Tzouvelis v Victorian WorkCover Authority
[2021] VCC 36
•2 February 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-20-00923
| ARTHUR TZOUVELIS | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE O’NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 January 2021 | |
DATE OF JUDGMENT: | 2 February 2021 | |
CASE MAY BE CITED AS: | Tzouvelis v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 36 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to left leg and foot when plaintiff struck by forklift in the course of work duties – plaintiff had pre-existing renal condition said to have been aggravated by workplace injury such as to lead to the need for dialysis and kidney transplant – pain and suffering conceded – economic loss contested – whether 40 per cent loss of earning capacity as a result of either physical injury to left leg, or renal disorder
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s325(2)
Cases Cited: Ansett Australia Ltd v Taylor [2006] VSCA 171
Judgment:Leave granted in respect to pain and suffering and loss of earning capacity damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T S Monti QC with Mr B Johnson | Maurice Blackburn Lawyers |
| For the Defendant | Mr R Kumar | Wisewould Mahony Lawyers |
HIS HONOUR:
Preliminary
1 Mr Arthur Tzouvelis was originally diagnosed with kidney disease at age sixteen. In 2000, at the age of twenty-six, he underwent a kidney transplant. Initially, his body rejected the kidney, but with subsequent treatment, his condition stabilised and he was able to resume a relatively normal life, and work on a full-time basis.
2 From the expert medical evidence, in the years prior to the incident on 13 April 2017, Mr Tzouvelis suffered a decline in kidney function. Around March 2017, shortly before the incident the subject of this application, there was a more rapid decline in renal function, although there was no discussion about the need for haemodialysis,[1] nor a further kidney transplant.
[1]Also referred to as dialysis
3 Dialysis re-commenced in October 2017 and has continued to the present time. Mr Tzouvelis requires a further kidney transplant
4 The incident the subject of this application occurred on 13 April 2017 when, in the course of his employment duties, Mr Tzouvelis was struck on the back of his left foot by a forklift. He suffered a significant degloving injury to the left calf and foot, with fractures to the bones of the foot. In the recovery process, he suffered an infection which required extensive antibiotic treatment. The injury also required a skin graft. He has had surgery to the area on a number of occasions, and his leg injury affects him in his domestic and recreational activities, and restricts the employment tasks he is able to undertake.
5 Mr Tzouvelis has not worked since the incident, apart from a relatively short period when he resumed employment. The parties presently agree that he has no work capacity as a result of his renal condition and its treatment.
6 This is a serious injury application. Leave is sought to bring common law proceedings for both pain and suffering and loss of earning capacity. The body functions said to be lost or impaired are the left leg; alternatively, the aggravation of Mr Tzouvelis’ renal condition.
7 Sensibly, Mr Kumar, counsel for the defendant, conceded at the outset that the consequences of both the left leg injury, and the effect of the incident upon Mr Tzouvelis’ renal condition, met the statutory test for “pain and suffering”. The contest remains as to whether the left leg injury; alternatively, the aggravation of the renal condition, has resulted in a 40 per cent loss of earning capacity in accordance with the formula set forth in s325(2) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”).
8 I am satisfied that the incident which caused the leg injury resulted in a 40 per cent loss of earning capacity. Given that finding, it is unnecessary to determine whether the consequences of the aggravation of Mr Tzouvelis’ renal condition led to the same loss of earning capacity. Thus, the only issue which requires determination is whether the consequences of the left leg injury alone resulted in a 40 per cent loss of earning capacity.
9 Leave will be granted for the issue of common law proceedings. These are the reasons.
Mr Tzouvelis’ evidence as to the left leg injury
10 Mr Tzouvelis completed VCE. He started but did not finish an accounting degree. He worked in the hospitality industry as a manager for a number of years, and then as a manager for an automotive company for about twenty-one years. He commenced work with Renma Screens and Blinds Pty Ltd (“Renma”) as a production manager in 2013. The injury occurred in the course of his work with that company.
11 The work with Renma was a “hands-on” role. He liaised with customers and dealt with production issues. He would regularly have to operate a forklift and estimates that about 50 per cent of his work was physical and 50 per cent sedentary. He has only ever worked in managerial roles, and says he has only basic computer skills.
