Wilcox v Victorian WorkCover Authority
[2016] VCC 1575
•28 October 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-15-03586
| CHRISTOPHER PATRICK WILCOX | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
---
JUDGE: | HIS HONOUR JUDGE LACAVA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 and 20 October 2016 | |
DATE OF JUDGMENT: | 28 October 2016 | |
CASE MAY BE CITED AS: | Wilcox v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1575 | |
REASONS FOR JUDGMENT
---
Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – impairment to the left arm – pain and suffering only
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b)
Judgment: Leave granted pursuant to s134AB(16)(b) of the Act to commence a proceeding to recover damages for pain and suffering.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P F O’Dwyer QC with Mr E Makowski | Maurice Blackburn Lawyers |
| For the Defendant | Ms M Tsikaris | Wisewould Mahoney |
HIS HONOUR:
1 This proceeding was commenced by the plaintiff by Originating Motion seeking leave, pursuant to s134AB(16)(b) of the Accident CompensationAct 1985 (“the Act”), to commence a proceeding against the defendant claiming damages for pain and suffering only.
2 The plaintiff’s case is that he suffered an injury arising out of or during the course of his employment as a pest control inspector in July 2008. There is no issue that the plaintiff was injured when he was attempting to crawl out of a roof void at premises he was inspecting. The plaintiff slipped on a ladder that he was using to climb down from the roof void. When he slipped he hurt his left elbow which struck the top of the ladder (“the incident”). The plaintiff’s case is that during the course of the incident, he suffered an injury to his left elbow which subsequently required surgery. He claims that as a result of the incident and, the injury he sustained, he suffers from ongoing permanent impairment of the left arm within the meaning of s134AB(37)(a) of the Act.
3 The defendant submits that the injury suffered by the plaintiff is not a “serious injury” within the meaning of the Act. For reasons that follow, I reject that submission. I have concluded that this application must succeed and the plaintiff is given leave, pursuant to s134AB(16)(b) of the Act, to commence a proceeding against the defendant claiming damages for pain and suffering.
4 The plaintiff bears the onus of proof that the pain and suffering consequences of his injury are “serious” within the meaning of s134AB(38)(c). This issue is to be determined having regard to all of the evidence.
5 To make out a “serious injury” within the meaning of s134AB(37)(a) of the Act, the plaintiff must establish, on the balance of probabilities, that he suffered a “permanent serious impairment or loss of a body function”. The determination of whether an injury is “serious” is assessed solely by reference to the consequences to the plaintiff of the relevant impairment or loss. Relevantly, in the circumstances of this case, an impairment is not “serious” unless the pain and suffering consequence is, when judged by a comparison with other cases in the range of possible impairments, “fairly described as being more than significant or marked and, as being at least very considerable” within s134AB(38)(c) of the Act.
6 It is necessary, as in every application of this kind, to examine the evidence in order to decide what injury the plaintiff suffered during the course of his employment and, what consequences (if any) were suffered and continue to be suffered by him. Having examined all of the evidence, I find that the plaintiff has discharged the onus that he bears, of proving on the balance of probabilities that the pain and suffering consequences to him from an injury to his left elbow in July 2008 may fairly be described as being “more than significant or marked” and, as being “at least very considerable”, within the meaning of the Act.
7 Each party filed a Court Book. I admitted into evidence as exhibit “B” pages 17 to 75 inclusive from the Plaintiff’s Court book (“PCB”). That exhibit includes two affidavits sworn by the plaintiff in support of his application and, an affidavit sworn by his wife for the purpose of supporting the plaintiff’s evidence. The plaintiff’s wife was not required by the defendant for cross-examination. I can therefore accept her evidence as unchallenged. I also admitted an Opinion from the Medical Panel dated 22 September 2014 as exhibit “A” tendered by the plaintiff. I admitted into evidence pages 13 to 49 inclusive from the Defendant’s Court book as Exhibit 2 (“DCB”). This exhibit also contains the medical records of the plaintiff’s medical practitioners namely, Healesville Medical Centre, Dr John Heywood, Dr Anthony Balint and, Mount Evelyn Medical Surgery. The defendant also tended as Exhibit 1, financial statements of Valley Rangers Pest Control Pty Ltd and the taxation returns of the plaintiff for the financial years 2013 to 2015.
