Waddell v Victorian WorkCover Authority
[2023] VCC 972
•19 June 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| Serious Injury List |
Case No. CI-22-03919
| JOSHUA WADDELL | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE MYERS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 31 May 2023 | |
DATE OF JUDGMENT: | 19 June 2023 | |
CASE MAY BE CITED AS: | Waddell v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 972 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the finger – pain and suffering
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s325
Cases Cited:TTB SMS Pty Ltd v Reading [2020] VSCA 203
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Fitzpatrick | Slater and Gordon Ltd Lawyers |
| For the Defendant | Mr C Miles | Wisewould Mahony |
HER HONOUR:
Introduction
1Mr Joshua Waddell, the plaintiff, is a thirty-year-old self-employed “YouTuber”. He seeks leave to issue proceedings claiming pain and suffering damages for an injury to his left hand pursuant to paragraph (a) of the definition of “serious injury” in the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”)
2On 20 December 2016, the plaintiff was loading a gearbox into the rear of a car during his employment with Diamond Power Australia Pty Ltd (“the employer”), when the gearbox dropped on his left little finger. As he pulled his finger out from beneath the gearbox, he suffered a significant laceration to that finger (“the incident”).
3The plaintiff was a keen basketball player and drummer prior to suffering his left-hand injury. He said that the injury is the reason that he has now ceased playing basketball. Further, he said that his drumming ability and capacity has been significantly diminished. The plaintiff submitted that these were the losses which elevated his impairment to the “very considerable” level.
4There was no issue that the plaintiff suffered a compensable injury to his left hand in the incident. The defendant contested the proceeding on the issue of “range”.
5The legal principles are well known and were not in issue.
6For the reasons that follow, I find that the plaintiff has not satisfied his onus of establishing that the permanent impairment consequences of his left-hand injury can be fairly described as more than “significant” or “marked” and “at least very considerable” when compared to the range of possible impairments.
Background
7The plaintiff graduated from Swinburne University in 2015 with an advanced diploma in mechanical engineering. In September 2016, the plaintiff started working for the employer as a technical sales representative.
8The plaintiff is right hand dominant.
9Following the incident on 20 December 2016, the plaintiff attended the emergency department of the Maroondah Hospital. He was found to have sustained a 100 per cent division of the flexor digitorum profundus (“FDP”) and a 90 per cent division of the flexor digitorum superficialis (“FDS”). He transferred to the Epworth Hospital, where he underwent surgery performed by Mr Nigel Mann, plastic and reconstructive surgeon, to wash out the wound and repair the tendons.
10The plaintiff received hand therapy post-operatively.
11Due to issues with reduced range of motion and stiffness, two revision operations have been undertaken. On 1 September 2017, Mr Mann performed a tenolysis. On 28 June 2018, Mr Mann performed a neurolysis, tenolysis and scar excision. In between those procedures, on 27 March 2018, the plaintiff received an ultrasound-guided steroid injection into his left little finger.
12The plaintiff continued to have hand therapy until sometime in 2021. Since that time, the plaintiff has not had any active treatment for his hand. He deposed that he does hand exercises at home and uses Panadol or Nurofen when required for pain.
13The plaintiff returned to work on modified duties in February 2017 and continued to work for the employer until approximately July 2017.
14In about 2015, prior to sustaining his injury, the plaintiff created a YouTube channel called “JaWoodle”. As a hobby, he posted videos of himself playing and commenting upon video games.
15Since approximately 2017, the plaintiff has succeeded in turning his hobby into his full-time work. The plaintiff posts daily videos of himself playing and commenting on a “zombie apocalypse” style video game. He currently has approximately 85,000 subscribers to his YouTube channel.
16The plaintiff lives with his partner and her adult son.
The medical evidence
17The plaintiff did not tender reports from any treating doctor or therapist. In particular, there was no report from the plaintiff’s treating surgeon, Mr Mann.
18The plaintiff relied upon two medico-legal reports from Dr Peter Dixon and Dr Damon Thomas. The defendant relied upon two reports of Mr Thomas Robbins and the Opinion and Reasons of a Medical Panel dated 11 March 2022.
Dr Peter Dixon, plastic and reconstructive surgeon
19Dr Dixon examined the plaintiff on 27 May 2022 at the request of the plaintiff’s solicitors.
20Dr Dixon noted the plaintiff suffered division of his flexor tendons in the incident, requiring three surgical procedures.
21On examination, Dr Dixon noted a zigzag scar 50 millimetres in length along the proximal surface of the little finger extending into the palm. He found it to be non-tender and non-adherent.
22Using a Jamar dynamometer, Dr Dixon measured the plaintiff’s grip strength to be 50 kilograms in his right (dominant) hand and 30 kilograms in his left hand. Sensory examination revealed reduced two-point discrimination transversely to 10-15 millimetres.
