Yilmaz v Link Property Services
[2011] VCC 88
•11 February 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES & COMPENSATION
SERIOUS INJURY APPLICATION DIVISION
Case No. CI-10-00116
| ISMET OCAL | Plaintiff |
| v | |
| BAIADA POULTRY PTY LIMITED | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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| JUDGE: | HIS HONOUR JUDGE PARRISH |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 23, 24 and 27 September 2010 |
| DATE OF JUDGMENT: | 11 February 2011 |
| CASE MAY BE CITED AS: | Ocal v Baiada Poultry Pty Limited & Victorian WorkCover Authority |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 129 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985, s.134AB(37)(a) and (c) – right hand/right arm injury – whether compensable – whether “serious injury” – no organic signs – pain syndrome – whether “severe” - credit
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr V A Morfuni SC with | Victorian Compensation |
| Ms A M Malpas | Lawyers | |
| For the Defendants | Mr P B Jens with | Hall & Wilcox |
| Ms M Tsikaris | ||
| HIS HONOUR: |
1 By way of Originating Motion filed 14 January 2010, Ismet Ocal (“the plaintiff”) seeks leave pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985, as amended (“the Act”), to bring common law proceedings to recover damages for a right arm injury suffered by him on or about 23 April 2003 (“the injury”) during the course of his employment with Baiada Poultry Pty Ltd (“the first defendant”).
2 The plaintiff seeks leave to bring proceedings for “pain and suffering damages” and “pecuniary loss damages” within the meaning of s.134AB(37) of the Act.
3 The plaintiff and Dr S Saban (the treating general practitioner of the plaintiff) gave evidence and were cross-examined. Each party tendered a large number of documents.[1]
[1] See Annexure “A”
Relevant Legal Principles
4 The Court must not give leave unless it is satisfied on the balance of probabilities that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s.134AB(37) of the Act.[2]
[2] See s.134AB(19)(a) of the Act
5 The plaintiff relies on paragraphs (a) and (c) of the definition of “serious injury” contained in s.134AB(37) of the Act.
Those paragraphs read:
“serious injury means–
(a) permanent serious impairment or loss of a body function; ... . . . (c)
permanent severe mental or permanent severe behavioural disturbance or disorder … .”
6 The part of the body said to be impaired for the purposes of paragraph (a) is the right hand/lower arm.
7 The mental or behavioural disturbance or disorder for the purposes of paragraph (c) is described variously as a Regional Pain Syndrome and or Chronic Pain Syndrome (but see reports of doctors Hjorth andLittlejohn). I should add that on occasion the condition has been referred to as Reflex Sympathetic Dystrophy which may have the potential to fall within paragraph (a) or paragraph (c).
8 In order to succeed, the plaintiff must prove on the balance of probabilities that:
(a)
“the injury” suffered by him arose out of, or in the course or due to the nature of, his employment with the first defendant on or after 20 October 1999.[3]
(b)
“the injury” and the resulting impairment (paragraph (a)) and/or the mental or behavioural disturbance or disorder (paragraph (c)) must be “permanent” – that is, permanent in the sense that it is “likely to last for the foreseeable future”.[4]
(c)
the “consequences” to the plaintiff of the right hand-lower arm impairment in relation to “pain and suffering” or “loss of earning capacity” must be “serious” – that is, “when judged by comparison with other cases in the range of possible impairments ... may be fairly described as being more than significant or marked, and as being at least very considerable”.[5]
(d)
The “consequences” to the plaintiff of the mental or behavioural disturbance or disorder in relation to “pain and suffering” or “loss of earning capacity” must be “severe” – that is, “when judged by a comparison with other cases in the range of possible mental or behavioural disturbances or disorders, as the case may be, be fairly described as being more than serious to the extent of being severe”.[6]
[3] See s.134AB(1) of the Act and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph [11]
[4] See Barwon Spinners (op.cit.) at paragraph [33]
[5] See s.134AB(38)(b) and (c) of the Act.
[6] See s.134AB(38)(b) and (d) of the Act
The tests for “serious” and “severe” are set out in paragraphs (b), (c) and (d) of s.134AB(38) of the Act and are sometimes referred to as the “narrative tests”.
9 In addition, in relation to “loss of earning capacity consequences”, the plaintiff has a specific burden[7] to establish:
[7] see s.134AB(19)(b) and (38)(e) of the Act
[8] See s.134AB(38)(e)(i) of the Act
[9] See s.134AB(38)(e)(ii) of the Act
(a) that as at the date of hearing, a loss of earning capacity of 40 per cent or more, measured (subject to certain irrelevant exceptions) as set out in paragraph (f) of s.134AB(38) of the Act;[8] and (b) that after the date of hearing, the plaintiff will continue permanently to have a loss of earning capacity which will be productive of a financial loss of 40 per cent or more.[9] 10 In determining the application, the Court:
(a)
must not take into account psychological or psychiatric consequences of “the injury” for the purposes of paragraph (a) of the definition of “serious injury” – these can only be taken into account for the purposes of paragraph (c) of the definition of “serious injury”;[10]
(b)
must make the assessment of “serious injury” at the time the application is heard;[11]
(c)
notes that it has been observed that the question of whether any injury satisfies the definition of “serious injury” is largely a question of impression and value judgment;[12]
(d)
must give reasons which are as extensive and complete as the Court will give on the trial of an action, and in so doing, disclose the pathway of reasoning in dealing with the evidence and the issues raised by the application;[13]
(e)
notes that s.134AB(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. In the event that a worker satisfied sub-paragraph (i) but not sub-paragraph (ii) of s.134AB(38)(b) of the Act, the worker is entitled to have leave to bring proceedings for the recovery of “pain and suffering damages” only. A worker who satisfies the loss of earning capacity requirements of s.134AB is entitled, as a “matter of statutory construction”, to have leave to bring proceedings for “pain and suffering damages” and “pecuniary loss damages”.[14]
[10] See s.134AB(38)(h) of the Act
[11] See s.134AB(38)(j) of the Act
[12] See Kelso v Tatiara Meat Company Pty Ltd (2007) 17 VR 592, at 628; Sabo v George Weston Foods [2009] VSCA 242, at paragraph [67]
[13] See s.134AE of the Act and Church v Echuca Regional Health (2008) 20 VR 566, at paragraphs [89]- [92]
[14] See Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170 and in particular at paragraphs [60]- [64]
The Issues
11 For completeness, I note that the plaintiff originally sought leave to bring common law proceedings to recover damages for a neck injury which he suffered on or about 10 September 2004 during the course of his employment when he allegedly fainted at work and fell backwards, striking his head. Senior Counsel for the plaintiff advised the Court that the neck injury was in no way a sequel to the right hand/lower arm injury, and leave was only sought in relation to the right hand/lower arm injury.[15]
[15] See Transcript (“T”) 12, 16-25
12 Leading Counsel for the defendants enunciated the issues as follows:
(a)
whether the condition of the villonodular synovitis diagnosed by Professor Choong and removed at surgery by that doctor had any relationship to the employment of the plaintiff by the first defendant;
(b)
if so, whether there is any organic basis for his ongoing complaints of pain to establish that he has an organic impairment of his right hand/lower arm;
(c)
whether he does suffer from a mental or behavioural disturbance or disorder and if so whether such disturbance or disorder is “severe”;
(d) credit;
(e)
in any event, whether the plaintiff discharges his onus under s.134AB(19)(b) and (38)(e) of the Act in respect to establishing the requisite “loss of earning capacity consequences”;
The Plaintiff, his Injury and Treatment
13 The plaintiff adopted his two affidavits, sworn respectively on 7 October 2009,[16] and hereinafter referred to as the “first affidavit”, and on 2 September 2010,[17] and hereinafter referred to as the “second affidavit”.