8 There is no real dispute between the parties so far as the medical evidence is concerned. The plaintiff relies upon reports from his treating medical practitioners and other appropriate specialists that have seen him for medico- legal purposes. The defendant has also had the plaintiff medically examined for medico-legal purposes. The dispute between the parties in this application relates to the consequences for the plaintiff from the injury he sustained. The plaintiff contends that I should regard the injury as a “serious injury” within the meaning of the Act. The defendant contends that I should not and, argues that there are serious questions as to the plaintiff’s credibility such that I should not accept the evidence filed by him in his affidavits that relate to the consequences that he claims to have occurred as a result of the injury he sustained.
9 It is convenient that I deal first with the medical evidence which is not in dispute.
10 The plaintiff’s general practitioner, Dr Stephens, saw the plaintiff in relation to the injury on 20 August 2008. The plaintiff complained of a painful elbow. He stated to Dr Stephens that he was lifting himself into a roof cavity through a manhole when he felt a sharp pain in his left elbow. On examination, Dr Stephens found that the plaintiff was tender over the biceps tendon at the elbow and the epicondyle. At that time, it was Dr Stephens’ opinion that the plaintiff suffered a soft tissue injury to his left elbow.[1] When the plaintiff failed to improve, Dr Stephens ordered an ultrasound be carried out to the left elbow which showed tendinopathy and swelling of his ulnar nerve. He referred the plaintiff to Mr Simon Holland, orthopaedic surgeon, who diagnosed the plaintiff as suffering from medical epicondylitis (golfer’s elbow). The plaintiff was initially treated conservatively but when his condition did not improve, Mr Holland carried out surgery in the form of a left medial release epicondylectomy and ulnar nerve neurolysis. This occurred in May 2009.[2]
[1]PCB 68
[2]PCB 68 and PCB 54
11 In his report of 10 May 2011, Dr Stephens noted that the plaintiff seemed to do well after his surgery “but has recently developed more left elbow pain and pins and needles in his left fourth and fifth fingers”.[3] Mr Eugene Eck (a locum for Mr Simon and Holland) advised further surgery to the left elbow. The plaintiff complained to Mr Stevens that although he could continue to work, his elbow and hand symptoms affected his work performance.[4]
[3]PCB 68
[4]PCB 68
12 In a report provided to the plaintiff’s solicitors on 28 April 2011, Mr Holland confirmed the surgery carried out in May 2009, and went on to say as follows:
“Over the last one and a half years Mr. Wilcox has felt that his ulnar nerve symptoms have not improved. He now feels that his symptoms are particularly aggravated when he crawls underneath homes as part of his work. This requires him to crawl on both of his knees and his elbows to get underneath houses. During these instances there is significant pressure on both of his elbow[s] and at these times he says that his ulnar nerve symptoms are at the worst.
My assessment of his left elbow demonstrate[s] a full range of motion which is pain free. Over the medial epicondyle there is a palpable and subbluxating ulnar nerve. The ulnar nerve subluxates with the elbow in full flexion. The ulnar nerve is also significantly irritable with positive Tinel’s sign on minimal pressures. Assessment of his ulnar nerve function revealed full power of both of his flex or digitorum, dorsal interosseous and intrinsic muscles of the hand.”[5]
[5]PCB 54
13 Mr Holland went on to say that because the ulnar nerve was irritable at the level of the elbow and, having regard to the plaintiff’s occupation was constantly pressured, he recommended that the plaintiff undergo an ulnar nerve release and transposition to a more anterior position.[6]
[6]PCB 54
14 In the absence of Mr Holland, Mr Eck carried out further surgery in the form of a left elbow ulnar nerve decompression and sub fascial ulnar nerve transposition on 7 June 2011.
