Young v Oakleigh South Primary School Council
[2012] VCC 1812
•3 December 2012
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-11-05584
| JASON KEONG YOUNG | Plaintiff |
| v | |
| OAKLEIGH SOUTH PRIMARY SCHOOL COUNCIL | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 November 2011 | |
DATE OF JUDGMENT: | 3 December 2012 | |
CASE MAY BE CITED AS: | Young v Oakleigh South Primary School Council & Anor | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1812 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to right elbow in the course of employment – multiplicity of other injuries and conditions – disentangling consequences – pain and suffering only
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited: Jayatilake v Toyota Motor Corp Australia Limited [2008] VSCA 167
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R W McGarvie SC with Mr P A Rosenberg | Ryan Carlisle Thomas |
| For the Defendants | Mr I S Gourlay | Minter Ellison |
HIS HONOUR:
Preliminary
1 The plaintiff developed pain in his right elbow in 1999 or 2000 as a result of his repetitive and heavy work at a school conducted by the first defendant. Eventually, surgery was performed to the elbow in December 2007. In addition, he has suffered a range of other injuries and conditions, including to his right and left wrists, lower back, right shoulder, right knee and neck. The real issue to be determined in this application is the nature and severity of the consequences the plaintiff has suffered as a result of his right elbow injury, setting aside the consequences of the other injuries and conditions.
2 This is an application for leave to bring proceedings pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered in the course of the plaintiff’s employment with the first defendant.
3 The body function said to be lost or impaired is the right elbow. The application is thus brought under ss(a) of the definition of “serious injury” contained in s134AB(37) of the Act, and leave is sought in respect of pain and suffering only.
4 The plaintiff was the only witness called to give evidence and be cross-examined. In addition, affidavits of the plaintiff, his wife and son, and various medical and radiological reports were tendered in evidence. I have read all the tendered material. I shall not refer to all of this material in the course of this judgment, but rather those reports and opinions which appear to me to be of most relevance in determining the issues in dispute. I shall not refer to all of the evidence of the plaintiff, but rather those parts of his evidence which I have relied upon in coming to the conclusions referred to later in this judgment. The statutory scheme set forth in the Act which prescribes and regulates applications of this nature is well known and it is unnecessary for me to revisit the various relevant sections.
Relevant Background
5 The plaintiff was born in Mauritius and is now fifty-four years of age. He is married with three children, aged twenty-three, eighteen and fourteen. In Mauritius he worked as a motor mechanic and migrated to Australia in 1985. He worked in Australia as a motor mechanic for a period.
6 He was involved in a serious car accident in 1986, as a result of which he suffered injuries, including to his left wrist. After he recovered, he was unable to return to his work as a motor mechanic because of his left wrist injury. Treatment included a fusion of the left wrist. He has continued to have problems with his left wrist, which increased in approximately 2008.
7 As a result, he retrained in electronics and computers and in 1997, commenced work for the first defendant at the Oakleigh South Primary School (“the school”), which work involved setting up and maintaining computers. The work was relatively physical as he was the only person at the school with the training and experience to install and maintain computers. He also worked as the school handyman.
8 In December 2006, he was required to lift a considerable quantity of computers and, as a result, suffered low-back pain. CT scanning revealed a broad-based disc bulge at L4-5, indenting both L5 nerve roots. He has continued to suffer significant low-back pain from that time through to the present. The pain in his lower back affects him, particularly if he is required to drive for longer distances, sit or stand for more than twenty minutes, and when he is required to bend or twist.
9 In addition to the pain and restriction in his right elbow, he also developed pain in his right shoulder and right wrist. This came on around 1999 or 2000 with his right elbow problem. At an early time he was advised by his physiotherapist that he had a problem with his right shoulder which referred pain to the elbow area. He currently wears splints on both his left and right wrists. He is right hand dominant.
10 In September 2010, he underwent surgery to his right wrist by his treating orthopaedic surgeon, Mr Warwick Wright. Despite that surgery, the pain in his right wrist has persisted.
