Vovchak v Moran Furniture Pty Ltd
[2011] VCC 11
•16 February 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
WORKCOVER LIST
SERIOUS INJURY DIVISION
Case No. CI-10-02508
| Alexander Vovchak | Plaintiff |
| v | |
| Moran Furniture Pty Ltd (ACN 109 019 874) |
Defendant
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| JUDGE: | HER HONOUR JUDGE KENNEDY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 08 February 2011 |
| DATE OF JUDGMENT: | 16 February 2011 |
| CASE MAY BE CITED AS: | Vovchak v Moran Furniture Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 11 |
REASONS FOR JUDGMENT
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Catchwords: Application for leave under s134AB Accident Compensation Act 1985 for the recovery of damages for pain and suffering only- injury to non-dominant left index finger- no serious injury under definition in s.134AB(37)(a)
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr LR Paine | Zaparas Lawyers |
| For the Defendant | Mr BG Anderson | Hall & Wilcox Lawyers |
Background
1 The plaintiff was born on 29 August 1945 in the former Soviet Union and is now aged 65. He is a separated man with two grown up children.
2 The plaintiff served in the Soviet army for 25 years as an officer and qualified as an engineer. He then moved to Khabrovsk in East Russia where he worked as a driver and ran an import business. He came to Australia in 1996.
3 From 1997 he worked for the defendant making wooden frames for household furniture. This work involved the operation of a bensaw which had a flexible blade.
4 On 12 August, 2008, the plaintiff was using the bensaw to cut a block for chairs when he felt the blade touch his non-dominant left hand. He saw blood and observed that he had been cut at the base of his left index finger on the thumb side. He thereupon attended on Dr Avergun who referred him to the Cabrini Hospital. He was operated on by a Mr Thomas at the Cabrini on the very next day.
5 The plaintiff had a period off work during which time he had physiotherapy and saw Dr Avergun. He ceased physiotherapy in about November 2008 on his return to work.
6 The plaintiff returned to normal duties working 5 days a week from 6.30 am to 3 pm on about 4 November 2008. He continued to work with cutting wood but avoided the bensaw. Following the movement of production to China, the plaintiff’s work was subsequently reduced to two days a week from April 2009. The work ceased altogether in mid 2010.
7 The plaintiff seeks leave to bring proceedings for the recovery of damages pursuant to s.134AB of the Accident Compensation Act 1985 (“the Act”) for pain and suffering only.
8 Mr Paine, who appeared for the plaintiff, defined the injury as an injury to the left index finger.
9 The plaintiff alleges that the consequent impairment to the body function of the left hand is a “serious injury” within the meaning of part (a) of the definition in s.134AB(37) of the Act.
Issues
10 Mr Anderson, who appeared for the defendant, accepted that there was a compensable injury which was permanent.
11 The sole issue in the case was whether the injury was “serious” within the meaning of the Act.
Evidence
Plaintiff’s Evidence
12 The plaintiff swore three affidavits: an affidavit of 26 February 2010; a further affidavit of 25 June 2010 and a “further affidavit 2” of 7 February 2011. He was also cross examined.
13 In his first affidavit he stated that he continued to see Dr Avergun about once a month although under cross examination he agreed this was no different to when he saw him prior to the injury for other issues including blood pressure. Further, that although he saw his doctor in relation to other matters, he did not complain to his doctor about his finger. He had not seen a physiotherapist or hand therapist since October 2008 nor the treating surgeon since November 2008.
14 In terms of medication, he claimed in his first affidavit that he took mobic three to four times a week but tried to avoid taking it too much. He also took panadol several times a week as an alternative and usually took panadol or mobic every day. In his most recent affidavit he said that he took panadol most days for left hand pain and took mobic less as it was causing stomach upset. He took mobic about once a week. In oral evidence he said that he “takes panadol even now” and that he and his doctor were not keen on painkillers but again emphasised he was “taking panadol.” Under re-examination he said that he thought that his last prescription for mobic was in December 2010.