15 When reviewed on 25 July 2011, the plaintiff was found to have a normal range of motion and he continued to have paraesthesia in the ulnar one and a half digits. Strength in the interosseous was normal. Because of the continued paraesthesia on the volar aspect of the fingers, an MRI scan was organised of the left wrist on 29 November 2011. This showed a ganglion cyst arising from the pisotriquetral encroaching onto Guyon’s canal with compression of the ulnar nerve branches. Further surgery in the nature of a Guyon’s canal decompression was advised.[7]
[7]PCB 52-53
16 In a further report to the plaintiff’s solicitors dated 10 June 2014, Mr Simon Holland said, inter alia, as follows:
“I next reviewed Mr. Wilcox on the 20th July, 2012. At that time he had approval for a Guyon’s canal decompression. The patient reported to me that he had troubles when crawling with pressure on his palms causing paraesthesia in the distribution of his ulnar nerve. He reported no changes in his hand strength and that he had paraesthesia that disturbed his sleep. The original cause of his ulnar nerve paraesthesia, as reported to me on the 14th November, 2008 was following troubles pulling himself into a roof. This was aggravated when he had a direct blow to his elbow while crawling under another house for work.
On the 27th August, 2012 Mr. Wilcox underwent a Guyon’s canal decompression and I have attached a copy of my operation note. I reviewed Mr Wilcox a number of times post operatively, the most recent and last time being the 16th August, 2013 where he reported improvements in his para[e]sthesia in the distribution of his ulnar nerve. He reported that he was using protective padding at work. I explained to the patient that he could expect more improvement in his symptoms.”[8]
[8]PCB 46
17 The plaintiff now consults Dr Niraj Desai as a general practitioner and has been a patient of Dr Desai since January 2015. In a report dated 13 June 2016, Dr Desai reports that at that time, the plaintiff complained of having difficulties with his left hand and complained of symptoms mainly of pain, a sensation of numbness in the little finger and burning in the left hand. He prescribed Lyrica for his neuropathic pain.[9]
[9]PCB 35
18 The defendant criticises the plaintiff and attacks his credit because he did not tell his treating doctors or other doctors, that he consulted for medico-legal purposes, of an injury that he sustained in 2006, that is, predating the claimed injury.
19 The plaintiff had consulted a neurologist, Dr John Heywood, in 2006. He told him that he had been working under a house and when he stood up suddenly, he struck his head. He suffered pain in his neck thereafter and several days later, noticed paraesthesia in his left hand, particularly affecting the ring and index fingers. The plaintiff apparently had altered sensation on the ulnar side of the hand, and a sense of coldness as if water was running down the inner side of his arm from the shoulder. In a report dated 18 August 2006 to the plaintiff’s then general practitioner, Dr Heywood reported that the plaintiff’s symptoms were in keeping with a mild ulnar nerve lesion, however the onset with pain in the neck and pain down the inside of the arm was more in keeping with root entrapment.[10]
[10]DCB 61
20 Dr Janaka Seneviratne, a neurologist, saw the plaintiff for medico-legal purposes at the request of the defendant. Dr Seneviratne first reported on 13 May 2015.[11] In his summary and assessment of the plaintiff, Dr Seneviratne said:
“Mr Christopher Wilcox is a 51 year-old Timber Pest Inspector who suffered a left elbow injury/left ulnar nerve injury in a work related incident in 2008. He has undergone surgery to the left elbow as well as resection of a ganglion lesion in the left wrist region following this. He continues to experience pain/paraesthesia symptoms of the left ulnar nerve distribution which has stabilised and he has been back at work working full-time at his pre-injury duties and hours. The above injuries have caused some impact on his daily activities and recreational activities. In my opinion, the ongoing symptoms are still materially contributed to by the original injury described in 2008. It is likely that his injuries and symptoms have stabilised and are unlikely to improve with time. He has been appropriately investigated and treated for the above injuries.”[12]
[11]DCB 38
[12]DCB 40
21 In May of this year, the defendant requested that Dr Seneviratne conduct a follow-up assessment. During the course of speaking with the plaintiff, he was told by the plaintiff that he had also been injured in 2006 when he hit his head under a house. The plaintiff told Dr Seneviratne that he lost consciousness for a brief period (about 30 seconds) and he described neck pain as well as numbness of the left arm which involved all of the fingers of the left arm. The plaintiff told the doctor that his left arm symptoms completely resolved after about two weeks and he denied any continuing ulnar nerve symptoms on the left arm at the time of the occurrence of the left arm injury in July 2008.
