Williams v Inside Edge (Aust) Pty Ltd
[2010] VCC 1462
•30 September 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-08-00169
| GLEN JAMES WILLIAMS | Plaintiff |
| v | |
| INSIDE EDGE (AUST) PTY LTD | First Defendant |
| and | |
| WORKSAFE VICTORIA | Second Defendant |
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| JUDGE: | HIS HONOUR JUDGE LACAVA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 17, 20 and 21 September 2010 |
| DATE OF JUDGMENT: | 30 September 2010 |
| CASE MAY BE CITED AS: | Williams v Inside Edge (Aust) Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 1462 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – s.134AB serious injury – plaintiff’s failure to discharge burden of proof – application refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Riordan and | Nowicki Carbone Lawyers |
| Mr D Wallis | ||
| For the Defendants | Mr D Brookes SC and | Thomson Playford Cutlers |
| Ms H Donmez | ||
| HIS HONOUR: |
1 This is an application which relies on part (a) of the definition of “serious injury” in subsection (37) of s.134AB of the Accident Compensation Act 1985 (“the Act”), that is “permanent serious impairment or loss of a body function”.
2 The body function relied upon is the right arm.
3 The claim by the plaintiff instituted by Originating Motion dated 18 January 2008 seeks leave from the Court pursuant to subsection (16)(b) of the Act to commence a proceeding which will claim damages for pain and suffering and loss of earning capacity.
4 Mr John Riordan, with Mr D Wallis, both of Counsel, appeared on behalf of the plaintiff. Mr D Brookes SC, with Ms H Donmez of Counsel appeared on behalf of the defendants.
5 The following evidence was adduced during the hearing:
•
The plaintiff swore two affidavits and gave sworn evidence and was cross-examined. The plaintiff’s first affidavit was sworn on 18 August 2007.[1] The plaintiff’s second affidavit was sworn on 20 April 2009.[2]
•
The plaintiff filed further affidavits which were not tendered by the plaintiff but which were tendered by the defendants. The first affidavit was that of Gary Westwood, sworn 17 April 2009.[3] The next affidavit was sworn by Mr Peter Turner on 17 April 2009,[4] and the final affidavit was sworn by Mr Robert McMahon on 21 April 2009.[5]
• The plaintiff tendered the following evidence: [1] PCB 2-27
[2] PCB 28-33
[3] PCB 7-9
[4] PCB 10-11
[5] PCB 12-13
ƒ the plaintiff’s Court Book (“PCB”), pages 14 to 33 inclusive and
pages 38 to 48b inclusive and pages 52 to 135 inclusive, and pages 147 to 214 inclusive, and pages 350a to 350nn inclusive and pages 351 and 352.
• The defendants tendered the following evidence:
ƒ the defendants’ Court Book (“DCB”), pages 6 to 49C inclusive and pages 55 to 81 inclusive, together with the affidavits of Gary Westwood, Peter Turner and Robert McMahon, referred to above, together with two videos depicting movements of the plaintiff on 12 March 2010 (Exhibit 1) and 8 April 2009 (Exhibit 2). The defendants’ Court Book was tendered as Exhibit 5.
6 In giving consideration to this application, I have considered all of the evidence adduced by the respective parties.
Affidavit Material
7 The plaintiff swore his first affidavit in support of the Originating Motion on 10 August 2007. The plaintiff is now forty-eight years of age and was born on 4 November 1961. He lives on a 10-acre property in Lilydale with his partner Michelle.
8 The plaintiff attended Ringwood Technical School and left school after Year 10, whereupon he commenced and completed an apprenticeship as an automotive mechanic. He worked for ten years as a mechanic and then worked for a period of three years with the RACV as a breakdown van mechanic.
9 In about 1999, he commenced employment with the first-named defendant as a blind installer. His work there included installation of blinds in clients’ homes and offices, picking up blinds from manufacturers and dealing with suppliers. He ceased work on or about 30 April 2001, because of an injury he alleges occurred to him during the course of his employment. He attempted to return to work in about mid-2001 but was forced to cease work because of increased pain.
10 The plaintiff had a history of illness and other injuries prior to allegedly sustaining an injury during the course of his employment with the first-named defendant. In about 1997, he had carpal tunnel surgery to both hands. In about 1990, he was diagnosed with Wolf-Parkinson-White Syndrome which resurfaced in about mid-2006. He was treated for these conditions and says he made a good recovery. Also in about March 2006 he was diagnosed with Type 2 diabetes. To help treat this, he says:
“I have undertaken an exercise and dietary regime.”[6]
[6] PCB 22
11 The plaintiff alleges that on or about 30 March 2001, in the course of his employment, he sustained injury to the right upper arm and in particular to the right bicep and the right ulnar nerve. He also alleges that he suffered psychiatric and psychological disturbance, including but not limited to “stress, anxiety and depression”.[7]
[7] PCB 23
12 The plaintiff alleges that on or about 30 March 2001, at about 7.30 am, he slipped on a staircase at his place of employment and in the course of falling grabbed the right-hand rail or banister of the stairwell, injuring his right arm in an attempt to avoid falling. He immediately felt pain in his right upper arm.
13 The defendants challenge the mechanism which the plaintiff alleges led to his work-related injury. The defendants in response assert the injury diagnosed as a torn right bicep tendon could not have occurred in the circumstances of a fall on a staircase as asserted by the plaintiff.
14 On this application by Originating Motion, it is not necessary for me to finally decide this issue. I will deal with this application on the basis that the plaintiff was in fact injured as he alleges at his place of work on or about 30 March 2001.
15 The plaintiff says in his affidavit material that after falling at work he reported the matter to his superior, Jamie Petroff, and he continued to work as best he could for a few hours but after some time the pain increased in his right arm and it had become swollen. He thereupon drove himself to “Betta Health Care Medical Centre and then to the Maroondah Hospital.”[8] He ceased work on that day.