23Dr Dixon opined that no further improvement was to be expected. He said the plaintiff “may require surgery if he develops an arthritic condition of the digit. Such changes may occur over the next 30 years.”[1]
[1]Plaintiff’s Court Book (“PCB”) 56
24Various colour photographs were appended to Dr Dixon’s report which showed the plaintiff’s left hand, the scarring, and the extent to which the plaintiff can extend the finger.
Dr Damon Thomas, plastic and reconstructive surgeon
25Dr Thomas examined the plaintiff on 2 December 2021 at the request of the WorkCover agent for the purpose of an impairment assessment.
26On examination, Dr Thomas found a reduced range of motion of the finger, particularly in extension due to tendon adhesions, joint contractures and altered sensation. Sensory examination revealed partial two-point discrimination over both the radial and ulnar borders to 60 per cent of its length, in that there was intact two-point discrimination at 50 millimetres but absent to 5 millimetres. There was a single scar on the volar aspect of the finger from the distal palmar crease to the DIP joint, measuring 90 millimetres in length and 8 millimetres in width. It was hypopigmented and hypersensitive to touch, with some altered sensation.
27Dr Thomas was of the view that the injury would not improve or deteriorate over time.
Mr Thomas Robbins, hand, plastic and reconstructive surgeon
28Mr Robbins examined the plaintiff on 23 June 2022 and 18 May 2023, at the request of the defendant. He provided reports dated 30 June 2022 and 23 May 2023.
29On examination on the first occasion, Mr Robbins found full flexion but restriction of extension of the interphalangeal and metacarpophalangeal joints. There was a scar on the finger zigzagging into the adjacent area of the palm. Mr Robbins opined that it was white, non-tender and of no significance. Extension loss was 5 degrees at the distal interphalangeal joint, 30 degrees at the proximal interphalangeal joint and 10 degrees at the metacarpophalangeal joint.
30On the second occasion, Mr Robbins’ examination findings were similar.
Medical Panel Opinion and Reasons
31The defendant tendered the Medical Panel Opinion and Reasons dated 11 March 2022 only as support for a submission that a Jamar grip strength reading is an unreliable subjective measure of grip strength. The relevant reasons of the Medical Panel were:[2]
“… The Panel undertook an assessment of grip strength using a Jamar dynamometer and noted that the assessment of grip strength on the left was pain modified, limited by discomfort and was therefore not a reliable indicator of impairment. Other than partial transverse sensory loss there was no evidence of any other neurological impairment involving the left hand and no clinical evidence of any vascular deficit.”
[2]PCB 36
Conclusions regarding the medical evidence
32There is no dispute on the medical evidence that the plaintiff has residual dysfunction of his left little finger, and scarring. Whilst he can fully flex the finger, he is unable to fully extend it. He has some loss of sensation in the finger.
33Dr Dixon placed considerable emphasis upon the plaintiff’s diminished grip strength as measured by a Jamar dynamometer. I prefer the opinion of the Medical Panel that this is not a reliable indicator of restriction in the particular circumstances of this case.
34Dr Dixon is the only medical practitioner who referred to a risk of developing arthritis. However, he did not quantify that risk.
35Mr Robbins has had the benefit of seeing the plaintiff twice, and his second examination is also the most recent. I accept and prefer his examination findings for that reason. However, I do not rely on his comments regarding the plaintiff deliberately exaggerating his difficulties.
The Plaintiff as a witness
36Counsel for the defendant did not suggest that this was a case in which the credit or reliability of the plaintiff played a significant role.
37The plaintiff presented as a reasonably straightforward witness. He readily accepted many matters put to him in cross-examination and generally made appropriate concessions.
38However, I found that the plaintiff had a tendency to overstate minor difficulties with his finger. By way of example, he deposed that he had difficulty picking up “M&M’s” by the fistful from a benchtop with his left hand. I note that the injury is to the little finger of the plaintiff’s non-dominant hand. Further, as the plaintiff accepted, if he were picking up individual items with his left hand, this would more likely involve a pincer grip between the index finger and thumb. A further example of a tendency to overstate was the plaintiff’s evidence of having to manoeuvre his hand somewhat to put it into the pocket of his pants. In cross-examination, the plaintiff accepted that this was only an issue if he was wearing tighter style pants.[3]
[3]Transcript (“T”) 25
39I generally accept the plaintiff’s account of his symptoms and limitations, however given his tendency to overstate, I have carefully assessed the plaintiff’s description of the current claimed consequences.
Impairment consequences
Pain
40In his first affidavit sworn on 4 May 2022, the plaintiff deposed that he still experienced pain in his finger, which was worse after activity. He said he took Nurofen and Panadol when required for pain. He also experienced altered sensation and numbness in the finger.
41The plaintiff deposed to the fact that his hand, left forearm and left shoulder could be painful in the evening if he had a busy day.
