and 33.4 on the left. Grip strength on the right was 46, 50 and 51, and on the left, 47, 45 and 50. Mr Ireland noted no further investigations had been carried out since his earlier examination.
276 Mr Ireland concluded the diagnosis was right elbow dysfunction following surgical release of the common extensor tendon for the diagnosis of lateral epicondylitis. He could find no evidence to support the diagnosis of radial tunnel syndrome which he had suspected was the cause of the plaintiff’s symptoms on initial examination.
277 Mr Ireland thought the plaintiff’s condition related to his former employment. He noted there was objective evidence that the condition had improved since the earlier examination, noting the previously positive test for radial tunnel syndrome was now negative and the plaintiff had a full range of elbow movement. There was no evidence of forearm wasting on the right and the plaintiff now had a normal grip strength. Based on those findings, Mr Ireland thought no further operative treatment was indicated.
278 In Mr Ireland’s view, the plaintiff’s symptoms do not allow him to engage in any form of manual work and he has no obvious capacity for non manual work, making his employment opportunities extremely limited.
279 Dr Karna, rheumatologist, examined the plaintiff in May 2012.
280 On examination, resisted wrist extension produced pain over the scar in contrast to prior IME examinations, but the plaintiff did have discomfort distally in the mid extensor forearm. Dr Karna was unable to illicit a positive Tinel’s test around the posterior interosseous nerve.
281 The plaintiff’s grip strength was poor because of pain. Forearm circumference on the right and left was equal. There was no paresthesia in the hands and the plaintiff had no medial epicondylar pain. Right elbow movements were restricted, particularly in pronation (resisted pronation reproduced substantial pain), as did some degree of resisted supination. Extension was to 10 degrees, flexion to 120 degrees and left upper limb movements were normal.
282 Dr Karna thought the Medical Panel’s analysis was the best fit diagnosis.
283 Dr Karna noted that Mr Ireland’s examination suggested that the plaintiff did not have true lateral epicondylitis but perhaps some posterior interosseous nerve entrapment producing symptoms. Dr Karna noted that certainly that could be a contributing factor and as Mr Ireland suggested, may be confirmed on testing, but Dr Karna thought that would be a semantic point as the plaintiff would not proceed to any further surgery.
284 Taking into account the fact the plaintiff lives in Moe, is fundamentally illiterate and could not cope with any activities which involved right upper limb usage on an ongoing basis, Dr Karna thought he had no current work capacity and the fact he was on narcotic patches further added to that notion.
285 Thus, accepting the plaintiff had ongoing pathology in the right upper limb which was difficult to categorise, Dr Karna suggested that he did have residual symptoms and dysfunction in the right forearm post tennis elbow release surgery, with perhaps some super added nerve entrapment. In the context of the peripheral factors, namely his literacy and his ongoing use of narcotics, he did not believe the plaintiff had a work capacity, thus mirroring the Medical Panel’s opinion.
286 Dr Karna noted he found it difficult to suggest narcotics would necessarily be the best way of managing the plaintiff’s pain. He noted pain was intermittent and activity dependent, and a pain management program may be valuable in assessing a better way of managing the pain both with chemical and non chemical intervention. He thought Panadeine Forte was a reasonable treatment and there was no role for manipulative therapies. He noted on the plaintiff’s presentation and history, ceasing all treatment would have a deleterious effect.
287 As indicated, Dr Karna thought the plaintiff had persisting right arm dysfunction post tennis elbow release surgery with possibly some super added nerve entrapment. He thought the condition continued to be a significant contributing factor and the plaintiff could not return to pre injury duties and he did not believe the plaintiff had a work capacity on an indefinite basis. He believed the plaintiff had persisting right arm symptoms related to work superimposed upon which was his residence, illiteracy et cetera, and that all pointed to peripheral factors which are contributing to his work incapacity.
288 Dr Karna thought there may well be some psychosocial embellishment of symptoms, but nonetheless he believed there was an organic component to the plaintiff’s presentation.
289 Dr Karna noted there was no material change since the March 2011 Medical Panel’s report. He did not believe the plaintiff realistically had any significant rehabilitation prospects as he was illiterate.
290 Dr Rose, psychiatrist, examined the plaintiff in July 2010.
291 On mental state examination, there was no abnormality of intelligence or impairment of range of affect. There was no clinical anxiety or depression. There were no abnormalities in the structure or flow of speech and thought and there were no abnormal preoccupations or delusions.
292 Dr Rose noted the plaintiff appeared to have a reasonably positive attitude towards his injuries. He appeared to be highly motivated to return to some form of employment, noting he was then working part time. There were no abnormalities of cognition, memory, concentration or orientation.
293 Dr Rose noted the plaintiff had sustained a severe right elbow injury and he was left with physical restrictions and chronic pain but he did not suffer from a psychiatric disorder.
Vocational assessment
294 In the vocational assessment of June 2009, suitable employment options identified by Recovre were assistant teacher (expected wage $600) and vocation education teacher (expected wage $1,300). It was noted the plaintiff’s reading was extremely poor and writing very poor.
295 In the later vocational report of August 2009, jobs of driver, including courier delivery, blood collection and taxi driver, were identified as suitable employment, with a driver earning $1,000 per week.
Overview
296 It is accepted the plaintiff has a compensable injury to his right elbow in relation to which no current work capacity payments continue to be made.