11 He continues to suffer pain in his right shoulder, which affects his sleep. Earlier this year, he developed a problem with his right knee which becomes sore when he walks. He also has difficulties with his neck. In respect of all these various injuries, he receives treatment from his general practitioner, and consultant rheumatologist, Dr Pun. He takes a range of medication at the present time, including:
§Celebrex (anti-inflammatory) – one to two per day
§Panadeine Forte – two per day
§Panadol Osteo – one to two per day
§Somac (stomach medication) – one per day
§Panadol Rapid – intermittently
§DiGesic – two per day.
12 According to his affidavit,[1] as a young person he played and enjoyed many sports, including soccer, badminton, tennis, swimming, ping pong and volleyball. Prior to his elbow injury, he enjoyed occasional games of tennis with his son, once a month or so. He would occasionally play badminton with his daughter, once or twice a year. Generally his life was focussed upon his family and his work.
[1]Plaintiff’s Court Book (“PCB”) 32
13 In 2000, he and his wife registered a company, “JNS Computing Services Pty Ltd”. His wife still works for the company which is involved in computer programming. He has done a small amount of work for the company since 2000, although little of recent times.
The Injury and Its Consequences
14 Over the period from 1999, the plaintiff was involved in setting up a computer system at the school. This involved carrying computer screens and computer equipment around the school, installing the computers, including cabling, and undertaking maintenance. In addition, he did physical work around the school, including lawn mowing and yard work. In 1999, he started to develop pain in his right arm and shoulder. He lodged a WorkCover Claim Form dated 10 May 2000, which described the injury as “painful and sore right arm/elbow”.[2] It appears he took little time off work but says that he started to take painkillers around this time and was treated with physiotherapy.
[2]Defendants’ Court Book (“DCB”) 88-89
15 According to a report of Mr Eden Law, physiotherapist,[3] he was referred by his general practitioner, Dr Chan, in April 2000. He complained of an injury to his neck and right elbow as a result of lifting computer equipment. Mr Law considered the plaintiff had suffered a soft-tissue injury to his right elbow and a discal injury to his cervical spine.
[3]PCB 58
16 According to Mr Law,[4] the plaintiff was discharged from physiotherapy treatment in May 2003 as “his progress had plateaued”.
[4]PCB 61
17 According to the plaintiff’s affidavit,[5] he found it difficult to determine whether the pain travelled from his shoulder to the elbow, or the other way around. This early physiotherapy treatment appears to have focussed on the plaintiff’s neck, right shoulder and right arm.
[5]PCB 26
18 The plaintiff continued working, and there is no evidence he took any significant periods off work as a result of any of his injuries, in particular his right elbow injury.
19 According to the report of his treating general practitioner, Dr Chan,[6] he first attended that doctor in May 2004.[7] According to the report of Dr Chan, the plaintiff developed right shoulder and right arm pain because of his lifting of computers in the course of his employment. Initially, a musculoligamentous strain of the right shoulder, radiating down the right arm, was diagnosed. The plaintiff attended Dr Chan intermittently and was prescribed Deep Heat and Voltaren Gel.
[6]PCB 40
[7]It would appear the plaintiff saw Dr Chan earlier, given the reference in the physiotherapy report of Mr Law to a referral in April 2000
20 In September 2005, Dr Chan referred the plaintiff to Dr Yvonne Pun, a rheumatologist. She received a history of constant aching over the upper right scapular region, extending to the right elbow, with numbness into three fingers. She noted that he had not taken any time off work and was managing his duties. He was tender over the neck, right shoulder, right scapular region and over the epicondyle of the right elbow. X-ray of the cervical spine showed narrowing at C6-7 and an MRI scan of the area revealed “severe bony narrowing of C6-C7 neural foramina” with a disc bulge. She noted that he was receiving physiotherapy and chiropractic treatment.
21 The plaintiff continued to attend Dr Pun at regular intervals through 2005 and 2006. He complained of pain in the neck, right shoulder, right elbow and down the arm to the fingers. He reported that in colder weather, the pain became worse. The plaintiff told Dr Pun he found it difficult to use a drill or carry heavy objects in his right hand. She noted he was being prescribed Voltaren by Dr Chan. She suggested a “counterforce band” for what she described as his “right tennis elbow”.