15 In his first affidavit he claimed to have pain in the area of the base of his left index finger and knuckle all the time. Certain things made this pain worse including movement, pressure or cold weather. He had learnt to keep his index finger out of the way if he gripped or lifted anything with the result that his grip and dexterity were reduced. He alleged that he woke because of pain once a week and that the finger was stiff in the mornings. He confirmed that this state of affairs remained much the same in his most recent affidavit. Under cross examination he agreed that he could fully extend his finger and ultimately conceded that the only impairment of finger movement was in moving the finger towards the palm of his hand. He also conceded that “at the moment” he had no pain in his finger.
16 In his first affidavit he also said he could no longer mow the lawn though he could drive a car and do housework, making some adjustments. In his further affidavit he also said that he could no longer renovate the house himself as he had previously done. However, the dvd surveillance showed him loading 5 relatively heavy bags of soil into a car using both hands and lifting a shopping bag with his left hand. He was also shown to be a relatively fit man walking easily and briskly.
17 In terms of leisure activities, in his first affidavit he said that he no longer played volleyball on a Saturday afternoon and that he generally socialised less. In his further affidavit, he also claimed that he used to play basketball every Saturday with a “social team” which he had ceased since his injury. In his most recent affidavit, he clarified that what he meant by the “social team” was that he shot baskets near his home with a “Mark and Robert on most Saturday afternoons” after he played volleyball. Further that volleyball had been generally played only between October and March.
18 In terms of his return to full-time work, in his most recent affidavit, the plaintiff alleged that the work caused “more left index finger pain.” However, he also claimed that the difficulties were “largely because of fear I had working with saws.” Under cross examination he said that he still managed to do cutting 5 days though he used his left hand as little as possible. Further, that although some of the doctors appeared to suggest only part-time work was appropriate, that he only reduced his work to 2 days because “production was redundant.” He further agreed that a factory that once had 250 workers ended up with only 40 workers with only two in the frame department (including the plaintiff). He said that he ultimately stopped work altogether because “they stopped calling me.” Under re-examination however he said that he had experienced problems working: “I was stopping, I was doing massages…I put the finger under the warm water…” He also said he wore a glove to protect his finger.
19 The plaintiff generally presented as an individual with a good work ethic who was prepared to make appropriate concessions.
20 However, there were aspects of the plaintiff’s evidence which were somewhat vague and imprecise. For example, there was a claim made that he had received an offer of work when he was reduced to two days work, which he had turned down because of his injury. This was said to come from unspecified “friends” of his son. I do not accept this evidence which was made for the first time under re- examination. It was also contrary to the plaintiff’s own actions in readily taking up work if the work was there.
21 Although, then, the plaintiff was a generally straightforward witness, there were unsatisfactory aspects of his evidence which suggest that it is important to have regard to objective facts wherever possible.
Principles
22 In terms of pain and suffering, the plaintiff must show that the consequences to him of any impairment, when judged by comparison with other cases in the range of possible impairments, may be fairly described as being more than significant or marked, and as being at least very considerable.[1]
Nature and Extent of the Injury
[1] See s.134AB(38)(c) of the Act; Barwon Spinners Pty Ltd v Podolak [2005] VSCA 33.
23 The treating general practitioner, Dr Avergun, completed a (somewhat dated) report of 4 June 2009. He described the plaintiff’s presentation on 12 August after he accidentally cut his left hand and his referral for surgical repair. He said that the injury was work-related and described his return to “normal duties.” He finally opined:
“Mr Vovchak has been left with some residual disability. His hand is often aching during work and in a cold weather associated with swelling and tenderness over the affected joint. He has got a restricted bending in his 2d metacarpophalangeal joint.”
24 Notes relating to the operation at Cabrini hospital were tendered but were of no assistance given they were largely illegible.
25 In terms of the medico-legal material, Mr Buntine, plastic reconstructive hand and skin cancer surgeon, prepared a report of 28 September 2009. He recorded the plaintiff as taking no medication for pain and discomfort which the plaintiff said was “probably” correct at that time and that (despite an apparent contradiction with his affidavits) he “stopped” taking mobic and started taking panadol instead in November 2009.