[16] See page 10 of Exhibit A
[17] See page 24.01 of Exhibit A
14 In his first affidavit, the plaintiff gives the following salient evidence:
•
He is a forty-six-year-old (born 10 January 1965) married man with three children ranging in age from seventeen years to twenty-one years.
• He is naturally right-handed. • He was born in Turkey and attended primary and secondary school. •
He came to Australia in about 1986 and was generally employed in unskilled manual-type work.
•
On or about 4 November 1996, he commenced employment with the first defendant (or its predecessor in title) as a full-time truck driver performing activities “including but not limited to driving a truck to deliver items to various supermarkets and or shops, loading and unloading the truck as well as heavy lifting, pulling and pushing of items”.[18]
•
On or about 23 April 2003, he suffered injury to his right hand/lower arm in the following circumstances:
[18] See paragraph 5 of the first affidavit
“On or about 23 April 2003 at approximately 9 am, I was working for Baiada Farms where I had been directed to drive a truck to deliver some heavy goods to Coles supermarket in Ringwood. Upon arrival at the supermarket, I unloaded the heavy goods from the truck into a trolley provided by the supermarket. This required me to pick up the heavy goods with my hands and carry them to the trolley. I experienced some pain whilst picking up the boxes with my hands. However, I continued to unload my truck as best I could, hoping the symptoms would go away. My work duties required me to then push the trolley into the supermarket to complete the delivery. Whilst I was pushing the trolley, I suddenly experienced increasing pain in my right upper extremity, in particular my right dominant hand. I tried not to make too much of a fuss and continued work until the end of my shift hoping my symptoms would go away.”[19]
[19] See paragraph 27 of the first affidavit
•
Prior to such right hand/lower arm injury, the plaintiff had suffered the following injuries:
(a)
on or about 2 May 1987, he experienced pain in his chest and right shoulder when working for the Ford Motor Company of Australia Limited;
(b)
on or about 14 October 1987, he suffered neck pain after a motor vehicle accident;
(c)
on or about 14 June 1990, he bruised his right index finger when working for Ford Motor Company of Australia Limited;
(d)
on or about 5 July 1991, he experienced transient pain in his low- back when working for the Ford Motor Company of Australia Limited;
(e)
in or about 1986, he experienced transient pain in his right ankle and knee for which he received treatment from his doctor;
(f) on or about 10 February 1997, he sustained a cut to his right elbow; (g)
on or about 23 October 1997, he suffered injury to his left ankle for which he sought treatment from his doctor;
(h)
in or about 2002, he sustained injury to his right ankle for which he received treatment from his doctor.
•
The plaintiff deposes that none of these injuries were causing any or any significant interference with his capacity for work or his activities of daily living as at the time of his work injury on 23 April 2003.
•
He ceased work on 23 April 2003 and on 24 April 2003, he consulted his general practitioner, Dr Saban, for treatment of his right hand/lower arm injury.
•
During the period from 24 April 2003 to 18 July 2003, Dr Saban provided numerous certificates certifying him unfit for any work duties, and in or about July 2003, he returned to work on light duties, still experiencing pain in his right arm. He continued such duties until surgery in April 2004.
•
On 28 April 2003, an ultrasound scan of the right hand was performed on referral from Dr Saban who referred the plaintiff to the orthopaedic surgeon, Mr Goldwasser, on 7 May 2003.
•
Mr Goldwasser consulted with the plaintiff on 24 June 2003 and on 3 November 2003, arranged for MRI scans to be undertaken of the right hand.
•
On or about 12 November 2003, Mr Goldwasser referred the plaintiff to Professor Choong, an orthopaedic surgeon, who ultimately performed surgery on the right hand on 16 April 2004.
•
On 7 September 2004, the plaintiff tried to return to light work with the first defendant but suffered a fall and further injury on or about 10 September 2004 when he felt dizzy and fainted, causing him to fall on his left arm with his head hitting some pallets located behind him. As a result of such fall, he suffered pain, particularly in his neck.
•
He was off work again until December 2004 when he returned to the first defendant, again performing light duties, until the Christmas break, after which he was informed that no further light duties were available for him to perform. The plaintiff has not resumed employment with the first defendant since December 2004.
•
On or about 29 September 2004, Dr Saban arranged x-rays and CT scans of the plaintiff’s cervical spine and later he was referred back to Professor Choong, to Dr Roberts, a neurologist, Ms Muradiye Selvi, a psychologist, and Professor Stark, a neurologist, for treatment variously for both his right hand/lower arm injury and his neck injury (“his work injuries”).
•
On or about 22 March 2007, he consulted with Dr Prentice, a neurologist, for treatment of his work injuries but in particular, for the right hand.
•
On or about 23 May 2007, he was referred to the Barbara Walker Centre, a pain management centre, for treatment of his work injuries but in particular, the work injury to the right hand;
•
In or about March 2009, the plaintiff commenced employment with Acar Transport as a truck driver. He describes his work duties in the following terms:
“… The work duties at Acar Transport is generally less strenuous and demanding compared to my injury employment as I am generally restricted to driving a truck. This has allowed me more time to rest each of my work injuries when I am away from work so that I may continue for as long as can in paid employment. I also have a supportive work environment and my employer allows me to work flexible hours. I take breaks as and where I can, to rest each of my work injuries and I tend to avoid certain activities with the cooperation of my current employer.
Despite my ongoing physical difficulties as a result of each of my work injuries, I have continued to work as best I can. I continue to experience constant, though varied symptoms of pain in each of my work injuries, in particular each of my right upper extremity and my cervical spine … .”[20]
[20] See paragraphs 40 and 41 of the first affidavit
•
He experiences constant though varied pain as a result of each of his work injuries which is generally aggravated or prolonged by strenuous activity. He is frustrated by each of his work injuries and their continuing effect upon his life. The pain from each of his work injuries causes trouble sleeping and he wakes up due to pain. He experiences very significant problems with self-care and personal hygiene as his ability to bathe, groom and dress have been limited by pain as a result of his work injuries.
•
As a consequence of each of his work injuries, it has affected his ability to do certain physical activities, including but not limited to, twisting, turning, lifting, bending and reaching and gripping with his right upper limb.
•
His marital relationship has been affected due to pain which has caused embarrassment.
•
Prior to the work injuries, he used to enjoy helping his family with the cooking at home, basic home and car maintenance, taking the laundry from the line and taking the rubbish in and out. Although he attempts to assist in these activities, he finds such activities difficult, leaving him feeling useless and frustrated. He is limited in his ability to do gardening, general home and car maintenance and repairs – such activities which he enjoyed and was quite capable of doing in addition to his normal full- time work.
•
As a consequence of his work injuries, he feels frustrated and depressed and worried as to whether he can stay in his current work.
•
Prior to sustaining his work injuries, he was earning about $947.00 gross per week for about 40 hours per week plus overtime when available.
15 By way of his second affidavit, the plaintiff gave the following salient evidence:
•
In or about 1992, he undertook a short part-time English course, and in 1994, he undertook a full-time English course.
•
In or about 1995, he completed a heavy vehicle and transport industry course at Batman TAFE.
•
He commenced work on a casual basis with Eatmore Poultry and then in or about 1996, he became a full-time employee with Eatmore Poultry who was taken over by the first defendant in or about 2002.
•
He believes he would experience difficulty re-training as a result of his work injury and its consequences even if there was an occupation in existence or created that would be within his physical limitations.
•
In or about 2007, he completed a Certificate III in Film and Television Production in an attempt to seek alternative work in the film and television industry.
