West v Victorian WorkCover Authority
[2019] VCC 703
•23 May 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-16-04331
| KAINE WEST | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE BOWMAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 and 10 April 2019 | |
DATE OF JUDGMENT: | 23 May 2019 | |
CASE MAY BE CITED AS: | West v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 703 | |
REASONS FOR JUDGMENT
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Catchwords: Accident Compensation Act 1985 – s134AB – application in respect of both pain and suffering damages and loss of earning capacity – reliance upon paragraphs (a) and (c) of the definition of serious injury – physical injury relied upon is to the plaintiff’s left lower leg – specific incident of injury – earning capacity of the plaintiff who has been working – whether burden of proof discharged in relation to earning capacity – whether burden of proof discharged in relation to pain and suffering arising from physical injury – factors to be considered.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Tobin SC with Mr O Lesage | Arnold Thomas & Becker |
| For the Defendant | Mr M Clarke | Wisewould Mahony |
HIS HONOUR:
General background
1 This matter comes before me by way of an application pursuant to s134AB(16)(b) of the Accident Compensation Act 1985, hereinafter referred to as “the Act”. The plaintiff seeks leave to bring proceedings for damages in respect of both pain and suffering and loss of earning capacity. In so doing, he relies upon paragraphs (a) and (c) of the definition of “serious injury” to be found in s134AB(37) of the Act, although counsel for the plaintiff pointed out that reliance was primarily placed on paragraph (a). I would refer to Transcript (hereinafter referred to as “T”) 10 and 12.
2 The physical injury relied upon is one to the left lower leg, and shall hereinafter be referred to as “the injury”. The injury suffered by the plaintiff occurred on 22 October 2012, when some formwork upon which he was standing collapsed while he was in the course of his employment. This shall hereinafter be referred to as “the accident”. When the accident occurred, the plaintiff was employed as a concreter by an entity called Eltrax Pty Ltd, hereinafter referred to as “Eltrax”.
3 That the accident occurred and that the plaintiff suffered the injury are not issues that are in dispute. I would refer to T18–20 and T112. It is also apparent that statutory benefits have been paid. The dispute centred upon whether the requirements of the definition have been satisfied, and there was particular concentration upon earning details and the requirements of the Act in relation to pecuniary loss. That is not to say that pain and suffering were ignored or conceded. That is certainly not the case.
4 Mr T Tobin QC with Mr O Lesage of counsel appeared on behalf of the plaintiff. Mr M Clarke of counsel appeared on behalf of the defendant. The plaintiff gave oral evidence, including the adoption of three affidavits as being true and correct (save for one small correction of no significance to matters in issue), and was cross-examined. The balance of the evidence was documentary in nature and was tendered either by consent or without objection.
(a)The plaintiff’s background, education and employment prior to the accident
5 The plaintiff is aged thirty-seven years, he having been born in July 1981. He has a partner and a young child from a previous relationship. His partner also has a young child. There has been considerable tension with one of the plaintiff’s former partners, this resulting in some form of court case and assault charges. The plaintiff also has two other young children. Thus, his domestic history and its sequelae are a little complicated.
6 The plaintiff reached Year 10 level by way of education, but did not manage to complete that year. Shortly thereafter he commenced employment as a hard plasterer. He did this for approximately 10 years, before commencing his own business, which was not successful. He also seems to have worked as a storeman for approximately one year. He commenced employment with Eltrax as a concreter, starting that work in October 2011. He was still engaged in that work when the accident occurred.
(b)The plaintiff as a witness
7 The plaintiff struck me as being what could be described as “a bit of a character”. However, he did become a little tearful at times. I have no reason to doubt or question his evidence. He impressed me as someone who has always been a hard worker and who was a particularly keen sportsman, playing both football and cricket in local competitions (and playing with considerable success, particularly at cricket).
8 In short, I accept the plaintiff as a witness who did his best to give accurate evidence. I note that Mr Russell Miller, orthopaedic surgeon, who examined the plaintiff at the request of his solicitors, described him as being cooperative and a clear and straightforward historian. Dr Christine Kotsios, consultant psychiatrist, who examined the plaintiff at the request of the defendant, described him as being alert and cooperative. Dr Lester Walton, consultant psychiatrist, who examined the plaintiff at the request of his solicitors, described him as being pleasant and cooperative, although clinically depressed. Dr Joseph Slesenger, specialist occupational physician, who saw the plaintiff at the request of his solicitors, referred to him as having good affect, eye contact and insight into his impairment. Dr Robert Lefkovits, consultant physician, who examined the plaintiff at the request of the defendant, described him as being pleasant, cooperative, and a person who seemed to be genuine.
9 I agree with the above observations. As stated, I accept the plaintiff as being a witness who did his best to give accurate and honest evidence.
(c)The state of the plaintiff’s health prior to the injury
10 I accept that the plaintiff had no prior injuries of any significance to the left lower limb and was fit and well. His major relationship problems and any psychological reaction thereto seem to post-date the accident. In short, I am of the view that the plaintiff did not suffer from any relevant pre-injury condition and was in good health.
(d)The injury, its treatment and diagnosis
11 As stated, the accident occurred on 22 October 2012. The plaintiff attended upon his general practitioner, Dr Mourad Alexander, on the following day. He was certified unfit for work and some medication prescribed, along with physiotherapy. Subsequent radiological investigations, in the form of an x‑ray and ultrasound of the left ankle and Achilles tendon, were normal. The plaintiff continued to see Dr Alexander with complaints of soreness and tenderness, particularly in the left calf, causing him on 7 December 2012 to query whether reflex sympathetic dystrophy was a correct diagnosis. At this time, Dr Alexander prescribed Endep and Tramadol, as well as referring the plaintiff to the pain-management clinic at the Austin Hospital. On 9 January 2013, Dr Alexander recorded that the plaintiff’s left leg was swollen.
