Wakene v Victorian WorkCover Authority
[2021] VCC 1498
•12 October 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY EXPEDITED LIST |
Case No. CI-20-05825
| BIRUK WAKENE |
| v |
| VICTORIAN WORKCOVER AUTHORITY |
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JUDGE: | HER HONOUR JUDGE TSALAMANDRIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 October 2021 | |
DATE OF JUDGMENT: | 12 October 2021 | |
CASE MAY BE CITED AS: | Wakene v Victorian WorkCover Authority | |
| MEDIUM NEUTRAL CITATION: [First revision 15 October 2021] | [2021] VCC 1498 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – skin condition – sun exposure – consequences
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s325
Cases Cited:Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1
Judgment:Application granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr L B R Allan | Maurice Blackburn Lawyers |
| For the Defendant | Mr M K Clarke | Hall & Wilcox |
HER HONOUR:
1In 2014-2015, Mr Wakene suffered injury to his skin, in the form of an aggravation of a previously asymptomatic photo-sensitive eczema condition, caused by sun exposure, in the course of his employment as a parking enforcement services officer with Wilson Parking (“Wilson”). Due to this skin condition, Mr Wakene was required to cease his employment with Wilson, as working outdoors aggravated his symptoms. Since that time, Mr Wakene claims that he has suffered an intermittent rash and itchiness, which is brought on by sun exposure, heat and sweat.
2In order for Mr Wakene to be entitled to seek to recover common law damages for his pain and suffering, the impairment to his skin must satisfy paragraph (a) of the definition of “serious injury” contained in s325 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”).
3Wilson accepted that Mr Wakene’s skin condition was work related. It also accepted that the skin condition prevented Mr Wakene from working outdoors. However, Wilson submitted that by avoiding sun exposure, the condition to Mr Wakene was sufficiently manageable, such that its consequences to him could not be described as “at least very considerable”.
4Only Mr Wakene was called to give evidence. Also in evidence was an affidavit from his wife, together with some medical reports. I have read these tendered documents, together with the transcript of the proceeding. I shall not refer to all of that material in the course of this Judgment, but rather to those parts of the evidence which I consider necessary to give context to, and explain, the conclusions reached in this Judgment.
5For the reasons that follow, I am satisfied that the consequences to Mr Wakene can be fairly described as “at least very considerable”, such that he should be granted leave to commence common law proceedings in respect of these injuries.
Mr Wakene’s background prior to suffering his skin condition at work
6Mr Wakene was born in Ethiopia in February 1960. He completed school in Ethiopia, and subsequently worked for the Foreign Affairs Department in a clerical role. Between 1986 and 2002, Mr Wakene worked in Yemen as part of his departmental role. Mr Wakene said that in Yemen, he would be in the sun only occasionally, as his job was mostly indoors.
7Mr Wakene said that when he was in Yemen, and still young, he sometimes had pimples on his forehead. He said that these were not itchy and would just come and go, as he thought happened to everyone when they were young.
8In 2002, Mr Wakene came to Australia as a refugee. He initially lived and studied in Launceston, and then later moved to Melbourne.
9In 2004, Mr Wakene commenced working with Wilson as a parking attendant, where he was not outside often.
10In November 2012, Mr Wakene attended on dermatologist, Dr Anne Howard, regarding occasional itchiness in his forehead. In a report dated 9 November 2012, Dr Howard noted that Mr Wakene had hypopigmentation on his cheeks, which she considered was likely to be pityriasis alba or mild eczema. Mr Wakene stated that Dr Howard provided him with some creams, and the condition subsequently settled down within a short period of time. Mr Wakene said that it was “not a big issue” for him.
Mr Wakene’s work-related skin condition and its claimed consequences to him
11Mr Wakene stated that in mid-April 2014, the nature of his duties at Wilson changed, as his role moved from parking attendant to parking enforcement officer, which involved checking numberplates in outdoor car parks.
12In June 2014, Mr Wakene was referred to dermatologist, Dr Bruce Tate. In a report dated 30 June 2014, Dr Tate wrote that, in his opinion, Mr Wakene suffered male chloasma which started many years ago while in Yemen, and which may be attributable to sun exposure. When this was put to Mr Wakene in cross-examination, he said that he did not tell Dr Tate he experienced such problems in Yemen, as save for some pimples when he was younger, Mr Wakene said that he had only experienced this itchiness when he started working outdoors with Wilson.