[8] PCB 23
16 The plaintiff was referred to the Maroondah Hospital and on 6 April 2001, was admitted there and underwent a surgical reattachment of the right bicep tendon. He says his arm remained in plaster for a period of four weeks and he had to take antibiotics to treat a subsequent superficial wound infection.[9]
[9] PCB 24
17 In the months following his initial surgery, he developed numbness in the right wrist. A nerve conduction study carried out by Dr. Graeme Symington on 31 October 2001 confirmed the diagnosis of “right ulnar neuropathy”.[10]
[10] PCB 24 and see report of Associate professor Michael Murphy Neurosurgeon at PCB 105
18 The plaintiff was initially treated for this by Professor Murphy who prescribed a “tapering course of Prednisolone”.[11] Following this further nerve conduction tests were carried out which confirmed again right ulnar nerve entrapment or neuritis.[12]
[11] PCB 105
[12] PCB 105
19 On or about 26 February 2002, the plaintiff underwent right ulnar nerve release surgery which initially provided relief from the symptoms. This surgery was conducted by Professor Murphy a neurosurgeon. However, the symptoms returned a few months later.[13]
[13] PCB 24 and PCB 105
20 The plaintiff deposes to having attended for physiotherapy which provided no relief from the pain. He attempted oral steroid therapy but this tended to aggravate his diabetic condition.
21 He was referred to Mr Greg Hoy on or about 5 August 2003 where he underwent surgery again to remove scar tissue but the operation did not give lasting relief.[14]
[14] PCB 24
22 The plaintiff has been referred to various doctors and I will discuss their reports later. He has also undergone a pain management program at Cedar Court, which he attended on a monthly basis. The plaintiff is on a regime of various medicines, which I shall also discuss later.
23 In his affidavit material, the plaintiff deals with what he describes as “pain and suffering and loss of enjoyment of life”.[15] At the time of swearing his first affidavit, the plaintiff says he was then suffering from ongoing pain in his right arm, particularly in the hand, wrist and elbow. He said:
“… I suffer from pins and needles in this arm and often have sensations of numbness and tingling in my right hand. I generally have difficulty with repetitive movements and bending and moving my arm. Generally, when I undertake activities that elevate my heart rate, I feel a worsening in the pain and discomfort throughout my right arm. I find that the best way to treat the pain is to reduce my physical activity and rest as much as possible.”[16]
[15] PCB 25
[16] PCB 25
24 The plaintiff further deposes:
“I am right hand dominant and as a consequence of my injuries I feel disabled by my general inability to use my right arm. I struggle with lifting things and cannot reach above shoulder height. Prior to the accident I could carry relatively heavy weights without a problem.
My pain generally fluctuates depending on what I have been required to do during the day. Daily tasks such as using cutlery, writing and opening doors exacerbate my pain. Furthermore, my pain is worsened by extremes in temperature, and in particular the cold weather worsens the pain. In addition, my arm is sensitive to touch and even wearing a jumper can aggravate the pain I experience. When it is physically possible, I try to avoid using my right arm.
. . .
… My attempts to exercise, in order to improve my health, are hinderedby the pain I suffer whenever I undertake physical activities. … .”[17][17] Plaintiff’s first affidavit paragraphs [25-26] & [30]
25 The plaintiff deposes to having difficulty participating in a number of social and recreational and domestic activities. He says prior to suffering injury he had enjoyed motorbike riding with friends and his children but since the accident he has had difficulty engaging in this pastime. He says that he can no longer do chores such as shopping, cooking, washing and garden maintenance. He even has difficulty in what he describes as “self-care tasks such as showering and dressing”. He says that the restricted range of movement in his arms makes such tasks arduous and painful.[18] The plaintiff went on to say that he has difficulty writing and typing.
[18] PCB 26 [30-32]
26 The plaintiff’s case is that since March of 2001, he has been totally unable to return to work. He says that he used to work forty hours per week, earning $1,200 per week, but he is now unable to do so. He claims a total inability to return to work and therefore claims a certificate to claim damages for loss of earning capacity. He is currently on a Disability Support Pension[19].
[19] PCB 27
27 In his further affidavit, the plaintiff deposes to attending upon his general practitioner, Dr Rodway, every two months.[20] He says that he also attends a gymnasium approximately once per week to try and exercise his right arm and to keep moving.[21] Dr Rodway prescribes medication in the form of Norspan patches, as well as oxycondone, Endep and Amitriptyline, which the plaintiff says that he takes every day and if he does not do so, “I find the pain difficult to bear”.[22]
[20] PCB 30
[21] PCB 30
[22] PCB 30
28 In September 2007, the plaintiff concluded a pain management program at Epworth Rehabilitation (Cedar Court). He has had problems with inducing too much alcohol in order to alleviate his pain.[23]
[23] PCB 30
29 As at the time of swearing his second affidavit in April 2009, the plaintiff said he was then unable to resume work as a result of pain in his right arm. He deposes to having attempted car valuation work at Etheridge Ford and at Brian Glynn Ford, but he says this role did not suit him and he was asked to leave as a result of “my inability to meet sales expectations”.[24]
[24] PCB 31
30 In October 2007, the plaintiff attempted to assist a friend in the demolition of a shed on a commercial property. He helped load the material into trailers “with my left arm” however, the work caused severe pain in his right arm and he was unable to work other than for a few hours and was not able to return to that job the next day.[25]
[25] PCB 31
31 In his first affidavit the plaintiff deposes to having attempted a return to work on light duties in February 2006. He found he was experiencing increased pain and reliance on analgesic medication and he stopped working in about March 2006. He says he made another attempt to return to work in mid 2006 before the pain suffered prevented him from continuing.[26]
[26] Plaintiff’s first affidavit [35-36] PCB 27
32 In approximately July of 2008, the plaintiff attempted to work on a construction site working as a traffic controller, holding the ‘stop/go’ sign on the site. He says:
“… I found that even this minimal activity caused the pain in my right arm to flare up, and I needed to rest after a couple of hours. I was not able to sustain this work and did not return after my first day.”[27]
[27] PCB 31 at [17]
33 As at the time of swearing his second affidavit, the plaintiff says he continues to experience ongoing pain in his right arm, particularly the hand, wrist and elbow.
