Taylor v Victorian WorkCover Authority

[2021] VCC 962

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

 Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No.  CI-20-03844

STUART DOUGLAS TAYLOR	Plaintiff
v
VICTORIAN WORKCOVER AUTHORITY	Defendant

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JUDGE:	HIS HONOUR JUDGE MISSO
WHERE HELD:	Melbourne
DATE OF HEARING:	6 July 2021
DATE OF JUDGMENT:	21 July 2021
CASE MAY BE CITED AS:	Taylor v Victorian WorkCover Authority
MEDIUM NEUTRAL CITATION:	[2021] VCC 962

REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION

Catchwords:              Serious injury – rupture of the left biceps tendon – impairment of the function of the left upper limb – disfigurement of the left upper limb – whether the impairment of function is “at least very considerable” –  whether the disfigurement is “at least very considerable”

Legislation Cited:      Workplace Injury Rehabilitation and Compensation Act 2013, s327

Cases Cited:              Ingram v Ingram [1996] 2 VR 435; Baker v Transport Accident Commission [1997] 1 VR 662; Richards & Anor v Wylie (2000) 1 VR 79; Transport Accident Commission v Garcia [2015] VSCA 225; Garcia v Transport Accident Commission [2015] VCC 140

Judgment:                  The plaintiff’s Originating Motion is dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms J Zhu	Maurice Blackburn Lawyers
For the Defendant	Ms S Manova	Russell Kennedy Lawyers

HIS HONOUR:

Introduction

1The plaintiff is a thirty-three-year-old married man who suffered injury to his left upper arm on 31 October 2016 when he lifted a heavy parts washer out of a frame.  He felt a ripping sensation in his left bicep, and then observed that his left bicep was disfigured and was bulging abnormally when he flexed his arm.

2The plaintiff submitted that the injury to his left bicep, together with surgical scarring on his left arm just below the elbow, constitute disfigurement, and/or permanent serious impairment or loss of the function of his left upper limb.

3Ms J Zhu of counsel appeared for the plaintiff.  Ms S Manova of counsel appeared for the defendant.

The issues

4The defendant conceded that the plaintiff suffered a compensable injury, and that the principal issue was whether the disfigurement or the impairment of function met the statutory test of seriousness.

Executive summary

5After considering the whole of the evidence, I am satisfied that the plaintiff has suffered some disfigurement, and some impairment consequences.  I am not, however, satisfied that the disfigurement or the impairment consequences satisfy the statutory test of seriousness.

Medical treatment

6The plaintiff was referred to a general practitioner by his employer.  He was dissatisfied with the advice he was given that he should rest, so he saw Dr Seema Ghafoor, general practitioner, on the following day.  He noted that he was unable to lift much at all with his left arm; that his range of motion was very limited, and that he had pain and cramping in his left bicep.

7After having an ultrasound and an MRI scan, it was obvious that the plaintiff suffered a tear or rupturing of his left biceps tendon.  He was referred to Mr Craig Mills, orthopaedic surgeon, for treatment.  He first saw Mr Mills on 21 November 2016.  Mr Mills advised the plaintiff to undergo surgical repair of the left biceps tendon, which was performed on 9 December 2016.

8Unfortunately, for the plaintiff, the delay between the occurrence of the injury and the surgery resulted in the left biceps tendon retracting.  Mr Mills described the left biceps tendon as not only having retracted, but it was not capable of being mobilised, which I understand to mean that returning the left biceps tendon to its anatomical position was not possible.  Mr Mills was not asked to provide a conventional medical report.  He wrote to Dr Ghafoor on three occasions, briefly describing the injury, the surgery and the plaintiff’s rate of recovery.[1]

[1]Mr Mills wrote courtesy letters to Dr Ghafoor on 7 December 2016, at Plaintiff's Court Book (“PCB”) 24; on 21 December 2016, at PCB 25, and on 16 February 2017 at PCB 26

9The plaintiff was reviewed by Mr Mills post the surgery, and undertook a course of physiotherapy.  He reached a point where there was no further medical treatment which would improve the function of his left upper limb.  The plaintiff did not use any prescription painkilling medication due to the impact that such medication may have had on a pre-existing kidney condition which he acquired when he was a child.