12 In the meantime, Dr Alexander had referred the plaintiff to Mr Roderick Cunningham, orthopaedic surgeon, who saw him on 30 November 2012. Further investigations, including EMG studies and an MRI scan, were conducted, but essentially no abnormality was found (although there was evidence of a previous minor injury to a ligament). The plaintiff was referred to a neurologist, Dr Bernard Infeld. In the report of Mr Cunningham of 18 October 2013, it is stated that the conclusions of Dr Infeld were to the effect that a diagnosis of Complex Regional Pain Syndrome (hereinafter referred to as “CRPS”) was possible. This seems to have been a diagnosis with which Mr Cunningham concurred.
13 It is noteworthy that, when the plaintiff was examined at the Austin Hospital on 21 January 2013, his left lower leg and foot were discoloured, there was wasting of the left thigh and there was mild swelling around the left ankle. The left foot was warmer than the right, with allodynia and reduced sensation. The diagnosis was of CRPS. I might add that it seems to me that, for the purposes of this application, such diagnosis was not challenged with any force by the defendant, although it was asserted that the symptoms were “at the very mild end of the spectrum” – see T112 and 113.
14 In any event, the diagnosis made at the Austin Hospital was one of CRPS. Treatment by way of hydrotherapy and physiotherapy was initiated, along with gymnasium work. By July 2013, the plaintiff was managing some work twice a week, had commenced psychology sessions, and was continuing hydrotherapy at his local pool. No further report from Austin Health was placed in evidence. I note that a report from the treating physiotherapist, Mr di Vincenzo, also contains a diagnosis of CRPS.
15 The plaintiff was referred from the Austin Pain Clinic to Dr Philippa Frances, clinical psychologist, seeing her on three occasions. The last was on 17 July 2013. Dr Frances referred to the fact that the plaintiff had been diagnosed with CRPS. When seen, he had symptoms of severe pain, disturbed sleep, low mood and the like. Dr Frances diagnosed an Adjustment Disorder with Mixed Anxiety and Depressed Mood. The plaintiff’s symptoms were secondary to the original physical injury. Dr Frances considered the plaintiff to have a fair prognosis for psychological recovery if he was able to return to work.
16 The plaintiff continued to see Dr Alexander. I note that he recorded that the plaintiff suffered a stress fracture of three metatarsal bones of his right foot on 12 September 2014 after his left leg collapsed. Essentially, as shall be discussed, no reliance upon the right foot injury was advanced in the present case. In his report of 9 September 2014, Dr Alexander also referred to the fact that the plaintiff had been unable to purchase medications because of his poor financial situation, and that he had seen a psychologist, but had stopped so doing. Dr Alexander referred to the plaintiff as suffering from depression, in addition to his physical injuries. He considered the plaintiff’s condition to be poor, and that he was likely to be left with some residual chronic pain.
17 The most recent report from Dr Alexander is of 18 February 2018. By this time, the plaintiff had returned to work as a builder’s labourer, working 33 hours per week, although Dr Alexander was pessimistic about his being able to maintain that job in the long term. Dr Alexander’s report places some significance upon the right knee injury, which does not form part of the basis of this application. Indeed, in opening the case, Mr Tobin specifically stated that there were some ongoing problems with the right knee, but the injury relied upon was injury to the left ankle and ongoing problems in relation to it – see T9. This seems to have been confirmed during closing addresses – see T118. In any event, the conclusion of Dr Alexander, which seemed to embrace both legs, was that ideally the plaintiff should be engaging in non-physical work on a part-time basis, which may increase to full-time in the future.
18 The plaintiff has also been seen by Dr Grant Scott, neurologist and neuropsychologist, he apparently seeing the plaintiff on several occasions during the first half of 2017. Dr Scott seems to have been reluctant to make a firm diagnosis. I hasten to add that that is no criticism of him, as this is a case that obviously has its complexities. In any event, he referred the plaintiff to Dr Andrew Hughes, who apparently is attached to Heidelberg Neurology where Dr Scott is based. Ultimately Dr Scott reported back to Dr Alexander to the effect that he could not provide an exact neurological explanation for the plaintiff’s condition, but he probably had a functional movement disorder.
19 Upon referral from Dr Alexander, the plaintiff has also seen Dr Brianna Chesser, psychologist, and had received treatment on some sixteen occasions prior to Dr Chesser’s report of 28 April 2018. The diagnosis of Dr Chesser seems to have been one of major depressive disorder and generalised anxiety disorder. Dr Chesser was of the view that the plaintiff’s condition did not meet the full diagnostic criteria for post-traumatic stress disorder, but a number of the symptoms from which he has suffered were listed. It was anticipated that he would require long-term psychological and psychopharmacological assistance for the ongoing management of his symptoms.
20 In addition, the plaintiff has been seen by Professor Ian Brand at the Northern Hospital. It would appear that he was so seen on 21 February 2018 at the Orthopaedic Screening Clinic. Professor Brand’s report of 12 May 2018 is largely directed towards the condition of the plaintiff’s right knee. However, there is reference to the plaintiff suffering CRPS of the lower left leg. There is also a reference to sleep disturbance resulting from the left leg condition and medication taken for it. When seen on the one occasion by Professor Brand, there was no CRPS in the left leg evident, but there was evidence of altered peripheral and central sensitivity, with some residual quadriceps weakness. Professor Brand expressed the view that it was likely that the plaintiff had poor balance and control.
21 The plaintiff has also been examined for medico-legal purposes. At the request of his solicitors, the plaintiff was seen by Mr Thomas Kossmann, orthopaedic surgeon, who reported on 29 January 2015. Leaving to one side the right knee, the diagnosis of Mr Kossmann was of an inversion injury to the left ankle causing a CRPS. Mr Kossmann regarded the plaintiff’s prognosis as being guarded. He did not have all symptoms of a CRPS, but did complain about pain in the left foot and calf. Mr Kossmann was of the view that the plaintiff would require considerable further treatment and modes of treatment in that regard. He regarded the plaintiff as being 100 per cent incapacitated, but was taking into account the condition of the plaintiff’s right knee and placing considerable emphasis upon it. Mr Kossmann stated that the plaintiff had no current capacity for employment, but recommended a review in one year. However, it would not seem that such a review took place.