“… The pain is worse when I move the right arm around a lot, or if I have
to use the arm for fine movements.
. . .
The pain in my right arm does not prevent me from doing anything for a short period of time, but I have difficulty sustaining any activity for prolonged periods, and even if I do something for a short time I will often be in pain afterwards and need to rest. I often have to do tasks in small sections so that I do not cause my pain to flare up too much. If I push myself too far I will have to rest for a long time, which is very disruptive. … .”[28]
[28] PCB 32 at [18-20]
34 The plaintiff deposes to avoiding driving a car –
“… as the vibrations affect my right arm. … I will sometimes ask one of
my children to drive me so that I can avoid driving.”[29]
[29] PCB 32 at [21]
35 The plaintiff deposes to no longer enjoying weightlifting as it causes pain in his right arm, but, he says:
“… I continue to attend the gym in an attempt to manage my weight, but it
is part of my treatment regime, not a hobby.”[30]
[30] PCB 33 at[22]
36 The defendants contend that the plaintiff has not discharged the onus which he bears, of proving on the balance of probabilities he has suffered the necessary degree of physical incapacity that will entitle him to a serious injury certificate for economic loss.
37 Further, the defendants contend that if the plaintiff’s injury did occur, then the injuries are not “serious” in the sense that the consequences of the injury are neither “considerable” or “more than marked”.
38 The defendants’ case is that the history given by the plaintiff to his treating and other doctors should not be accepted. Further the defendants submit I should not accept the affidavit or other evidence sworn by the plaintiff.
39 The defendants rely upon two videos – Exhibits 4 and 5 – both of which depict the plaintiff engaging in a full range of movement of the plaintiff’s right arm in stark contrast to the plaintiff’s sworn evidence and the history given by him from time to time to various doctors.
40 The defendants’ case is that the videos show that the plaintiff has full functional capacity in the right upper limb, as evidenced by the film, he has a strong and adequate grip in the right arm and hand and there is evidence that he has in fact been working.
41 Further, the defendant contends that all of the medical evidence shows that there is no wasting of the right arm and in fact it remains larger than the left arm, consistent with the plaintiff continuing to use his right arm as a right arm dominant person on an ongoing basis.
42 Thus, the plaintiff’s credit is very much in issue in this application.
The Statutory Scheme
43 The application is brought pursuant to s.134AB(16)(b) of the Act and relies upon the definition of “serious injury” contained in sub-paragraph (37)(a) of s.134AB of the Act, which requires the plaintiff to prove he has suffered a “permanent serious impairment or loss of a body function”.
44 The relevant considerations which apply to such an application are as follows:
(a)
The plaintiff must prove he has suffered a compensable injury, that is, an injury which he suffered arising out of or in the course of his employment on or after 20 October 1999.[31]
(b)
The injury, and the impairment, must be permanent, that is, permanent in the sense that it is “likely to last for the foreseeable future”.[32]
(c)
The plaintiff bears the burden of proof to be determined upon the balance of probabilities, and in addition to the general burden imposed by subsection (19)(a) and subsection (19)(b), subsection (38)(e) imposes a specific burden on the plaintiff in relation to a claim for loss of earning capacity. To arrive at a loss of earning capacity of 40 per cent or more, the plaintiff must compare his income from personal exertion prior to suffering injury with the gross income which he is now able to earn from suitable employment or capable of earning from suitable employment. “Suitable employment” is defined in s.5 of the Act and was amended to operate from 1 July 2010 regardless of when the injury occurred.
(d)
Subsection (38)(c) provides the impairment must have consequences in relation to “pain and suffering” and “loss of earning capacity” which, when judged by a comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than “significant” or “marked”, and as being at least “very considerable”.
(e)
Subsection (38)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of an application based on paragraph (c) of the definition of “serious injury” and not otherwise.
(f)
Subsection (38)(e) provides that in a claim for loss of earning capacity, such loss must be to the extent of 40 per cent or more both at the date of the hearing and permanently.
(g)
Subsection (38)(j) provides the assessment of “serious injury” is to be made at the time of the hearing of the application.
(h)
Subsection (38)(b) provides that the consequences of an injury and impairment in terms of pain and suffering and loss of earning capacity are to be considered separately.
(i)
In conformity with Barwon Spinners, I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent, that is, likely to last for the foreseeable future, and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in subsection (38)(c).
(j)
I have applied the principles set forth therein in reaching my conclusions in this application.
(k)
Where it is alleged in an application the plaintiff had a pre-existing condition which arose prior to 20 October 1999, I must, in conformity with Barwon Spinners, identify the injury and impairment arising after 20 October 1999, and I must then determine the consequences of that injury and impairment by comparing the plaintiff’s condition before and after that injury: see Petkovski v Galletti;[33]
(l)
I am required by s.134AE to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action and in doing so, to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.
[31] S.134AB(1) and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph 11
[32] Barwon Spinners at paragraph 33
[33] [1994] 1 VR 436
History of Medical Treatment
45 There were many hundreds of pages of medical reports tendered before me. It is impossible in these reasons for judgment to fully detail all of those medical reports. Because of the sheer volume of the medical reports tendered by the plaintiff, many of them repetitive, I tried somewhat unsuccessfully to have his counsel take me to those parts of those reports specifically relied upon by the plaintiff to support his application. However, I attempt to summarise the relevant parts.
46 Soon after the injury, the plaintiff was treated at the Maroondah Hospital and attended his regular general practitioner, Dr Michael Yeo, at the Swansea Road Medical Centre. Dr Yeo referred the plaintiff to Professor Michael Murphy, a neurosurgeon, in about November 2001, because the plaintiff suffered from ongoing pain in his right arm and in the elbow area[34]. Professor Murphy considered that the plaintiff had “an ulnar nerve entrapment” but nerve conduction studies did not support this diagnosis. “… Certainly there is no evidence of conduction block at the elbow”.[35]
[34] PCB 147
[35] PCB 97
47 By January of 2002, Professor Murphy said that he had discussed with the plaintiff ongoing conservative treatment versus surgery, and the plaintiff had opted for surgery.[36]
[36] PCB 99
48 In about March of 2002, Professor Murphy carried out a left ulnar nerve neurolysis. According to a medical report from Professor Murphy of 6 March 2002, after that treatment the plaintiff felt that there had been significant improvement in his symptoms although this proved to be short-lived.[37]
[37] PCB 100
49 When Professor Murphy saw the plaintiff in May of 2002, he recorded:
“… there has been very little improvement … .