13Mr Wakene said that he only saw Dr Tate once. He said that Dr Tate provided him with some creams, which, at the time, improved his condition. However, as he continued to work outdoors at Wilson throughout 2015 and early 2016, his skin condition worsened. On 18 May 2016, Mr Wakene stopped working for Wilson and he has not worked since.
14On 22 September 2016, Mr Wakene attended on dermatologist, Dr Jack Green, who diagnosed him as suffering a photo-aggravated dermatosis. Dr Green noted that within 30 minutes of being in the sun, Mr Wakene developed itching, which could take a couple of days to settle down. Dr Green recommended sunscreen application, vitamin D, topical corticosteroids, and referred Mr Wakene to St Vincent’s Hospital.
15In November 2016 and May 2017, Mr Wakene was reviewed by dermatologists at St Vincent’s Hospital. Mr Wakene continued to be advised to protect his skin from sun exposure and use Elocon cream to his affected areas.
16On 11 October 2017, Mr Wakene attended a consultation with dermatologist, Dr Lena Ly, who diagnosed photo-aggravated eczema and acanthosis nigricans. Dr Ly also advised strict sun protection, Diprosone OV ointment for the hands, and Elocon lotion for the scalp and ears.
17In a report dated 11 October 2017, Dr Ly stated that
“Biruk reports flaring after being outdoors for an hour without any sunscreen and with sunscreen, this can delay the presentation of symptoms for a further 3 hours. Biruk has since had persistent disease, predominantly on the dorsal hands, forehead and scalp since the onset.”
18In cross-examination, Mr Wakene said that in 2017, at the time he saw Dr Ly, his skin was very sensitive and denied that he would be able to stay in the sun for three hours. He said that if he wore sunscreen, he could stay outside for about an hour, but said that he could not compare the problem in 2017-2018 to his condition now, as it is very different.
19On 31 July 2019, Mr Wakene re-attended upon Dr Ly. At this last attendance, Dr Ly diagnosed lichen simplex chronicus of the right occiput, and recommended Diprosone OV ointment. Mr Wakene said that he has not seen Dr Ly since that time. Instead, Mr Wakene said that his general practitioner, Dr Wong, gives him prescriptions for the cream which Dr Ly had recommended. Mr Wakene said that that the corticosteroid cream helps settle down his symptoms.
20Mr Wakene said that he has recently been referred back to see the dermatologists at St Vincent’s Hospital in relation to his rash arising from sweating and heat. Mr Wakene said that he is due to attend for this appointment next month.
21Mr Wakene stated that he has dry, flaky, red, painful and itchy areas on the back of his head, neck, forehead, legs (in particular his left leg at present), forearms, hands and trunk. In addition, he said that the skin on his hands and knuckles has thickened, and he has post-inflammatory pigmentation changes around his face, chest, hands and knuckles.
22Mr Wakene said that these skin eruptions occur with sun exposure, or if he gets hot and sweaty. He said that the itchiness and associated pain are often exasperating, such that he frequently feels like “ripping off my skin”.
23Mr Wakene said that because of this condition, he has to limit how much he walks and exercises. He also said that showering in hot water can cause his skin to be irritated.
24Mr Wakene stated that the weather has a significant impact on his condition. He said that when the weather is hot, his skin will be particularly bad, will go red and be very painful and itchy.
25Mr Wakene stated that he has to be very careful not to expose his skin to the sun and that he tries not to spend more than about 15 to 20 minutes in the sunlight, and that if he does, his skin gets itchier and itchier. He said that he tries to wear sunscreen, a long-sleeve shirt and a hat as much as possible.
26Mr Wakene said that he misses his job at Wilson. He said that he enjoyed feeling like he was part of a team, after having worked there for over eleven years. He said that although he did not like the enforcement part of his job as much as the site management, he had hoped to continue his career at Wilson for a long time.
27Mr Wakene said that he is unable to work outdoors. He accepted that he could work indoors with his skin condition, but that despite trying for many years now, he has not found anything suitable.