•
His employment with Acar Transport ceased as that company “could no longer provide me with the sheltered artificial employment that I had been undertaking with difficulty and eventually closed down”.[21]
•
He is currently working with My Home Builders on a casual basis, having obtained this employment through the Turkish community. His present employer is aware of his physical limitations and he is not required to perform any loading or unloading of goods and, accordingly, would not be required to perform any strenuous gripping, pushing or carrying. In particular, he describes his duties in the following terms:
[21] See paragraph 9 of the second affidavit
“My current duties involve driving a later Volvo model tip truck. This tip truck is also equipped with power steering and a manual transmission. I predominately use my left hand to operate the vehicle as the gears and the indicator are on my left side. When I am getting in the vehicle I find myself putting more weight on my left arm when using the handles to lift myself into the truck from the steps. It is generally lighter to drive than the tip truck I was driving for Acar Transport as I do not drive it with a trailer attached and I find that it is easier to drive given that it is a later model. I am still performing duties which are less strenuous and demanding than my injury employment. I am not required to load or unload deliveries and I am therefore not required handle, lift or carrying [sic] any items as part of my work duties. On the odd occasion when such a situation arises, I contact my boss Tolgo Can, and he comes or sends somebody else to come and perform the heavier duties. I take breaks as and where necessary to rest my work injury and continue to restrict my activities of daily living to save myself for the rigours of work. On days when my pain becomes too much for me my employer is understanding and allows me to go home and rest. Despite my ongoing efforts, I am concerned that I will not be able to maintain even this casual and sheltered employment for much longer as a result of my work injury.[22]
[22] See paragraph 10 of the second affidavit
•
He continues to see Dr Saban at regular intervals and ceased consulting with the psychologist in March 2005 as the insurer refused to fund this treatment.
•
The Barbara Walker Centre prescribed him OxyContin, however this medication caused excessive drowsiness, so he was forced to cease taking it.
•
He takes Panadeine Forte for pain relief and also Aropax for depression. He also takes a stomach medication, Nexium, as he has developed symptoms of digestive system upset and pain from his use of pain medication.
• He suffers from the following difficulties:
(a)
He continues to experience constant though variable pain in his right hand, elbow and shoulder;
(b)
He is unable to return to a normal, full-time working life which is of great concern to him. He has struggled to maintain even casual sheltered employment as a result of his work injury;
(c)
He is reliant on his left arm to perform hand functions such as grasping, holding, pinching and percussive movements. In particular, he finds his right hand becomes unsteady if he attempts to lift things such as a kettle when making a cup of tea;
(d)
He continues to experience difficulty getting a restful night’s sleep due to his work injury;
(e)
He has ongoing difficulty performing personal hygiene and self-care tasks. In particular, he requires assistance from his family to perform tasks such as putting on shoes and socks and nail care;
(f)
He has difficulty communicating with others as he is often preoccupied with his constant though varied pain and has developed a short temper;
(g)
His inability to engage in desired sexual activity is also a frustrating consequence of his right hand/lower arm injury which causes embarrassment, and his need to be alone, with a consequence that his marital relationship has deteriorated and that he and his wife sleep in different beds;
(h)
His ability to perform activities in and around the house has been significantly affected since the onset of the injury, and he remains dependent upon the assistance of his wife and children with meal preparation, cleaning, laundry and outdoor activities that he was previously well able to perform independently;
(i)
Prior to his right hand/lower arm injury, he was a drum player in a Turkish band which performed all over Australia a few times per year. He enjoyed the social interaction with the Turkish community and the thrill of performing. Since his right hand/lower arm injury, he is unable to continue performing, as such activity causes increased pain in his right hand/lower arm.
•
In response to the rehabilitation report of NabEnet dated 23 March 2010, he considered that he would have difficulty undertaking the suggested employment roles as a corporate concierge, container inspector, gatehouse clerk and weighbridge operator.
•
Save for his work injury, he would have remained in full-time employment until at least age sixty-five.
16 In addition to his affidavit evidence, the plaintiff also gave some limited evidence-in-chief in relation to his employment after ceasing work with the first defendant.
17 In particular, he deposed that he was employed by Acar Transport from 2009 until early 2010, working 15 to 20 or up to 25 hours a week and earning initially $10.00 an hour, and later, $16.50 per hour. When asked why he ceased that work, he gave the following evidence:
“He was demanding the same other extra job like the normal driver does, so I was only driving the tip truck then doing nothing. He was expecting me to do something more and he wants me to work more hours. I couldn’t do it because I was suffering pain and staying home and rest and to go to work again. So by that time he lost his customers and he said, ‘I’m sorry that I can’t keep you for a long time,’ that he sells truck, I lost my job.”[23]
(sic)
[23] See T 20, L17-25
18 After being employed by Acar Transport, he was employed for a couple of weeks with National Transport but was unable to perform that work because that job also required truck maintenance, cleanup and things that he was unable to do. At National Transport he was being paid $10.00 an hour.
19 In March 2010, he commenced employment with My Home Builders. He gave the following evidence in relation to his activities with that employer:
MR MORFUNI:
Q: “What are you being paid there?--- A: Still $10 an hour on the tandem truck, not the trailer attached. Q: How many hours do you work?--- A:
15 hours per week. It’s really up to 20 hours per week. So a fortnight about – sometimes 40 hours but more likely less than 40 hours – 30, 28 hours.
Q: A fortnight? Is that a fortnight, is it?--- A: Fortnight. Q: What do you do in that job?--- A: Just driving truck. Q: What sort of truck is it?--- A: The truck is tandem. HIS HONOUR:
Q: Tandem A: Tandem. They call tandem truck without trailer. MR MORFUNI:
Q: Do you need to do any loading?--- A: There’s no loading, unloading involved, so just simple driving
truck.HIS HONOUR:
Q: Where do you drive around? Around the suburbs or interstate or
where?---A: Yes, the suburbs, the suburbs. Q: Where’s the base?--- A: They’re based in Campbellfield but job location is vary – depends
where the jobs are.Q: Where would you drive. Give me an idea. What would be the
furthest drive you would have to do?---A: The furthest, when I drive the other side of the town. Like we in
the north we probably drive to the south or the east, to the west.Q: Would you have to go to Frankston or places like that or?--- A: Not that far. Just the other side of the city. No further than that
places.Q: What do you deliver in these trucks?--- A: The clean fill that construction site, whatever they have. They
mostly want clean fill, like clay.MR MORFUNI:
Q: Is the truck a tip truck or is it …?--- A: Yes. Q: So the load, how is that unloaded?--- A: They unload by the operator pump through the other button inside
the console.”[24][24] See T 21, L11 – T 22, L13
The Cross-Examination of the Plaintiff
20 The plaintiff was extensively cross-examined by leading Counsel for the defendant, much of which pertained to alleged credit issues involving such matters as whether the plaintiff did faint at work on 10 September 2004; whether his ongoing symptoms, particularly in his right hand/lower arm but also his neck, were perpetuated in order for him to avoid national service in Turkey; the extent of his daily activities and in particular his truck driving, and the status of his relationship with his wife, with the suggestion that his assertion that they were “separated” (in his cross-examination) was designed to achieve greater Centrelink benefits. I shall comment later in this judgment as to such credit issues.
21 Under cross-examination, the plaintiff gave the following salient evidence:
•
On his return to work after surgery to his right hand he was made a supervisor of the poultry line, during which time he fainted due to dizziness. As a result of that fall, he suffered injury to his neck.
•
When asked whether his neck was a problem in relation to work, he gave the following evidence:
“Q:
Now, have you continued, since that time, to say that one of your reasons for not being able to work is because of a neck condition?---
A: No. Q: There is no trouble for work because of your neck?--- A: No. Q: Do you agree with that; the neck doesn’t affect you for
work?---A: No. Q: Are you agreeing with me?--- A: [No audible response]. Q: You agree with me?--- A: Yes.”[25] [25] See T 26, L2-9
•
He travelled back to Turkey in July/August 2005, partly for reasons to avoid national service because of his medical condition and partly to see his invalid mother.
•
He could hold a bible in his right hand for about a minute or two and after that his whole arm would become “paralysed” with no power.[26]
•
He cannot hold anything steady with his right hand and has difficulty using a knife in that hand.