22 Mr Russell Miller, orthopaedic surgeon, saw the plaintiff at the request of his solicitors on 1 March 2018. He noted that the plaintiff referred to the right knee as being a continuing major problem for him. The plaintiff also referred to the left leg and ankle as being a major problem. The plaintiff mentioned such matters as sleep disturbance; difficulty with shoe wear; problems with prolonged standing and walking, stairs and uneven ground; and profuse and severe pain. Mr Miller also noted that the plaintiff had returned to work as a builder’s labourer assisting carpenters, work which was significantly less physical than his previous occupation. The plaintiff was suffering from significant symptoms at work.
23 In relation to the left leg and ankle, Mr Miller stated that such injury had probably been a soft-tissue inversion injury, along with a lateral ligament injury. He thought it likely that the plaintiff had gone on to develop a chronic pain syndrome, affecting predominantly the left lower extremity. He considered that the plaintiff was unlikely to be assisted by surgery, and referred to the prognosis as being only fair. Mr Miller also referred to an adverse mental state reaction. He described restrictions which the plaintiff would have in relation to work. He could not return to his pre-injury duties, but had returned to modified lighter forms of work consistent with the left leg injury sustained. Mr Miller also thought it likely that the plaintiff’s right-knee work restrictions would be reduced following successful arthroscopy. Mr Miller noted the restrictions upon the plaintiff’s enjoyment of leisure activities and upon his social life, in addition to his reduced capacity for heavy domestic and gardening activities.
24 Dr Peter Blombery, consultant vascular physician, has seen the plaintiff on two occasions for medico-legal purposes. The earlier of these was on 12 February 2018. Dr Blombery took a detailed history of the plaintiff’s treatment and of the problems following the giving-way of the right knee. In relation to employment, Dr Blombery noted that the plaintiff had obtained work as a builder’s labourer in November 2017, this being full-time work with an employer who is “very understanding”. The plaintiff was involved in the cleaning of sites and was able to do some carpentry. He also described the impact upon his domestic and sporting activities, telling Dr Blombery that “his whole life has changed”.
25 In relation to diagnosis, Dr Blombery thought that the symptoms and features of the ongoing pain and autonomic disturbance were diagnostic of CRPS Type 1, previously known as reflex sympathetic dystrophy. Dr Blombery considered that the current features of CRPS Type 1 exhibited by the plaintiff were quite mild, and only fulfilled the basic criteria of the diagnosis, not the “Budapest criteria”. Whilst describing the features of the CRPS as “mild”, Dr Blombery nevertheless said that the plaintiff’s prognosis for further recovery was relatively poor. He considered that the condition with the left leg had stabilised. In the opinion of Dr Blombery, the plaintiff, whilst somewhat restricted in terms of work, was able to cope reasonably, given that he had an employer who understands those problems.
26 Dr Blombery saw the plaintiff again on 25 March 2019, reporting on 2 April. On this occasion, the plaintiff complained of constant pain and pins and needles in the left ankle, extending from the heel up to the calf and to below the knee. The left leg became swollen, hot, and red or blue in appearance. Whilst rating the pain overall as 3–4/10, the plaintiff stated that it kept him awake at night and that his left leg involuntarily twitched. He indicated that, having a good employer, he was able to take days off as required when the pain was severe, also stating that the number of days he worked per week varied and ranged from two to five. Upon examination, changes in temperature and colour of the foot were not present. Accordingly, the plaintiff again fulfilled the basic criteria for CRPS, but not the Budapest criteria.
27 Dr Blombery also expressed the opinion that what the plaintiff has is an organic disorder of pain-nerve pathways and not a psychological disorder. He described the plaintiff as having a very significant disability affecting his left ankle which prevents him from working in the job that he was previously doing and would prevent him from doing heavy or repetitive tasks. He considered it fortunate that the plaintiff had obtained the particular employment in which he was working.
28 In summary, the diagnosis of Dr Blombery was of CRPS complicating an inversion injury to the left ankle and directly consequential upon the accident. He considered that the plaintiff’s capacity in relation to employment had been permanently affected, there being restrictions on such things as excessive climbing, carrying heavy weights, and the like. Dr Blombery was of the view that there would be no significant change in the level of disability in the foreseeable future, the prognosis for recovery being poor.
29 Dr Joseph Slesenger, specialist occupational physician, reported to the plaintiff’s solicitors on 13 June 2018, following an assessment on 17 May. Dr Slesenger referred to a variety of injuries, including those to the right lower limb. In relation to the left leg, he referred to a soft tissue injury; chronic left leg pain; CRPS; and the recent development of medial left knee pain, with evidence of left knee medial meniscal tear. In relation to the plaintiff’s left leg, Dr Slesenger was of the opinion that symptoms are likely to continue into the foreseeable future, noting the plaintiff’s poor response to treatment to date and the length of his impairment and disability. He noted that the plaintiff was taking a regime of medications daily, namely Lyrica, Celebrex, Pristiq and Ibuprofen/Panadeine.
30 Dr Slesenger was of the view that the plaintiff’s current working arrangements were unlikely to be sustained, given his fatigue towards the end of the working day. If the plaintiff could not continue in his present employment, Dr Slesenger was of the opinion that the plaintiff was unlikely to be able to secure similar arrangements in an open job market. He placed various restrictions upon the plaintiff’s employability, limiting it to four hours a day and four days a week, in something of the nature of a light packing or light assembly role. Dr Slesenger also referred to alternative sedentary employment.
31 The defendant has also had the plaintiff examined for medico-legal purposes. Some of these reports are now somewhat dated and shall not be analysed in any great detail.
32 Dr Roy Karna, rheumatologist, saw the plaintiff at the request of the defendant on 6 February 2014. He believed that the plaintiff had suffered a soft tissue injury, but could find no evidence of muscle wasting or the like. Dr Karna noted the default diagnosis of CRPS that had been made. However, he thought it was more likely that the plaintiff suffered from chronic pain syndrome.
33 Dr David Barton, consultant occupational physician, saw the plaintiff on 5 March 2013. At that time the plaintiff had not returned to work. Dr Barton believed that the plaintiff had suffered a minor soft tissue injury to the left foot and could find no evidence of features which would fit with the diagnosis of chronic regional pain syndrome (as opposed to CRPS, which was not referred to by Dr Barton, although he did refer to the absence of any evidence of reflex sympathetic dystrophy). He did not believe that the plaintiff was significantly incapacitated.