42The plaintiff said that he used “over-the-counter” analgesia approximately once or twice a week for pain in his hand “when needed”.
43I accept the plaintiff’s evidence as to his pain, which is at a level that requires “over-the-counter” medications no more that once or twice a week, and sometimes less often.
Work
44The plaintiff’s current work involves him recording himself playing a “zombie apocalypse” style video game for two-and-a-half hours a day. This provides sufficient material for two 30-minute videos. Thereafter, the plaintiff spends three to four hours editing the content, a further hour or so creating thumbnails, and several more hours creating backend metadata such as tags and descriptions.
45The plaintiff works long hours but enjoys his work and has had considerable success.
46The plaintiff uses a computer keyboard to play the games and produce the videos. He uses both hands to operate the keyboard. He agreed that playing the video games requires him to be dextrous and make quick movements with his hands. However, he said that his ability to use the left ‘shift’, ‘control’ and ‘A’ keys quickly with his left little finger has been reduced.
47The plaintiff was able to complete a 12-hour live stream playing video games continuously on 5 June 2022.
48I accept the plaintiff’s evidence regarding use of the computer keyboard, and find that although his ability to use the keyboard with his left little finger is not the same as it was pre-injury, he has nonetheless adapted and is not significantly impacted.
Basketball
49The plaintiff was a keen basketball player from childhood. Prior to the injury, he played ‘A’ grade basketball in a Tuesday competition.
50Following his injury, the plaintiff was unable to play basketball for a period. He returned to playing in the 2017/2018 summer season and continued to play over the ensuing five years. This was mostly ‘A’ grade basketball in the Tuesday competition during both the summer and winter seasons. He confirmed that he held his place in the ‘A’ grade team in the years following his injury.
51After the injury, and up until the plaintiff’s last surgery in 2018, the plaintiff played basketball with his finger taped. From 2018, he no longer taped his finger to play basketball.
52The plaintiff said that he had to adapt the way he played basketball because of his finger impairment.
53The plaintiff said that he last played basketball in March 2023 and has now decided to retire. In his affidavit sworn 23 May 2023, the plaintiff said:[4]
“I can confirm that my basketball days are over. I’ve now finished playing due to the pain in my hand. It was hurting too much and it’s just not worth it.”
[4]PCB 15
54During re-examination, the plaintiff said:[5]
“I’m 30 now. I don’t bounce back as much - as well as I did when I was 26 or 27 or whatever. I’ve started to slow down. I’m being slower. I’ve put myself in riskier positions now than I used to. I - my skill level has diminished in aspects that relate to my hand specifically. I probably could have kept playing but it might have been - I was running the gauntlet - eventually something was going to happen, it was going to get worse.
…
[5]T34-35
I was fearful of undoing three surgeries worth of reconstruction of my finger, if I snapped another tendon in there, had to go through everything we just did I don’t think I could bear it.”
55By that evidence, I understood the plaintiff to mean that although his left finger issues played a significant part in his decision to stop playing basketball, his decision was multifactorial, and his age was also a reason.
56I accept the plaintiff’s evidence as to the issues he had playing basketball following his injury. However, I find that the plaintiff was able to continue to play basketball for more than five years after his injury, and hold his place in his ‘A’ grade team. I accept that his finger injury significantly contributed to his decision to retire this year, but it was not the only factor.
Drumming
57The plaintiff said that drumming was a passion for him, and he had enjoyed playing from aged four years. He joined a band in his late teens. He became the drummer for the band “Disillusioned” before the incident. They play fast-paced, energetic rock music. The plaintiff has continued to be an active member of the band since the injury.
58Since sustaining his injury, the plaintiff said that he had to modify the way he drums. He now holds the left drumstick in a fist. He said that this had an impact on the quality of his drumming and the enjoyment he derives from it. He said that during gigs he must focus more on his playing than his showmanship.
59The plaintiff deposed to experiencing blisters on his left little finger and his “base knuckle” after practice or playing. Photographs of blisters on his finger were exhibited to the plaintiff’s affidavit sworn on 23 May 2023. However, the plaintiff conceded that it is relatively common for drummers to get blisters on their hands. He said that he “didn’t get blisters like this before”.[6] I understood this evidence to mean that the plaintiff got blisters on his hands from time to time due to playing the drums before his injury. The plaintiff agreed that some drummers wear gloves, but he never has.
[6]T14
60The plaintiff told Dr Dixon that he practised drumming at home every few days, with his band fortnightly (more frequently if a gig is coming up) and continues to play gigs with the band on eight to ten occasions each year. He said his little finger is particularly sore for a few days after a gig. I note the plaintiff stated in his viva voce evidence that at present he only practices on his own at home approximately once per fortnight.[7] Whilst this evidence is hard to reconcile with the account to Dr Dixon, I find that the plaintiff practises regularly but less than he did prior to the injury.