Work capacity

10The plaintiff was employed by J J Richards & Sons Pty Ltd (“the employer”) as a yardsman and driver.  He commenced that work in April 2014.  He drove a 4.5-tonne rigid truck.  He used it to go to mechanics’ workshops, where he would replace liquid waste drums.[2]

[2]        Transcript 9

11The plaintiff was initially off work for about two days before returning to work with the employer on light duties.  He continued driving the truck.  The light duties relieved him of the need to handle waste drums, and what he described as servicing parts.  He continued performing those light duties until he underwent surgery.  He was off work recuperating from the surgery, returning to work with the employer in the middle of February 2017 after Mr Mills cleared him to undertake unrestricted pre-injury work.  He was advised that if he was involved in any lifting, that he should take care when lifting weights in excess of 20 kilograms.[3]

[3]        Transcript 10-11

12The plaintiff returned to work with the employer, and continued working for it until he resigned on 31 October 2018.  He continued performing yard duties.  He describes some of the duties he performed as strapping steel onto pallets, stacking tubes of steel onto racks with the aid of a forklift, and moving 240-litre bins which were full of oil.  The movement of objects like the bins required him to pull the bins around.  It did not involve lifting.  He did not lift anything weighing more than 20 kilograms.[4]

[4]        Transcript 11-12

13The plaintiff commenced working with Haulaway Waste Management Professionals (“Haulaway”) in November 2018.  The difference in the work he is now performing is that the duties are less physical.  He is also earning a reduced hourly rate.  The defendant produced a schedule of the plaintiff’s taxation returns for the years ending 30 June 2015 to 30 June 2020.  It demonstrates that in the year (ending 30 June 2018) of the incident, the plaintiff earned $110,872 gross.  In the following year (ending 30 June 2019), he earned $111,208 gross – $39,221 gross with the employer and $71,987 gross with Haulaway.  In the following year (ending 30 June 2020), he earned $108,138 gross with Haulaway.

14The purpose in referring to the plaintiff’s gross earnings in those years was to demonstrate that he has obtained alternative work of some equivalence, is able to work significant hours of up to 13 hours per day, and is earning approximately the same income despite the reduced hourly rate.  There is no issue that the plaintiff has a full capacity for the work he is presently performing, with no evidence from the plaintiff, or for that matter from any medical assessor, that he will suffer any deterioration in his left upper limb which will further reduce his capacity for work.

Impairment consequences

15The plaintiff submitted that there are a number of consequences which have resulted from the impairment of the function of his left upper limb.

Pain

16The plaintiff continues to experience pain and altered sensation in his left forearm.  He experiences cramping sensation in his left upper limb if he lifts anything heavy.[5] He described the pain in the inner part of his left elbow as being the most severe pain that he experiences; otherwise the pain tends to be a constant dull ache.[6]  He was not prescribed any medication to enable him to deal with the pain he has experienced since suffering the injury, but he has used over-the-counter medication.  The plaintiff uses Panadol and Nurofen.  He estimated that he uses that medication two to three days a week.  His usual habit is to take two tablets in the morning and two later in the day.[7]

[5]        PCB 4

[6]        PCB 16

[7]        Transcript 19-20

17I accept the plaintiff’s evidence that he has used that medication and to the degree he described.  Under cross-examination, the plaintiff was taken to a history recorded by the Medical Panel[8] that he has not used any medication, and passages in his affidavits which suggest that he has not used that medication in the past, but only more recently.  I accept the plaintiff’s explanation that what is recorded by the Medical Panel is wrong, and that the passages in his affidavits are poorly expressed and are also wrong to the extent that they suggest he has not used medication in the past and to the degree he is using it now.

[8]        Defendant's Court Book (“DCB”) 29-36

Sleep

18The plaintiff described having only four or five hours’ sleep each night, and having his sleep often interrupted;[9] however, the interruption to his nightly sleep does not appear to have impacted upon his capacity to work, and otherwise function in other aspects of his life. 

[9]        Transcript 30

Boxing/gym

19The plaintiff was in the habit of attending a gym for fitness and exercise.  He attended a gym approximately five mornings a week.  He would get up at 3.00am and go to the gym, and then would go to work at about 4.30am.  His routine was to engage in boxing and weight training.  He described the fitness work he would do at the gym as involving significant arm and upper body work.  He described the boxing as involving very little sparring, but mostly boxing-related activity to undertake a full body workout, particularly, of his upper body and arms.  He described doing pad work which involved hitting pads being held up by someone else, and bag work, which I understand to be a punching bag fixed vertically.[10]