34 Mr Clive Jones, orthopaedic surgeon, reported to the defendant on 26 November 2013, although, somewhat strangely, what appears to be an identical report of 9 December 2013 was also put before me. In any event, Mr Jones was unsure as to the cause of the plaintiff’s persistent chronic pain in the left calf, and seems to have been concentrating more upon an apparent claim for metatarsal stress fractures in the right foot resulting from a fall in the shower on 19 September 2013. However, he noted that the plaintiff’s left calf symptoms were his main concern. In short, his report does not take matters much further, other than underlining the fact that the plaintiff’s main concern at the time was chronic left calf pain.
35 Dr Robert Lefkovits, consultant physician, saw the plaintiff at the request of the defendant on 23 June 2014. Dr Lefkovits found that, on physical examination, the plaintiff’s state was essentially normal. He did think that some of the symptoms of which the plaintiff complained were consistent with CRPS, although, upon examination, there was no evidence of the presence of the changes concerning which complaint had been made. Dr Lefkovits stated that non-organic issues were the predominant ongoing problem and thought that, from a purely organic point of view, there was no reason why the plaintiff could not maintain a normal position in the workforce, including pre-injury duties.
36 Mr Michael Shannon, orthopaedic surgeon, saw the plaintiff at the request of the defendant on 24 November 2014. Mr Shannon also had a history of the plaintiff’s collapse in the shower at home, when he fractured the third, fourth and fifth metatarsals in the right foot. The plaintiff told Mr Shannon that his right foot was now “okay”. The opinion of Mr Shannon was that the plaintiff sustained a strain to his left distal calf muscle, or possibly the Achilles tendon, in the accident. While subsequent investigations did not demonstrate significant pathology, the plaintiff developed symptoms consistent with CRPS. Mr Shannon was of the view that the plaintiff no longer had clinical features of this condition, and that, whilst he had been found to have permanent impairment in the left ankle and hind foot, he now had a normal range of movement of both the ankle and the subtalar joints. Mr Shannon thought that the plaintiff was probably fit for his normal occupation, although, at this stage, he had been out of the workforce for more than a year, and it would not be ideal for him to go back to work full-time as a concreter. In short, Mr Shannon felt that the plaintiff’s injury had resolved. A brief supplementary letter of 13 January 2015 from Mr Shannon to the defendant relates to the plaintiff’s right knee condition, concerning which Mr Shannon does not implicate employment.
37 Mr Ian Jones, orthopaedic surgeon, has reported to the defendant on several occasions. His earliest report is of 16 March 2015. The plaintiff was complaining of chronic pain in the left lower leg and also pins and needles extending up the outer aspect of the left calf. Additional symptoms were discolouration in the lower leg and foot, which occurs spontaneously three to four times a day, this being accompanied by some swelling. The plaintiff had commenced a builder’s licence course, which was anticipated to take 18 weeks and which involved him in working 10 hours per week. Mr Jones was of the opinion that there were currently no features of CRPS and could not explain the plaintiff’s left foot and ankle symptoms. He thought it possible that the plaintiff had suffered an inversion strain of the left ankle in the accident. He believed that the effects of the work injury had resolved. Mr Jones considered the plaintiff to be fit for work. The only restrictions mentioned by Mr Jones arose from the plaintiff’s right knee condition.
38 Mr Jones again examined the plaintiff on 2 August 2016, reporting on the same day. At this time, the plaintiff was taking Endep, Lyrica and Tramadol, with doses totalling 400 milligrams a day. An attempted reduction in the taking of medication had resulted in increased trembling of muscles in the left foot and ankle, an increase in pins and needles and with symptoms of hot and cold flushes. Mr Jones provided a clinical assessment of the plaintiff’s left ankle joint to the effect that, apart from a slight restriction of extension, it was normal. Whilst there had been a diagnosis of symptoms being consistent with CRPS, Mr Jones stated that currently the plaintiff had no clinical signs of such a condition. Accordingly, the basis of his neurological symptoms and signs was uncertain. Mr Jones noted that, as a consequence of the injury, the plaintiff had to give up all sport and had limitations in relation to his day-to-day activities. Mr Jones thought that the plaintiff had definite pathology in the left ankle, subtalar joint and forefoot on the left side, compared with the right. He thought that the deformity of the ankle subtalar joint and forefoot had increased since his earlier examination. He suggested a review by a neurologist and perhaps further nerve conduction tests.
39 Mr Jones reported again to the defendant’s solicitors on 30 April 2018. The plaintiff was reporting continuing problems in the left ankle, with constant pain and muscle spasms if he did too much. He complained of an inability to walk beyond approximately 200 metres, also referring to constant pins and needles. The plaintiff informed Mr Jones of his change in employment and of the fact that he was now working as a builder’s labourer on modified duties in relation to the construction of domestic housing. He had commenced employment with CSM Building and Construction (hereinafter referred as “CSM”) in November 2017. His left ankle problems or symptoms had not caused him to have any time off work since November 2017. Mr Jones was of the view that the plaintiff had some symptoms and signs suggestive of a chronic regional pain syndrome (as opposed to CRPS).
40 Mr Jones also commented that the plaintiff had been very limited in his attempted return to playing cricket and believed that the plaintiff’s left foot condition impacted upon his former level of physical activity. He did not think that there were any functional symptoms or signs in the plaintiff’s presentation. Mr Jones provided a further letter to the defendant’s solicitors, this letter being dated 2 July 2018. It dealt with the plaintiff’s right knee condition, in relation to which Mr Jones could find no evidence of any signs of a meniscal tear or other identifiable pathology.
41 Dr Michael Baynes, occupational physician, saw the plaintiff at the request of the defendant on 18 August 2016. At the time of this examination, the plaintiff was working full‑time for Concrete Protection and Repair Services Pty Ltd (hereinafter referred to as “CPR”) as a concreter and had been so doing since 28 June 2015. He stated that he was able to cope with the work, although he had increased pain if he spent all day up a ladder. Dr Baynes noted that the plaintiff had been unable to return to his sport. He also noted the medication regime that was operating.