• He receives between $200.00 and $300.00 per fortnight from Centrelink. •
He separated from his wife about two years ago (although they continue to live in the same home)
•
He is the only driver with My Home Builders and does all the tip truck driving that his employer gives him. In particular, the plaintiff was asked:
[26] See T 41, L15-25
“Q: And if he had more work to do, you would do it?--- A: As long as I am capable, as long as I can do.”[27] [27] See T 60, L20-21
•
He was the producer and director of a short (three-and-a-half minutes) film made largely in the Botanical Gardens.
• His wife works full-time in a kindergarten. •
In response to various questions about whether or not his separation from his wife or his employment affects any Centrelink entitlement, the plaintiff gave the following evidence:
“… I get Newstart allowance, not [indistinct] allowance which is, like, how much I get from my work and they calculate it, the certain amount of money and they deduct from my income. So I am still in the Newsearch. So I was on the disability pension for the certain time and they put my on the different section.”[28]
[28] See T 75, L13-21
• He viewed a video dated 11 November 2009, which ran for 2 minutes 39 seconds and depicted someone working as a supervisor on the poultry line. Ultimately the plaintiff gave evidence that what he saw on the film was not the same as when he was working in the supervisor’s job.[29] • The plaintiff hoped that his video clip would open some doors in relation to ongoing professional work. • His pain in his right hand/lower arm is worse now than it was in 2004 and his grip has not improved since the operation. • When driving the truck he has his left hand on the steering wheel and he keeps his right hand in a resting position. However, given that the gears had to be operated with his left hand, his right hand is required to hold the steering wheel and steer the truck. • He gets paid cash in hand by his current employer after giving him details of the hours that he has worked. He also informs Centrelink of the monies that he has earned for the calculation of his Centrelink benefit. [29] See T 92, L26 – T 93, L1
22 The plaintiff was shown video taken on 10 March 2010 and 8 April 2010. The video showed the plaintiff in a car yard looking at some cars and later he was shown with one of the trucks which had a trailer which was explained by the plaintiff to be owned by Acar, his employer from 2009 to early 2010.
23 The plaintiff commenced to give evidence on Thursday, 23 September 2010 and on Monday, 27 September 2010 he gave evidence that on Wednesday, 22 September 2010 he worked at NY Home Builders for about seven or eight hours commencing at 7.30/8.00am and ceasing at 2.00/3.00pm. He also worked on the Tuesday for a similar number of hours and possibly on the Monday for a similar number of hours – and could not remember whether he worked the previous Friday.
24 In particular, he gave evidence that his starting time varies from 7.00 to 8.00am and such “starting time” does not commence when he arrives at the depot but rather when he arrives at the work site to pick up whatever has to be moved by truck. In particular, the plaintiff gave the following evidence:[30]
[30] T 163 L 1-26
“Before that, you would have to go and pick up the truck?
Answer: Yes.
Question: Whereabouts again do you go to pick up the truck?
Answer: Whereabouts?
Question: Yes.
Answer: Campbellfield.
Question: You go to Campbellfield from your home?
Answer: Yes.
Question: Do you drive from your home to Campbellfield?
Answer: Yes.
Question: How long does that take you?
Answer: Five-10 minutes. Five minutes, 10 minutes, depending.
Question: What time would you get to Campbellfield to pick up the truck?
Answer: If I’m starting at 8 o’clock, I have to pick up at least half an hour before, 40 minutes before, and the warm-up from the drive there and reach the destination.
Question: So you could be at Campbellfield at 7/7.15 that sort of thing?
Answer: Yes.
Question: Last week when you had to drive from Campbellfield to Craigieburn at around those hours, that is, say, between 7.15/8 o’clock, how long did it take you to drive with a truck to get from Campbellfield to Craigieburn approaching the peak hour traffic?
Answer: Half an hour, 40 minutes.
Question: Maybe half an hour to three quarters of an hour?
Answer: Yes.
Question: When you get there, that is, when you get to Craigieburn, that
you say you start work?
Answer: No. When the time that’s been scheduled by the worksite/jobsite and when they start loading you. That’s the time when you start working.”
Similarly, the plaintiff is paid up to when the last job is completed at the tip site
rather than when he returns to the depot.25 He fills the truck with diesel and he predominantly uses his left arm but does need assistance from his right. The plaintiff was shown further video of 15 July 2010, 21 July 2010 and 27 July 2010, part of which suggested that he uses his right hand to open the door of his car and being involved with the filling of the truck with diesel.
26 The plaintiff considered that his right arm and hand were getting worse, in particular, mobility, strength, power and “affecting all over”.[31]
[31] T 200 L 29
27 The plaintiff describes his hand swelling “very often”[32] particularly when he forcefully uses his right arm.
[32] T 216 L 3
28 At the request of counsel the Court again inspected the right hand which was said to be particularly swollen on that day.
29 In re-examination, the plaintiff gave evidence that he was unable to work some days because of pain and on those occasions his employer was required to obtain another driver.
The Medical Evidence of the Treating Doctors
30 The plaintiff relies on medical reports from his treating general practitioner, Dr S Saban, dated 20 April 2004,[33] 22 February 2005,[34] 9 November 2006[35] and 14 September 2010.[36] Dr Saban also gave oral evidence and was cross- examined. Dr Saban has been a medical practitioner for 35 years of which he has practised as a general practitioner for about 16 years. Beyond the normal qualifying degrees he is also a member of the Royal College of Physicians of London.
[33] See page 52 of Exhibit D
[34] See page 53 of Exhibit D
[35] See page 55 of Exhibit D
[36] See page 57 of Exhibit D
31 He has been the general practitioner of the plaintiff since 10 February 1997 and on 5 September 1998 his notes reveal that the plaintiff suffered a period of dizziness which was treated with Stemetil.
32 On 23 April 2003, the plaintiff attended Dr Saban complaining of a painful swelling of his right palm following forceful pushing with his right hand at work with the first defendant. Examination at that time revealed tenderness and swelling in his right palm and flexion/extension of movements of his third and fifth fingers were limited due to pain and swelling. On that consultation, the plaintiff gave a history to Dr Saban that his work also required repetitive pulling and pushing movements which the doctor believed was “the cause of his right palm injury”.[37]
[37] See page 57 Exhibit D
33 Dr Saban referred the plaintiff to the orthopaedic surgeon, Mr Goldwasser who initially examined him on 7 May 2003 and noted that an ultrasound of the right hand had revealed soft tissue swelling. Mr Goldwasser considered that an MRI scan of the area was appropriate
34 Mr Goldwasser in turn referred the plaintiff to Professor Peter Choong, a general orthopaedic and joint replacement surgeon specialising in soft tissue tumour surgery.
35 I refer to the report from Professor Choong dated 28 November 2003[38] which states:
“This gentleman has a mass in his wrist, extending into the flexor tendons of his right hand. He attributed this to his work, and indeed it may arise from trauma to that area. Notwithstanding that, the presence of this abnormality has caused a dysfunction of his ulnar nerve with pain, tingling and numbness in the distribution of his ulnar nerve in the distal palm and fingers.
As you know the MRI scan demonstrated the presence of this mass which is impinging on the nerve, and a biopsy that I initiated demonstrated villonodular synovitis. This is a very special form of inflammation which can actually increase in size and grow to invade the surrounding structures. I would recommend urgent decompression of this area to protect the function of the ulnar nerve in the hand, as well as to relieving these symptoms and remove it to minimise further growth.”
(my emphasis)
[38] See page 51 Exhibit D
36 The plaintiff underwent surgery by Dr Choong on 16 April 2004 and was reviewed by Mr Goldwasser on 31 January 2005.
37 Dr Saban recalls that after the surgery, the plaintiff continued to have pain in his right hand with pain radiating to his right forearm and notes that as at 6 December 2004, Professor Choong’s opinion was that the pains could be neurogenic due to compression of the median and ulnar nerves in the right hand.