Overall he feels he is approximately 50% better since the operation. The main problem is aching and some intermittent paraesthesia. He has had one episode of numbness since his surgery.”[38]
[38] PCB 103
50 The plaintiff was referred by his general practitioner, Dr Peter Rodway, to Mr Greg Hoy in September 2002. In a report dated 18 March 2004 to the defendant’s insurance agent, Mr Hoy reported, inter alia, as follows:
“The patient has suffered a rupture of the distal biceps tendon. This is an acute injury and there is no question that it must be treated surgically as the non operative results are very poor. However, unfortunately the repair has been associated with three complicating factors.
It has lengthened due to perhaps some stretching of the sutures, and therefore is weak.
The second problem is of ulna[r] nerve compression which may be related to the swelling after the procedure. This has been relieved by an ulna nerve decompression by Mr Michael Murphy.
The third problem is of lateral cutaneous nerve of forearm irritation from the scar tissues. This unfortunately has continued and despite neurolysis by myself has not improved dramatically following the surgery.
The current situation is that the patient suffers a considerable amount of multi focal sites of pain in the arm which I feel is a myofacial pain type syndrome. I do not think that any surgical therapy is appropriate for this and that the patient will require pain management.”[39]
[39] PCB 116
51 In a report prepared on 3 March this year, Mr Hoy opined as follows:
“In summary, this gentleman has a long head of biceps which has been repaired following injury and as per my previous reports, the injury is totally consistent with his mechanism described at work. The injury has produced a rupture of this tendon and the tendon unfortunately lies between two nerves so that he has had irritation of the nerves with the surgical procedure to re-implant the tendon. The tendon has not been re-implanted at the correct length indicating that there has been some stretch of the tendon repair in the immediate post operative period that has led to a functioning long head of biceps but with seme weakness and, in particular, fatigue weakness. He also has an ulnar nerve lesion which has partially responded to an ulnar nerve transposition but he still presents with some ongoing ulnar nerve related pain.
The neurolysis of the lateral cutaneous nerve of forearm performed by myself has not been successful in getting rid of all his neuropathic pain from that nerve. I consider this a physical injury to the nerve and therefore physical incapacity. Neuropathic pain produces disabling symptoms for patients. This has caused Glen such longstanding problems that he is now on a significant permanent narcotic regime of analgesics, one which I believe makes him unemployable. Of course, he has been unemployed for so long that he is almost certain never to be able to hold down a permanent job anyway as the literature tends to suggest that patients out of work for more than two years do not get back their previous work.
There is no doubt that he has some pain in the palm and hand which I think is a pain syndrome or spreading of the pain that is less likely to be what I would consider a physical injury. … he clearly has neuropathic pain from a direct physical injury to the Lateral cutaneous nerve of [the] forearm at surgery to repair his distal biceps tendon. The distal biceps tendon repair has also produced a weak tendon and he has an ulnar neuropathy which I did not see pre-surgically and therefore cannot comment on the initial cause of, but has left him with ongoing ulnar neuropathic pain.
I have not commented on his psychological factors as I am not qualified to do this. However, I would add that there is no doubt in my mind that if I had this series of symptoms and signs and history that there would be a significant depressive element in myself. I would not be surprised at all if there were significant psychological factors at play for Glen who has not been able to work for a long period of time and therefore would have low self esteem and working capacity.
My final comment is that there is no doubt that this gentleman is permanently incapacitated by his injury and that he has neuropathic pain that produces what I would call a serious injury.”[40]
[40] PCB 134-135
52 Mr Hoy was cross-examined before me. The evidence that he gave before me when cross-examined supported the evidence that he has given in his reports.[41] Mr Hoy was criticised by Mr. Brookes for the way he gave his evidence. The criticism was that as an expert he was too much of an advocate for the plaintiff’s cause. In my view the criticism has merit.
[41] See Transcript 111-112
53 The plaintiff was referred to Mr Timothy Wood, a sports and musculoskeletal physician and a master in pain medicine. On 1 March of 2004, Mr Wood reported to the plaintiff’s general practitioner, Dr Peter Rodway. Inter alia, he reported his examination findings as:
“Examination reveals some tenderness around the shoulder, non- specifically. He has a scar over the volar aspect just distal to the elbow. This is non-tender to palpation. He has non-specific findings through the forearm, wrist and thumb area. There are no signs of any obvious irritability in the ulnar nerve. There were no features of allodynia or hyperalgesia through the forearm and there was no tremor visible. Grip strength was reasonable.”[42]
[42] PCB 163
54 At that time Mr Wood went on to opine that the plaintiff was not displaying features of “Complex Regional Pain Syndrome” and he went on to say that:
“… I think Glen would be put more into the chronic pain category.”[43]
[43] PCB 163
55 Dr Wood acknowledged that the plaintiff has some neuropathic pain elements.
56 Dr Wood repeated his findings in a report to the defendants’ insurance agent dated 10 March 2005.[44] Mr Wood referred to the fact that the plaintiff had been previously referred to Dr Peter Blombery in April 2004, who thought that the plaintiff was not showing sufficient clinical features of Complex Regional Pain Syndrome.[45]
[44] PCB 166a and b
[45] PCB 166c
57 In June of 2007, Dr Wood reported again to the defendants’ insurance agent. He said:
“In summary the diagnosis would be chronic regional pain syndrome affecting his right arm with a number of secondary complaints which may or may not be related to the original injury. Nevertheless Mr Williams is significantly incapacitated by his inability to use his right arm significantly.”[46]
[46] PCB 166j
58 Dr Wood thought that the plaintiff could not return to his pre-injury duties and that he would be unable to hold down any part-time or full-time employment due to his pain and very limited ability to undertake even the most simple and basic tasks with his right arm. He disagreed with an opinion of Dr Davidson obtained by the defendants, that the plaintiff was able to carry out more activity with his right arm than he was prepared to let on. He said:
“... Mr Williams does use his right arm but does get significant increases in pain as a result which require him to then not use the arm for several hours. Indeed Mr Williams stated that his pain is significantly increased by the examination of Dr Davidson during his most recent independent medical examination.”[47]
[47] PCB 166j
59 In a report to the plaintiff’s solicitors dated 7 March 2008, Mr Wood maintained his view that the predominant diagnosis in relation to the plaintiff was “Chronic Regional Pain Syndrome”.