22 The plaintiff reported to Dr Pun that he had hurt his back in December 2006 after lifting approximately ninety computers at the school. He had physiotherapy treatment, and scanning revealed a bulge at L4-5, indenting the S1 nerve root. By 2007, the plaintiff was working intermittently on restricted duties, according to his general practitioner “because mainly of his shoulder condition”.[8] In May 2007, Dr Pun treated him with a three-week course of Prednisolone. It is not clear from her report which injury this sought to address, but it would appear the prescription was for neck and right arm problems.
[8]PCB 43
23 In July 2007, Dr Pun injected anaesthetic and cortisone to the plaintiff’s upper back and right elbow, and he was off work for a short period.[9] These injections provided some relief and the plaintiff said there was less pain at night. He complained to Dr Pun that the right elbow became aggravated when he was lifting and handling files and computers at the school.
[9]PCB 72
24 In September 2007, the plaintiff said that his right elbow had become very painful and swollen, and Dr Pun sent him for an x-ray and ultrasound which showed a large tear of the common extensor origin. The tear measured approximately 8 millimetres. As a result, Dr Pun referred the plaintiff to Mr Warwick Wright, orthopaedic surgeon, whom he saw in September 2007. Mr Wright received a history of progressive right elbow pain since 1999 which was affecting his sleep. On 12 December 2007, Mr Wright operated and performed an ostectomy of the lateral humerus and a ligament reconstruction to repair the common extensor origin. According to his report, the surgery went well and there was satisfactory post-operative recovery.[10] Upon review in June 2008, Mr Wright considered the plaintiff’s recovery was consistent with expectations. He concluded that the plaintiff would not be fit for heavy manual work. The plaintiff undertook physiotherapy to the right elbow to assist in recovery. Dr Pun noted there was a good range of movement, although pain was experienced at the end of the range.[11]
[10]PCB 108
[11]PCB 79
25 The plaintiff saw Mr Wright on a number of occasions in 2008 and 2009. He complained of left wrist and right elbow pain. According to Mr Wright,[12] in 2008, the plaintiff’s main pain was his left wrist, although he had pain in his right elbow upon activity, with weakness of grip strength. Mr Wright thought the plaintiff’s left wrist pain would preclude him from undertaking manual activities. By 2009, the pain in the plaintiff’s left wrist was ongoing and significant.
[12]PCB 109
26 The plaintiff continued under the care of Mr Wright in 2010, when he complained of right wrist pain. On 29 September 2010, Mr Wright performed an arthroscopy to the right wrist which showed a partial tear of the scapholunate interosseous ligament and a partial-thickness dorsal flap tear. Both tears were debrided.
27 The plaintiff continued to consult Dr Pun for his range of conditions, including pain in the right shoulder, neck, right elbow, left and right wrists and, by 2010, his left knee. In addition to other medication that he was taking, she prescribed Glucosamine. She concluded that taking into account all of the plaintiff’s injuries, his prognosis was not optimistic and his various pains were likely to continue.[13]
[13]PCB 98
28 The plaintiff continued working until 2007, although at that time he was having periods away from work and on light duties. He left employment in 2007, and it was formally terminated in 2008. Apart from some modest work for his wife’s computer company, he has not worked from that time to the present.
29 According to the final report of Mr Wright,[14] as a result of his various injuries, the plaintiff was unable to return to pre-injury duties for the foreseeable future. He said he thought there would not be the need for any future treatment and that there was a significant likelihood of ongoing pain and discomfort in the right elbow.
[14]PCB 111-112
30 According to a report of Mr Cheng, surgeon, the plaintiff attended in 2008 complaining of constipation and epigastric pain. Mr Cheng performed a colonoscopy, which showed internal haemorrhoids and a polyp, which he removed. Mr Cheng considered the plaintiff’s epigastric symptoms and rectal bleeding were related to the consumption of pain-relieving and anti-inflammatory medication. He noted the plaintiff was taking medication, including Mylanta and Somac.