26 Mr Buntine described the plaintiff’s condition as “repaired divided extensor tendons of the left index finger, superficial damage to the head of the left second metacarpal bone, adhesions to and in the vicinity of the repaired extensor tendons which restrict movement of the finger and cause discomforts and scar tenderness.”
27 Mr Flanc, vascular and general surgeon, completed a report of 3 August 2009. He also accepted that the plaintiff sustained an injury to the left index finger at work constituted by a laceration of both extensor tendons. However he accepted that these tendons were repaired by Mr Thomas so that he now has full extension of the index finger. He described his flexion as “incomplete” and that his residual problem was a “limitation of movement of the 3 joints of the left index finger which limit his ability to grip small objects associated with pain in the region of the injury with any forced movements.”
28 Mr Stapleton, plastics and hand surgeon, prepared a report of 21 April 2010, wherein he diagnosed a bandsaw injury penetrating the metacarpophalangeal joint on the dorsum of his left index finger. He described the impairment of his left index finger as “significant” which “secondarily” has impaired his left hand and left upper limb.
29 Mr Mangos prepared the most recent report of 29 September 2010. On examination he found stiffness obvious when the plaintiff made a fist but almost full extension of the finger. Sensation of the finger was normal. He opined that the plaintiff had suffered a laceration of the left hand which was adequately repaired. However, although he could almost fully extend the whole finger he had a restricted range of movements of the finger in flexion and particularly in gripping. He described a permanent incapacity with regards to the left hand mainly with stiffness and also of power of the index finger.
30 All of the doctors in the case supported both the existence of an injury and that it occurred in the course of employment in August 2008.
31 When consideration is given then to the plaintiff’s evidence and the medical evidence, I am satisfied, consistent with the concession of the defendant, that the plaintiff suffered a compensable injury as he has alleged.
32 Moreover, I am further satisfied that there is an ongoing impairment of the left hand resulting from this compensable injury.
33 Given the effluxion of time, I am further satisfied that the impairment is permanent in the sense that it is likely to last during the foreseeable future.
34 The real issue becomes whether the injury is serious.
Pain and Suffering Consequences
35 The evidence as to pain is a little unclear as is the evidence as to medication. However, notwithstanding a suggestion in the first affidavit of pain “all the time,” there is undisputed evidence as follows:
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the plaintiff was able to manage a return to full–time manual work after his injury and only reduced/ ceased this work when the work itself ended;
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the plaintiff agreed under cross examination that he had no pain at the time he gave evidence;
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the plaintiff was able to choose to use his left hand in ordinary activities on the dvd surveillance;
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the plaintiff appeared to be primarily relying upon panadol and, if he was relying on mobic at all, was only doing so once a week;
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the plaintiff did not complain to his treating doctor about any pain in his finger.
36 I thereby accept that the plaintiff experiences some pain which has impeded his ability to grip objects. However, the evidence cited above does not suggests that any pain is constant or significant.
37 I also accept that the plaintiff suffers some reduced movement as a result of his impairment. However, he accepts himself that he can fully extend the finger. This is consistent with the medical evidence which corroborates a relatively mild injury with normal sensation and full extension of the finger. The uncontested evidence was also that the plaintiff was right-handed so that any impact is thereby lessened.
38 The plaintiff’s capacity for some activities such as volleyball and basketball appears to be reduced. However, neither volleyball nor basketball appear to have played a significant role in his life. Moreover, the evidence suggests that the plaintiff is able to undertake a wide range of activities of daily living including shopping, driving, and walking.
39 In all of the circumstances, then, the plaintiff has not satisfied me that the consequences to him of his impairment, when judged by comparison with other cases in the range of possible impairments, may be fairly described as being more than significant or marked, and as being at least very considerable.
Conclusion
40 The plaintiff has not satisfied me that he meets the definition of “serious injury” under s.134AB(37)(a) of the Act.
41 The application should be dismissed.
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Certificate
I certify that these 11 pages are a true copy of the reasons for decision of Her Honour
Judge Kennedy, delivered on 16 February 2011.
Dated: 16 February 2011
Sonja Mileska
Associate to Her Honour Judge Kennedy
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