“I still believe the predominate diagnosis is a chronic regional pain syndrome. As mentioned earlier at my initial consultation I did not feel that he fitted the diagnostic criteria for complex regional pain syndrome. I believe that Dr Blombery concurred with this. There are certainly some neuropathic elements to his pain and some speculated central sensitisation as evidenced by an increase in his symptoms following activity. Activity could produce various neurotransmitters that heighten the pain sensation. Obviously much of the above is speculation and we have no evidence one way or the other to prove it.”[48]
[48] PCB 166n
60 The plaintiff saw Mr Kenneth Brearley, orthopaedic surgeon, on behalf of the plaintiff’s solicitors on 12 March 2008. Mr Brearley reported, inter alia, that on examination:
“There is no obvious wasting of the right forearm. This measures 36.5cm in circumference compared with 34kg[cm] (sic) on the left. The upper arm musculature measures 38cm on both sides.”[49]
[49] PCB 191
61 Mr Brearley opined, inter alia, that the diagnosis and nature of the plaintiff’s injuries were as follows:
“i) Rupture of the distal biceps tendon. This was treated by reattachment. The tendon is still attached to its insertion but there has been significant lengthening of the tendon leading to markedly reduced effectiveness of the biceps muscle belly and resultant weakness.
ii) Compression of the right ulnar nerve which has been treated by decompression. This did relieve the symptoms of ulnar nerve paresis and the associated sensory symptoms.
iii) Involvement of the lateral cutaneous nerve of the forearm in scar tissue resulting in irritation of the nerve causing pain in the forearm. This was treated by exploration and neurolysis with slight benefit only.
. . .
On the balance of probabilities there would be no doubt that his right upper limb injury has arisen out of the injury which occurred whilst in the employ of [the defendant] …
. . .
I find no evidence at all of any psychologically based functional overlay. He does not appear to me to be exaggerating or amplifying his symptoms in any way at all.
I believe that his symptoms are organically based and result from the very definite severe physical injury which he suffered at the time of the fall in March 2001.”[50]
[50] PCB 192-193
62 Mr Russell Miller, orthopaedic surgeon, provided a medical report for medico- legal purposes on 17 October 2008.[51] He opined, inter alia:
“On the balance of probabilities, I believe Mr Williams’ right upper extremity injury arose out of the consequences of the work accident on 30/3/2001. It seems likely that he subsequently developed ulna[r] nerve symptoms or development ulna[r] symptoms as a result of that injury. I believe that in any case the development of the ulna[r] symptoms relates to the effects of the accident in March 2001 and therefore his current clinical status in relation to the right upper extremity reflects the effects of the accident in March 2001.
. . .
It is my opinion that Mr Williams has suffered an adverse psychological reaction as a result of the circumstances of this accident. I believe however his symptoms in the right upper extremity relate to the effects of organic disease.”[52]
[51] PCB 197
[52] PCB 202-203
63 Mr Robert Gassin, musculoskeletal physician, also saw the plaintiff for medico-legal purposes in July of 2009.[53]
[53] PCB 204
64 Mr Gassin diagnosed as follows:
“Mr Williams’ right upper limb symptoms have features of both somatic
and neuropathic pain.
His 3 primary injuries are:
o right biceps tendon rupture o right ulnar nerve neuritis/compression secondary to wearing a plaster of paris cast and
o right lateral cutaneous nerve of forearm impingement due to scarring following biceps tendon surgery.
The current symptoms satisfy the criteria for a Complex Regional Pain Syndrome (CRPS). Whether it is of CRPS Type 1 or Type 2 depends on whether there is damage to the ulnar or lateral cutaneous nerve of forearm. From a management perspective, this differentiation is academic.”[54]
[54] PC 206
65 Later Mr Gassin opined:
“Mr Williams’ injuries are of an organic nature. His pain and suffering are
direct consequences of these injuries.”[55]
[55] PCB 207
66 Dr Peter Rodway is the plaintiff’s general practitioner. In a report dated 4 February 2010, Dr Rodway reported that the plaintiff is presently on the following medication as prescribed:
“- Norspan 20mg transdermal patch weekly
- OxyNorm 20 mg b.d.
- Endep 75 mg nocte- Panadol osteo 2 tablets b.d.”[56][56] PCB 191
The Defendants’ Medical Evidence
67 The defendant had the plaintiff medically examined by Dr Gary Davison, an occupational physician, who saw the plaintiff on a number of occasions. He first saw him for assessment on 31 March 2005.[57] His examination revealed:
“There was a normal and pain-free range of movement possible at the right shoulder, right elbow and right wrist. Grip strength appeared to be unrestricted. The deep tendon reflexes were present and brisk. There was no evidence of a specific neurological deficit in the upper limbs.