42 The diagnosis of Dr Baynes was that the plaintiff had suffered an inversion injury to his left ankle, thereby suffering soft tissue damage. Based upon the history, the plaintiff had developed CRPS affecting the left calf and foot, although there was no objective evidence of this in the examination carried out that day. Dr Baynes considered the plaintiff to be fit for modified duties with no lifting greater than 15 kilograms and with no lifting or carrying over rough or unstable ground. He also believed that the plaintiff should limit his standing and ladder work, although noting that it would appear that the plaintiff was working through his pain levels and on a full-time basis. However, he was fit for a range of employment roles, Dr Baynes listing some six general areas of suitable employment.
43 Dr Baynes saw the plaintiff again on 13 February 2018, reporting on that day. He recorded that the plaintiff advised that there had been no change in his condition since the previous review. He was suffering continuous pain over the lateral aspect of the left ankle, foot and lower calf, along with a tendency for swelling with activities. There were also some colour changes. The plaintiff stated that he slept without difficulty, although his partner advised that he tends to toss and turn and particularly in hot weather.
44 The plaintiff also reported that he had terminated his employment with CPR in late 2016, as the work was too heavy. He was now working as a builder’s labourer and carpenter, which was lighter work involving domestic housing. The work was full-time, although he has some difficulty when working on second storeys and standing on trusses, as his balance with his left foot was not good. However, he could work on ladders and climb up and down, but only for short periods of time. Upon examination, the colour and temperature of the left foot were normal and there was no obvious swelling. There was hypersensitivity to touch and altered sensation affecting the lateral aspect of the left lower calf and the left side of the ankle and foot. Right leg examinations were essentially normal, although there was some tenderness to palpation of the right knee. The diagnosis of Dr Baynes remained the same. In relation to work capacity, Dr Baynes noted that the plaintiff was now working as a builder’s labourer and carpenter on domestic housing sites on a full-time basis and was coping with this work quite well. He again thought that the plaintiff was fit for modified duties on a full‑time basis. Whilst retraining would not be necessary at this point in time, the plaintiff would be capable of undertaking it.
45 Dr Baynes reported for a third time on 2 April 2019, having seen the plaintiff on that day. The plaintiff advised that there had been no change in his condition since the last review, although his depression and anxiety were worse. The symptoms of which he complained were much the same, in that he described continuing pain in the left leg and over the heel and calf, as well as the toes. He described it as a burning pain. He also suffered from pins and needles in the left foot, again referring to changes in colour. The plaintiff said that standing was limited to 20 minutes, with no sitting restriction. He could walk for one hour some days, but less on others. He advised that his sleep was poor, due to anxiety and nerves. He was still on a substantial regime of medication.
46 Dr Baynes noted hypersensitivity to touch and altered sensation affecting the lateral aspect of the left lower calf and the left side of the ankle and foot. There was slight redness in relation to the last mentioned areas. On this occasion, whilst Dr Baynes again diagnosed a soft tissue injury and CRPS based on the history that he was given, there was some evidence of CRPS present, with slight swelling and redness of the left ankle and foot. He again described the plaintiff as coping with his work quite well, but having some difficulty with balance and climbing ladders. The plaintiff was able to wear safety boots. He did have some restrictions in terms of working on second storey roofs, where balance is critical. Dr Baynes put much the same limitations upon working as previously. He considered the plaintiff fit to work full‑time hours where he was able to rotate posture between sitting, standing and walking. He would be fit for employment in various occupations. In addition, the plaintiff would be capable of undertaking retraining and had reasonable computer skills.
47 I have spent considerable time analysing the medical material in this case in relation to the somewhat unusual injury sustained by the plaintiff and the various diagnoses of it. I have left to one side for the moment reports from consultant psychiatrists.
48 On balance, I am of the view that the plaintiff initially sustained what could be described as a soft tissue injury to the left ankle region and that there has developed from that CRPS. This was diagnosed as early as October 2013 by his treating orthopaedic surgeon, Mr Roderick Cunningham. It had been detected earlier in January 2013 at the Austin Hospital, although the names of those who treated the plaintiff are not clear. Further, in a letter to Mr Cunningham of 8 March 2013, Dr Bernard Infeld, neurologist, stated that he could not dispute the diagnosis of CRPS. The end result is that CRPS was diagnosed as early as 2013. Dr Peter Blombery, who is a consultant vascular physician and whose area of expertise would seem to embrace conditions such as this, diagnosed CRPS. (I note from the CV attached to his report of 27 April 2018 that CRPS is the first area of medicine listed in relation to his professional interests and that he has been a vascular physician since 1984.) In his more recent report of 2 April 2019, Dr Blombery stated that the plaintiff fulfils the basic criteria for the diagnosis of CRPS Type 1. He emphasised that this was an organic disorder of pain nerve pathways and not a psychological disorder.
49 I accept and prefer the diagnoses of those who have treated the plaintiff and the recent diagnosis of Dr Blombery of CRPS complicating an inversion injury to the left ankle. Whilst Dr Baynes may not be a specialist in this area, his most recent report to the defendant is at least partially consistent with such a diagnosis. In any event, it is the diagnosis that seems to me to make most sense, it is well supported by expert opinion and it is one that I accept.
50 There is nothing to suggest that this diagnosis represents in whole or in part the aggravation of a pre-existing condition. I find that it is not such an aggravation.
51 I am also satisfied that the consequences of the injury are permanent within the meaning of the Act in that they will persist for the foreseeable future. In his more recent report of 2 April 2019, Dr Blombery expressed the view that the plaintiff’s capacity for employment had been permanently affected; that his prognosis for recovery at this stage is poor; and that there will be no significant change in his level of disability in the foreseeable future. I would refer again to Dr Blombery’s expertise in this area of medicine.
52 Dr Slesenger, in his earlier report, expressed the opinion that the symptoms in the plaintiff’s left leg are likely to continue into the foreseeable future. Mr Russell Miller stated that the plaintiff’s condition had substantially stabilised as at June 2016, although Mr Thomas Kossmann, whilst not finding that the plaintiff’s condition had stabilised as at January 2015, considered the prognosis to be guarded.