38 Professor Choong had noted that there was no complications with the healing of the wound after surgery, and that he had had good movements of his fingers with return of sensation to the “ulnar” fingers. Professor Choong saw him on several occasions and noted that he had continued pain in his palm up the wrist to his elbow. He reports,[39] in part:
“Whilst I can understand neuritic type pain there was no associated sensory loss nor with any associated muscle wasting of the first intrerosseous of his hand, hyperthena eminence of any weakness of muscle function of the small muscles of the hand. He did, however, had some minor discolouration of the right hand with sweatiness of the palm and perhaps he has got an element of reflex sympathy dystrophy.
I could not identify any swelling of his wrist, palm or around his elbow where he felt the pain and movement of his upper limbs in itself and did not reproduce this symptoms. What he did say, however, was use of his hand, particularly with anything that required effort, did reproduce symptoms.
As a result of his symptomatology, I organised nerve conduction studies which were performed in early January 2005 and this showed a normal study with no electrophysiological evidence of a median ulnar nerve lesion on either side. For him this is good news as it demonstrates that the tumourous growth did not result in any specific nerve injury.
I feel the bulk majority of Mr Ocal’s are related to reflex sympathetic dystrophy and I cannot reconcile his symptoms in his head and shoulders with that of the surgery in the palm of the hand.
My prognosis for Mr Ocal is good and I would recommend that he should probably have a regular oncologic follow up to assess recurrent disease that may sometimes occur following a diagnosis of pigmented villonodular synovitis…”
[39] Page 822 of Exhibit 4
39 On 5 December 2005 Professor Choong wrote to Dr Kay Reardon at St Vincent’s Medical Centre and Dr D Prentice at St Vincent’s Medical Centre seeking assistance and diagnosis of his ongoing problem and in such letters Professor Choong stated:[40]
“I cannot clinically demonstrate any recurrent disease in his range of motion of the joints of his hand, wrist and elbow are normal and I would like to ask you if you could assist me in neurological examination to clearly define what may be the issue at stake here, if any at all. While I am sceptical that there is any reason for him to be ‘powerless and useless’ I do feel in the light of his earlier diagnosis, that we owe him an opportunity to be examined and have this matter clarified…”
[40] See pages 725 and 821 of Exhibit 4
40 Dr Prentice, a neurologist, has examined the plaintiff on several occasions and has performed nerve conduction studies which show no evidence of neuro-compression causing symptoms in his right hand. In a report dated 22 March 2007 he agreed with a suggestion that the plaintiff be referred to the Barbara Walker Centre with a diagnosis of a Complex Regional Pain Syndrome.
41 Dr Saban, in his oral evidence, noted that over the years of his treatment, he had never noted any discolouration, swelling or change of temperature between the two hands over the years. Rather, initially he was unable to flex and extend his third and fourth fingers, which has now resolved, and he has ongoing complaints of pain in the palm.
42 Dr Saban has observed that he is capable of making a “proper grip” with his right hand[41] notwithstanding that he considers that the weakness in lifting and holding things with his right hand is due to pain and not due to nerve injury.
[41] See T 107 L 21-22
43 Dr Saban certified the plaintiff unfit for work from 24 April 2003 until 10 July 2003, after which he was issued with WorkCover certificates for light duties.
44 The plaintiff attended Dr Saban on 10 September 2004 complaining of headaches and neck pain following a fall backwards at work on the same day. The plaintiff informed Dr Saban that he had developed dizziness causing him to fall. A CT scan of the brain reported as normal but a CT scan of the cervical spine showed minor disc bulging at C4/5 and C5/6 levels and he was referred to the neurologist, Professor R Stark.
45 In a report dated 29 April 2005,[42]Mr Stark obtained a history of ongoing problems in his neck which was “locking up” and painful. Professor Stark thought he had suffered a jolting soft tissue injury to his cervical spine as a result of the fall but found no evidence of radiculopathy.
[42] See page 59 of Exhibit D
46 Dr Saban accepted that the neck injury was a completely distinct issue to the right hand issue. Dr Saban also accepted there are many references in his notes to the neck pain which he considered to be due to the fall rather than anything to do with the right hand.
47 Dr Saban accepted that he had not observed any changes consistent with Complex Regional Pain Syndrome Type 1 and all the investigations had not given any clear indication of what was the cause of his right hand pain. Ultimately, Dr Saban said frankly: “Well I believe he’s got pain, but, I mean, I am unable to ---…to explain it.”[43]
[43] See T 115, L 9-11
48 Dr Saban accepted that the plaintiff was capable of doing alternative light full- time duties up until the time that suffered his fall as a result of the dizzy spell. Dr Saban also noted that in 2009 the plaintiff may have been delusional and having hallucinations but ultimately it became his view that is improbable and there is no real evidence of any psychosis.
49 Dr Saban prescribes Panadeine Forte as and when required and understands that the plaintiff, on occasion, would take “over the counter” medication such as Panamax to control any pain in his right hand. Dr Saban described the right hand “as moderately impaired”[44] and has not observed any signs of disuse of the right arm.
[44] See T 119, L19
50 Dr Saban presently gives certificates for 20 hours work per week (five days, four hours per day). In respect to his capacity for truck driving, Dr Saban gave this evidence:[45]
“Question: Doctor, what I want to suggest to you is that his truck driving, that if there was more work available from his employer, he would be able to do it, for instance, not even, for instance, to the point where he’d be working 38 hours a week. But I suggest to you that he could work even, say, 30 hours a week, that is six hours a day, five days a week at his truck driving if the work was available.
Answer: Well I’m not able to assess, but he says to me, he does it every now and then and just about 15 hours per week. He drives a light truck but if he gets pain, he has rests, and if he has more constant pain, he doesn’t take any duties as a truck driver now with his present employer. So considering his condition now, I don’t think he will be able to do 30 hours a week truck driving. This is just simply truck driving, no loading, unloading, pushing, lifting, this sort of thing, it’s just simple driving.”
[45] See T 120, L8-24
51 He considered that it was “not likely” [46] that “psychological mechanisms” were at work to explain ongoing pain in the right hand.
[46] See T 122, L 25
52 In re-examination, Dr Saban confirmed that prior to 23 April 2003 the plaintiff had never made any complaint about pain in his right hand and since that date has consistently complained of pain in the right arm. Furthermore, over the years that he has treated the plaintiff, Dr Saban formed the view that the plaintiff is a genuine man who wants to work.
Further Affidavit Material
53 The plaintiff relies on affidavits from his wife, Kadriye Ocal, sworn 3 September 2010[47] and the affidavit of Omar Acar sworn 7 September 2010.[48]
[47] See page 32.01 of Exhibit A
[48] See page 32.06 of Exhibit A
54 In her affidavit, Kadriye Ocal describes herself as the wife of the plaintiff although at the time of swearing the affidavit sleeping in “separate beds as Ismet’s constant restlessness has made it impossible for me to obtain a restful night’s sleep…”.[49] She describes his difficulties with grasping and holding objects with his right hand and how this has impacted through a variety of activities in the household and has also impacted on his basic self-care. She describes how his personality has been affected and has had a significant impact on his social life.
[49] See page 32.05 of Exhibit A
55 In his affidavit, Omar Acar describes knowing the plaintiff for some six years having met him in the Turkish community. He offered the plaintiff a job as a truck driver in 2009 knowing that he had limitations resulting from his right hand injury. In particular, Mr Acar describes inhibitions on the plaintiff being able to perform maintenance on the truck, certain types of steering requiring Mr Acar to assist the plaintiff on occasion to perform the work. He notes that sometimes the hand pain would become “unbearable” when the plaintiff was at work and he would have to be sent home to rest. This would happen about once a fortnight.