Upper limb girths were measured at points equidistant above and below the cubital fossae, and found to be as follows:
Right arm - 45cm Right forearm - 40cm Left arm - 45cm
Left forearm - 38cm This is consistent with a right-hand dominant usage pattern.”[58]
[57] DCB 20
[58] DCB 23
68 Dr Davison opined that the plaintiff has:
“… a chronic regional pain syndrome, affecting the right upper limb ….”[59]
[59] DCB 23
69 In 2005, Dr Davison thought that the plaintiff was not capable of returning to his pre-injury duties but he does have a capacity for suitable duties subject to the following physical restrictions:
[60] DCB 24
“1. Avoid forceful and repetitive gripping with the right upper limb. 2. Avoid repetitive manual handling >5kg in force or weight at bench height. 3. Avoid prolonged and repetitive use of the right upper limb.”[60]
70 Dr Davison saw the plaintiff on a second occasion in March 2007. At that time he carried out a further examination:
“Upper limb girths were measured at points equal distance above and
below the cubital fossae and found to be as follows:
• Right arm — 43cm • Left arm — 40cm • Right forearm — 40cm • Left forearm — 37cm These findings are consistent with normal right-hand dominant usage pattern.
Grip strength was equal.
Inspection of the hands revealed keratinisation and staining of the palms and fingers of both hands and more marked on the right side.
. . .
The range of motion of the right shoulder, elbow and wrist was normal.
There was no evidence of neurological deficit in the right upper limb.”[61][61] DCB 26-27
71 In 2007, Dr Davison thought that the plaintiff could undertake redeployment in automotive parts sales and/or motor parts vehicle interpreter or motor vehicle sales person or loss assessor and insurance investigator or console operator or sales assistant or product quality controller.[62]
[62] DCB 28
72 Dr Davison again saw the plaintiff for a third time in January of 2009. His examination revealed similar findings to that which he had found in 2007, including keratinisation and staining of both hands. Again, the plaintiff’s grip strength was measured at 35 kilograms on the right and 53 kilograms on the left. Dr Davison maintained his view that the plaintiff was fit for work in the automotive industry in the jobs referred to above and as a console operator, a sales assistant or a product quality controller.[63]
[63] See DCB 30-34
73 The plaintiff was seen by Dr Peter D Stevenson, a consultant physician, on behalf of the defendant in November 2007.[64] On examination, Dr Stevenson found, inter alia:
“There was surgical scarring on the right upper limb, consistent with the appropriate surgery. There was a rather thickened scar over the front of the right elbow, consistent with infection in a repair of a ruptured right biceps tendon, and there was surgical scarring over the right medial epicondyle, in keeping with a release of the ulnar nerve.
I could not really identify any neurologically based allodynia, although Mr Williams commented that at previous examinations it had been extremely painful.
His grip strength seemed quite potent, and he did comment spontaneously that even in his decayed state, he was very strong. In fact, he politely did inhibit his grip strength to avoid hurting me.
Resisted extension and resisted flexion did not provoke any complaint of pain.
Tinnel’s test on the ulnar nerve was negative.
There was no real overt sensory change in the ulnar region.
He did report symptoms and paraesthesia over the upper limb that was a bit hard to follow on any purely neurological basis, but they did seem genuinely bothersome.
His right upper arm circumference was 15 inches. Mr Williams looked mournful and said it used to be 22.”[65]
[64] DCB 35
[65] DCB 38
74 Mr Stevenson opined, inter alia, as follows:
“He has had a sound repair. The biceps muscle shows significant evidence of disuse. There is no objective evidence of chronic regional pain syndrome and there is not today any particular significant evidence of neurologically based allodynia. He does have some more non- specific pains which did not seem clearly neurological, but more non- specific.”[66]
[66] DCB 40
75 As to work prospects, Mr Stevenson opined:
“He appears at this stage to have some difficulty using the right arm and probably would not be able to use it fully effectively in a very manual trade, but he is still a physically impressive man. He could do fulltime restricted duties, sales assistant, loss assessor etc, described in a job assessment.”[67]
[67] DCB 43
76 Mr Stevenson saw the plaintiff again in January 2009.[68] In his report following that examination, Mr Stevenson believed that the plaintiff had a good prognosis and had had a sound repair.[69] He said:
“Again he is an extremely muscular man with excellent muscle definition which strongly suggests he has returned to some form of exercise. He reports that he can do anything. He reports that he does have non- specific pain after unusual activity. He therefore would have a clear capacity for a variety of sedentary retail or light physical occupations.
It is clear that he can do the activities identified in the report with substantial margin of error. Medically he can return to heavy labour or weightlifting.”[70]
[68] DCB 45
[69] DCB 48
[70] DCB 49
The Video Evidence
77 The defendants introduced into evidence a video taken of observations of the plaintiff on 12 March 2010. The video runs for about twelve minutes and observes the plaintiff in the vicinity of his motor vehicle which appears to have broken down by overheating. The vehicle is seen to be towing a trailer loaded with furniture and other objects.
78 The plaintiff may be seen on the video undoing the radiator cap and attending to pour water into the radiator of the car from a plastic container using his right arm and right hand without any difficulty. The plaintiff is depicted as having a full range of movement in his right arm, shoulder, elbow and wrist and does not appear to be impeded by pain in any way.
79 Following attendance to the overheating car, the plaintiff may be seen assisting a person, whom he identified as his son, carrying various objects from the trailer. These included a large reclining lounge chair and a weightlifting apparatus which was both large and awkward and difficult to manoeuvre. The plaintiff may be seen lifting these objects with ease and pushing them when required. In my observation, the plaintiff was able to carry out all of the tasks seen on the video without any noticeable difficulty.
80 In assessing the video evidence tendered by the defendants I am conscious that I must weigh such evidence cautiously.[71] In my view the video in this case, although short, is nonetheless telling evidence. Exhibit 1 which depicts the plaintiff’s movements attending to his car and unloading the attached trailer on 12 March this year depicts the plaintiff as able to carry out any movement involving his right arm. This includes lifting heavy objects and manoeuvring them into position by pushing with the right arm.