297 The Panel also found this situation is likely to continue indefinitely.
298 This finding is consistent with an accepted loss of earning capacity of 40 per cent. Having satisfied the test laid down by the Act in relation to loss of earning capacity, then the plaintiff is at large to make a claim for damages – i.e., both for pain and suffering and loss of earning capacity.[95]
[95]Acir v Frosster Pty Ltd [2009] VSC 454 at paragraph 147 per Forrest J; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170
299 In opening, counsel for the defendant referred to the decision in AMP Workers Compensation Services Ltd v Chalkley.[96]
[96][1998] VSC 29
300 In that case, McDonald J held that a finding of total and permanent incapacity in November 2004 was no more than a finding at that time. Such a finding did not mean that a person will be totally incapacitated in the future.
301 His Honour noted that a number of factors subsequent to a finding of this nature, such as an unexpected improvement in the person’s condition, advances in medical science, the achievement of fresh skills or even an improvement in the labour market or the opportunity to learn fresh skills from participating in an approved occupational rehabilitation service, may bring end to incapacity or reduce it.[97]
[97](supra) at paragraph 37
302 Counsel for the defendants conceded the Court was bound to find that the plaintiff has persisting right arm dysfunction due to lateral epicondylitis[98] and that the Court was otherwise bound by the decision of the Panel unless there had been a change in the plaintiff’s circumstances, not just a change of medical opinion.[99]
[98]T93
[99]T93; Chalkely (supra) at paragraph 18
303 It was submitted that the change in the present case centres around the fourth of the concepts set out by Maxwell P in Haden Engineering v McKinnon[100] and enumerated by Tait JA in Aburrow v Network Personnel;[101] namely what the objective evidence shows in such a case about the disabling effect of the plaintiff’s pain.
[100](2010) VSCA 69
[101](supra) at paragraph 42
304 It was submitted that the plaintiff’s credibility was relevant to determining that issue.[102]
[102]T95
305 As Maxwell P said in Haden Engineering:[103]
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
[103](supra) at paragraph 12
306 It was submitted by counsel for the defendants that the plaintiff’s affidavits were inconsistent with the level of functioning shown on the video and also the level of inactivity reported by him to medical examiners. It was submitted the plaintiff was motivated by secondary gain and that was interfering with his motivation to return to work[104] and that he in fact had a current work capacity, although the teacher’s aide job was not suitable.[105]
[104]T95
[105]T99
307 Counsel for the defendants submitted the Court should be extremely cautious in accepting the plaintiff’s credibility based on the only real objective evidence, being the film which showed a level of functioning way above that deposed to by the plaintiff.[106]
[106]T97
308 Counsel for the defendants submitted the film certainly did not show the plaintiff to be a cripple – doing nothing during the day, as he had told Dr Edwards.[107] Quite clearly, the plaintiff was shown using his right hand and that would have been to loosen the bolts as well as clean the tools.[108]
[107]T96
[108]T98
309 However, I took a different view of the plaintiff’s activity on film. Firstly, the film was of limited duration, taken over nearly an hour. In the first nine minutes, the plaintiff was shown near the bonnet of the car and for the last few minutes of the film, he simply stood holding a garden in hose in his right hand.
310 Whilst the quality of the film was quite poor and I had difficulty seeing what the plaintiff was actually doing save for working on and around the car, he was not shown engaging in overhead activity or any forceful or prolonged tasks involving his right arm.
311 Dr Edwards was not troubled by what he saw on the film and did not consider the level of activity shown to be inconsistent with the plaintiff’s presentation on examination. I did not consider Dr Edwards to be an advocate for the plaintiff. He gave a direct and straightforward account of his treatment of the plaintiff, conceding that the plaintiff had no present motivation to return to work. His was the only medical interpretation of the film.
312 In my view, the film is simply a snapshot of what the plaintiff can do in a very short period of time and does not suggest a capacity to work manually in a sustained way engaging in a range of tasks.
313 Further, the level of activity shown is not inconsistent with what the plaintiff has deposed as to carrying out minor repairs on cars for family, and described in cross-examination as “just minor tinkering under the bonnet”.
314 Further, it was submitted that the issue estoppel question required there to be demonstrative evidence of change, not just medical opinion, and that was “answered by the evidence of Mr Ireland”.[109]
[109]T96
315 Reliance was placed on Mr Ireland’s most recent examination findings when he noted a significant improvement in a number of areas to the plaintiff’s earlier examination, at which time he suspected the plaintiff may be suffering from radial tunnel syndrome in addition to the tennis elbow.
316 Senior counsel for the plaintiff submitted that whilst the high point of the defendants’ case had to be Mr Ireland, on the critical issue of the plaintiff’s employment capacity, even with the change in objective findings, Mr Ireland concluded there was no capacity for employment.
317 I accept the submission that Mr Ireland’s conclusion was a commonsense one as all medical examiners, save for Dr Fraser, agree that the plaintiff has lateral epicondylitis and he cannot do manual work, the only type of work for which he is otherwise suited.[110]
[110]T100
318 I do not accept that Mr Ireland’s conclusion was based on an acceptance of the plaintiff’s subjective complaints. He carried out a thorough examination, and despite the improvement in the plaintiff’s condition, he confirmed his earlier conclusion that the plaintiff does not have a capacity for suitable employment. Following his earlier examination, Mr Ireland commented on the genuineness of the plaintiff, and whilst not commenting in this regard on re-examination, made no comment to the contrary.
319 Not having been persuaded there is any change in the plaintiff’s circumstances since the Panel’s finding in 2011, I grant leave to the plaintiff to bring proceedings for damages for both pain and suffering and loss of earning capacity.
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