22 This information supplied freely by the plaintiff resulted in Dr Seneviratne opining that the injury sustained by the plaintiff in 2008 was very likely an aggravation of the 2006 injury. Dr Seneviratne went on to say:
“It appears that the left ulnar neuropathy that was found following the injury in 2008 is quite similar to the nerve injury following the event described in 2006. Whether this was the same condition that had continued is unclear. However, is very likely that he had a pre-existing left ulnar neuropathy in 2006 which has likely become aggravated in the injury described in 2008.”[13]
[13]DCB 46
23 Dr Seneviratne delivered of yet a further report dated 5 July 2016.[14]
[14]DCB 47
24 The opinion of Dr Seneviratne as to the 2006 injury is only relevant to the defendant’s attack on the plaintiff’s credit. For reasons which I will soon set out, I regard this issue is falling completely into a basket of red herrings.
25 Dr David Fish is a consultant occupational and environmental physician. He saw the plaintiff at the request of the defendant’s insurer on 19 March 2014. At that time, the plaintiff told Dr Fish that he suffered a history of a neck problem in 2006 when he struck the top of his head and suffered neck pain and stiffness.[15]
[15]DCB 33
26 In his summary and assessment, after reciting the history, Dr Fish reported that the plaintiff still has clinical evidence of minor ulnar causalgia extending to the elbow due to the ulnar nerve compression at the elbow. He also thought there to be evidence of developing causalgia involving the dorsal cutaneous branch of the radical nerve but he thought this unrelated to the accepted injury.[16]
[16]DCB 34
27 An orthopaedic surgeon, Dr Robin Williams, has seen the plaintiff on two occasions at the request of the defendant. He was of the opinion that the plaintiff has left ulnar neuritis initiated by trauma and probably aggravated by pressure caused to the ulnar nerve behind the left elbow because the plaintiff works under the floors of houses.[17]
[17]DCB 18
28 From all of the medical evidence, it is clear, in my view, that in the incident in 2008, the plaintiff suffered from a left ulnar nerve neuritis which has caused pain in the left elbow and arm and, paraesthesia to the left ring and little finger on the left hand. Despite two bouts of surgery directly related to this injury and, a further round of surgery indirectly related also to the left arm and wrist, the plaintiff continues to suffer from pain in the left arm at the elbow and paraesthesia in the left hand is a consequence of the injury. The injury and its consequences are permanent, in my view, given that it is now some four years since the last round of surgery. The pain and other consequences, in my opinion, must be considered to be permanent, that is, likely to last into the foreseeable future.
29 It is appropriate to now deal with the plaintiff’s affidavit evidence.
30 The plaintiff was born in October 1963. He is now fifty-five years of age. He was educated in country New South Wales before moving to Victoria. He had limited education, leaving school at Year 9 level. He deposes, and it is not in dispute, that he is dyslexic and has difficulty reading and spelling.
31 After leaving school, the plaintiff gained employment in various occupations. He initially was employed by Safeway supermarkets and then he worked for four years as a landscape gardener. Later, he worked detailing motor vehicles, which he liked, and became proficient in performing. He later returned to Safeway for about three years, managing a fruit and vegetable section. During this work, he suffered an injury to his back for which he was compensated appropriately.