[7] T16
61The plaintiff tendered an affidavit from Ms Megan Holly, who is a member of Disillusioned. She deposed to the fact that the plaintiff “has not regained his full pre-injury drumming endurance. … Since the injury the Plaintiff has altered and simplified the way in which he drums which has had a major effect on the quality of his drumming. The Plaintiff also has problems gripping the drumstick in his left hand and will frequently drop his left drumstick while playing.” The defendant did not seek to cross-examine Ms Holly. I accept her evidence as far as it accords with the evidence of the plaintiff.
62I accept the plaintiff’s evidence regarding his drumming activities and find that there has been an appreciable impact on both his drumming ability and the enjoyment he derives from drumming.
Personal care
63The plaintiff agreed that he can perform his personal care. He said that he has had to adjust the way he shaves and does his hair because of his injury. The plaintiff said that he has now grown a beard because he has more difficulty shaving due to his finger impairment.
64I find that the plaintiff remains capable of attending to all aspects of personal care, albeit in a slightly modified fashion.
Working on cars
65The plaintiff deposed to loving cars and enjoying working on them. He imported his “dream car” from Japan in 2012 – a 2000 Toyota Supra. He continues to enjoy working on this car every chance he gets, most recently changing the wheels and replacing all the suspension components.[8]
[8] T22
66The plaintiff said that his left hand causes a problem with manipulating or performing fine tasks or using tools with his left hand. He said he had difficulty getting his left hand into small areas because of his inability to fully extend his left little finger.
67I accept the plaintiff’s evidence on this issue, and find that the plaintiff remains capable of pursuing his hobby of working on his car but has had to adapt the manner in which he performs some tasks.
Dexterity and grip strength
68The plaintiff agreed that he has normal use of all the fingers of his left hand, save for the little finger. He can make a complete fist but cannot fully extend the little finger. The plaintiff can move his left hand freely and expressively.
69The plaintiff said that his inability to fully extend his left little finger caused difficulties with dexterity.
70The plaintiff said that he has had to adapt the way he puts his left hand into his pocket when wearing tighter pants. Whilst I accept this is a consequence of his finger injury, it is a minor consequence.
71The plaintiff said that when embracing his partner, his partner sometimes needs to manoeuvre to allow him to slide his hand beneath her.
72I do not find that there has been any significant loss of grip strength in the plaintiff’s left hand by reason of his finger injury.
73I accept that the curling to his left little finger has made the plaintiff’s left hand somewhat clumsy and some activities are more awkward.
Analysis
74The plaintiff does not have any difficulty socialising, driving, using public transport or with his mobility by reason of his injury.
75The plaintiff shares domestic activities and gardening with his partner. I accept that he may have made some small adaptations to these activities because of his left finger injury but he continues to perform them.
76The plaintiff remains able to care for himself and live independently, albeit he has made some adaptations to his personal grooming.
77The plaintiff has not had any treatment for his finger injury since ceasing hand therapy in about 2021. He has not consulted a general practitioner with respect to difficulties associated with his finger for several years. No treatment is planned.
78I accept that there is a risk that the plaintiff may develop arthritis in his finger in the future, but I am unable to assess the level of risk or the implications if it eventuates on the material before me.
79I accept that the plaintiff experiences pain at times, requiring over-the-counter medication approximately once or twice weekly if needed.
80I accept that the inability to fully extend his little finger has led to a loss of dexterity to some extent.
81I take into account that the plaintiff suffered this injury more than six years ago, when he was just twenty-four years of age, and will have this impairment for many years to come.
82The plaintiff has been able to continue almost all his pre-injury hobbies and activities, albeit that he has had to adapt how he performs some movements.
83I accept that there has been an impact on the plaintiff’s ability to drum, but he continues to practise regularly, both alone and with his band. He continues to perform with his band several times a year.
84I accept that his left finger injury played a large part in the plaintiff’s decision to stop playing basketball this year, but find that the decision was multifactorial, and his age was also a factor. The loss of this sport is an important consequence to the plaintiff.
85An impairment is not to be held to be serious unless the pain and suffering consequences are, when judged by comparison with other cases in the range of possible impairments or losses of a body function, fairly described as being more than significant or marked and as being at least very considerable.[9]
[9]TTB SMS Pty Ltd v Reading [2020] VSCA 203 at paragraph [30]
86The Court must not only consider what has been lost but also what has been retained.
87In the exercise of the value judgment required of me, I find that whilst it may be appropriate to describe the impairment consequences of the plaintiff’s injury as significant, I am not persuaded that they can fairly be described as “more than significant or marked and as being at least very considerable” when compared to the range of possible impairments.
Conclusion
88The plaintiff’s application is therefore dismissed.
89I will hear the parties on the issue of costs.
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