Medico-legal reports
56 The solicitors for the plaintiff arranged for him to be medico-legally examined by the following doctors:
[50] See report dated 22 July 2010 at page 64 of Exhibit D
[51] See report of same date at page 68 of Exhibit D
[52] See report dated 17 September 2010 at 82.01 of Exhibit D
(a) Dr Robert Hjorth, consultant neurologist, on 15 July 2010[50] (b) Mr Kenneth Brearley, consultant surgeon, on 11 August 2010[51] (c) Dr Peter Blombery, consultant physician, on 9 September 2010.[52] 57 Dr Hjorth considered that the condition of villonodular synovitis could well be “aggravated or made worse by manual work and I think that this has probably happened here”.[53] Dr Hjorth does note that he could find no evidence of serious neurological damage and that the numbness that he has is, in part, functional although the numbness in the hand and the fifth, fourth and third fingers may well be related in some way to the original tumour and the operation.
[53] See page 66 of Exhibit D
58 Furthermore, Mr Hjorth noted that there were no signs of sympathetic overactivity and did not consider that the condition was a reflex sympathetic dystrophy or Complex Regional Pain Syndrome.
59 Dr Hjorth states you could describe the condition as a “chronic pain syndrome” and goes on to state:
“My understanding is that one frequently sees chronic pain syndromes and sometimes you can find an explanation for them and sometimes you can’t. In Mr Ocal’s case, we understand that the whole problem has been precipitated by the development of the synovitis and the need for surgery that at another level we don’t know why he would have so much pain and disability whereas another patient would be able to make a complete recovery after surgery. In this kind of chronic pain syndrome it is always tempting to say that the problems are psychological but this is easy to say and almost impossible to prove or disprove… I think that this is not going to get better.”[54]
[54] See pages 66– 67
60 In his report, Mr Brearley notes that the cause of villonodular synovitis is not known but notes:
“It seems clear however, that work which he was doing was responsible for the development of this condition. His work was of a heavy nature involving much lifting and pushing and pulling movements using the right hand in particular.”[55]
[55] See page 71 of Exhibit D
61 Mr Brearley does not specifically address the cause of the ongoing right hand pain but suggests inferentially that it is a consequence of the original villonodular synovitis which causes compression of the nerves and tendons. He believes he is only capable of performing limited duties and would be incapable of performing normal work as a truck driver without restrictions.
62 In his report Dr Blombery notes that the history given to him by the plaintiff of changes in temperature and colour of the hand together with ongoing pain with autonomic disturbance was diagnostic of Complex Regional Pain Syndrome. It is to be noted that on examination Dr Blombery noted that the right hand was redder and more sweaty than the left hand with some swelling of the palm but there was no difference in temperature between the two hands.
63 Dr Blombery states that he is unaware of any relationship between heavy use of the hand and the development of pigmented villonodular synovitis but notes that it does “seem logical that activity which causes increased stress on tendons and the synovium result in a disorder such as this…”.[56] He considered the prognosis was poor and that he did not have a capacity to perform all his pre-injury employment duties.
[56] See 82.04 of Exhibit A
64 In his report, Dr Kaplan diagnosed the plaintiff as suffering an adjustment disorder with mixed anxiety and depressed mood which was related to the chronic pain and the impact that the pain had upon his lifestyle. The outcome of such psychiatric condition would be determined by the outcome of his physical condition and that he was likely to remain prone to depression and anxiety for as long as his pain persists and as long as he remains disabled by the pain. He accepts that such condition is likely to have some impact upon his capacity to work although such capacity would be largely determined by his physical condition.
65 The solicitors for the defendant arranged for the plaintiff to be medico-legally examined by the following doctors:
(a) Mr T J Russell, general and vascular surgeon, on or about 19 October 2004;[57] (b) Dr Geoffrey Littlejohn, rheumatologist,[58] on 8 April 2010. Dr Littlejohn had given an earlier report[59] without examining the plaintiff. (c) Professor Stephen Davis, urologist, 22 January 2010[60] and on 26 August 2010;[61] (d) Dr Victor Botvinik, psychiatrist, on or about 25 October 2004(?);[62] [57] See report of same date at page 31 of Exhibit 1
[58] See report of same date at page 20 of Exhibit 1
[59] See report dated 13 April 2010 at page 24 of Exhibit 1
[60] See report of same date at page 9 of Exhibit 1
[61] See report of same date at page 14 of Exhibit 1
[62] See report of same date at page 34 of Exhibit 1
66 The report from Mr Russell largely concerned problems in the neck area after the fainting episode and he made no attempt in that report to analyse the causation of the plaintiff’s right hand condition or indeed proffer any opinions as to the cause of ongoing pain in that area.
67 In his initial report, Dr Littlejohn expressed the opinion that the lesion of pigmented villonodular synovitis “would have occurred independent of work activity” and that work would only have made him aware of it in the context of actions and activities at work.[63]
[63] See page 22 of Exhibit 1
68 In particular, Dr Littlejohn states that the condition is idiopathic caused by proliferation of the lining of joint or tendon sheaths in various locations and that the condition occurring in the palm of the hand is an “unusual site for a condition that already is very uncommon”.
69 Furthermore, Dr Littlejohn comments that it is not usual for there to be any ongoing incapacity for employment after excision of pigmented villonodular synovitis.
70 Furthermore, with Dr Littlejohn stressing that he had not at that time examined the plaintiff, considered it more likely that any ongoing problems in the right hand area were due to Reflex Sympathy Dystrophy Syndrome (Chronic Pain Syndrome) rather than some impairment from the pigmented villonodular synovitis.
71 After the examination of the plaintiff on 8 April 2010, Dr Littlejohn expresses the opinion that the right hand symptoms comprise the presence of a right upper quadrant Complex Regional Pain Syndrome, which is consequent on the condition of his hand and the surgery required for it.[64]
[64] See page 29 of Exhibit 1
72 Furthermore, Professor Littlejohn accepts that because of ongoing pain and sensory dysfunction in his dominant right arm he is not able to perform a wide range of routine work, household and regular activities that otherwise he could.
73 In particular, Professor Littlejohn states”[65]
“It appears that his work activity has rendered the problem symptomatic in the first instance. However, the work would not have caused the villonodular synovitis and any work-related aggravation of the problem would be short lived. Ongoing symptoms from the problem will relate to the intrinsic pigmented villonodular synovitis condition itself.
His current condition relates to the consequences of his surgery and comprises the Chronic Pain Syndrome. Thus, I relate the Chronic Pain Syndrome and his current disability impairment to a medical condition unrelated to work. The work-related component which rendered the condition symptomatic in the first instance is now passed and his ongoing symptoms relate to the consequences of treatment of the non- work-related disorder in its own right. His Chronic Pain Syndrome should improve over time as is usually the case.” (my emphasis)
[65] See page 29 of Exhibit 1
Later, in that report, Professor Littlejohn comments that the Chronic Pain Syndrome will persist “for the foreseeable future”, although there may be some improvement in the long term.
74 When seen on 22 January 2010, Professor Davis found there was no objective wasting of the right hand or arm and no objective features of reflex sympathetic dystrophy in terms of colour change, excessive sweating, trophic changes in the skin or allodynia. Furthermore, examination revealed that there was no “convincing organic weakness”.[66]
[66] See page 13 of Exhibit 1
75 Professor Davis noted at that time that the plaintiff subsequently developed a complex regional pain syndrome involving the hand and right upper limb with no objective findings, normal nerve conduction studies on two occasions right hand and no evidence for referred pain from the cervical spine by way of nerve root compression or brachial plexopathy.
76 After re-examining the plaintiff on 26 August 2010, Professor Davis was of the opinion that “psychological aspects appear to be very prominent in his ongoing functional disability”. Again, on examination he found no convincing organic weakness.