32 The plaintiff later worked for Telstra laying Foxtel cables and then went back into the car detailing business. He developed thyroid cancer and was appropriately and successfully treated. He then moved to the pest control industry, where he worked initially for Frontline Pest Control. He has appropriate qualifications in pest management. He commenced work with the Archicentre where he was engaged to inspect properties to locate the presence of pests.
33 In his first affidavit, beginning at paragraph 19, the plaintiff outlined his prior history of health and illness which is not in dispute save that there is no mention of the 2006 accident where he knocked his head and had symptoms of pain in the left arm. The plaintiff was attacked for his failure to mention this 2006 injury in cross-examination. In my view, as I indicated earlier, this attack does not take the defendant anywhere. The attack was based upon the opinion of Dr Seneviratne that the 2008 injury was an aggravation of the 2006 injury. However, the plaintiff said he thought that this injury in 2006 completely resolved within a week or two.[18] The doctors at the time thought that the symptoms in the left arm were related to the injury to the plaintiff’s neck. Even if the opinion of Dr Seneviratne be correct as to the 2006 injury, there is no evidence that the plaintiff had any reason to link his injuries in 2008 and, the ongoing consequences, to what had occurred in 2006. In my view, it is most unfair on the plaintiff to invite the Court to infer that he deliberately chose not to disclose, either in his affidavits or to consulting doctors, the events of 2006. There is no basis to infer to the plaintiff the theory advanced by Dr Seneviratne’s opinion. For these reasons, I reject the defendant’s attack upon the plaintiff’s credit under this heading.
[18]T32-33
34 The plaintiff said that when he was injured in 2008, he immediately felt pain in his left elbow similar to an electric-shock-type sensation and he felt pain down his left arm through to his hand and little fingers. However, he continued to work. Having observed the plaintiff give his evidence in cross-examination, I formed the strong view that the plaintiff is hardworking and stoic. If anything, he is given to understating his problems and the consequences for him of the 2008 injury.
35 The plaintiff said that he worked with difficulty and his symptoms began to get worse and it was then that he consulted his general practitioner, Dr Stephens. The plaintiff went on to describe what happened after he initially returned to work after the first bout of surgery and also how he continued to suffer pain in his left elbow and hand and fingers and pins and needles and grip problems between the first and second bouts of surgery. He confirmed what he had said to the doctors, namely, that his work, involving as it does crawling under houses, places pressure and stress on his left elbow.
36 In speaking of the consequences for him, the plaintiff, in his affidavits, speaks of suffering pain and numbness in his left arm on a daily basis because of the physical work that he does. He says that he takes daily medication in the form of Panadeine Extra, Panadeine Forte and Lyrica, albeit in moderation.
37 The plaintiff avoids lawn mowing because of the vibration from a lawnmower which affects his left arm. He no longer collects firewood and avoids using an axe or a chainsaw for the same reason. He complains of weakness in his left arm and says that he often drops things including pots and pans because he has a great deal of difficulty gripping such objects, caused in part by loss of sensation in the left hand.
38 The plaintiff was born left handed and does most things with his left hand but he says that he is generally ambidextrous. The plaintiff has a love of motor vehicles and because of his work history, the skill to work as a car detailer. In cross-examination, he agreed he has a number of motor vehicles and he is a member of car clubs and he displays the motor vehicles at shows. The plaintiff says that prior to the injury he did mechanical work on his cars which he can no longer do and he now pays people to detail his cars.[19] All this, he says, and I accept, is because the injury and consequences of it prevent him from undertaking these activities.
[19]Transcript 19-20
39 The plaintiff deposes that he is unable to engage in renovation or maintenance activities around the home. As he told the doctors, in his affidavit he said that he suffers from sleep disturbance because of the injury. I accept these complaints.
40 The plaintiff has also deposed to a reduction in his activities with his children and, his sporting activities and, outdoor activities generally such as fishing, although in cross-examination, he agreed that since the accident, he has been able to go fishing from the rocks at Seal Rocks on Phillip Island. The plaintiff deposes that many of the activities which he used to perform he can still do but it takes him much longer to perform those tasks.