[71] Church v Echuca Regional Health [2008] VSCA 153
81 The plaintiff said in evidence he had driven the car loaded with furniture from his home in Lilydale to the western suburbs of Melbourne in Kingsville. The journey had taken about one hour and the plaintiff did not appear to be in any difficulty, having driven the car[72]. This contrasts with the evidence in both of the plaintiff’s affidavits, that he has difficulty driving a car, because he experiences pain, and tends to have his children drive the car in order to avoid having to do so.[73]
[72] See plaintiff’s evidence at T67 line 23
[73] See plaintiff’s first affidavit PCB 26 at[34] and plaintiff’s second affidavit at PCB 32 at [21]
82 Before the video exhibit 1 was shown to the plaintiff the plaintiff was cross examined about the weight machine which he was later depicted as unloading with his daughter’s boyfriend from the trailer. In his sworn evidence the plaintiff said that he had sold the machine on eBay for $200.00.[74] Then he said that the purchaser never collected the machine and he sold it to a friend of Michele’s daughter for $200. He could not remember whether that person came to collect the machine. When pressed he conceded he “might have taken it in a trailer I can’t remember”.[75] I set out the relevant cross examination:
[74] Transcript page 59 lines 18-19 and page 60 line 5
[75] Transcript page 60 lines 21 -22
“Q: Pretty heavy?--- A: Yes, in one piece it was, yes. Q: Well, when did you sell it?--- A: Well, a few months ago. Q: So what happened?--- A: What do you mean what happened? Q: Well you sold it on eBay, how much did you sell it for?--- A: $200 I think from memory. Q: Did they come and pick it up?--- A: Yes, they did. Q: From your place?--- A: Yes. Q: Where was it on the front - - - ?--- A: Front verandah. Q: Who bought it?--- A: Who bought it? Q: Yes?--- A: No-one bought it, it was given to me. Q: I'm sorry, I thought you said you sold it on eBay?--- A: Yes, yes, sorry. Q: The people bought it from you came and picked it up on the front
verandah, did they?---A:
I can't remember now who bought it. I sold it on eBay, the people didn't buy it, I rang them multiple times and they never came and collected it, then I sold it to a friend that - a friend of Michelle's daughters bought it.
Q: So how much did they pay for it?--- A: $200 I think. Q: So did they come and pick it up or what happened?--- A: I can't remember. Q: Really, how long ago was it?--- A: A few months ago. Q: You can't remember?--- A: I don't have great memory of things any more. Q: Well, do you know where it went to?--- A: It went to their house. Q: How did get to the house?--- A: I might have taken it in a trailer, I can't remember. Q: How could you forget something like that?--- A: I just can't remember how I moved it. It was going to be done
many different times.Q: How did you get it on the trailer?--- A:
You're asking me to remember stuff that I don't know, I assume that the thing has to be pulled apart to be moved anywhere so you just dissemble it and put … .
Q: So what does it dissemble into? Like how many parts?--- A: Well, you'd have to take all the weights off it - well, that's basically
it, you take all the weights off it and then you've got … .Q: But you're left with the whole structure after that, aren't you?--- A: Yes. Q: So that's pretty heavy piece of equipment?--- A: Yes, it's not too bad but yes. Q: How did that get onto the trailer?--- A: I'd imagine and someone else has helped put it on there. Q: Who's the someone else?--- A: I think, you know, my daughter's boyfriend but I can't remember. It
might have been my son.Q: Then what happened to it? Did you drive it to the friend's place?--- A: Yes, yes, drove it there and put it in, into the room. Q: Who unloaded it?--- A: The same people that put it on. Q: So that's you, isn't it?--- A:
Yes. I think I helped unload it, I can't remember. I honestly can't remember. I was there, whether I helped unload it, I can't remember who was at the other end.
Q: Wouldn't unloading it and carrying it into the house cause you right
arm pain?---A: Yes, it would. Q: So why would you do that?--- A: Only because there was no-one else to do it. Q: I thought you said your son was with you?--- A:
I can't remember who was there at the other then. I think they were arranging to have other people meet us at the other end but I can't remember if they did or not. If there was other people then they would have done it because it all causes me pain and that's the thing. It's just like all the rest of it. I can do it but it causes me pain and the more I do, the worse I get.[76]
[76] Transcript pages 59-61
83 In the above passage it can be seen the plaintiff was reluctant to commit himself to having moved the weight lifting equipment. At first he said he could not remember moving the equipment. Then he said he was “there” and “whether I helped unload it I can’t remember who was at the other end” and then “If there was other people they would have done it” then “I possibly loaded it I couldn’t tell you whether I unloaded it”.
84 When confronted with the video evidence the plaintiff agreed that he had indeed assisted in unloading the weight machine from the trailer. He went on to agree that the video failed to show any sign of him suffering a disability.
“Q:
When you were manoeuvring the chair to get it off the back of the van, you were doing all sorts of pushing and pulling and lifting weren't you to get it - - -?
A: … Pushing. Q: To manoeuvre it - yes, pushing?--- A: Mainly pushing, yeah. Q: Pushing, yes. Pushing that way from the shoulder?--- A: Pushing is my better movement than pulling generally. Q: Push, that's good. And there was lifting wasn't there?--- A: Yes. Q: And there was manoeuvring and turning your hand and your wrist
at various times to get it into a better position, wasn't there?---A: I don't know, I wasn't watching it that well. Q: To any layperson looking at that film there was no sign of any
disability with your right arm at all, was there?---A: No, that's fine. Q: So if they were spare parts in a spare parts shop, you'd be able to
do what we saw you doing on the film, wouldn't you?---A: Yes. Q: Yes …?--- A: But I would pay for it later on. Q: Well …?--- A: I'm in pain. Q:
If you're going to pay for it later on, why not get the kid's friend to help you do it?---Because I have to keep myself moving and at times those kids aren't around and I've got to do something to keep - if I don't keep myself moving I'm going to end up twice the size I am now and have more medical problems and I've been told to get up and get out and do things, make sure and … - - -
A: All right, well, why don't - I'm sorry, I …?--- And use both arms to
do them.Q: Why don't you do that, get up, get out and use both arms, and get
a job?---A: I - because I can't do it constantly. I have to then stop for a - for a
time. [77][77] Transcript 66 to 67
85 I accept the submissions of Mr Brookes that the plaintiff was reluctant to concede his involvement in moving the objects depicted in the video until confronted with the video evidence. I do not accept the plaintiff’s evidence that he does not normally engage in activities such as those depicted in Exhibit 1 because of the pain he suffers later. In my view the video evidence is consistent with findings of the defendants’ doctors which show that there is no sign of wasting in the plaintiff’s right arm and there are present signs of keratinisation consistent with him undertaking some forms of activity on a regular basis.