31 According to the most recent report of the general practitioner, Dr Chan, he prescribes regular medication earlier referred to. He said the plaintiff continued to suffer from chronic pain in his cervical spine, right supraclavicular region, right shoulder, right wrist, right elbow, right-sided lower back pain and left wrist. More recently, he had also developed pain in the right knee. He noted the plaintiff continued physiotherapy treatment twice per week. He said he was suffering a Chronic Pain Syndrome to the various areas of his body. By reason of the physical injuries, he did not have the capacity to return to pre-injury duties in the foreseeable future and also that those injuries had caused a restriction in the plaintiff’s social, domestic and recreational activities.[15]
[15]PCB 57
32 The consequences which the plaintiff claims to suffer as a result of his injuries are set forth in his affidavits sworn 4 July 2011 and 3 September 2012. Both affidavits address consequences in respect of all of the plaintiff’s various injuries and conditions.
33 The plaintiff says that he suffers severe pain in his right elbow, and also pain in his left and right wrist. As a result, he has difficulty with a range of activities of daily living, including matters of personal hygiene, using a knife to cut food, sometimes opening doors and opening jars and bottles. He says that the pain in his right elbow is mostly responsible for waking him at night. By reason of his range of injuries, his involvement in domestic duties around the house is restricted. He is unable to play tennis or badminton with his children or participate in various of their activities. He does some shopping but is limited in what he can carry in his right hand. He states that he can only work on a computer for about ten minutes before his elbow starts to hurt more than usual. It is difficult to pour water using his right hand. He said, of recent times, he has had severe back pain and pain going down his leg. This was particularly prominent when he attended recent medical examinations. He states that pain from his right shoulder radiates down through the elbow and into his fingers. He has difficulty lifting his right arm above shoulder level.
34 In the course of cross-examination, he accepted that various medications which he takes are prescribed for all of his various symptoms. He accepted that the pain in his elbow comes and goes. His elbow becomes sore if he holds it in a certain position and at a certain angle. The pain was on the outside of the elbow on the bony protrusion. The pain might last five to ten minutes and then go away. The pain goes away if his elbow is at rest. He accepted that his right wrist pain continues and affects him when he picks up a cup or turns the wheel of his car.[16]
[16]T 30, L13-23
35 The pain in his left wrist has been ongoing over the years.[17] In relation to his lower back, he said he got pain every day of the week[18] which restricted a range of his activities. His sleep was affected by not only his right elbow, but his right and left wrists, his right shoulder and his lower back.[19] He accepted that he was unable to do a range of domestic and recreational activities as a result of the injuries to the various parts of his body.[20] After the surgery performed by Mr Wright in 2007, the plaintiff thought that he had a good result.[21] He said before the operation, he felt a deep pain. While the pain remained in his elbow, when it was at rest, it was not as bad as the pain in his wrists and lower back.[22] The plaintiff said that he played guitar from time to time before the operation to his right elbow but was restricted because of the problems with his left and right wrists and elbow.[23]
[17]T 31
[18]T 31, L31
[19]T 32-33, 34
[20]T 47-48
[21]T 49, L10
[22]T 50, L17
[23]T 58
36 In re-examination, the plaintiff said that when the pain on the outer part of his elbow became exacerbated, it reached a level of eight or so out of ten. He got pain at that level four or five times a day. He said the main reason that he took pain-relieving medication was because of the pain in his elbow and wrist.[24] He said the pain which mostly woke him from sleep was his elbow pain.[25]
[24]T 60
[25]T 62, L8
37 Video-surveillance film was taken of the plaintiff in March, August and September 2012. The surveillance was relatively short, and showed the plaintiff walking amongst shops, opening and closing the door of his car, and driving. He appeared to walk and undertake movements in a relatively free and painless manner. I did not consider the surveillance film showed activities of the plaintiff in significant contrast to the claims in his affidavit, and the histories to the doctors. In my view, his credit was not affected to any great extent by the surveillance film.