41 In his second affidavit, the plaintiff deals with the 2006 injury. I accept his evidence that shortly prior to the occurrence of the 2008 injury, the plaintiff was symptom free and had been for about two years.
42 Importantly, in his second affidavit at paragraph 7, the plaintiff deposed that because he had been recently made redundant in September of this year, he was no longer working. He went on to describe how he was having difficulty obtaining work because his previous employer, recognising his injury and its ongoing consequences, had catered for his needs and accommodated him in various ways. In paragraph 9, he detailed problems that he would have working with chemicals in the way those chemicals are applied under houses.
43 In fact, as the evidence transpired, the day after he was made redundant, the plaintiff registered a business name for a pest control business.[20] Also, he had been conducting a small business of pest eradication since at least 2013. This is the business described in the financial statements for what is described as the “Wilcox Family Group” which went into evidence as exhibit 1. I am satisfied that at all material times the plaintiff did conduct a business of pest eradication. But, in my view, the figures shown in the financial statements bespeak a relatively small business that had been conducted for a number of years in the full knowledge of the plaintiff’s previous employer. It is best described as a “business on the side” where the plaintiff would do extra work on a Saturday eradicating pests that he had located in premises during the course of his work for his full-time employer.
[20]Transcript 13
44 The fact of the existence of this business and the size of it ought to have been disclosed by the plaintiff in his affidavit material. However, having observed the plaintiff give his evidence and the way he dealt with the attack on his credit where I find he answered all of the questions in a direct and forthright manner, I am of the opinion that the material was not disclosed, not because of some deliberate strategy by the plaintiff or his legal advisors to hide evidence from the Court. The plaintiff is a relatively unsophisticated man fixated on work and family.[21] I formed the strong view that the plaintiff simply thought that this issue of his “business on the side” was of no relevance and I accept his evidence in that regard.[22] However, the plaintiff was placed in a difficult position because of the attack on his credit on this account because of the conduct of his solicitors. The plaintiff’s solicitors regard themselves as leaders in the field of accident compensation. In my opinion, they ought to have known better and should have ensured that the Court was fully informed of this matter and without the need for time to have been wasted on it in cross-examination. The plaintiff was let down by his solicitors on this issue.
[21]Transcript 30
[22]Transcript 28-29
45 Having rejected each of the bases for attacking the credit of the plaintiff contended for by the defendant, I accept the plaintiff’s evidence generally. His evidence is confirmed to some extent by his wife.
46 In my opinion, having examined the medical evidence and the plaintiff’s evidence, the plaintiff has permanent serious injury consequences arising from the injury to his left elbow in 2008. Although he can, and does continue to work in his chosen field, it is not without considerable difficulty, and the chance of him re-injuring himself is high. In my view, the plaintiff continues to work in the face of his difficulties because he is stoic. Apart from the consequences of the injury for the plaintiff’s employment, I accept the plaintiff’s evidence as to the consequences caused to him by the injury which affect almost every aspect of his daily living.
47 The plaintiff has proved that as a result of the incident in 2008, he suffered an injury to the left elbow resulting in left ulnar nerve neuritis requiring surgical intervention. That injury and, the consequences of it for the plaintiff are, in my view, permanent and he has suffered from an ongoing permanent serious impairment or loss of body function to the left arm. The consequences to him of that impairment, including ongoing pain and suffering and limitation of movement, sleep interference, difficulty with carrying out his work and interference with his general daily living and activities, are, in my view, serious. The consequences for the plaintiff may fairly be described as being “more than significant or marked” and as being “at least very considerable” within the meaning of the Act.
48 For these reasons, the plaintiff succeeds on his Originating Motion.
49 The plaintiff will be granted leave pursuant to s134AB(16)(b) of the Act to commence a proceeding to recover damages for pain and suffering.
- - -
0
0
0