77 Professor Davis does note that “he developed pain in the hand and the upper limb in the context of his soft tissue injuries sustained on 23 April … . He had surgery for this probably unrelated pathology of the pigmented villonodular synovitis … “[67]
[67] See page 18 of Exhibit 1
78 After his examination, Dr Botvinik opines that he could not find any symptoms suggestive of a psychological, psychiatric or emotional distress, illness or condition in the plaintiff.
Vocational Assessment
79 The solicitors for the defendant obtained a vocational assessment and labour market analysis from Nabenet dated 23 March 2010.[68] The author of that report, Ms Marion Chua, considered that the plaintiff was capable of work as corporate concierge, container inspector, gatehouse clerk and weighbridge operator. In the report she identified various jobs involving such activities within a 20 kilometre distance from the place of residence of the plaintiff.
[68] See page 40 of Exhibit 1
Analysis of the Evidence
80 Leading counsel for the defendant submitted that in relation to the credit of the plaintiff, his evidence should be treated with “caution” and the presentation of the plaintiff was unusual. Indeed, the word “unusual” aptly describes many aspects of the matter. First, apparently the condition of villonodular synovitis diagnosed by Professor Choong is a rare condition and according to Professor Littlejohn, the site of the synovitis is “unusual”. Secondly, although the plaintiff could only speak reasonable English, he did display, as submitted by leading counsel for the defendant, a “sophistication of subtlety of expression”, perhaps reflecting his evidence that he enjoyed German poetry and film making.
81 As pointed out earlier in these reasons for judgment, the plaintiff was appropriately and extensively cross-examined in relation to many matters most of which went to his credit. After a consideration of all the evidence, and making appropriate (although not large) allowances for his English, I have formed the view that essentially the plaintiff was a witness of credit and was at all times seeking to answer questions honestly and appropriately. Indeed, on occasion, the plaintiff gave evidence against his interests which reinforces my acceptance of him as a witness of credit.
82 I should also say that I was particularly impressed with the evidence of Dr Saban, the treating general practitioner of the plaintiff. Dr Saban is extremely well qualified (holding an FRCP), has had many years of experience and speaks the language of the plaintiff. Further, the manner in which he gave his evidence was balanced with him being quite prepared to make concessions in cross-examination against the interests of the plaintiff. However, he was steadfast that over the period of time that he has been treating the plaintiff for his condition, the plaintiff has consistently complained of pain in the right lower arm area and although he has been unable to locate a “cause” for such pain, he accepts the plaintiff to be “genuine” and who wants to get back to normal work duties and enjoy all the normal activities of daily living.
83 I was informed from the Bar table that the defendant (or its agent) paid for the surgery performed by Professor Choong to remove the villonodular synovitis. In this proceeding, the issue was raised as to whether or not such condition is an “injury” arising out of or in the course of the plaintiff’s employment with the defendant.
84 Section 5(1) of the Act defines “injury” to mean:
“Any physical or mental injury and, without limiting the generality of that
definition, includes –
(a) …
(b) a disease contracted by a worker in the course of the worker’s employment (whether at, or away from, the place of employment); (c) a recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease.”
Section 259 of the Act provides that the definition of “injury” only applies to injuries that occur on or after the date of the commencement of s.3 of the Accident Compensation and Transport Accident Acts (Amendment) Act 2003 – to wit, on 3 December 2003.
85 The definition of “injury” applicable prior to 3 December 2003 was in a similar form, save that paragraph (b) of the definition had the added words “and to which the employment was a significant contributing factor” and paragraph (c) of the definition had the words “where the worker’s employment was a significant contributing factor to that recurrence, aggravation, acceleration, exacerbation or deterioration.”
86 Section 5(1B) of the Act also states the following:
“In determining for the purposes of this Act whether a worker’s
employment was a significant contributing factor to an injury –
(a) the duration of the worker’s current employment; and (b) the nature of the worked performed; and (c) the particular tasks of the employment; and (d)
the probable development of the injury occurring if that employment had not taken place; and
(e) the existence of any hereditary risks; and (f) the lifestyle of the worker; and (g) the activities of the worker outside the workplace – must be taken into account.”
87 After consideration of all the evidence, I am satisfied as a matter of probability that the employment by the first defendant was a significant contributing factor to the aggravation, acceleration, exacerbation or deterioration of villonodular synovitis. I have come to such view for the following reasons:
(a)
The plaintiff attended Dr Saban on 23 April 2003 complaining of a painful swelling of his right palm following forceful pushing with his right hand at work with the defendant. Examination at that time revealed tenderness and swelling in the right palm and there were limited movements of his third and fifth fingers. Accordingly, there was a close proximity between use of the hand and the development of symptoms.
(b)
Professor Choong, the treating surgeon, comments that the plaintiff attributes his condition to “work” and indeed “it may arise from trauma to that area”.
(c)
Dr Hjorth was of the opinion that the condition could well be “aggravated or made worse by manual work” which he considered to be the situation in this case.
(d)
Mr Brearley was of the opinion that given the factual situation, it seemed clear that the work he was doing at the time was responsible for the development of the condition.
88. The more difficult issue is to determine whether any ongoing pain suffered by the plaintiff in his right hand/lower arm is a sequel to such condition and if so, in what way. Consistent with my earlier comments, I accept that the plaintiff does have ongoing pain in his right hand/lower arm and of course such symptoms never existed prior to the advent of the villonodular synovitis and/or the surgery to remove such tumour.
89. Over the years, the general practitioner has not found any signs consistent with Reflex Sympathic Dystrophy Type 1 or indeed any signs of atrophy in the affected areas. Furthermore, electromyographic testing on several occasions has failed to establish any neurologic explanation for his symptoms.
90 Notwithstanding the foregoing, no doctor has suggested that the plaintiff is malingering and indeed, as I have stressed, his presentation in Court was consistent with ongoing pain in the affected area.
91 For the reasons earlier expressed I do no accept the opinion of Dr Littlejohn that there is no relationship between the plaintiff’s villonodular synovitis and his employment. I do accept however Dr Littlejohn’s opinion that the plaintiff is suffering from a chronic pain syndrome (which he describes as a “right upper quadrant complex regional pain syndrome) which is consequent on the condition in his hand and the surgery required for it. Although he relates the pain syndrome to the condition and the consequence of surgery, it is not totally clear whether Dr Littlejohn considers the ongoing pain to be an organic sequel of the condition or brought about by some psychological mechanism. In this respect, I do note the comments of Dr Hjorth that it is always “easy to say” that such problems are psychological and almost impossible to prove or disprove. Dr Hjorth clearly is of the view that the plaintiff also suffers a chronic pain syndrome precipitated by the development of the synovitis and the need for surgery.
92 Given the advent of symptoms immediately following the surgery for the condition and the consistency of symptoms over the ensuing years (both in their presence and location to the effected area) I find as a matter of probability that the pain suffered by the plaintiff is an organic sequel to the compensable condition of the villonodular synovitis and the surgery to remove such condition. I also note that Dr Saban considered the presentation of the plaintiff to be “not likely” to be due to “psychological mechanisms”.
93 Given the period of time that the plaintiff had suffered such symptoms and bearing in mind the opinions of Dr Hjorth that the condition “is not going to get better” and the opinion of Dr Littlejohn that the chronic pain syndrome will persist for the foreseeable future, I find the condition likely to be permanent within the meaning of s.134AB.
94 Furthermore, I find that the pain suffered by the plaintiff in his right hand affects many aspects of daily living and prevents him performing his pre- existing work or indeed any manual work involving constant repetitive use of the right hand. In such circumstances, I am satisfied that his “pain and suffering” consequences are “serious”, when judged by comparison with other cases in the range of possible impairments, and can be fairly described as being more than significant or marked and as being at least very considerable.