[10]        PCB 13, 16-17 and Transcript 23-25

20The plaintiff said that he has significantly reduced his boxing and weight training.  He now goes to the gym about once a week to a fortnight, and sometimes as little as once a month.  He continues to engage in the same type of boxing exercise.[11] He continues to engage in weight training, continuing to use dumbbells, do bicep curls, push-ups, bench press and shoulder press, however, with lighter weights.  He described being comfortable with using the weight of 12 kilograms with his left upper limb.[12]  He added that he has a reluctance to engage in boxing and weight training because the day following engaging in these activities, his left arm is sore, and that makes doing his work a lot harder.[13]

[11]        Transcript 24 and 26

[12]        Transcript 27-28

[13]        Transcript 40

Domestic activities/family

21The plaintiff said that any chores involving the use of both of his arms, for example  mopping, hanging out laundry, cleaning and doing dishes, aggravates his left upper limb and the altered sensation that he experiences in his left forearm;[14] however, under cross-examination, he said that he is able to use a mower, do the dishes, the washing and the vacuum cleaning, although, he thinks twice before he engages in these activities because of the condition of his left upper limb.[15]

[14]        PCB 13 and 18

[15]        Transcript 29

22The plaintiff has three children.  He has difficulty picking up his children, and in particular, an inability to carry his children using his left upper limb.  He described one of his children as being particularly energetic and jumping into his arms.  He also described picking up one of his children briefly and then needing to switch arms, presumably from his left arm to his right arm because his left arm becomes tired carrying the weight of his child.[16]  It is this sort of interaction which he finds difficult because of the condition of his left upper limb.

[16]        PCB 14 and Transcript 29-30

Social

23The plaintiff said that he goes out less now than he did beforehand because of the appearance of his left upper limb which he considers to be obviously deformed.  He described avoiding wearing t-shirts and, in other words, covering it up.  He also described an impact on his social life resulting from attending the gym less than he used to, where he interacted with other people who attended the same gym.[17]

[17]        PCB 14 and Transcript 25-26

Disfigurement

24During the plaintiff’s evidence-in-chief, he removed his jacket and demonstrated where he says the injury has caused disfigurement to his left upper limb.  I recorded a short summary of what I observed after I viewed the plaintiff’s left upper limb.[18]

[18]        Transcript 6-7

25I noted that when the plaintiff had his arms in a passive state, that it was noticeable that the muscle bulk on his left bicep is larger than his right bicep.  He said that was because the muscle area tends to bulge because of the rupture of the biceps tendon.  The difference in shape of the bicep was more noticeable when the plaintiff flexed his bicep by raising his forearm into a right angle position and when he rotated his arm when it was fully extended.

26I also noted a scar just below the elbow joint.  It was difficult to see, however, somewhat easier to see when I appreciated that the scar ran through the top of a dark tattoo of a woman’s head.  The interruption of the tattoo by the scar made the position of the scar and its length more easy to discern.

27I have summarised sufficient of the plaintiff’s evidence overall for the appearance of the bicep and the scar to be well enough understood, and the impact on the plaintiff of what he considers to be a deformity in his left upper limb.  The measures he takes to disguise the deformity are to have it covered by clothing.  He regards what he now has to live with as being upsetting.

The medical evidence

28Neither party spent much time reviewing the medical evidence because there is practically no controversy relevant to the injury suffered by the plaintiff nor the disfigurement resulting from the injury and the scarring.

29On the plaintiff’s side, he was examined by Dr David Kennedy, sports and industrial physician, on 12 January 2021.  He provided a report dated 20 January 2021.[19] Dr Kennedy was concerned to concentrate on the impairment of the function of the plaintiff’s left upper limb rather than the disfigurement.  On examination, he considered that the plaintiff would continue to have some pain and suffering resulting from the injury which would impact upon the function of his left forearm at the elbow joint, and with ongoing weakness on flexion and supination, as well as sensory changes in the distribution of a lateral cutaneous nerve.  He considered that the plaintiff’s prognosis was guarded, but he did not say why.  He recommended that the plaintiff undertake a course of stretching and strengthening exercises for his biceps musculature at the elbow joint.