53 Indeed, in his closing address, Mr Clarke argued that the condition of the plaintiff’s left ankle has been stable for an extended period of time ― see T126. He did refer to the issue of permanency in respect of loss of earning capacity, but this was more in the context of pay summaries indicating an ability to earn at a capacity above what Mr Clarke described as the threshold ― see T128 and T129. For the above reasons, I am of the view that permanence of consequences, within the meaning of the definition, has been established.
54 Pursuant to s134AB(38)(h), consequences of a psychological or psychiatric nature are only to be taken into account for the purposes of sub-paragraph (c) of the definition. Accordingly, insofar as there are any such consequences that impact upon the plaintiff’s physical injury, they shall not be taken into account.
55 In any event, the following observations can be made about the reports from psychologists or psychiatrists that have been placed before me. I shall deal firstly with those who have treated the plaintiff.
56 Dr Philippa Frances, consultant psychologist, saw the plaintiff on three occasions in 2013, at which time she thought that his prognosis was fair, but was unable to comment upon his condition beyond July 2013.
57 Dr Brianna Chesser, psychologist, has seen and treated the plaintiff on multiple occasions between 7 March 2017 and the date of her report, namely 28 April 2018. She noted that he had been diagnosed with major depressive disorder and generalised anxiety disorder. She considered that the pain which the plaintiff experienced from his physical injuries acted as a barrier to psychological progress. She considered that his prognosis was impacted by both internal and external factors that were impossible to predict, but thought that he would require long-term assistance.
58 Turning to medico-legal examiners, the report of Dr Christine Kotsios, consultant psychiatrist, who examined the plaintiff at the request of the defendant, is now well in excess of five years old. Her diagnosis at the time was one of a major depressive disorder secondary to the physical injury. I note that she also made a diagnosis of chronic regional pain syndrome, as opposed to CRPS, and this is a diagnosis which, in my opinion, has turned out to be incorrect.
59 Dr Lester Walton, consultant psychiatrist, saw the plaintiff at the request of his solicitors on 1 December 2014, so that his report is also somewhat dated. Dr Walton diagnosed a chronic adjustment disorder with mixed anxiety and depression and related it to employment. He thought that the plaintiff’s chronic pain drove the psychiatric symptoms, but also referred to the plaintiff’s current financial difficulties noting that, at the time of this consultation, the plaintiff was unemployed and had been so for some time. Thus, at least to some extent, the report of Dr Walton has been overtaken by events.
60 Dr Matthew Tagkalidis, consultant psychiatrist, saw the plaintiff at the request of his solicitors on 18 May 2018. The plaintiff told Dr Tagkalidis that, in the last six months prior to the interview, he had met up with his current partner and had “turned a massive corner”. Whilst he was somewhat flat at times, he rated his mood as being 8/10, where 10 equates to a generally happy mood state. Dr Tagkalidis thought that the plaintiff was suffering from a chronic but partially abated adjustment disorder, with mixed anxiety and depressed mood, these symptoms being related to the claimed injuries.
61 Dr Tagkalidis did not think that the plaintiff’s current depressive and anxiety symptoms justified a diagnosis of Major Depressive or Anxiety Disorder. He went on to say that he thought that the plaintiff’s condition had largely stabilised and that the prognosis was reasonable. He noted that the plaintiff was working full-time in gainful employment, commenting that, as such, he had a full work capacity. He had been fortunate to find a supportive employer and this had been very helpful to his mental state.
62 As stated, psychological and psychiatric factors will not be taken into account, but the observations of the most recent examiner, Dr Tagkalidis, would indicate that the impact of such factors has decreased considerably and that the plaintiff’s mental state has improved considerably. I also note that, whilst in his report of 5 March 2015 the treating general practitioner, Dr Alexander, referred to the plaintiff as being depressed and seeing a psychologist, in his most recent report of 28 February 2018 he makes no reference to anything other than organic problems.
Other developments since the injury
63 The plaintiff’s capacity for employment shall be discussed at greater length in my Ruling. His employment situation since the injury could be summarised as follows. The plaintiff ceased work following the accident on 22 October 2012. In March 2013, he returned to work on a graduated program, getting back to full‑time, but modified, duties after two to three months. He had a domestic accident involving his right leg and foot in September 2013 and seems to have been still absent from work at the time of the report of Dr Alexander on 17 December 2013.
64 His employment with Eltrax was terminated on 26 February 2014. His next employment seems to have been with CPR. Precisely when that employment commenced is not entirely clear, but the payslips put in evidence would indicate that it may have been on approximately 6 July 2015. In order to obtain this employment, the plaintiff was required to take out his own ABN and work as a type of sub-contractor. The plaintiff has sworn that this employment came to an end in approximately December 2016, referring to difficulties he was having in relation to the climbing of ladders, jack hammering and digging up concrete. The last payslip put in evidence would appear to indicate that the last work that he did for CPR was on 1 November 2016. However, there are two subsequent remittance advices which are in a different format, one being dated 25 November 2016 and the other one week later. Exactly what these were for is not clear.
65 The plaintiff then appears to have worked very briefly for an entity called Australian Waterproofing Systems, where he was engaged as a contractor. He also seems to have had brief employment with BRDC Concreting. The plaintiff was then not working for approximately 12 months, but was on Newstart benefits. It was during this time that various problems arose with his ex‑partners, including a charge of criminal damage at the house of one ex‑partner.
66 The plaintiff commenced employment with CSM on a date which may well have been 16 October 2017. This employment is again more in the nature of a sub‑contracting arrangement, with payments being made via the plaintiff’s ABN. The work seems essentially to consist of carpentry duties, involving the performance of work on domestic residences in the northern suburbs. The plaintiff has continued in that employment. He seems to have a very good working arrangement with his employer and details of his injury and restrictions are known to it. Details of earnings and hours worked shall be discussed in the Ruling, which follows.
67 After a somewhat turbulent time, the plaintiff appears to have settled down to some extent, although there has been a further problem with alleged assaults involving a former partner. This problem seems to have arisen recently. In any event, the plaintiff would appear to have the support of his present partner.