12 On the day of the incident, he was taken to Sunshine Hospital, where he underwent surgery to repair the wound. X-rays revealed fractures of the mid-left foot and calcaneum. He developed a wound infection which required debriding with extensive skin grafts. He was on antibiotics for a considerable period. The fractures healed with conservative treatment.
13 In July 2017, he suffered a decline in kidney function which led to dialysis later that year. A renal transplant was proposed in October 2018 but did not proceed because, at that time, he was suffering a deep vein thrombosis. Presently, he undergoes dialysis three times a week for six hours each day.
14 Mr Tzouvelis says he has ongoing pain in his leg which restricts his walking. He walks with a limp. He says his legs are weak and he has lost muscle tone. It is difficult for him to stand for long periods of time.
15 Mr Tzouvelis sees a physiotherapist regularly, and goes to the gymnasium and undertakes hydrotherapy. He takes a range of medication relating to his kidney condition. In 2019, he commenced a course in bookkeeping.
16 Mr Tzouvelis says he has had four or five operations on his left leg. In 2020, his physiotherapy treatment ceased, as it was no longer funded. He continues hydrotherapy. He says he suffers from pain, weakness and restriction in his left leg. He has continued swelling in the left leg and requires the use of compression stockings. He is limited in the domestic tasks he is able to undertake and obtains assistance from his son. He says his left leg becomes stiff and it is difficult to get up from a seated position. The strength of the leg is affected. He is limited in his capacity to drive to about half an hour.
Medical opinions as to the consequences of the left leg injury
17 In his report of 24 March 2020, Mr Manjot Jassal, treating physiotherapist, noted after the initial skin-graft surgery of April 2017, Mr Tzouvelis had two further reconstructive surgeries to the left leg. In 2019, Mr Tzouvelis complained of calf and Achilles tightness and occasional knee pain, with reduced strength in the left leg. Treatment included massage and a strengthening exercise program. The treatment was interrupted from time to time because of his kidney issues.
18 Mr Russell Miller, orthopaedic surgeon, examined Mr Tzouvelis and provided reports of 5 June 2020 and 9 December 2020. He obtained a history that at the time of the examination, Mr Tzouvelis’ left foot was the major problem. He suffered ache, discomfort and pain in the foot. He also suffered some ache and discomfort in the left knee and hip.
19 On examination, Mr Tzouvelis had difficulty with prolonged standing, walking, kneeling, squatting and climbing stairs. There was a slow pattern towards deterioration.
20 Mr Miller noted some quadricep wasting. He said Mr Tzouvelis walked with an obvious limp and that he could not hop or lunge on the left leg. A CT scan of the left foot and ankle of June 2017 reported:
“… generalised loss of bony (sic) density with heterogeneous appearance of the bones and with degenerative changes present in the talonavicular, naviculocuneiform and tarsometatarsal joints. Fractures are present in the medial and intermediate cuneiform bones as described with a further fracture identified in the calcaneus at the calcaneocuboid joint with mildly displaced bony fragment in this region ... .”[2]
[2]Plaintiff’s Court Book (“PCB”) 58
21 Mr Miller considered there may be some benefit from surgery to the left foot because of the development of arthritis. He considered Mr Tzouvelis would have difficulty with any work which required prolonged standing, walking, twisting, turning, kneeling and squatting. He said he was only fit for work in a sedentary role and could not return to his pre-injury duties on any significant full or part-time basis.
22 In his second report of 9 December 2020, Mr Miller reviewed the left ankle and foot x-ray of October 2020. That x-ray reported:
“These revealed evidence of degenerative disease in the navicular cuneiform joint, talonavicular joint and in the 1st and 2nd tarsometatarsal joints.”[3]
[3]PCB 78
23 Mr Miller said:
“… This additional information confirms my view that the client has suffered a significant mid-foot injury with multiple fractures involving the medial intermediate cuneiform and calcaneus. There is now evidence of arthritic disease in the mid foot and the client is at significant risk of disease progression in the medium and longer term. I remain of the view, the prognosis for the left leg and foot is poor.”[4]
[4]PCB 78
24 Mr Miller said there was a requirement for further treatment. There was a significant risk for longer-term deterioration which could lead to a fusion of the foot. He noted such surgery was complex, with prolonged rehabilitation and limited reliability.