[19]        PCB 27-32

30On the defendant’s side, it had the plaintiff examined by:

·        Dr Gale Curtis, orthopaedic surgeon, on 15 February 2017.  He provided two reports, dated 23 February 2017[20] and 24 March 2017.[21]

·        Dr Graham Doig, orthopaedic surgeon, on 19 February 2019.  He provided a report dated 27 February 2019.[22]

·        Mr Michael Dooley, orthopaedic surgeon, on 30 March 2021.  He provided a report bearing the same date.[23]

[20]        DCB 13-20

[21]        DCB 21

[22]        DCB 22-26

[23]        DCB 37-41

31I see no point in summarising the upshot of their examinations of the plaintiff because there is a commonality in their opinions with the opinion of Dr Kennedy.  I accept that the medical evidence demonstrates that the plaintiff has, and will continue to have, some pain in his left elbow, and weakness in his left upper limb.  Otherwise, the medical assessors are all of the same mind that the plaintiff has a full capacity to work, and that is something on which the plaintiff himself agreed without equivocation.

Serious injury

32I will start with the plaintiff’s submission that the impairment of function of his left upper limb has consequences which are “serious”.

33I have concluded that what consequences there are of the impairment of the function of the plaintiff’s left upper limb are not very considerable.

34I accept that the plaintiff suffered a dramatic rupture of his left biceps tendon which was not as amenable to surgical repair as it could have been had the repair been undertaken at the optimum time.

35I accept that he has the level of pain, weakness and restriction of movement which he described, and which the medical assessors accept is evident on their examinations of the plaintiff’s left upper limb.

36The major interference experienced by the plaintiff is his ability to return to his former exercise routine.  That exercise routine comprised two discernible components.  One was weight training.  He is still able to engage in weight training, although, he now lifts less weight with his left upper limb than he was capable of doing previously.  Although, the plaintiff continues to box, I accept that he does so at a lesser level.  I also accept that after engaging in boxing and a gym routine, that he is tired and somewhat sore the next day, which has some impact upon his capacity to meet the demands of his current work.

37Otherwise, there appears to me to be minimal interference with the plaintiff’s capacity to engage in domestic and social recreations with his family, and to interact with his children, save where he picks up his children using his left upper limb.

38I accept that boxing and going to the gym were where he met other people who were likewise engaged in boxing and gym work, and that it formed a large part of his social interaction.

39It must be remembered that despite the findings I have made thus far, that the plaintiff is otherwise working full time up to 13 hours per day in what must be a relatively arduous occupation.  It must demand of him the capacity to undertake manual work without restriction, and to tolerate what impact that manual work may have upon his left upper limb.  The plaintiff made no serious complaint that the work he is performing causes him any particular difficulty with his left upper limb.  The work he currently performs is a very good road test of his capacity to function well in an overall sense.

40When I make the comparison with other cases in the range of possible impairments, I do not accept that what the plaintiff has lost can fairly be described as much more than modest, and perhaps approaching moderate.

41I do not accept that the disfigurement is “serious”.  There are a number of decisions of the Court of Appeal which bear on the issue of an assessment of the disfigurement in the context of the narrative definition.[24]

[24]Ingram v Ingram [1996] 2 VR 435; Baker v Transport Accident Commission [1997] 1 VR 662; Richards & Anor v Wylie (2000) 1 VR 79, and Transport Accident Commission v Garcia [2015] VSCA 225 (“Garcia”)

42Firstly, I think I have said all that can be said in describing the disfigurement described by the plaintiff.  I again refer to the view I had of it and the short summary I gave of what I observed which is in the transcript, and was not the subject of any adverse comment by either of the parties.

43Secondly, the nature of the disfigurement, its locality, the size of it and the degree of obviousness are among the characteristics to be assessed in determining whether the disfigurement is “at least very considerable”.

44Thirdly, it is permissible to weigh into account the psychological consequences of a permanent disfigurement in assessing the seriousness of the disfigurement.

45When the plaintiff’s arms were in a passive position, the bulk of his left bicep was noticeably larger than his right bicep, but I made that observation because I concentrated very directly on his left bicep from close range standing beside him.  From a more distant vantage point from my position on the Bench to where the plaintiff was standing in the witness box, it was more difficult to discern that difference in bulk.  I certainly could not discern the scarring from that distance.

46My overall impression is that the locality of the disfigurement, together with its size, was not particularly obvious.  It was somewhat more obvious when the plaintiff flexed his bicep and rotated his arm, but I did not regard what I then saw as being particularly obvious.

47I have the advantage of having been the trial judge in Garcia,[25] and having been in some other disfigurement cases.  I have made the comparison with other cases in the range of possible disfigurements.  I do not accept that the plaintiff’s disfigurement can fairly be described as much more than modest.

[25]Garcia v Transport Accident Commission [2015] VCC 140

48I will order that the plaintiff’s originating motion be dismissed with costs.

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