Medical Opinions
38 There were a large number of medical reports tendered into evidence. I found many of those reports of little assistance in determining the issue of most significance in this application; that is, the consequences emanating from the right elbow injury. Most of the practitioners examined the plaintiff, and reported as to his various injuries and conditions. No one practitioner reported particularly as to the right elbow injury, with the possible exception of the treating surgeon, Mr Wright. No practitioner was asked to examine the consequences of the right elbow injury specifically. I shall not comment on the reports of Mr Kossmann, Dr Hjorth, Dr Horsley, Dr Baynes and Mr Marshall. There is no significant difference between the practitioners as to the nature and extent of the plaintiff’s various injuries, although some practitioners are of the view the plaintiff has a Pain Syndrome. I have already commented on the findings and opinions of the various treating practitioners.
39 Somewhat unusually, the plaintiff was examined by Mr Murray Stapleton, hand surgeon, on behalf of the defendant on 10 June 2010,[26] and then on behalf of the plaintiff. By reports dated 21 April 2011 and 17 October 2012,[27] he reported in respect of the plaintiff’s left and right wrist and elbow. He noted the cortisone injection performed by Dr Pun was helpful and the operative procedure to the right elbow by Mr Wright gave the plaintiff some improvement. In his report of April 2011, he said that because of the injuries to his shoulder, right elbow and both wrists, there was a profound effect upon his working capacity and his social, domestic and recreational activities. In his report of October 2012, he received a history that the plaintiff’s right elbow was tender on the outer aspect if bumped. There was pain with brushing his teeth, although Mr Stapleton noted the plaintiff had regained complete extension of the elbow, but a limited range of flexion. He said, because of the right shoulder and right elbow, the plaintiff was unable to return to manual work, and that his various activities were affected.
[26]DCB 43
[27]PCB 117-121
40 The plaintiff was examined on behalf of the defendant by Dr Phillip Mutton, occupational physician, in 2009. On examination of the right elbow, he found a mild degree of tenderness and little in the way of ongoing signs of tennis elbow. He thought that, following the surgery performed by Mr Wright to the right elbow, there was a significant resolution of the symptoms in that area. He thought the plaintiff was pain focussed and had developed a Pain Syndrome.
41 By letter dated 17 December 2009,[28] Dr Mutton considered that, as a result of favouring his right arm, in particular because of the right elbow surgery, the plaintiff aggravated the pain in his left wrist. He said that responsibility for the left wrist primarily related to the earlier transport accident and the surgery which followed.
[28]DCB 41
42 The plaintiff was examined by Dr Mary Wyatt, occupational physician, in September 2011 and August 2012. On the first occasion, she found examination of the right elbow showed normal movement,[29] although there was tenderness through the right forearm. Provocation tests for lateral epicondylitis were negative. She also accepted that the left wrist had become aggravated because of the favouring of the right arm, although she thought the problem would be temporary. She thought there were non-physical factors in relation to his right arm, although said that by reason of his right elbow and right arm problems, it would be difficult for him to return to heavy manual work. In 2012, she noted that movements of his elbow were normal, with tenderness over the outer aspect, and muscles of the forearm.[30]
[29]DCB 49
[30]DCB 55
43 The plaintiff was examined in 2011 and 2012 by Mr Michael Polke, orthopaedic surgeon. In 2011, he noted tenderness over the right elbow and provocation tests for lateral epicondylitis were positive.[31] He considered the plaintiff was suffering a Chronic Pain Syndrome in relation to his various injuries.
[31]DCB 62
44 Mr Peter Scott, surgeon, in his report of 31 July 2012, noted there was a full range of movement in the plaintiff’s right arm. He said there was no evidence of any ongoing lateral epicondylitis of the right elbow and there was a full range of painless movements in the right forearm.[32]
[32]DCB 79
Conclusions
45 This is a difficult application to determine because of the range of injuries and conditions which the plaintiff has suffered to his neck, right shoulder, left and right wrists, lower back and, to a lesser extent, right knee. It is no easy matter to determine the consequences which arise specifically as a result of his right elbow problem. Most of the consequences to the plaintiff have a multiplicity of causal injuries.