28Mr Wakene finds sun avoidance and topical corticosteroids helpful in preventing and managing his symptoms.
29Mr Wakene stated that he gets uncomfortable at night during the warmer months, such that his sleep is disturbed. He stated that he struggles to get comfortable as his skin gets hot and itchy at night, and that he often wakes up feeling tired and unrefreshed. He said that although his condition is not as bad in winter, he still has to be careful using blankets and sheets, because if he gets too hot, his skin starts to itch.
30Mr Wakene stated that he has difficulty playing and interacting with his four-year-old daughter outside, and swimming, attending the beach and walking outdoors.
31Mr Wakene stated that he feels frustrated, irritable, unhappy and demoralised by his physical condition, and that his skin drives him to despair, causing him to cry at times.
32Unrelated to his skin condition, Mr Wakene said that he was diagnosed with Hepatitis B in December 2019. He said that he was advised to lose weight and take medication for this condition. He said that it is under control.
33In addition, Mr Wakene said that he has recently experienced problems with his left knee, which he understands is osteoarthritis. He said that his knee condition restricts his walking and standing capacity, restricts him in his exercise and causes him daily pain. However, Mr Wakene said that he does not take medication for his knee pain, and has been advised to lose weight.
34Mr Wakene’s wife, Ms Yetinayet Getu, affirmed an affidavit on 1 October 2021. In her affidavit, she stated that she has frequently observed her husband being itchy, and that his skin is red, darkened and flaky. Ms Getu stated that she has seen her husband take a cool shower at night in order to calm his skin down. She stated that she tends not to cuddle him at night as the heat can set off his skin problems. Ms Getu also stated that Mr Wakene is less social and tends to avoid open-air gatherings. She said that she and her daughter often leave Mr Wakene at home when they go to the park.
Medico-legal evidence
35Dermatologist, Dr Alan Segal, provided three reports dated 28 June 2016, 11 July 2016 and 24 January 2017 in respect of Mr Wakene. Dr Segal was of the opinion that Mr Wakene had developed a photo eczema and that his sun exposure during the course of his employment with Wilson aggravated his predisposition to this condition.
36In his most recent report, Dr Segal noted that on examination, Mr Wakene still demonstrated some hyperpigmentation on his face, and frank eczema was noted on his right forearm, with increased hyperpigmentation. Dr Segal was of the opinion that Mr Wakene’s treatment was to avoid sunlight.
37In September 2021, Mr Wakene was examined by dermatologist, Dr Julia Rhodes. In a report dated 22 September 2021, Dr Rhodes detailed Mr Wakene’s work history, the onset of his skin condition and the treatment provided for it. She noted that Mr Wakene’s rash had changed since its onset in 2014, in that since 2019, he has experienced itching and a rash on his torso, legs and neck when exposed to heat or sweat in the absence of sun exposure. Dr Rhodes noted that this occurs every two weeks. When this aspect of her report was put to Mr Wakene in cross-examination, he said that the frequency of the flare ups depended on the weather. Mr Wakene said that if he goes a week without a flare up “it is good”. Mr Wakene explained that he has to be careful to control himself and that at night he has to balance his blanket, as if he gets hot, he gets itchy, and then needs to take a cold shower.
38Dr Rhodes was of the opinion that, in late 2014, Mr Wakene developed a photo-aggravated eczema on a possible background of mild pre-existing eczema. This resulted in Mr Wakene requiring medical attention and intermittent treatment, and the avoidance of sun exposure, both at work and at home. Dr Rhodes noted that since ceasing work, Mr Wakene has continued to experience intermittent itching and skin rashes, also triggered by heat and sweat exposure in the absence of sun. This is most likely a form of eczema. Dr Rhodes also reported that Mr Wakene had an area of lichen simplex chronicus on his left ankle, a localised form of chronically-scratched eczema.
39Dr Rhodes was of the opinion that Mr Wakene would need to avoid sun and heat exposure. Further, Dr Rhodes was of the opinion that Mr Wakene was unable to work outdoors, but he had capacity for full-time indoor employment.