86 Mr Hoy was recalled as a witness and asked to view Exhibit 1, which he did in the courtroom. Having viewed the video, he was asked by Mr Riordan whether what he saw in Exhibit 1 changed his mind in any way about the plaintiff’s injuries and disabilities, and he said that it had not.[78]
[78] Transcript 98
87 Later, in further cross-examination by Mr Brookes, having seen the film, I understood Mr Hoy to say that he thought that the plaintiff could undertake work holding a ‘stop’ or ‘go’ sign on a building site and he could also attempt undertaking light work.[79] When recalled to give evidence Mr Hoy seemed less enthusiastic to support the plaintiff’s case that because of his right arm injury he was totally incapacity from any form of suitable employment.
[79] Transcript 113
88 The defendants argue that the video evidence in this case gives the lie to the various medical reports supplied by the plaintiff, because it demonstrates that the plaintiff has been undertaking activities with his right arm over and above those which he has been prepared to let on to the various doctors. As Mr Brookes put it in submissions, “if the plaintiff suffers the pain that he has indicated to the doctors when examined, then why would he even undertake the task that he was demonstrated as having undertaken in the video? “
89 Mr Brookes submits, that having regard to the length of time that the plaintiff has been out of work and the catalogue of examinations that have been recorded in the medical evidence, and in particular, the evidence of staining on the hands and keratinisation, then the likelihood is that the plaintiff has been undertaking labouring type tasks or any tasks with his right hand which he has not been prepared to let on to the doctors. I think there is force in this argument.
90 The plaintiff was cross examined about activities that he can and cannot do. The affidavit evidence filed on behalf of the plaintiff tended to paint a picture of the plaintiff now unable to carry out any of the activities he was able to perform pre injury. When pressed in cross examination he agreed:
•
He could ride a motor cycle quad around on his property as long as he is gentle;[80]
•
He can do anything on a car as long as he is given reasonable time to do it;[81]
• He can mow the lawns on his property using a ride on lawn mower;[82] •
Since he has met his partner Michelle four years ago he has been going out occasionally to places like night clubs;[83]
• He can do anything with his right arm but will suffer pain;[84] • He could be trained to perform work as a spare parts salesman;[85] • He assists his son when he is working on his car;[86] •
Since being injured he has been to the car racing with his friend and assisted in the pits without doing anything physical;[87]
•
With reference to a statement in the affidavit of Peter Turner that he and the plaintiff have attended the gym since the injury but less frequently than before it the plaintiff gave evidence that he has been to the gym since the injury.[88] The plaintiff said he had great difficulty doing biceps work; [89]
•
He “might have worked on his (Peter Turner’s) car with him. But he did most of the work under my guidance;[90]
• He helped pull down a shed;[91] • He has performed tiling renovation work at his home; [92] [80] Transcript 20
[81] Transcript 20
[82] Transcript 20
[83] Transcript 22
[84] Transcript 10
[85] Transcript 16
[86] Transcript 17
[87] Transcript 25
[88] Transcript 26
[89] Transcript 27
[90] Transcript 27
[91] Transcript 29
[92] Transcript 32
91 Many of these concessions made by the plaintiff differed markedly from his untested affidavit evidence.
92 I watched the plaintiff closely whilst giving evidence. I formed the view he was evasive and only willing to concede he is able to carry out many activities using his right arm when pressed and when confronted evidence that shows he can use his right arm fully. The concessions which the plaintiff was forced to make in cross-examination as to his use of his right arm contrasts markedly with that which he has deposed to in both of his affidavits and with what he has told numerous doctors by way of history or complaint when examined by them.
93 I accept the submissions advanced by Mr Brookes on behalf of the defendants that I should not accept the plaintiff’s evidence. In my view there are just too many inconsistencies in his evidence for me to accept it and act on it. I found the plaintiff to be an unreliable witness. I do not accept the evidence of the plaintiff unless corroborated.
94 So far as the medical evidence is concerned I prefer the evidence of Dr Davison and Dr Stevenson to the evidence of the plaintiff’s doctors especially Mr Hoy and Dr Wood and act accordingly.
95 I have concluded that the plaintiff was injured at his place of employment on or about 31 March 2001 when he tore his right bicep tendon.
96 Subsequent surgery has led to the development of scar tissue which does cause the plaintiff some neuropathic pain on an ongoing basis. However, I am not satisfied that the plaintiff has discharged the onus which he bears of demonstrating that he has made all attempts to retrain himself for other duties, or that he is unsuitable for employment in light duties. I accept the evidence the plaintiff is suitable for employment in various vocations in the sales area connected with the automotive industry or as a console operator or in the area of sales in the automotive industry.
97 I am satisfied light duties such as holding a sign for the purposes of traffic operation, are well within the range of duties the plaintiff could carry out, having read all of the medical reports and having seen the plaintiff in the video evidence tendered. I do not accept that the plaintiff is totally unemployable, which is his case.
98 Further, I am not satisfied that the plaintiff suffers from ongoing impairments or consequences from the injury which could be described as “significant” or “marked” or as being at least “very considerable”. I am satisfied that whilst the plaintiff did suffer an injury in March 2001, he has largely recovered from that injury leaving him with some ongoing pain but not at a level to prevent him in any significant way from carrying out most, if not all, of his daily living and recreational activities.
99 I am also satisfied that the plaintiff may continue to suffer from a Chronic Regional Pain Syndrome. I am not satisfied that the plaintiff has been able to attribute all of his ongoing difficulties to physical injury and nor has he satisfied his burden of disentangling the psychological nature of his injuries from his physical injuries.
100 For these reasons, the plaintiff’s application must fail and is refused.
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