46 There is no issue that the plaintiff suffered an injury to his right elbow arising out of his employment. He was required to carry out heavy manual duties which led to a significant tear to a tendon of the right elbow. That injury required an injection by Dr Pun, and surgery carried out by Mr Wright in the nature of an ostectomy, ligament reconstruction and tendon repair. It appears from the evidence of the plaintiff, and the reports of Mr Wright, that the plaintiff made a reasonable recovery from that surgery, although was left with ongoing pain and some weakness of the right elbow.
47 The two affidavits of the plaintiff give a reasonable account of the problems with his right elbow, and the various other injuries. However, the plaintiff’s complaints in his affidavit that the pain in the right elbow is severe are not consistent with the histories provided to the more recent treating and consultant practitioners to which I have referred. I accept that he does suffer pain to the right elbow, but do not accept that it is severe.
48 It is difficult to isolate the various domestic, recreational and sporting activities which have clearly been affected, to the right elbow. In my view, all of the various activities referred to, including the capacity of the plaintiff to play his guitar, play recreational tennis or badminton with his children, open jars, doors and hold objects, are all affected by the injuries to his shoulder, right wrist and elbow. In my view, all those injuries contribute to his incapacity.
49 Likewise, the need for him to take substantial quantities of pain-relieving and anti-inflammatory medication is as a result of all of his injuries, and not just the right elbow. As a consequence, he has suffered significant problems with epigastric pain and bleeding, and has required treatment. Again, however, this is to do with all of his various problems.
50 In the course of re-examination, the plaintiff did say that the main reason for the taking of medication and for his sleep problems was the right elbow. However, I found this questioning somewhat artificial, and if this was really the case, I would expect complaints to, in particular, his treating doctors to that effect. There is no opinion amongst any of the practitioners that his right elbow pain is the worst or most substantial of his various problems. He was not asked in the course of evidence as to which of his problems was the most significant in terms of pain, or which caused the most disability.
51 It is clear that his various conditions have fluctuated. No doubt around the time of his right elbow surgery, that area was a significant problem. Around the time of the arthroscopy to his right wrist in 2010, that was a significant problem. Of more recent times, his lower back appears to be particularly debilitating. However, the more recent examinations have indicated that the plaintiff has a relatively free range of movement in the right elbow and with tenderness rather than extreme pain.
52 I bear in mind that the onus is upon the plaintiff to satisfy the Court that the consequences of the stated injury achieve the “very considerable” level. I am not satisfied from the evidence before me that the plaintiff has satisfied that onus.
53 As was said in Jayatilake v Toyota Motor Corp Australia Limited,[33] it is not a matter of making an assessment of the consequences which flow from each of the plaintiff’s various individual injuries or conditions. Rather, it is a question of focussing upon the plaintiff’s subject injury and determining whether the consequences which flow from that injury reach the “very considerable” level as the legislation prescribes. No more disentangling or stripping away than that is necessary. Applications involving multiple injuries, in particular to the one limb, are always difficult because so many activities require the use of, in this case, the shoulder, elbow and wrist. It is, nonetheless, still a matter for the plaintiff to prove that the consequences flowing from the elbow meet the test. Even accepting that the plaintiff has some ongoing pain in the elbow which, in my view, is intermittent, and that, to some extent, that pain has:
[33][2008] VSCA 167 at paragraphs [19]-[21]
· affected his capacity to undertake manual work
· restricted some recreational and sporting activities
· caused the ingestion of anti-inflammatory and pain-relieving medication
· affected his sleep
· restricted his capacity to perform domestic activities, including matters of personal hygiene and various domestic tasks
· affected his capacity to use a computer
· caused some aggravation to his left wrist problems because he was favouring the right limb;
nonetheless, I am not satisfied that, when the focus is directed specifically to the right elbow, the consequences achieve the “very considerable” level.
54 Accordingly, the plaintiff’s application is dismissed.
55 I shall make consequent orders.
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