25 Mr Tzouvelis was examined by Dr James Rowe, occupational physician, on 7 July 2020.[5] That practitioner obtained a history of ongoing pain in the left leg which required analgesia, including Panadol. Mr Tzouvelis reported weakness of the left leg with impaired sensation over the scarred areas. He noted a limp and the use of compression stockings. On examination, Dr Rowe noted the left foot was cold, with impaired sensation. There was evidence of wasting of the left thigh and calf.
[5]PCB 86
26 As a result of the left leg injury alone, Dr Rowe said that Mr Tzouvelis would be restricted in a range of activities, including prolonged standing or walking, repetitive or forceful use of the left leg and heavy lifting or carrying. He said Mr Tzouvelis was not fit to return to full-time unrestricted employment as a factory worker or production manager. As to work capacity, he said:
“I am not of the view this man has any capacity for suitable or alternative employment at this time.
He is unable to use his left leg or foot in a normal way and requires further and ongoing treatment for the condition of his left leg and of his kidneys.
He needs to attend dialysis on a regular basis, multiple times per week and this would further restrict his employability.
This situation may or may not be permanent and will largely depend on whether a renal transplant surgery takes place. If this were to happen in the near future, he could be referred for re-assessment.”[6]
[6]PCB 91-92
27 Dr Rowe thought the prognosis for the left foot was poor. There was a need for ongoing treatment, including physiotherapy and hydrotherapy. It was likely Mr Tzouvelis would require domestic support.
The effect upon Mr Tzouvelis’ work capacity as a result of the leg injury alone
28 Mr Kumar, counsel for the defendant, noted Mr Tzouvelis returned to office-based duties for a period after the injury, working about fifteen hours a week. This was interrupted when he commenced dialysis. Mr Kumar submitted that when looked at alone, the consequences of the left-leg injury did not result in a loss of earning capacity of greater than 40 per cent. In particular, he referred to the opinion of Mr Miller that Mr Tzouvelis could undertake sedentary work, although he could not return to pre-injury employment. Mr Kumar said the opinion of Dr Rowe was that any employment incapacity was based upon a combination of the left leg injury and Mr Tzouvelis’ affected renal function. He further contended that the plaintiff’s evidence as to restricted work capacity was largely directed towards his renal condition.
29 I accept Mr Kumar’s submission that although Dr Rowe finds significant restrictions in left leg function, his opinion as to work capacity is based upon an assessment of both the left leg and renal condition.
30 Mr Miller’s reports are comprehensive and I accept his conclusions and opinions. I accept Mr Tzouvelis suffers very significant restrictions in the use of his left leg and foot. I accept he finds it difficult to stand for longer periods, or walk any significant distance. The left leg swells and requires the use of compression stockings. He walks with a limp and would struggle to undertake any physical work activity, in particular, carrying objects, spending time on his feet, twisting and squatting. This is a significant restriction for a man whose working life, although largely managerial, has involved quite a deal of physical activity. He has few computer skills, a necessary pre-requisite in many sedentary-based areas of employment.
31 There is no issue that he is unable to perform his pre-injury duties. Mr Miller’s opinion is that he is only suitable for a sedentary role.
32 It is particularly significant, in my view, that recent radiological investigations reveal arthritis in a number of areas of the foot, which is likely to deteriorate with the possibility of fusion surgery to the foot.
33 Mr Tzouvelis is a forty-six-year-old man with limited work experience. His work history to date, while managerial in nature, has also involved “hands-on” work with a significant physical component. While there is no report from any vocational or like expert, from the perspective of his left leg injury alone, I am of the view that Mr Tzouvelis has only a very limited capacity for employment, even of a sedentary nature. The restrictions imposed in the reports of Dr Miller are such that given his education and experience, I am of the view he has very little capacity for any form of work, which is likely to deteriorate further as the arthritis in his left foot progresses.
34 While he may be able to undertake some limited employment of a sedentary nature, his incapacity arising from the left leg injury alone is such that he has very little, if any, employment capacity, and his pre-injury capacity has been reduced by at least 40 per cent as a result of the left leg injury alone.
35 Leave will be granted in respect of loss of earning capacity, and I shall make consequent orders.
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