Ruling
68 As indicated, the following determinations are based solely upon the plaintiff’s physical injury to the left lower leg.
(i) Loss of earning capacity
69 For a variety of reasons, loss of earning capacity is not a comparatively straightforward matter. However, my ultimate conclusion is that the plaintiff has failed to discharge the burden of proof in relation to it. I have come to that conclusion for the following reasons.
70 I would comment on one matter at the commencement of this part of the judgment. In his closing submissions, Mr Tobin stated that the appropriate question to be answered relates to the earnings made by the plaintiff on an annualised basis, this in turn requiring what he described as whether such earnings represent “a proper expression of his annualised earning rate, that is, is the job that he’s doing, is he doing it to the extent of his capacity?” ― see T132.
71 That s134AB(38)(f) requires calculations to be made on the basis of a worker’s gross income from personal exertion expressed at an annual rate is clear, and indeed is the terminology to be found in both (f)(i) and (ii). However, the other requirement mentioned by Mr Tobin should also be emphasised. Throughout the relevant provisions in s134AB(38), it is the worker’s earning capacity which is to be considered. If there were any doubt, this is spelt out in s134AB(38)(f).
72 Loss of earning capacity is to be measured by comparing the worker’s gross annual income which the worker is earning or is capable of earning in suitable employment with the gross annual income that the worker was earning or was capable of earning during the part of the period within three years before and three years after the injury as most fairly reflecting the worker’s earning capacity had the injury not occurred. This may appear to be stating the obvious, but at times it is necessary to return to the actual wording of the provisions, as, indeed, Mr Tobin quite properly did.
73 In other words, it is not simply a matter of looking at an injured worker’s pre- and post-injury annual gross income. The demonstrated or potential gross annual earnings from personal exertion, whether or not such earnings arise from suitable employment or not, are to be considered. Patently, if an injured worker demonstrates the capacity to earn his pre-injury wage for six months of the year, but opts to take the balance of each relevant year off (for example, to engage in lengthy travel), such worker may well be unsuccessful in arguing that the amount actually earned when he did in fact work represents the figure to be taken into account for the required comparison.
74 By the same token, if an injured worker in what is normally suitable employment takes advantage of an opportunity to work very long hours, attracting overtime, for a week or two and this is well beyond his normal capacity, causing him then to be absent for a period or working reduced hours, it may well be unfair to take that week or fortnight, multiply it by 52 or 26, and conclude that this annualised sum represents that worker’s post-injury earning capacity for the purposes of the required calculation. It seems to me that a fair and appropriate balance has to be struck and the calculation carried out accordingly.
75 Bearing the above in mind, I turn to the comparison between “without injury” earnings and “after injury” earnings. I shall deal firstly with “without injury” earnings.
76 I agree with Mr Clarke that, upon the basis of the evidence placed before me, the high point for the plaintiff in relation to “without injury” earnings is $63,575.40. Bearing in mind that the injury occurred on 22 October 2012, that is the total amount earned by the plaintiff for the 52 weeks before that date and includes relevant allowances. True it is that the hourly rate and hours worked, as shown on the somewhat difficult to read Worker’s Injury Claim Form, when multiplied out, would lead to a figure in excess of $67,500 (my mathematics and those of Mr Tobin do not seem to coincide precisely). However, I prefer the detailed figures and calculations set out in the Pay Summary provided by Eltrax to the brief and somewhat scratchy entry on the Claim Form.
77 In his closing address, Mr Tobin argued that some allowance should be made for increases in pay over the three years following the accident, stating that “… because it’s pursuant to an award, would be subject to annual increases” – see T134 and 135.
78 Certainly, in re-examination, the plaintiff stated that his wage at Eltrax was “a full CFMEU award wage” which was subject to increases of five per cent each year. Nothing was put in evidence from Eltrax, from the CFMEU or from other relevant workers. Whether such increases have continued at that rate, or at all, in the years after the accident was not the subject of any cogent evidence. It is not something at which I am prepared to guess. The bottom line is that I accept the proposition that the “without injury” figure is $63,575.40.
79 I turn now to the issue of “after injury” earnings. Sixty per cent of $63,575.40 is $38,145.24. To state the obvious, if the plaintiff’s annual gross “after injury” earnings equal or exceed that amount, his application insofar as it relates to pecuniary loss will fail.
80 Mr Clarke has pointed out the following. In the 2016/17 financial year, the plaintiff worked at CPR for a period of 30 weeks. In that time, he earned a total of $43,723, an average gross weekly earning of just over $1,457. That employment, with which the plaintiff coped, ceased by way of mutual understanding, when the employer moved its operations into a different area of work with which the plaintiff may not have coped. There was some dispute concerning the circumstances surrounding the cessation of work. I would refer to T28 and following pages. In any event, the plaintiff seems largely to have coped with the work that he had been doing – see T28.
81 The bottom line is that the plaintiff performed the work at CPR for some 30 weeks and largely coped with it. During that time, he demonstrated the capacity to earn an average weekly gross income of $1,457 which, annualised, results in a figure which exceeds $75,700. Clearly, if this approach was adopted, the plaintiff’s application in respect of economic loss must fail.
82 Turning to the plaintiff’s current work, which he seems to have commenced in April 2018, it is to be recalled that he has an ABN in respect of it and is paid a flat rate of $25 per hour. There was placed in evidence by him a summary of payments from 11 April 2018 to the end of March 2019. The quantum of these payments varies, but the total of it, including an amount of $450 in relation to work which should have been on it, is $37,819.
83 However, it is apparent that the plaintiff effectively did not work during the month of January 2019. It would appear that this was because of the absence of his employer and the heat – see T59 and 60. Whilst the plaintiff stated that his ankle is worse in the heat, it is apparent that those employing him indicated that there would be no work during that period.
84 If one allowed, say, just two weeks absence from work because of the circumstances prevailing in the month of January, that would still leave 46 working weeks between 11 April 2018 and 27 March 2019. That translates into an average gross salary per week in excess of $822, or an annual gross income of $42,744. Even if another two weeks were allowed in respect of the work situation in January 2019, the figure would be $787.90 per week, or $40,970.80 per annum. That is in excess of the “cut-off” figure of $38,145.24. Either of the weekly salary payments to which I have referred would convert into an annual sum in excess of 60 per cent of gross annual income for the purposes of the required comparison.