40Dr Rhodes considered it was likely that Mr Wakene will have lifelong eczema and will require intermittent treatment with topical corticosteroids, alongside management of sun and heat exposure to control his symptoms.
41Dr Rhodes also considered that Mr Wakene suffered two other skin conditions, acanthosis nigricans and mild melasma, both of which are asymptomatic. She stated that the acanthosis nigricans was evident on the posterior neck, metacarpophalangeal, proximal and distal interphalangeal joints, and the melasma was evident on the temples and zygomatic arches bilaterally. Dr Rhodes considered the acanthosis nigricans was unrelated to Mr Wakene’s employment with Wilson and that, although the melasma may have been precipitated by Mr Wakene’s workplace exposure to sun, its persistence five years later made its current presentation unlikely to be related to his employment. I have therefore disregarded these skin conditions in my assessment of Mr Wakene’s claimed consequences.
Is Mr Wakene’s skin impairment permanent?
42In closing submissions, Wilson queried the permanence of Mr Wakene’s skin condition in circumstances where he had recently been referred back to St Vincent’s Hospital for further advice regarding his exacerbations arising from sweat and heat exposure. However, I note that Dr Rhodes was aware of Mr Wakene’s rashes being triggered in such circumstances, and she considered his eczema was lifelong. Dr Rhodes’ opinion, together with my acceptance of Mr Wakene’s evidence that his skin condition has persisted for over seven years now, means that I am satisfied that Mr Wakene’s skin impairment is permanent.
Why the consequences to Mr Wakene are “very considerable”
43In the Court of Appeal decision of Haden Engineering Pty Ltd v McKinnon,[1] Maxwell P stated that, in assessing a plaintiff’s pain and suffering consequences, a court should have regard to what the plaintiff says about the pain, what the plaintiff does about the pain, what the doctors say about the extent and intensity of the plaintiff’s pain, and what objective evidence shows about the disabling effect of the pain. The weight to be attached to the plaintiff’s account of pain depends largely upon an assessment of the plaintiff’s credibility. President Maxwell noted that a court will make its own assessment of the plaintiff’s credibility based upon the evidence provided, and said that a court may also take into account the views expressed by examining doctors as to the reliability of the plaintiff’s accounts of pain.[2]
[1] (2010) 31 VR 1
[2] (Ibid) at paragraphs [9]-[12]
44I considered Mr Wakene a creditworthy and reliable witness. He gave a frank description of how his skin condition affected him, and how it flared up in an unpredictable way, especially in the warmer months. Mr Wakene readily admitted that he had an unrelated knee condition which restricted his activities and caused him daily pain.
45Mr Wakene’s credibility bears significantly on my assessment of his evidence regarding his account of his pain experience, including its frequency, and the modifications it has caused him to make to his life.
46I accept Mr Wakene suffers the following consequences from his skin impairment:
· Regular flare ups of itchiness, which can be so intense as to make him want to tear his skin off.
· Intermittent use of topical corticosteroid creams to control the rashes.
· Inability to work outdoors.
· Loss of his employment with Wilson, a job that he had enjoyed, as he gained pleasure in being part of its team.
· Restriction on his ability to go out into sunlight for more than 20 minutes, and the need to wear a hat and long-sleeve shirt. I note that Mr Wakene misses going to the beach and swimming, is limited in the time he can spend at the park with his daughter, and avoids open-air gatherings. Given the climate in Melbourne, and the lifestyle associated with it, I consider this to cause a substantial interference with Mr Wakene’s enjoyment of life. To be denied the ability to enjoy unrestricted time in the outdoors, whether at the beach, park or even in the local neighbourhood, is a very considerable consequence.
· Regular interference with his sleep, and the constant need to avoid getting too hot at night.
· Inability to enjoy a hot shower.
· The need to be careful to avoid exercise and sweating. I note that there is some unrelated limitation on his ability to exercise due to his left knee condition, and thus I attach minimal weight to this consequence.
47I am satisfied that, when judged by comparison with other cases in the range of possible impairment or losses, these collective consequences to Mr Wakene from his skin condition, can be fairly described as being “more than significant or marked” and “at least very considerable”. I therefore grant Mr Wakene leave to commence common law proceedings in respect of the injuries he suffered in the workplace accident.
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