95 The next issue is whether the plaintiff has also discharged his onus in satisfying s.134AB(38)(e) and (g) of the Act.
96 Paragraph (e)(i) requires the plaintiff to establish that as at the date of the hearing of the application, he “has a loss of earning capacity … of 40 percent or more” measured “as set out in (f)”. The measurement of the claimed loss of earning capacity, as prescribed by paragraph (f) necessitates a comparison of two matters:
(a) what the plaintiff is earning, whether in suitable employment or not or capable of earning in suitable employment at the date of hearing (“after injury earnings”); and
(b) the income that the plaintiff was earning or was capable of earning “during that part of the period within three years before and three after the injury as most fairly reflects the plaintiff’s earning capacity had the injury not occurred” (“without injury earnings”).
In both cases, the income is limited to gross income from personal exertion and is to be annualised.
97 Paragraph (e)(ii) requires the plaintiff that he will, after the date of hearing, “continue permanently to have a loss of earning capacity which will be productive of a financial loss of 40 per cent or more”.
98 The parties informed me that they agreed that the “without injury earnings” was $50,000 per annum.[69] Accordingly, 60 per cent of that sum is $30,000.
[69] See T262 L6 – 9
99 After considering all of the evidence, I have formed the view that the plaintiff has retained a capacity for suitable employment as demonstrated at the very least by his continued truck driving, albeit with some limitations.
100 Although I do not make any findings that the plaintiff could necessarily work full time in any particular job, I am not satisfied the plaintiff could not earn at least $30,000 per annum. I come to such view for the following reasons:
(a)
Although the plaintiff has certificates for 20 hours per week, Dr Saban had no clear idea as to the number of hours that the plaintiff was actually performing work (which fluctuates from week to week).
(b)
The number of hours that the plaintiff is paid for is less than what may be presumably considered to be his hours of work. In this sense, the plaintiff is only paid from the time he arrives at a tip to pick up any material up until the time that he drops off his last delivery at a tip at the end of any working day. He is not paid for the time that he travels from home to work and more particularly, he is not paid for any of the time after when he arrives at the depot until he arrives at the tip, and similarly he is not paid for any of the time driving from the tip to the depot at the end of the day. Allowing for those hours, the plaintiff would work generally maybe six to seven hours a day.
(c)
I find it particularly potent that in the days leading up to the commencement of the trial the plaintiff had been working at least for the three previous days and maybe for the previous five working days performing truck driving work.
(d)
Leaving aside truck work, I am also of the view that the plaintiff would have a physical capacity to perform work say as a weighbridge operator, a gatehouse clerk, or perhaps a container inspector which involve little use of the right hand/lower arm.
101 I should point out that if I am wrong in deciding that the pain symptoms suffered by the plaintiff are of an organic nature and thus fall within paragraph (a) of the definition, I find, in the alternative, that the condition of chronic pain syndrome is a permanent severe behavioural disturbance or disorder within the meaning of paragraph (c) of the definition of serious injury. Although appreciating that the “hurdle” is higher when utilising paragraph (c), I do form the opinion that the consequences suffered by the plaintiff, when judged by comparison with other cases in the range of possible behavioural disturbances or disorders, can be fairly described as being more than serious to the extent of being severe. In this sense I refer to Veljanovska v Socobell OEM Pty Ltd[70] which in some ways, is similar to the present circumstances where there had been probably an initial organic injury but the persisting difficulty was of a chronic pain syndrome together with some adjustment and depressive disorder.
[70] [2005] VSCA 227
102 It must always be borne in mind that if the ongoing pain is properly characterised under paragraph (c), it is an assessment of the consequences to the plaintiff which must be found to be “severe” when compared to other disturbances or disorders. It is to be stressed that the plaintiff has had continuing and unremitting pain in his right hand and arm which affects all aspects of his day to day living and his work. Although appreciating that he has had no direct psychiatric treatment (other than some initial treatment from a psychologist) for such condition or indeed any particular specific treatment (other than on-going medication), this more reflects the lack of knowledge as to the causation of the problem, rather than the severity of the problem.
Conclusions
103 I grant leave to the plaintiff to bring common law proceedings in respect to his right and lower arm condition suffered on or about 23 April 2003 for pain and suffering damages only.
104 I will hear the parties on the questions of costs.
ANNEXURE “A”
The plaintiff tendered the following documents:
(a)
Exhibit A – the Proposed Statement of Claim and Proposed Defence; affidavits of the plaintiff, sworn 7 October 2009 and 2 September 2010; affidavit of Kadriye Ocal, sworn 5 September 2010 and affidavit of Mr Omar Acar, sworn 7 September 2010, all of which are contained at pages 1 to 32.08 of the Plaintiff’s Court Book (“PCB”).
(b)
Exhibit B – WorkCover Claim Form dated 20 May 2003; WorkCover Employer Claim Report dated 20 May 2003; WorkCover Claim Form dated 27 September 2004 and WorkCover Employee Claim Form dated 3 October 2004, all contained at pages 33 to 43 of the PCB.
(c)
Exhibit C – Radiological reports from the La Trobe University Medical Centre Medical Imaging dated 28 April 2003 and report from Bell Imaging Group dated 3 November 2003, all contained at pages 44 to 45 of the PCB.
(d)
Exhibit D – Medical reports from Mr M Goldwasser, orthopaedic surgeon, dated 7 May 2003, 25 June 2003, 28 August 2003 and 31 January 2005; Professor P Chung, orthopaedic surgeon, dated 28 November 2003; Dr S Saban, treating general practitioner, dated 20 April 2004, 22 May 2005, 9 November 2006 and 14 September 2010; Associate Professor Richard Stark, neurologist, dated 29 April 2005, Dr D Prentice, urologist, dated 12 April 2006, 14 August 2006 and 22 March 2007; Dr J Wong, pain medicine specialist, dated 25 May 2007, and Dr Murray Stapleton, plastic surgeon, dated 5 August 2004, all contained at pages 48 to 63 of the PCB; Dr R Hjorth, neurologist, dated 22 July 2010; Mr K Brearley, orthopaedic surgeon, dated 11 August 2010; Dr A Kaplan, psychiatrist, dated 25 August 2010 and Dr P Blomberry, physician, dated 17 September 2010, all contained at pages 48 to 82.05, 539, 720 and 773 of the PCB.
(e)
Exhibit E – “Without injury earnings” of the plaintiff, together with a document contained at pages 313 to 319 of the PCB said to be comparable wage records.
(f) Exhibit F – Documents from Centrelink at pages 415 to 426 of the PCB.
The defendants tendered the following documents:
(a) Exhibit 1 – Medical reports of Associate Professor Richard Stark, neurologist, dated 29 April 2005; Victorian Medical Imaging dated 29 September 2004; St Vincent’s MRI Centre dated 31 March 2006; Professor Stephen Davis, neurologist, dated 22 January 2010 and 26 August 2010; Dr Geoffrey Littlejohn, rheumatologist, dated 21 December 2009 and 13 April 2010; Mr T J Russell, vascular and general surgeon, dated 19 October 2004 and Dr Victor Botvinik, psychiatrist, dated 25 October 2004, all contained at pages 5 to 39 of the Defendants’ Court Book (“DCB”). (b) Subpoenaed notes from treating general practitioner, Dr Saban, contained at pages 586 to 603 of the PCB. (c) Exhibit 3 – Vocational Assessment Report from NabEnet dated 23 March 2010, contained at page 40 of the DCB. (d) Exhibit 4 – Two reports of Professor P Choong , orthopaedic surgeon, dated 5 December 2005, contained at pages 725 and 821 to 823 of the PCB. (e) Exhibit 5 – Video taken on 10 March 2010 and 8 April 2010. (f) Exhibit 6 – Video taken on 15 July 2010, 21 July 2010 and 27 July 2010. (g) Exhibit 7 – Offer of suitable employment dated 8 September 2004, contained at page 145 of the PCB. (h) Exhibit 8 – The plaintiff’s payslips dated 3 July 2009 and 17 July 2009 from Acar Transport.
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