85 Further, bearing in mind that it is earning capacity which is to be considered, I would point out the following. Of the 24 invoices issued by the plaintiff for his work and as recorded in the Summary of Payments which he tendered (Exhibit D), 18 were for weekly figures which, if annualised, would exceed the weekly “cut-off” figure of $733 (I am treating invoices 69 and 69B as being, effectively, one invoice). Twelve of them were for $900 or more. These are the most recent figures available and should provide a reasonably accurate depiction of the plaintiff’s earning capacity. I note that the two most recent invoices are for $1,030 on 20 March 2019 and $951 on 27 March.
86 It was conceded in opening by Mr Tobin that, in the present circumstances of his work, the plaintiff is not entitled to have the costs which he incurred in earning income taken into account – see T3. It is something that was repeated in closing addresses – see T131.
87 When the earning capacity to which reference has been made above is converted into gross annual income, it seems to me clear that the evidence placed before me leads to the conclusion that the plaintiff has not satisfied the requirements of s134AB(38)(e) and (f) of the Act and that the submissions of Mr Clarke in this regard are to be preferred. The plaintiff has not discharged the burden of proof in relation to loss of earning capacity.
(ii) Pain and suffering
88 I am of the opinion that the plaintiff has discharged the burden of proof in relation to pain and suffering and should have leave to bring proceedings in that regard. I have come to that conclusion for the following reasons, which are not listed in order of importance or significance.
(a) As stated, I accept that the plaintiff did his best to give accurate and honest evidence. In applications of this nature, the credit of the plaintiff is usually important. As was said by Brooking JA in Palmer Tube Mills (Aust) Pty Ltd v Semi [1998] 4 VR 439 at 448:
“Moreover, in ‘serious injury’ applications the credit of the applicant is of great importance …”
This observation has been referred to more recently by the Court of Appeal in Papamanos v Commonwealth Bank of Australia [2014] VSCA 167 and in Haidar v Transport Accident Commission [2016] VSCA 182. Bearing the above in mind, I accept the plaintiff’s evidence, both oral and in his supporting affidavits, in relation to his pain and suffering.
(b) The plaintiff has got on with his life and, largely, remained in employment. This is not something which should count against him. As was said by Nettle JA in Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260:
“… the appellant has been prepared to put up with his pain and suffering and get on with his business as best he can … it would be unfortunate, and in my view wrongheaded, if in future such an applicant were treated less favourably than another who, being of less strength of character, simply resigned himself to his injury.”
The fact that the plaintiff has made efforts to obtain and engage in employment should not act to his detriment. As he swore in his affidavit of 8 May 2018, he has little choice but to put up with his pain, as he needs to earn an income.
(c) The plaintiff has sworn in his affidavit of 8 May 2018 as to the level of ongoing pain which he endures. Further, in his most recent affidavit, he has sworn that he continues to suffer from constant pain radiating from the back of his left heel and into the back of his calf, along with worsening feelings of pins and needles, tightness, sensitivity and the like.
I note that, in his most recent report of 2 April 2019, Dr Peter Blombery recorded that the plaintiff complained of constant pain and pins and needles in the left ankle, extending from the heel up to the calf and to below the knee. This is similar to the plaintiff’s description of pain to Dr Michael Baynes, who examined on behalf of the defendant on 2 April 2019.
The experience of pain on a daily basis is a factor of some importance, as has been discussed in Haden Engineering v McKinnon (2010) 31 VR 1, Sutton v Laminex Group Pty Ltd (2011) 31 VR 100 and other cases. As was said by Dobbs-Streeton JA in Kelso v Tatiara Meat Company Pty Ltd [2007] VSCA 267:
“The endurance of permanent daily pain requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence.”
(d) Inference with sleep is a factor which received particular attention in the Judgment of Maxwell P in Haden Engineering and has been referred to in other decisions. In Haden Engineering, his Honour stated that it was a matter of great significance for a person to be denied, seemingly for the rest of his life, the ability to enjoy uninterrupted sleep.
In his most recent affidavit of 1 April 2019, the plaintiff swore that he suffers from worsening symptoms of insomnia and often stares at the ceiling until 2.00am. He then often wakes up, tired and grumpy. His former partner, Ms Elizabeth Murray, has sworn as to how the plaintiff’s sleep is disturbed by pain. He tosses and turns and wakes up feeling miserable. I accept the evidence to which I have just referred as being accurate.
(e) The plaintiff has been taking a substantial regime of medication including Lyrica, Panadol, Nurofen and Celebrex. He continues to take some of these. The taking of medication can be another indication of the level of pain suffered.
(f) There has also been interference with the plaintiff’s capacity to enjoy participation in sporting activities and the like. He was only 31 years of age when he suffered the accident and had been a keen footballer and cricket player. Whilst he had ceased playing football approximately two years before the accident, this cessation being due to work commitments, any hope of returning to it ended with the accident. A greater and more apparent ongoing loss has been that in relation to cricket. The plaintiff had played competitive cricket since childhood and, when injured, was playing for Gladstone Park. I gather that he used to be the opening fast bowler and something of a hard-hitting batsman. In any event, he attempted to make a comeback to cricket after the accident but, after a period of trying to keep going as a batsman and slip fieldsman, gave cricket away. He also used to enjoy motorbike riding and can no longer do this. In relation to fitness, he has also had some difficulties in relation to gymnasium workouts and exercises. In short, there has been considerable interference with the plaintiff’s leisure activities.
89 When all of the above is taken into account, it is my opinion the plaintiff has established that the pain and suffering consequences from which he suffers can be described as being more than significant or marked and as being at least very considerable. In short, he has discharged the burden of proof in relation to pain and suffering.
Conclusion
90 In relation to pecuniary loss damages, the plaintiff has failed to discharge the burden of proof and that portion of his application is dismissed. As regards pain and suffering, the plaintiff has discharged the burden of proof and leave is given to him to bring proceedings for pain and suffering damages. I shall hear the parties as to any further or ancillary orders that are required.
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